Applying Political Theory

Also by Katherine Smits

Reconstructing Post-Nationalist Liberal Pluralism: From Interest to Identity

Applying Political
Theory
Issues and Debates
2nd Edition

Katherine Smits
© Katherine Smits 2009, 2016
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For Marty, Julia and Sophie
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Contents

List of Boxes and Tables xii

List of Cases xiv
Preface xvi

1 Introduction 1
Approaches to political theory 3
Normative concepts or values 7
Theoretical paradigms and frameworks 13
The structure of this book 19

2 How Should Resources Be Distributed?

Taxation, Welfare and Redistribution 21
Redistribution and the right to private property 26
Equality and the case for redistribution 30
Bad luck or bad choices? 34
Ensuring human capabilities 37
Sustaining communities through redistribution 40
Conclusion 42

3 Are Minority Cultures Entitled to

Recognition and Rights? 44
Cultural rights versus individual freedom 50
Deconstructed identities 53
Group rights and cultural change 53
Defending cultural rights: Autonomy and the
role of culture in personal identity 54
Societal cultures and ethnic groups 58
Intrinsic rights for minority cultures 59
Group interests versus the common good 61
Interculturalism 62
Cultural rights versus egalitarian distribution 62

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viii | Contents
Cultural rights versus gender equality 63
Conclusion 66

4 Is Affirmative Action Fair? 67

Weak and strong affirmative action 71
The case in favour: Justice and fairness 73
The case in favour: Positive consequences 76
The case against: Justice and fairness 80
The case against: Negative consequences 83
Conclusion 85

5 Should Prostitution and Pornography

Be Legal? 87
The conservative case against prostitution and
pornography 92
Community values and sex work 94
Sex as a commodity 94
Marriage and prostitution 95
False consciousness 96
The feminist case against pornography and
prostitution 97
Liberty, contract and sex work 101
Feminist arguments for sexual freedom 104
Conclusion 107

6 Should Same-Sex Marriage Be Legal? 109

Same-sex marriage and gay and lesbian rights 112
The freedom of contract argument 114
Liberal arguments, rights and the role of
marriage 115
Communal values and moral argument 119
Conservative opposition 121
Radical opposition to marriage 123
Conclusion 125

7 Should the State Prohibit Abortion

and Euthanasia? 126
Abortion law 127
Morality and politics 131
The foetus as a person and the case against
abortion 132
Self-ownership and bodily rights 133
 Contents | ix
Distinguishing human life from personhood 133
Women’s rights and the feminist defence of
abortion 136
Care and our duties to others 138
Abortion and sexual inequality 138
Dealing with the divide over abortion:
Pluralism and toleration 140
Euthanasia 141
Autonomy, liberty and the right to die 144
The limits of autonomy and the value of
‘bodily life’ 145
Utilitarian arguments in favour of assisted suicide 146
The consequences of legalizing physician-
assisted suicide and the ‘slippery slope’ 147
Conclusion 148

8 Should Offensive Speech Be Regulated? 150

The civil libertarian argument against regulating
speech 157
Freedom of speech and good self-government 160
Democratic self-government and the case
against offensive speech 160
Freedom of speech ‘rights’ versus the
community ‘good’ 162
Free speech versus the recognition of cultural
minorities 164
Offensive speech and personal harm to group
members 165
Conclusion 167

9 Should Civil Liberties Be Restricted in

Responding to the Threat of Terrorism? 169
Liberty and security: Framing the debate 175
State power and the protection of citizens 176
The dangers of state power 178
The democratic process and checks on
executive power 180
The fundamental role of liberties 182
The selective impact of anti-terrorist measures
on minorities 183
Security and liberty: Critical perspectives 184
Conclusion 186
x | Contents
10 Is Leaking Classified Material Justified? 187
Whistleblowing 190
Civil disobedience 192
The rule of law and political obligation 194
Civil disobedience on the grounds of conscience 197
Civic and democratic defences of civil
disobedience 198
The case for regarding the leaking of classified
materials as civil disobedience 201
Against recognizing the leaking of classified
materials as civil disobedience 203
Conclusion 205

11 Should Rich Countries Give More

Foreign Aid? 207
Ethical arguments for redistribution to the
world’s poor 212
Social cooperation and the limits of justice 214
Nationality and particular obligations 217
Arguments against international aid 219
Justice and obligation between nations 220
Conclusion 225

12 Can Military Intervention into Other

Countries Be Justified on Humanitarian
Grounds? 227
Shifts in international political attitudes
towards humanitarian intervention 231
Intervention and international law 232
State sovereignty 234
Community membership and external
assistance 236
Community membership and the case for
intervention 239
Just War 240
Justifying intervention: the cosmopolitan
argument 241
Conclusion 244

13 Should the Natural Environment Be

Protected for Future Generations? 246
Nature as an intrinsic good 252
Ecofeminism 253
 Contents | xi
The utilitarian case for conserving resources 255
Egalitarian arguments for conservation 256
Future generations and rights 258
Natural environments and communities 259
Private property and leaving ‘enough’ for
others 260
Egalitarianism and the limits of justice 261
Conclusion 264

Bibliography 266
Index 283
List of Boxes and
Tables

Boxes
2.1 Inheritance tax 24
2.2 taxation and redistribution: Competing norms and
values 41
3.1 The headscarf controversy in France 46
3.2 Recognizing minority cultures: Competing norms
and values 65
4.1 The University of Michigan cases 69
4.2 Affirmative action: Competing norms and values 85
5.1 The Dutch and swedish approaches to prostitution 89
5.2 Prostitution and pornography: Competing norms
and values 107
6.1 The UK Marriage (same sex Couples) Act (2013) 110
6.2 same-sex marriage: Competing norms and values 124
7.1 Abortion and sex selection 129
7.2 Abortion and euthanasia: Competing norms
and values 148
8.1 Freedom of speech in social media 154
8.2 Regulating offensive speech: Competing norms
and values 167
9.1 Deterring home-grown fighters for terrorist
organizations abroad 173
9.2 Restricting civil liberties to combat terrorism:
Competing norms and values 185
10.1 The occupy movement 193
10.2 Leaking classified materials as civil disobedience:
Competing norms and values 205
11.1 The Millennium Development Goals 209
11.2 Global redistribution: Competing norms and values 224

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 L I s t o F B o x e s A n D tA B L e s | xiii
12.1 Human rights abuses in sudan 231
12.2 Humanitarian intervention: Competing norms
and values 244
13.1 Animal rights 254
13.2 Protecting the natural environment for the future:
Competing norms and values 264

Tables
11.1 The Distribution of Global Gross national Income
Per Capita, 2014 (measured in Us dollars, including
top- and bottom-ranked countries) 208
11.2 Aid as a Percentage of Gross national Income (2014) 211
13.1 Carbon Dioxide emissions per Capita in Metric tons
(2011), and whether they rose (<) or fell (>) from the
previous year 251
List of Cases

Airedale NHS Trust v. Bland (UK House of Lords) 1992

Baehr v. Lewin (state supreme Court of Hawaii) 1993
Beauharnais v. Illinois (Us supreme Court) 1952
Boumediene v. Bush (Us supreme Court) 2008
Brandenburg v. Ohio (Us supreme Court) 1969
Brandon Mayfield v. USA (Us District Court) 2007
Canada (AG) v. Bedford (Canadian supreme Court), 2013
Carter v. Canada (supreme Court of Canada) 2015
Chaplinsky v. New Hampshire (Us supreme Court) 1942
Cruzan v. Director, Missouri Department of Health (Us supreme Court) 1990
Fisher v. University of Texas at Austin (Us supreme Court) 2012
Gonzales v. Carhart (Us supreme Court) 2007
Gonzales v. Oregon (Us supreme Court) 2003
Goodridge v. Department of Public Health (Massachusetts state supreme
Court) 2003
Gratz v. Bollinger (Us supreme Court) 2003
Gruter v. Bollinger (Us supreme Court) 2003
Hamdi v. Rumsfeld (Us supreme Court) 2004
Humanitarian Law Project et al. v. Gonzales (Us Court of Appeals) 2005
In re Marriage Cases (California state supreme Court) 2008
Korematsu v. United States (Us supreme Court) 1944
Lawrence v. Texas (Us supreme Court) 2003
Liberty and Others v. the Security Service, SIS, GCHQ (Investigatory Powers
tribunal) 2015
Mabo v. Queensland (no. 2) (High Court of Australia) 1992
Marschall v. Land Nordhein-Westphalen (european Court of Justice) 1997
Miller v. California (Us supreme Court) 1973
National Socialist Party of America v. Village of Skokie (Us supreme Court)
1978
Obergefell v. Hodges (Us supreme Court) 2015
People v. Freeman (California state supreme Court) 1988
People v. Kimura (L.A. County superior Court, California) 1985

xiv
 LIst oF CAses | xv
People v. Kong Pheng Moua (Fresno County superior Court, California) 1985
Piscataway Board of Education v. Taxman (Us Federal Court) 1996
Planned Parenthood v. Casey (Us supreme Court) 1992
Pretty v. The United Kingdom (european Court of Human Rights) 2002
R. v. Butler (supreme Court of Canada) 1992
R. v. Keegstra (supreme Court of Canada) 1990
Regents of the University of California v. Bakke (Us supreme Court) 1978
Roe v. Wade (Us supreme Court) 1973
Schenck v. United States (Us supreme Court) 1919
Schuette v. Coalition to Defend Affirmative Action (Us supreme Court) 2014
Snyder v. Phelps (Us supreme Court), 2011
The Queen on the application of Mrs Diane Pretty v. Director of Public
Prosecutions (UK House of Lords) 2001
US v. Windsor (Us supreme Court), 2013
Vacco v. Quill (Us supreme Court) 1997
Washington v. Glucksberg (Us supreme Court) 1997
Wisconsin v. Yoder (Us supreme Court) 1972
Preface

Although there is now an expanding literature on political theory, including sev-

eral texts aiming to introduce the field to students, there are surprisingly few vol-
umes that focus centrally on the applicability and application of political theory
to key problems in contemporary politics. This book is intended to fill that gap.
It offers a concise and accessible account of the contribution that political theory
can make across a very wide range of pressing and controversial political issues.
With this in mind, I have made a conscious decision not to try to duplicate
the excellent introductions to modern political theory already in print (for
example, Heywood 2015, shorten, 2016) or the history of political thought (such
as Morrow, 2005). I sketch a brief overview of contemporary political theory
in the Introduction, but focus in subsequent chapters on political ideas as they
relate to, explain and illuminate each specific issue. This book is designed to be
used in one of two ways: first, as a freestanding single text for courses specifi-
cally focused on issues, whether at a first-level introduction or pitched at a more
advanced level and building on a first-level course covering theories and con-
cepts. second, it may be used in conjunction with texts such as those of Andrew
Heywood, Andrew shorten and John Morrow for courses in which applications
of theory are a smaller element.
I have been inspired to write this book by the many politics students I have
taught in new Zealand and the United states who wanted to know how abstract
political ideas were relevant to the real world. I am indebted especially to stu-
dents in my modern political thought and social justice classes at the University
of Auckland, who in their questions, comments and essays have challenged me
to think about the relationship between political theory and the issues and con-
troversies of the day, both local and global.
I wish to acknowledge the Faculty of Arts at the University of Auckland,
which granted me research and study leave in which to work on this book. I am
grateful for research assistance to Laura Murray, Cameron Pritchard and Bella
Waugh. Thanks to my colleagues in Politics and International Relations at Auck-
land, steve Winter and Anita Lacey, who read drafts of chapters and provided
insightful and thought-provoking comments and suggestions. steven Kennedy

xvi
 P R e FA C e | xvii
at Palgrave has been a constant source of encouragement and canny advice, and
just the right degree of flexibility with deadlines.
For the second edition: thanks to Maria tanyag for research assistance, and to
Martin Wilkinson for a helpful discussion about Chapter 10. I am grateful also
to Lloyd Langman and the editorial team at Palgrave for their patience.
My husband Marty Wechselblatt has been, as ever, my most helpful critic and
adviser, reading drafts of every chapter, and prompting me to write in a clear and
accessible style. I am grateful always for his unfailing support, and for that of my
daughters, Julia and sophie, and I dedicate this book to them.

KAtHeRIne sMIts
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1

Introduction

● ApproAches to politicAl theory

● NormAtive coNcepts or vAlues
● theoreticAl pArAdigms ANd frAmeworks
● the structure of this book

The first few years of the twenty-first century have delivered a succession of
shocks to liberal democratic societies, threatening security and economic
stability, and challenging many of our assumptions about the relationships
between individuals, states and the global community. The terrorist attacks
of September 11, 2001 reshaped security concerns and priorities for liberal
democracies, both at home and in foreign policy. The Western military inter-
ventions in the Middle East that followed 9/11 continue to influence our
debates about security, freedom and citizens’ duties to the state, and our duties
to people beyond state borders. Many nations have passed legislation designed
to identify terrorists and prevent attacks. Critics have protested that these
laws are unjustifiable encroachments on the civil liberties that define liberal
democracies. Is it acceptable to tap phones if a government authority thinks
that doing so might identify people planning terrorist attacks? Can we justify
holding people for long periods without warrants and evidence, in defiance
of the traditional protection of habeas corpus? Should we think of ‘balancing’
liberty with security? Or, to ask one of the most central questions of modern
politics: how extensive should the reach of state power be? Should it extend
beyond national borders?
More recently, in the upheavals in the Middle East that followed Western
military intervention, civil war and the rise of terrorist and extremist groups
have prompted unprecedented refugee flows into Europe. As Western countries
grapple with their humanitarian duties to those across national borders, popular
anti-Islamic feeling in many countries fuels debates about the record and pros-
pects of multiculturalism, and produces panic about Western citizens support-
ing terrorist groups at home and abroad.

1
2 | A p p ly I n g p O l I t I C A l t h E O r y
At the end of the first decade of this century, the world economy slipped into
depression, accompanied by soaring prices and collapsing house values and sav-
ings, even in developed countries. global growth slowed despite massive govern-
ment bailouts in Western countries, and economic inequality increased, both
within and between countries. Even now that the world’s wealthy countries have
largely emerged from the global Financial Crisis, its effects continue to be felt
in countries like greece, which declared in 2015 that it was unable to meet debt
repayments, thus prompting new debates about the effectiveness of economic
austerity policies.
The global Financial Crisis that precipitated the recession and its wider social
effects raise many of the most fundamental questions we ask in politics. Some of
these are practical: how did this economic crisis come about, and how can it be
solved? But normative questions – those which address whether principles, poli-
cies and legislation are right, just or fair – are just as crucial. These include: how
should the world’s resources be apportioned? Should wealth be redistributed
within nations to reduce inequality? What, if any, are the obligations of people
in developed and rich nations to the poor in the developing world? And should
we conserve and protect scarce resources for future generations?
The questions raised by these events are some of those that we consider in
this book. But we also examine from a normative perspective other policy issues
which, while not so immediately pressing, have led to deep and widespread pub-
lic controversy which has become embedded in public life. Many of these have
a long history, but the lively debate around them in our own time reflects both
the ethical and philosophical pluralism, and the participatory politics of modern
liberal democracies. Should abortion and euthanasia be legal? how much power
should the state have to regulate people’s decisions about the beginning and end
of life? Should prostitution and pornography be legal? What are their implica-
tions for the equality of women? Should people be allowed to make free deci-
sions that might run counter to community morality, or that might indirectly
allow the exploitation of others to continue? Then there are issues that arise from
the cultural, social and ethical diversity of many modern states. Should minority
cultures be protected with special rights? Should people be allowed to say what-
ever they like about other cultures and groups? Should we try to compensate for
historical injustices to minorities with affirmative action? Should institutions
like marriage be extended to same-sex couples?
These are the kinds of questions which political theory can help us to grapple
with, and it is the purpose of this book to explore the ways in which political the-
orists and philosophers have approached some of these particularly important
and controversial policy problems. political theory, especially normative theory,
is sometimes imagined as being a separate field of enquiry from politics or politi-
cal science. It’s deceptively easy to think of theory as being divorced from reality,
as dealing with utopian ideals rather than the ‘real world’ of empirical facts. This
distinction between facts and values was formulated by the nineteenth-century
 IntrOduCtIOn |3
german sociologist Max Weber, who argued that social scientific analysis could
never establish the truth of values or normative claims (1946). Without disa-
greeing with Weber, we will see in the chapters that follow that political theory
can help us to understand the principles and assumptions that underlie political
arguments and claims, and also to see that the empirical world of politics looks
very different from different theoretical perspectives. Our theoretical concepts
and paradigms guide us in making political judgements, but they also help us to
sort and make sense of the political world.

Approaches to political theory

political theory is as old as the study of politics itself; in fact, until the Enlighten-
ment, scholars did not distinguish between the analytical description of politics
and prescriptions for good government. today we distinguish between the study
of past political thought as a strand in the history of ideas on the one hand, and
contemporary political theory or philosophy on the other. This does not mean
that contemporary theory does not make reference to the ideas of philosophers
in the past; in this book we will often refer to the ideas of historical thinkers. But
we will consider the arguments they raise, and the concepts they explain not in
their original historical context, but rather as ideas and arguments that influence
our own thinking today. (For a more detailed discussion of key thinkers in the
history of political thought, see Morrow, 2005.)
Contemporary political theory – and here we include authors writing from
the twentieth century onwards – is often divided into two loose categories: nor-
mative, and empirical or descriptive. Empirical or descriptive theory sets out to
explain the way political phenomena work, by exploring the ideas that shape and
structure political processes, institutions and practices. normative theory, as we
have seen, is concerned with the way politics ought to work. The division between
these, as we shall see, is not always clear-cut. In the past three decades European
political and social theory has become more influential in the English-speaking
world, and so we might add to our two categories critical theory, which pays
particular attention to the way ideology and culture reflect and maintain hier-
archies of power, and postmodernism (or poststructuralism), which asserts that
the subjectivities and structures which make up our social and political worlds
have no fixed and determined existence (see heywood, 2015 for a more detailed
discussion of these schools of thought). I discuss some of the contributions of
an important strand of European social theory, the work of Michel Foucault,
and postmodernism below. descriptive or empirical theory was dominant in the
study of political theory in English-speaking countries until the 1970s – some
lamented the ‘death of political philosophy’ in the 1950s (laslett, 1956) – but
since then, political philosophers have examined the ethical problems of public
life, and normative theory has re-emerged as a vital field. This meant a revival of
4 | A p p ly I n g p O l I t I C A l t h E O r y
interest in questions of justice, sparked largely by the publication of John rawls’ A
Theory of Justice in 1971. rawls’ work makes a contribution to most of the debates
which we consider in this book.
It’s important not to overstate the distinction between these sub-categories
of political theory. Every normative theoretical framework rests upon and
assumes an analysis of how the political system works, what constitutes human
nature and how individuals and groups behave in public life. Feminism (see
pp. 16–17), for example, incorporates both an analysis of gendered power
relations, and a prescription for a more just and gender-equal society. Marx-
ism (pp. 15–16) comprises a critique of how economics and ideology function
under capitalism, and a prescription for a more just and classless society. Both
of these could also be described as critical theories, as they are concerned with
the relationship between ideology and the exercise of social power. In this book
we will concentrate on normative political theory, because our aim is to see how
theory can help us to answer the crucial questions about how our public lives
together should be organized. Most of the chapters here begin with ‘should’,
and are answered by considering different ideas about what is good and right.
normative political theory is concerned with the relations between individuals,
groups and institutions in civil society and governments. It asks: how much
power should the state have over individuals and groups? Where should the
boundaries between public and private life be drawn? how should individuals
and groups treat each other in their interactions? normative political theory
aims to identify, establish and defend principles and values that guide answers
to these questions.
What is distinctive about normative political theory, rather than ethical theory
more broadly, is that it applies to a public world which is ethically pluralist:
different understandings of what is right and good exist inevitably amongst
citizens. There are two ways of responding to this. First, we might argue that no
agreement on substantive ethical goals and practices is ever likely to be reached
in society. Therefore, the state should not endorse any particular moral goals or
ideals. Instead, citizens should aim to make only those political rules and deci-
sions which we can justify to each other using ‘public reason’ – that is, using
reasons and arguments which we all agree are legitimate, even if we choose not
to follow them ourselves. Thus we distinguish our private moral convictions
from what we agree to in public life. rawls endorses this approach in Political
Liberalism (rawls, 1993) and it is often defended by liberal political philoso-
phers. Alternatively, we might argue that some substantive political values, such
as individual liberty or autonomy, are so central and important, that we should
always be guided by them, and try to foster them, in every political rule and
decision that we make. This is a ‘perfectionist’ approach to normative political
theory, endorsed by some other liberal philosophers (raz, 1986). This distinc-
tion emerges in Chapters 3, 5, 6, 7 and 8.
 IntrOduCtIOn |5
We will mainly use the term political theory in this book, but most theorists
and philosophers treat it as interchangeable with political philosophy. distinc-
tions are sometimes drawn between them, but these vary, and in fact any real
difference tends to reflect institutional factors, particularly the way that the dis-
cipline of politics or political science has developed as an academic discourse
in particular countries and university systems, rather than any fundamental
difference in their concerns or approaches. The academic authors whom we
will discuss generally come from the wider study of political science, in which
case they tend to describe their work as political theory, or from philosophy,
in which case they might refer to their work as political philosophy. But they
address the same problems, using the same theoretical concepts and frame-
works (see more on these below). We will also discuss work by legal and social
theorists, when they address political problems using the same normative
concepts.
We have used the term political theory so far to describe a field of study.
But it is also commonly used to refer to particular theories that establish
frameworks linking normative values and explanatory concepts. We explore
different types of political theories in this book. liberalism (pp. 14–15),
conservatism (pp. 17–18) and socialism (pp. 15–16) are studied as political
theories, but also often as ideologies: systems of ideas that underpin and jus-
tify political movements, power structures and forms of government. Some
theoretical frameworks, such as nationalism (p. 18) and cosmopolitanism
(p. 19) address explicitly the relationship between individuals and political
communities. Others, such as feminism, address this but are also importantly
concerned with social and personal relations more broadly. Some philosophi-
cal frameworks, such as utilitarianism (p. 19) propose ethical arguments that
apply to our actions in both public and private life, but do not defend particu-
lar political systems. Our primary interest here is in the way all of these operate
as explanatory frameworks or paradigms systematically linking concepts and
values, and providing arguments for state action or restraint, and individual
and social action in the public sphere. I outline these frameworks below. As
we shall see, however, their boundaries are often not very clearly defined, and
in many cases there is considerable internal variation within each, and overlap
between them.
liberalism is a case in point. As a theoretical framework of ideas, liberalism
emerged in the late seventeenth century in response to religious pluralism, the
development of capitalism and the modern state, and the emergence of the idea
that individuals have fundamental moral and political value. As a set of ideas,
it has developed in many different directions over the subsequent 300 years. In
contemporary politics now, liberalism supports socially and morally progres-
sive agendas. But on economics, it might be associated with state regulation and
intervention designed to achieve equality of opportunity, or with laissez-faire
6 | A p p ly I n g p O l I t I C A l t h E O r y
free-market policies. It is impossible to pin down one liberal position on many
issues, as we shall see in this book. Similarly, feminists may be found on each
side even of issues which directly concern women, such as pornography and
prostitution. The reason for this is that the values that these frameworks centre
around may be interpreted in different ways. Some feminists interpret freedom
to include, crucially, freedom of sexual expression; others argue that such free-
dom is always illusory in a patriarchal society. liberalism, for example, is built
around the key norm of individual freedom. But which freedom is more impor-
tant: that of an individual to do what they choose with their own property, or
that of individuals to be able to develop their talents and achieve according to
their potential? They are not necessarily compatible, as debates over redistribu-
tion (Chapters 2 and 11) show.
At the same time, theoretical frameworks do not take particular positions on
all issues. They developed to address particular sets of questions, and are not
always concerned by or equipped to answer others. So we find that Marxism,
for example, does not address some contemporary social issues like same-sex
marriage, or abortion, as these do not fit easily into the economic analysis with
which it is primarily concerned. Other frameworks, like liberalism, have devel-
oped to deal with a wider range of issues.
For these reasons, this book does not focus on the theoretical frameworks
themselves. We will refer to them as they are relevant and helpful in organ-
izing groups of thinkers on particular values, but with respect to some issues,
such as humanitarian intervention and civil disobedience, we will make only
occasional reference to them. Our focus throughout will be on the concepts
and values around which theoretical frameworks are organized. Because we are
primarily applying normative theory here, to help us judge what we should do
with respect to political problems, we will concentrate on political values: ideas
about what is good, right and important in political life. The key values that
appear in these chapters include liberty, autonomy, equality, justice, the role
of the state and the common good. These can all be interpreted in many ways,
and the different interpretations of what they mean, and the different weights
assigned to them, shape a range of theoretical frameworks. We will also at some
points draw on critical theories to reveal the power relations which underlie
normative claims.
This book applies the values and theoretical frameworks of political theory to
real-world political issues. But we should remember that these concepts, values
and frameworks emerged in the first place as a result of thinkers wrestling with
these issues. Feminism developed because women confronted the reality of their
subordination to men – and this included issues like abortion, prostitution and
pornography. liberalism developed because people were concerned about the
power of a centralizing state over their freedom of speech and civil liberties.
What we aim to do here is to shift the focus of these theoretical frameworks back
to the real-world problems out of which they emerged.
 IntrOduCtIOn |7
Normative concepts or values
Much of the debate over the issues we address in this book turns on different
interpretations and weights assigned to some key values. We look at these in
more detail here.

Justice

Justice is one of the oldest concepts in Western political theory – plato’s

Republic, written in the fourth century BCE (plato, 1981), is an extended
discussion of the question: what is justice? Justice, for plato, was to be found
in good and orderly government, by those who are wisest and best suited for
government. Aristotle, writing after plato, divided justice into two categories:
corrective, which deals with what we would call criminal justice, and dis-
tributive, which deals with the allocation of goods in society (1976). In both
cases, justice depended on the concepts of desert (what we deserve), and its
purpose was to enable people to lead good and satisfying lives. What makes a
just society is the main concern of normative political theory, and shapes and
evaluates the complex relationships between the state, groups in civil society
and individuals. In contemporary political theory, social justice is understood
to be expressed or embodied in laws, in economic structures and in social and
political attitudes and practices. It addresses two broad sets of questions: first,
how does the state treat individuals and groups, what status and recognition
does it allow them, and second: what are the principles by which social goods
are distributed?
The first question of justice is often short-handed to recognition. In the pre-
modern world, people were treated as natural members of classes or groups,
arranged in political and social hierarchies which were understood to be natu-
ral or given by god. In the modern world, since the emergence of liberalism,
people are understood to be equal and deserving of respect and recognition as
individuals. At the same time, they are also members of groups which, it may be
argued, deserve equal recognition and respect so that their individual members
are treated equally. philosophers have grappled with this problem and, as we
shall see, it is a central question for feminism, multiculturalism, nationalism and
cosmopolitanism. distributive justice deals with the second set of questions:
how the goods in society are allocated. In a premodern world, distribution was
linked to the membership in social class and place on the social hierarchy we
discussed above. In a modern world, principles of distribution include merit,
fairness, equality, equality of opportunity and need. Questions of distributing
resources arise at the both the national and global level, and are central for liber-
als and socialists. All of the theoretical frameworks we refer to here address one,
if not both, of these categories.
8 | A p p ly I n g p O l I t I C A l t h E O r y
Rights

rights can be defined in modern politics as our entitlements to act or to be

treated in a particular way (heywood, 2015). Individuals assert their rights
against the state (these claims are often expressed as liberties) or against other
people. rights are understood to derive either from law (positive rights) or from
claims to a higher authority, such as nature or god (natural rights). (We discuss
the natural-law tradition in Chapters 6 and 7.) In contemporary politics, uni-
versal human rights are a modern and secular expression of natural rights. The
distinction between positive and natural rights maps onto one dealing with the
scope of rights: positive rights are specific to particular political communities
and laws, while natural or human rights apply to all universally. (We consider
questions of the scope of universal rights in Chapters 7, on abortion, and 13, on
justice for future generations.) rights claims have particular normative power in
modern political discourse, where they are regarded, in ronald dworkin’s term,
as ‘trumps’ (1984). As we shall see, political controversies often centre on the
weighing up of rights with other considerations, such as security (see Chapter
9), or the weighing of the rights of some individuals or groups against those of
others (see Chapters 3, 4, 5 and 8).

Liberty

political theory is concerned with the liberty or freedom of individuals from

state action, and in relation to other people. liberty has been a fundamental con-
cern of liberal political philosophy since seventeenth- and eighteenth-century
theorists first explicitly defended individual freedoms against the state and the
Church. Following the twentieth-century political philosopher Isaiah Berlin
(Berlin, 1969), we can distinguish two different forms of liberty. negative liberty
refers to the freedom of individuals from restraints – usually the laws of the state,
but including the pressures of public opinion. political theorists who emphasize
negative liberty are concerned with the constraints that collectivities impose on
individual expression and action, and the particular dangers that government
and public opinion can pose in pluralist societies. positive liberty refers to the
freedom of individuals to develop their capacities, to act autonomously – that
is, under no one’s direction but their own – and to maximize their individual
potential. This includes our freedom to participate in making our own laws,
and to govern ourselves. positive liberty theorists usually emphasize the value
of collective life in enabling individual liberty. Critics often allege that the posi-
tive liberty position allows the state and society determining control over the
individual. Critics of negative liberty argue that it does not take into account the
different value to us of different freedoms and restraints.
 IntrOduCtIOn |9
Some contemporary theorists have developed negative liberty into a republi-
can conception of liberty, which emphasises the importance of political arrange-
ments to freedom: we are free if we live in a society in which political institutions
protect us from domination – that is, from the exercise of arbitrary power
(pettit, 1997). Critical and postmodernist theorists following French philoso-
pher Michel Foucault, by contrast, argue that the very conception of freedom
in liberal democracies is constructed by states and other authorities to reinforce
their domination. Freedom consists always in a struggle against the domination
and discipline of institutions (taylor, 1984). All the theoretical frameworks we
discuss here share a concern for liberty, but they differ on the way in which they
define it, and the relationship they prescribe between individual liberty and other
values. Feminists, for example, think that individual liberty must be assessed in
the context of a social, cultural and economic system that systematically repre-
sents male interests, and privileges men. libertarians, or classical liberals, see
individual negative liberty as the determining value in politics. It’s important to
note that whichever conception of liberty is used, no political theory defends
absolute liberty for individuals – it must at a minimum be compatible with the
liberties of others. But there is a wide range of views among political theorists on
whether – and how much – liberty should be restricted to allow for other social
goods, such as national security or equality.

Individual autonomy

Autonomy refers to the ability of individuals to act freely as agents, making their
own decisions and shaping their own lives. Autonomy as a concept is obviously
related to liberty: positive liberty is necessary for autonomy, but may not be
enough. Some theorists have argued, as we see in Chapter 3, that individuals
also need a range of options to choose from in order to be autonomous. This
means that individuals require access to social and economic opportunities,
as well as, some multiculturalist theorists argue, access to the intact cultural
context in which they are embedded. The question of the relationship between
individual autonomy and collective membership is a key problem in modern
debates over autonomy. For many liberals, autonomy requires the ability of indi-
viduals to critically evaluate and either accept or reject the values and norms of
the communities they inhabit. (perfectionist liberalism argues that autonomy is
a fundamental human value even for peoples and cultures who do not value it
themselves.) Multiculturalist liberals, as we noted above, emphasise that those
norms and values must be fully protected in order for such choices to take place.
Communitarians and some feminists have been critical of liberal conceptions
of autonomy which, they argue, do not reflect the real way in which individual
identities are shaped and located in a network of communal relations.
10 | A p p ly I n g p O l I t I C A l t h E O r y
This concept of the social construction of identity, and its impact on ideas
about autonomy, is taken further by postmodernist theorists, who argue that
identities are never fixed, complete or discrete, but are rather constantly shifting
and in flux, performed rather than expressed. They are not based upon ‘essences’
(inherent characteristics) or foundations, nor are they the end-product of social
construction; rather, they are the ‘effects’ of the network of power relations and
discourses that make up, in a literal sense, human societies. In this context,
autonomy can only be a contingent claim, rather than a permanent property of
individuals. postmodernist perspectives are sometimes accused of being apoliti-
cal, and of undermining political claims and movements.

Equality

like liberty, equality is a fundamental concept in modern politics. It emerged with

the Enlightenment reaction to the structuring of society on hierarchical lines.
Modern liberal democracies all embrace equality before the law and, at least in
positive legal terms, equal liberties and equal rights for all. Some liberals argue
that the state is required only to go this far – to enshrine equal liberties and rights
in law. Any subsequent inequalities, they conclude, are due to the natural inequal-
ities between different people’s talents and abilities. Others have been more con-
cerned with the way in which equal treatment by law affects people differently as
a result of other social, economic and cultural circumstances. As Anatole France
remarked: ‘The law, in its majestic equality, forbids rich and poor alike to sleep
under bridges, to beg in the streets and to steal their bread’ (1910). Egalitarian
thinkers emphasize equality of opportunity, and the need to ensure that circum-
stances outside their control do not prevent people from taking opportunities.
This second approach recognizes that laws are not the only impediments to equal-
ity; structures of social, economic and cultural power are also influential. Femi-
nists argue that the system of patriarchy prevents women from being equal, even
if they are assured equality before the law. In the united States, African Americans
were assured formal constitutional equality under segregation, but the doctrine of
‘separate but equal’ clearly did not grant them equality with whites.
Economic equality or equality of resources introduces more complications.
Marxism and socialism are often seen as egalitarian philosophies, but in fact,
Marx does not argue that resources should be distributed to everyone equally –
rather, they should be apportioned in accordance with people’s needs. This raises
a question for all egalitarian theoretical frameworks: does ‘equal’ mean ‘the
same’? does it require all people to be treated in the same way? In practice, equal
treatment could result in very unequal outcomes. two state pensions of the same
amount paid to different people, one of whom is healthy and able-bodied, and the
other who is chronically ill with a disease that is expensive to treat, will produce
inequality between them. Aristotle famously wrote in the fourth century BCE
 IntrOduCtIOn | 11
that ‘like’ people should be treated alike, or equally (Aristotle, 1981), but this just
begs the question: how do we determine whether people are ‘alike’?
In any case, equality must be balanced with other political values, particu-
larly liberty. Should individual freedom be limited in order to ensure that all
are equal, however this is defined? This tension is one of the most important in
modern political theory, and we will see it demonstrated in several of the issues
we consider in this book.

Democracy

The origins of democracy as a political system and as a normative ideal are

conventionally ascribed to ancient Athens. The classical political philosopher
plato was a famous critic of democracy, on the grounds that only those with
the inborn and carefully fostered talents necessary to good government should
rule (1981). But even Aristotle, who criticised plato's system of government by
wise elites, was suspicious of mass democracy, which he thought would not pro-
mote the public good, preferring a system of ‘polity’ which would moderate the
selfishness he thought would be inherent in the rule of the many and the poor,
with the more reliable judgement of wealthy male elites (1981). These critiques
of democracy have persisted into the modern conception of democracy, which
emerges, like liberty and equality, in the Enlightenment, and has gradually wid-
ened to incorporate all adult citizens. They underlie the fundamental modern
divide between direct and representative forms of democracy: should the people
decide all issues for themselves, requiring their delegates simply to represent
their will, or should they elect representatives wise enough to be trusted with
making good decisions, and then leave them to do so?
In our modern world, democracy has come in most countries to encompass at
least formally all adult citizens, reflecting fundamental belief in the equal moral
value of all members of the political community. As it constitutes the mode by
which citizens legitimize the power of the state, we must also ask whether it
entails simply determining and imposing the will of the majority, or whether the
rights and liberties of individuals and minorities must sometimes be protected
against that will. We might think of this as another expression of the tension
between liberty and equality: democracy, in which all citizens have, formally at
least, equal political power, must be balanced with liberty. Moreover, there are
different accounts of democracy: is it simply a matter of aggregating interests,
or is deliberation among citizens essential? And if it is, how are we to ensure
that the disenfranchised do actually participate in this process? We consider this
issue in Chapter 4. In Chapter 8 we examine the relationship between demo-
cratic self-government and the regulation of speech, and in Chapters 9 and 10,
we consider the democratic rights of citizens to restrain the state from acting
however it deems necessary in the name of protecting security.
12 | A p p ly I n g p O l I t I C A l t h E O r y
Private property

like autonomy and equality, private property emerged as a key political value in
the seventeenth century. Before then, philosophers believed that economic rela-
tions and the accumulation and distribution of wealth should be subordinated
to the moral and ethical purposes of government. But capitalism and classical
liberalism are based upon the right of individuals to private property, and later
versions of liberalism, Marxism and socialism are structured around the ques-
tion of how to balance rights to private property with equality, with positive
liberty and autonomy, and with the common good. We discuss this in Chapter
2, where we ask: can the state take property and redistribute it to others in need?
Are collective purposes more important than the right of individuals to their
property? does such a right exist independently of the social good? Marxism
argues that private property reflects and perpetuates fundamental inequality in
the economic system. It has no inherent value.

The common good

Students of politics have seen human beings as fundamentally social creatures

since Aristotle described us as ‘political animals’ (Aristotle, 1981). human beings
cannot live the kind of lives for which they are meant, good lives, outside of
society. But some important modern political thinking juxtaposes the interests of
individuals to the common good. Classical liberals argue that if a conflict should
arise between the claims of the community and the rights of the individual, the
latter must prevail. They define communities as aggregates of individuals, which
do have moral value in themselves. Others have followed the argument of Jean-
Jacques rousseau in the eighteenth century, that the rights and freedoms of the
individual are compatible with the ‘higher’ common good ( [1762] 1973).
The situation becomes more complex when we consider what the relevant
community is. Is it the national community, or should we measure the good
of sub-state communities, such as racial or ethnic groups? Are our obligations
towards our national society – to our co-citizens – necessarily the same as those
we owe to our government and the law? Similarly, if we reject the idea that the
common good is necessarily the same as the good of the state, should we pur-
sue the good of the world’s population as a whole? national society in liberal
democracies is often seen as a scheme of shared cooperation, which generates
mutual obligations among citizens. What are our obligations across state borders
to those in need? do these moral obligations stem from our shared nature as
human beings, or do they stem from the relationships of reciprocity that exist
within national borders? And what are the implications of sub-state national
communities for these?
 IntrOduCtIOn | 13
State sovereignty

Considerations of the common good inevitably raise questions about the sta-
tus of states. The fundamental raison d’être of government is the protection of
citizens, and the pursuit of their interests and goods. When we disagree with
state actions or laws, are there limits to our duties to obey them? When may
disobedience be justified? (We discuss this in Chapter 10.) The balance between
state power and individual freedoms and rights is continually contested in lib-
eral democracies – particularly now given the enormity of the threat to security
posed by terrorism. does this alter the way in which we weigh up individual
freedom and autonomy with state power? (This is the subject of Chapters 9 and
10.) here we refer to the power of government within states, but this also, of
course, has an external dimension. When the state fails in its obligations to its
citizens, can other states intervene to protect them? As states have consolidated
authority and control over national populations in the modern period, the inter-
national system has developed as a system of sovereign states, which claim the
right to manage their own internal affairs without the interference or guidance
of others. The principle of state sovereignty is enshrined in the united nations
Charter, which provides that states are allowed to use violence against others
only in self-defence. But as we see in Chapter 12, when governments turn on
their own citizens, or fail to protect them, some argue that they are no longer
entitled to the protections of sovereignty.
The discussion above has assumed that individual citizens and state power
are clearly distinct, and that state power is exercised through the restraints of
law upon individuals who exist independently of the state and its institutions.
From a Foucauldian perspective (see the discussion of liberty, above), states
exercise power not only through law, but through managing and directing citi-
zens on a large scale, through what are called techniques of governance, or gov-
ernmentality. These include the full range of social and economic policies and
official institutional discourses, all of which are designed by states to produce
or construct a body of citizens which will act in certain rationalized, improved
and more efficient ways (Foucault, 2007, 2008). The way in which states man-
age populations in this broad and multifarious way is called by Foucauldians
‘biopower’.

Theoretical paradigms and frameworks

As we saw above, theoretical frameworks and paradigms are constructed as
philosophers link together particular interpretations and combinations of values
to explain and legitimize political action. They include liberalism, conservatism,
communitarianism, Marxism, and feminism.
14 | A p p ly I n g p O l I t I C A l t h E O r y
Some theoretical frameworks, such as utilitarianism, are not specifically politi-
cal, but explain human action on a private moral level as well. Others focus on
specific questions in politics, such as our duties to our political communities versus
those we owe to other human beings beyond our borders, and are often combined
with the frameworks or ideologies listed above – these include nationalism and
cosmopolitanism. European political theory from the 1980s, particularly French
and german, has developed a range of more critical perspectives on politics,
drawing on post-Marxism and postmodernism, which are more explicitly critical
of what is often referred to as Anglo-American political theory, particularly liber-
alism. Thinkers in these traditions are more inclined to analyse and criticize the
assumptions that underlie many of the questions we ask in this book. nevertheless,
they have made important arguments about human identity and state power which
we will discuss in some of the chapters of this book.
Although theoretical frameworks do not line up neatly on all of the issues we
deal with in this book, they can offer useful ways of grouping different theorists.
What’s more, they often figure in real-world political debates, so it’s important
that we are aware of their broad outlines. What follows here is a brief sketch of
the most important features of these frameworks. For more details, see hey-
wood, 2015 and Shorten, 2016.

Liberalism

liberalism, the ideology that describes and legitimizes liberal democratic govern-
ment, is hegemonic in the world today, and has been since the collapse of the Soviet
union and most socialist systems in the early 1990s. As a philosophical framework,
liberalism emerged with modernity in Europe around the seventeenth century,
associated with the transition from feudalism to capitalism, the emergence of prot-
estantism and the separation of religious from secular authority. liberalism takes
the moral value of each individual human being to be equal and irreducible, and
its chief aim, in all of its varieties, is to protect individuals against threats to them
from other people, from social groups, and from the state. At its inception, liberal-
ism was associated with a limited state and government by consent, and concerns
about state power are still powerful among liberals, as we see in several of the chap-
ters in this book, especially Chapter 9. Classical liberalism, and its modern variant,
libertarianism, is primarily concerned with defending the freedom of individuals
against the reach of the law – or negative liberty (see above).
But since the nineteenth century, liberalism has also focused on positive lib-
erty: enabling human beings to live free and autonomous lives, despite social
and economic circumstances which might limit them. This has meant a greater
role for the state, and explains why in popular political debate, particularly in
the united States, ‘liberal’ refers to someone who defends state intervention and
activism to ensure equality of opportunity. In some cases (see Chapters 4 and 8),
 IntrOduCtIOn | 15
liberals support state action to protect people from the powerful and damaging
opinions of other people. liberalism is usually seen as defending individuals
against groups, but they do not always see groups in negative terms. Modern
‘multiculturalist’ liberals argue that because group membership has an impor-
tant impact on individual identity and self-respect, minority groups should be
given some protection – not because they have value in themselves, but because
they have value ultimately to their members.
liberalism has become the dominant theoretical framework for political philoso-
phers writing in English, and has absorbed many of the arguments of its critics, such
as socialists, feminists and communitarians. Many of the debates that we examine in
this book take place within liberalism as well as between it and its critics.

Communitarianism

Communitarianism developed as a theoretical framework in the 1980s, and

posed a significant normative challenge to liberalism. Communitarians criti-
cized liberalism’s emphasis upon individual rights, and what they saw as its
‘atomistic’ view of the individual – detached from any communal or social
context. Because liberalism’s ontology of the person – its view of what a person
is – was mistaken, communitarians concluded, so was its view of how politics
and government should be managed.
Communitarians see each individual as embedded in a social context, consist-
ing of a network of social relations, including the institutions that make up soci-
ety, such as the family, ethnic groups, religious communities, and shared norms
and values. Some communitarians focus on the need to reinforce the associa-
tions and organizations of civil society, rather than the state. Others emphasize
the importance of considering society’s moral values when weighing up political
issues, rather than just analysing them in terms of individual rights. Many liber-
als have rejected the communitarian charge that they assume that individuals are
disconnected and separated, pointing out that social affiliations are important to
individual identity, but that they must be separated from the public principles
that guide cooperation and public debate.
Communitarians often assume that the relevant community is national, but
this perspective has also influenced multiculturalist theorists, who emphasize
the importance of cultural community for the individual, and the need to protect
minority communities.

Marxism and socialism

Marxism is a theoretical framework based on the ideas of nineteenth-century

theorists Karl Marx and Friedrich Engels. Marx analysed the development of
16 | A p p ly I n g p O l I t I C A l t h E O r y
societies in economic terms, and developed an argument that history progresses
because of material factors – the way in which the economy is organized, the
power structures that make it run and the relations of social groups to each
other on this power structure. (For more details, see heywood, 2015.) Marx
argues that history progresses forward as the internal contradictions within
each system of production are revealed. Capitalism is the penultimate stage of
economic development, and Marx thought that as workers gained consciousness
of themselves and their exploitation under capitalism, they would unite in revo-
lution, and capitalism would be replaced by socialism. Wealth would be earned
by people using their abilities, and distributed to everyone on the basis of their
need, rather than a principle of equality.
Since it is the economic system that drives society and determines its progress,
Marx thought that factors like ideas and moral and religious principles – which
he described as ideology – are ‘superstructural’, which means that they reflect
what is going on in economic relations, rather than causing it.
Marxism as a prescriptive theory of history, advocating and predicting a
revolution of the workers, has very little relevance and support now, especially
since the demise of the Soviet union and communist regimes in Europe from
1989. (Although we should also record that many leftist theorists argue that
there was little correspondence between Marx’s ideas and the state-run socialism
that existed in the Soviet union and its allies.) Even socialism, its more recent
democratic heir, has become marginal in public political debate, as labour and
social democratic parties in liberal democracies have abandoned the principle of
state ownership. But other aspects of Marx’s thought have been very influential –
particularly his critique of ideology, meaning here the ideas that legitimize a
system of unequal economic power. Many feminists have adopted the Marxist
critique of ideology, but rather than capitalism, they focus on patriarchy, the
social system which assigns power and status to men and subordinates women.
(Socialist feminists think that patriarchy is inherently related to capitalism.)
Some theorists have combined the liberal focus on individual freedom and par-
ticipation in self-government with a Marxist critique of ideology. however, when
we look at debates about economic inequality (which we cover in Chapters 2
and 11 of this book) most of the debate about redistribution is conducted not by
Marxists or socialists, but by liberals, who focus less on the elimination of capi-
talism and the full social ownership of the means of production, and much more
on how the products of the system are distributed. In the Marxist model, distri-
bution can be solved only after ownership of the means of production is changed.

Feminism

Feminism includes such a diverse a set of views now, that theorists often speak of
‘feminisms’, but nevertheless, all feminism shares the fundamental commitment
 IntrOduCtIOn | 17
to achieving equality for women, and ending their subordination – legal,
political, economic and social – to men. It requires no specific theory of how
the economy should be organized, and there are liberal feminists, socialist
feminists, as well as radical feminists who argue that patriarchy is trans-cultural
and trans-historical, the primary form of human exploitation, and must be
overcome before any other social change is possible. Feminism is a social move-
ment as well as a system of ideas, and it has been particularly concerned with
the relationship between theory and practice – feminists argue that theory
should emerge out of women’s critical reflections upon their own experiences
of inequality.
Feminism as a movement arose first in the nineteenth century (in the ‘first
wave’), as groups of middle class women became active in the suffrage move-
ment, struggling to secure the right to vote. ‘Second wave’ feminism emerged in
the 1950s and 1960s, and focused on equal rights – defined by liberals as legal
and political, and by socialists and radicals as social and economic. Feminism’s
concern with equal rights places it in the liberal tradition, and on many social
issues that involve justice for women, feminists line up with liberals. But femi-
nists have also been influenced by the Marxist critique of ideology, and many
look more deeply at the way our social and cultural ideas and practices perpetu-
ate inequality. We will see this in the debate over pornography in Chapter 5. One
of the major contributions of feminism to normative theory is that it reminds
us of how inequality is perpetuated in the ‘private sphere’ – in the family and
domestic life. previously, political theory had analysed status and power as it
is exercised in the public sphere of politics, or in the economy and social life.
politics was assumed to exclude private life. Feminism reminds us to analyse as
political any sphere of human life in which power is systematically exercised by
some people over others.
In recent years, feminist political theory has been increasingly influenced
by intersectionality: the idea that individual identity or subjectivity is always
constituted not by one ‘axis of identity’ – gender – but by many mutually rein-
forcing axes of social difference and hierarchy, including, for example, race, class
and sexuality. They argue that it is impossible to understand how gender works
under patriarchy without also considering these other sources of social con-
struction. postmodernist feminists abandon the concept of fixed or constructed
gender identity, focusing instead on the way gender is strategically deployed or
performed.

Conservatism

Conservatism is more difficult to define and demarcate than many other theoret-
ical frameworks. As is the case with liberalism, the way the term is used in every-
day political debate is often distinct from its meaning as a theoretical framework.
18 | A p p ly I n g p O l I t I C A l t h E O r y
The positions often identified in politics as conservative are sometimes better
seen as libertarian or liberal in a classical sense: respect for private property and
support for a limited state with less government regulation in both the economy
and people’s private moral and social conduct. Views that oppose regulation
of the economy, but support state regulation of private behaviour and enforce
moral views, are more likely to be influenced by conservatism. As a theoretical
framework and a political movement, conservatism developed in response to
radical and revolutionary movements and ideas which emerged in the eight-
eenth century and were embodied in the French revolution. Conservatives,
noting with alarm the wholesale change that radicals advocated, and the bloody
course of the revolution, rejected attempts to change social institutions and
fundamental ideas and traditions based on abstract ideas. Conservatives argue
that established social institutions deserve respect and protection because of the
role they play in meeting human needs. They should not be abolished, changed
or reformed in the light of abstract and utopian ideals. This view is behind much
of the opposition to social change like same-sex marriage. Conservative views
sometimes coincide with those of communitarians, as both schools of thought
emphasize the need to protect common social institutions which shape and give
meaning to people’s lives.
This strand of conservative thinking is secular, although it incorporates
respect for religious institutions. Christian conservatives, who take part in
philosophical debates over social and moral issues, rely on the idea of natural
law. They argue that traditional social and moral beliefs reflect god’s law, as it is
revealed in the ‘natural order of things’ and in each human conscience. This kind
of social conservatism combines with economic liberalism to form the policies
of the new right.

Nationalism

nationalism, another distinctively modern set of ideas, can also be described as

a theoretical framework, an ideology and a social movement; unlike the other
paradigms we have considered, however, it does not specify any particular
organization of the national political or economic system. nationalists may
be liberals, socialists, conservatives or feminists, or a combination of these. It
is based, like other theoretical frameworks, upon a political ontology of the
person, and a set of related normative commitments: nationalism assumes that
we are fundamentally defined by membership in our nation, which binds us
together with ties of sentiment and mutual obligation. It follows that we have
only limited duties to others outside national borders, whether to redistribute
resources, and to go to war to protect them if their governments fail to do so
(see Chapters 11 and 12).
 IntrOduCtIOn | 19
Cosmopolitanism

In contrast with nationalism, cosmopolitanism is based on the principle that

all human beings belong to a universal community, because of our common
humanity. All people have equal moral status, and this means that we must give
full weight to the needs and interests of those outside our national or local com-
munities. Cosmopolitanism is not in origin a modern idea; it dates from ancient
greece and rome, and was a key belief of the Stoic philosophers in the third
century CE, and the early Christians. In its modern form, cosmopolitanism is
associated with universal human rights, and with the challenge to nationalism.
Cosmopolitans argue that those in wealthy countries have a duty to redistribute
resources to meet the basic needs of the poor in other nations (Chapter 11), and
that those who can prevent human rights abuses in other countries must inter-
vene, if possible, to do so (Chapter 12). like nationalism, cosmopolitanism does
not imply any particular economic or political arrangements within states (clas-
sical liberalism and Marxism both have cosmopolitan elements), but in modern
thinking, it has been closely associated with liberalism, because of the liberal
belief in the equal moral status of all individuals.

Utilitarianism

utilitarianism is a philosophical tradition that argues that we should judge the

worth of an action, a regulation, or a policy by how much it contributes to utility –
defined variously as happiness, good, satisfaction or welfare. Actions, whether
individual or governmental, are assessed in terms of their consequences, rather
than by whether they conform to abstract moral principles or ideas. unlike the
other frameworks we have considered here, utilitarianism is primarily ethical: it
covers all human action, and includes no specific provision for how political or
economic life should be structured – it assumes that any political or economic
system should be judged by how much it contributes to human happiness or
welfare. (utilitarianism has been criticized for being compatible with despotic –
although beneficent – government.) utilitarianism is not an ideology, nor is it
the creed of a social movement, but it permeates our thinking on every political
issue. In this book we will consider utilitarian thinking about the consequences
of policy and legislation on both sides of all the questions we discuss.

The structure of this book

The chapters in this book address a range of political issues which are active and
controversial in modern liberal democracies. While they have moral dimen-
sions, all have been the subject of government regulation and policy, and we will
20 | A p p ly I n g p O l I t I C A l t h E O r y
examine them as distinctively political problems: those which concern our pub-
lic lives together as individuals and members of social communities and nations,
and as the subjects of state power. We begin in Chapter 2 by looking at the distri-
bution of resources within states, and then turn to the status of minority groups
in Chapters 3 and 4. Chapters 6, 7 and 8 continue to examine controversial social
issues with special implications for women and gays and lesbians, as well as the
role of the state in regulating the beginning and end of life. In Chapter 9 we look
at the relationship between the state and civil liberties. Chapter 10 examines our
obligations to the state, and justifications for civil disobedience. Chapters 11 and
12 deal with the duties and obligations of people and states beyond national bor-
ders, but as we shall see, raise many of the same issues around state power and
just distribution that we have considered earlier in the context of domestic poli-
tics. Finally, Chapter 13 examines our obligations to save and protect resources
for future generations of people, yet unborn.
Each chapter begins with a short survey of the ways in which governments
in liberal democracies have responded to these issues, by legislation, regulation
and policy. Then we turn to political theory to analyse the arguments on each,
or various sides of each issue. We examine the key concepts and values that
underlie these arguments, where they come into conflict, and where they share
common ground. It’s not the purpose of this book to advocate one position or
another on these issues. But it does aim to help readers to understand what is
really at stake in arguments over them, and to become familiar with the concepts
and values of normative political theory, so that they can go on to apply them to
the full range of questions that we confront as citizens and students of politics.
2

How Should Resources

Be Distributed?
Taxation, Welfare and
Redistribution

● RedistRibution and the Right to pRivate pRopeRty

● equality and the case foR RedistRibution
● bad luck oR bad choices?
● ensuRing human capabilities
● sustaining communities thRough RedistRibution
● conclusion

Debates over the ways in which governments should respond to poverty are some
of the most controversial in modern democratic societies. In the past three dec-
ades, this controversy has focused on the welfare state: the range of institutional-
ized programmes through which governments aim to provide universal support
to their citizens. The modern welfare state is a recent phenomenon, although its
origins can be traced to the expansion of government assistance during the late
nineteenth century in several European states, particularly in Germany, where
Bismarck introduced social insurance programmes in the 1880s in order to
counter emerging popular support for socialism. Some countries developed sup-
port programmes in response to the Great Depression of the 1930s, and Ameri-
can President Franklin Roosevelt declared that the ideal social security system
would provide protection ‘from the cradle to the grave’. It was only after the
Second World War, however, that most Western nations expanded their welfare
policies to various degrees of comprehensive coverage of the population. The dif-
ferent ways in which welfare programmes have developed across nations reflect a
range of political and cultural factors. In the United States, for example, welfare
payments were channelled through one central programme – Aid to Families

21
22 | A P P ly I n G P o l I t I c A l t h E o R y
with Dependent children. Australia and new Zealand have emphasized benefits
and insurance for wage earners, while in many European countries, social and
religious organizations have long-standing corporatist partnerships with the
state for delivering support services.
none of these programmes, however, has been successful in eradicating pov-
erty. By the 1980s, the growth in poverty rates and increasing numbers of benefi-
ciaries on the welfare rolls in many countries, coupled with popular resistance to
levels of taxation, had led to growing popular resentment and criticism of redis-
tributive welfare policies. critics of welfare argued that rather than eliminating
poverty, it had in fact reinforced and perpetuated it by creating both individual
attitudes and a social culture of passive dependency among beneficiaries. This,
they claimed, benefited neither the recipients themselves, nor the taxpayers
funding social support. critics concluded that it was only when the receipt of
welfare became explicitly linked to work and personal responsibility that it could
succeed in lifting beneficiaries out of poverty.
With increasing government debt and the shift to neo liberal economic
policies in the 1980s, welfare became a key electoral issue. Governments in most
Western countries responded by tightening and eliminating programmes. In the
United States, President clinton (who had been elected four years before prom-
ising ‘to end welfare as we know it’) signed in 1996 the Republican-initiated
welfare reform legislation that marked the high point of a debate over welfare
entitlement, personal responsibility and state obligation that had begun in
earnest two decades before. The Personal Responsibility and Work Opportunity
Reconciliation Act demonstrated in its title the shift in the way welfare was being
discussed and defined. The new legislation, which transformed Aid to Fami-
lies with Dependent children into temporary Assistance for needy Families
(tAnF), shifted the focus of state redistribution away from the moral responsi-
bility of the state to meet the needs of a defined group, and towards the duties
of those receiving assistance to take steps to end their dependence. It imposed
a time limit: no one could receive welfare benefits for more than five years, and
funds for benefits were transferred from the federal government to the states
under a ‘block grant’ system, which allowed states to impose their own rules
and regulations regarding entitlements. States responded by directing funds into
benefits that were directly linked to working, such as subsidies for childcare and
transportation to work. Under the new system, the provision of assistance was
linked less to the need of beneficiaries, and more to their work status.
tAnF continued to operate under the administration of President Bush, who
claimed that it had successfully moved 4.7 million Americans off welfare and into
work, reducing the welfare rolls by 54%. The obama Administration introduced
changes that allowed the states to ease some of the specific work requirements
that they had been obliged to impose, after an assessment that tAnF was failing
to serve the needs of some recipients, particularly single mothers. The change
was attacked by Republicans who accused the Administration of removing from
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 23
the programme the requirements of personal responsibility. however, under the
obama Administration, the targeting of welfare as the source of a range of social
evils has diminished, and obama himself referred in his 2015 State of the Union
Address to the need to reduce income inequality.
The welfare policies of the clinton and Bush administrations had been criti-
cized by other countries as inadequate for dealing with poverty because they
were too punitive and restricted in scope. But from the 1990s, key aspects of
the US approach were adopted by European and other Western countries –
many of which had already begun to change their own approach to welfare as
they adopted ‘neo liberal’ policies of economic rationalism. The major reform
strategies have focused on shifting funding from the unemployed towards low-
income families and emphasizing ‘welfare to work’. In many countries, benefits
have increasingly been made conditional on the recipient’s willingness to retrain,
search for paid work and re-enter the labour force. In Britain this trend began
under the conservative government of Margaret Thatcher in the 1980s. In 1997,
the labour government’s new Deal programme introduced a raft of policies
aimed at reducing the barriers to the unemployed entering the workforce, and
offering tax credits and other financial incentives for low-income workers. In his
first speech as chancellor of the Exchequer in 1997, Gordon Brown announced
that, under labour, work would replace welfare. The UK’s 2012 Welfare Reform
Act aimed at moving people from welfare to work, and reduced household
benefits so that they could not exceed the average wage for working families. In
contrast to the United States, job-seeking requirements were tightened.
Welfare provision has been reduced in many European countries as part
of the austerity measures imposed in the wake of the Global Financial crisis.
According to a study conducted in 2013 by the organization for Economic
cooperation and Development (the oEcD), France under the Socialist admin-
istration of Francois hollande had the highest level of public social spending
to GDP ratio of all oEcD countries. Under pressure to reduce public spending
due to the country’s high budget deficit, hollande that year announced mod-
est tweaks to the pension system, aimed at increasing the age of retirement.
These pressures were felt across Europe – the Dutch government announced
also in 2013 that ‘the welfare state of the 20th century is over’. In Australia, the
welfare system based on wage support has been transformed into a targeted
needs-based programme. The conservative government of Prime Minister
tony Abbott elected in 2013 reduced family welfare payments, and tightened
eligibility for unemployment and disability benefits. In new Zealand, successive
labour and conservative governments have shifted funds away from schemes
directed towards the unemployed, required ‘work for the dole’ and increased
the tax credits available to low-income families with wage earners. In canada,
cuts in federal funding led provinces to pass legislation designed to encourage
welfare recipients into work, cutting eligibility for benefits and providing sup-
plements for low wages.
24 | A P P ly I n G P o l I t I c A l t h E o R y
These changes in policy were accompanied by shifts in the arguments used to
justify state support. Where benefits once were justified on the grounds of citizen
rights (Marshall and Bottomore, 1992), they have come to be seen now as tem-
porary remedies which are designed to meet essential needs, while encouraging
self-sufficiency. This has resulted in the introduction of means-testing for child
benefits which were formerly universal in Australia, canada and new Zealand.
But it has also meant that new requirements have been imposed upon benefi-
ciaries, as the justification for support has come to focus on fostering personal
responsibility. The role of the state has been reduced to setting policy goals for
welfare, and encouraging individual responsibility and a larger role for civil soci-
ety in the provision of assistance. A further result of this is that many states have
privatized the delivery of services and benefits – often to religious organizations.
This has been particularly controversial in the United States, where the govern-
ment is constitutionally prohibited from supporting religion.

Box 2.1 InherItance tax

Taxing inheritance is a perennially controversial issue. Like gift tax, it raises a direct
conflict between people’s wish to transfer their wealth to those they choose – here,
in the form of their estate after their death – and the claim of the state to acquire
and redistribute it. In the UK, inheritance tax is currently 40%, but applies only to
the portion of estates over £500,000. This threshold, introduced in 2015, applies per
person, so couples will be able to pass on to their children estates of up to £1 million
without tax. The new threshold will probably mean that even though inherited capital
is increasingly the main source of inequality (Piketty, 2014), the tax is likely to produce
even less than the 1% of total government revenue it has in the past. In the United
States, federal estate tax (referred to as ‘death duties’ by its opponents) applies only to
estates worth more than $5,400,000, and is set at 40%. It affects only the largest 0.2%
of estates. Some of the controversy about the tax focuses on the threshold value of
the estate at which it should be applied. But broader issues of justice are also at stake:

• Opponents of inheritance tax contend that it interferes with people’s fundamental

right to transfer their property as they wish after their deaths. They also claim that
it acts as a disincentive to entrepreneurship and saving.
• Supporters argue that it is less unfair than most taxes to the owner of the property,
as it is not imposed during their lifetime. Moreover, it has wider social benefits.
It helps to prevent the perpetuation and reinforcement of inequalities across
generations, and it encourages productivity. Research has shown that older people
who inherit more wealth are more likely to leave the labour force. Winston Churchill
argued along these lines in 1924 that inheritance tax ‘was a certain corrective
against the development of a race of idle rich’. Moreover, inheritance exacerbates
inequality: research by French economist Thomas Piketty shows that wealth from
capital growth over generations is now the greatest contributor to economic
inequality (2014). He proposes a wealth tax to counter this.
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 25
Different explanations have been suggested for the decline in popular support
for the welfare state since the 1970s. The German philosopher Jürgen habermas
has argued that popular resentment towards it reflects the failure of the welfare
state to avert the strains to the capitalist system that Marx had predicted (strains
that he predicted would lead to revolutionary crisis) (1975). What it did instead
was to displace the crisis onto the social and cultural level, and threaten social
integration – people’s interests remained class based, and they failed to develop
a sense of shared commitment to a set of social values or norms. communitar-
ian philosophers also blame the decline in support for redistributing resources
on a failure of commitment to a common good (Sandel, 1982, 1996). Some have
suggested that the development of multiculturalist policies, or the ideology of
multiculturalism, is responsible (Barry, 2001; Miller, 2006).
Several different arguments can be advanced to support welfare, as we shall
see, but perhaps the simplest is that the redistribution of resources to the needy
increases the sum of human happiness. Utilitarians argue that the most just sys-
tem is one which produces the greatest balance of satisfaction or happiness for
all (Bentham, [1823] 1970; Mill, [1863] 1968). The welfare state provides a basic
level of resources to the needy, thereby substantially increasing their happiness
or satisfaction. At the same time, the reduction in happiness for higher income
earners who pay to support the system is not very great, because of the diminish-
ing marginal utility of income – the more money one makes, the less valuable is
an increase in income. For the wealthy, the small loss of income is outweighed
by the gain to those for whom the extra makes a considerable difference (Goo-
din, 1995). Recent research suggests that redistributing wealth to reduce income
inequality has substantial benefits in addressing a range of social problems, from
early death and obesity to rates of imprisonment and mental illness (Wilkinson
and Pickett, 2009).
The critique of welfare has come from a wide range of political principles and
perspectives. Much of it is neo-conservative, inspired by opposition to a large
and interventionist state and to what critics see as ‘social engineering’ – the
attempt by government to use legislation and policy to change people’s ideas
and behaviour. (These conservative principles were set out by Edmund Burke
in the late eighteenth century to justify his opposition to the French Revolution
([1790] 1955).) conservatives are inclined to hold individuals to be substantively
responsible for their own choices, irrespective of the social factors that influence
and limit choice. neo liberals also oppose an interventionist state. But there has
also been criticism of welfare on the liberal grounds of individual freedom and
autonomy. liberals who give more weight to equality (egalitarian liberals) have
argued for changing the system of welfare redistribution because they see it as
minimizing individual choices and discouraging people from taking control of
their own lives. Both liberals and conservatives have argued that welfare creates
a ‘dependency mentality’ which effectively enslaves the poor. While egalitarian
liberals have traditionally had more faith in the ability of the state to intervene
26 | A P P ly I n G P o l I t I c A l t h E o R y
constructively in people’s lives, liberals and conservatives are critical of large
bureaucratic institutions which are not responsive to the complex needs of
beneficiaries. liberals and social democrats who take the ‘third way’ perspec-
tive (dominant in left-of-centre governments in Britain, canada, Australia and
new Zealand in the 1990s) argue that the needy must be helped to become
self-supporting by taking an active role in decisions around the disbursement of
welfare, and in retraining themselves. They tend to support the decentralization
of welfare provision to social organizations in civil society.
Underlying these political perspectives and ideologies on welfare reform are
some fundamental political questions: What is the purpose of government? how
can we determine who owns wealth in society? how much income is the state
entitled to take from those who earn it, and for what purposes? If income is to
be taken, who is entitled to receive it through redistribution? Finally, should the
state or civil society organizations manage redistribution? These questions in
turn lead us to examine some basic political concepts: equality, property rights,
the role of the state, liberty and autonomy (see Box 2.2). In the remainder of this
chapter, I examine some key perspectives in political theory, and their interpre-
tation of these values, to help us address the questions that underlie the welfare
debate.

Redistribution and the right to private

property
The most basic question that welfare raises is whether the state is justified in
redistributing the income earned by its citizens. Given the right to private prop-
erty of individuals – a basic value in all liberal democracies – how can govern-
ments justify appropriating through tax the income earned by some citizens,
and redistributing it to others in need? The early social contract theorists of the
seventeenth century, Thomas hobbes and John locke, argued that the primary
purpose of the state is to ensure the security and safety of its citizens (hobbes,
[1651] 1962; locke, [1690] 1988). Beyond this, however, there is considerable
disagreement between political theorists. Some see the purpose of government
as being to institute a particular, desired type of community: perhaps in line with
particular moral principles, or religious beliefs. Those who support a more lim-
ited state argue that more extensive regulation by governments is an indefensible
interference with individual freedom. Those modern liberals or libertarians who
take this view think that individual liberty is expressed in the fundamental right
to private property, and that government should not interfere with property
rights unless security is under threat. Rights to private property are essential to
autonomy – to personal freedom and independence – and take precedence over
any claims by citizens to support on the basis of need. libertarian arguments can
thus be made to oppose potentially all forms of welfare redistribution. An early
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 27
case for this was made by F.A. hayek in his attack on collectivism and central
planning, The Road to Serfdom, written in 1944 (1962).
The most influential exponent of this view has been the American philoso-
pher Robert nozick (1974). his approach to distributing wealth is based upon
the rights of ‘self-owning individuals’ to their own property. Any argument for
welfare redistribution must assume, nozick argues, that there is a pattern of
distribution that is just or fair, independent of how property is actually owned
or distributed at present. Such a pattern might be based on need or merit, or in
fact any criterion. The argument for welfare must also assume that the state can
act justly as a central redistributing authority, to correct the ‘unjust’ distribu-
tions of property that currently exist. These assumptions are neither justified nor
realistic, according to nozick – in fact, all we have to go on in society are the
unequal distributions that already exist, and which are the result of innumerable
individual decisions. There is no reason to presume that original or desirable
shares of goods were or should be equal; rather, our intuitions tell us that in
considering whether current unequal property holdings ought to be maintained
or disturbed, we should consider the history of how those holdings came about,
rather than whether they conform to a desirable pattern of distributions. noz-
ick argues that property owners are entitled to their holdings if they received
them in accordance with principles of justice – either as the first acquirers of
the property, in which case they acquired property through their ownership of
themselves, or in transfer from someone who held them legitimately. We can
thus assess the justice of property holdings by looking at the history of their
acquisition.
If we can establish that people do have rights to their property, through self-
ownership and historical entitlement, any redistribution on the grounds, say, of
need, or equality, will unjustly disturb their entitlement and compromise their
autonomy. It diminishes the rights of individuals to transfer their property as
they see fit, for example to family members, and thus interferes with the rela-
tionships of love and care that exist within families. But more fundamentally,
this view of property rights casts the legitimacy of all taxpayer-funded welfare
programmes in doubt. taxation is, after all, a system which requires people to
surrender their property involuntarily. nozick comments that ‘taxation of earn-
ings from labor is on a par with forced labour’ (1974, 169). It is justified to pro-
vide resources for state security, and the other functions of a minimal state. But
requiring people to turn over the fruits of their labour to the state to redistribute
to others forces them to work for the benefit of others. Welfare means that ben-
eficiaries acquire a claim over property produced by others. In the same way that
it would be illegitimate to force someone to spend their leisure time working for
others, so it is, according to nozick, illegitimate to force them to hand over the
goods they earn from the labour they choose to perform, for others. If others
have the ability to force us to perform work, or unrewarded work, nozick argues,
they become a part-owner of us – they acquire a property right in us. So any
28 | A P P ly I n G P o l I t I c A l t h E o R y
patterned view of distribution, nozick argues, violates what he calls ‘moral side
constraints’ concerning how people may be treated (1974, 172).
nozick’s conception of the self-owning individual assumes that we own our
talents and abilities and are entitled to what we earn by using them. While this
is similar to the common claim that we deserve what we earn, nozick makes no
moral claim that we deserve our talents. Rather, we acquire rights in property as
a result of our rights of ownership over our bodies. Private property in this view
is entirely the product of individual action, rather than of the social structure
and context in which that action occurs. As we shall see below, other more egali-
tarian liberals argue that earnings are the product not only of individual labour,
but also of shared social processes and institutions. of course, nozick’s argument
against forced resource redistribution in the form of welfare holds only as long
as the initial acquisition of property was just. If it was not, later transfers have
not been legitimate, and redistributions may now be required (to rectify the
injustices that have occurred). Any argument that depends upon a historical
chain of transfer going back to original acquisition will be impossible to sup-
port empirically (in most cases). nozick follows locke regarding the question of
original acquisition, in arguing that initial (unequal) appropriations of property
are legitimate if, when the property was taken, there was ‘enough and as good left
in common for others’ (1974, 175). Much depends upon how we interpret this
‘lockean proviso’, and nozick takes it to mean ‘[a] process normally giving rise
to a permanent bequeathable property right in a previously unowned thing will
not do so if the position of others no longer at liberty to use the thing is thereby
weakened’ (1974, 178). If we follow the capitalist argument that the private own-
ership of property benefits all by increasing the social product, and allowing for
production and wages, and the ‘trickle down’ of wealth to all, then most private
acquisitions are justified as they do not make the position of others worse. (The
exceptions would be appropriations of all of a scarce resource essential to life.)
nozick himself is ambivalent on the question of whether most previous
acquisitions of property have worsened the situation of others – although he
does think that free market operation will not do so. Slavery and colonial dis-
possession raise obvious problems with the lockean proviso, as they clearly
involve illegitimate transactions along the historical chain of property transfer.
In these cases, rectification may be required through a one-off redistribution of
wealth. nozick doesn’t offer any detailed principle of rectification, but suggests
that it would require trying to determine what would have occurred if the unjust
transfer had not taken place. only if it’s impossible to determine what property
holdings would have been had an injustice not occurred would it be possible to
look at considerations of distributive justice. We should note, however, that such
redistributions made to rectify historical injustices are for the most part not tied
to needs or aimed at equality, and so would not reflect the kinds of programmes
usually delivered via welfare. They might, however, be used to justify affirmative
action policies directed at particular social or ethnic groups.
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 29
one of the more radical redistributive proposals suggested by modern politi-
cal philosophers is made by leftist libertarian philosophers, who argue that we
should redistribute resource wealth in order to reinforce self-ownership and
liberty, through universal equal payments. left-libertarians concede that it is not
legitimate to enact this equal division in an unequal world by redistributing the
gains of labour through tax because this violates self-ownership. Instead, there
should be some distribution of capital – a monetary grant which represents each
person’s fair share of society’s basic resources. This should be in the form of a
‘universal basic income’, which can be paid in one lump sum or through regu-
lar payments (Van Parijs, 1991; 1995). The income would not be means-tested,
because all citizens, as ‘stakeholders’ in society, are entitled to equal shares of
basic resources (Ackerman and Alstott, 1999). As the allowance is a right, recipi-
ents would not of course be accountable for how they spend their allowance – it
would not be tied to looking for work. In 2005, the Blair labour government in
Britain introduced a simple version of the stakeholder idea with the child trust
Fund. Under this scheme (which closed in 2011), the government paid a sum of
₤250 (twice that for lower income families) into a trust account for each child
born in Britain at birth, and again at the age of seven.
Advocates of the basic income argue that it should eventually be set high
enough to replace other welfare benefits. nevertheless, it is set with reference
not to needs, but to resources available. The basic income does, however, offer at
least some support to those who do unpaid labour in society, such as caregiving,
in a way that most benefit systems do not. nevertheless, universal basic income
proposals run counter to most of the ideas behind recent changes to welfare.
They explicitly break the connection between work and personal choice, on the
one hand, and income on the other. Some critics have argued that they do not
encourage a sense of social commitment or cooperation; others point out that
the income will not necessarily satisfy basic needs. The basic income would have
to be set at wage replacement levels in order for the scheme to ensure the indi-
vidual freedom and autonomy it is meant to guarantee.
nozick’s approach, based on rights, self-ownership and historical entitlement,
challenges all state-directed welfare redistributions – although it does not of
course preclude private charity. other right-wing libertarians have made even
stronger arguments for the individual rights that flow from self-ownership
(narveson, 1988). While these have not been commonly expressed views in
public debate about welfare, they are reflected in neo-conservative arguments
for increased voluntary giving to take the place of tax-funded benefits. The Bush
Administration in the United States was an enthusiastic supporter of this posi-
tion, and promoted the delivery of social assistance by privately funded religious
groups, rather than the state. Alternative approaches might accord more weight
to equality as a balance to liberty, or define liberty less in terms of the freedom to
dispose of private property, and more in terms of autonomy. Autonomous indi-
viduals exercise control over their own lives, and many egalitarian philosophers
30 | A P P ly I n G P o l I t I c A l t h E o R y
have argued that in order for people to be autonomous, their basic needs must be
met. others have argued that the protection of liberty means aiming to achieve
some rough equality at some level of resource distribution.

Equality and the case for redistribution

We now turn to arguments in favour of welfare redistribution, on the grounds
of equality or autonomy. Egalitarian distributions are often associated with left-
ist political theory, although in fact Marx himself argued that under socialism,
distribution should be on the basis of needs ([1875] 1978, 531). Modern leftist
theorists tend to endorse equal distributions of resources. Joseph carens argues
that every member of a society should make their most productive contribution
possible towards it, and that distribution should be according to their needs
(2003). As in practice it is impossible fully to assess the needs of different peo-
ple (this problem recurs with needs-based theories) it is best to focus upon the
basic needs shared by everyone – healthy water, food, air, housing, education
and health care. Income should be distributed equally to everyone in order to
satisfy these needs, and where people have special, or ‘differentially incurred’
basic needs, such as the disabled, these should be provided for separately by the
state. We will look more closely at needs-based theories below, but it is important
to note here that carens’ system depends upon everyone making a productive
contribution, through paid labour, to society. We might see this as (ironically)
compatible with the trend in welfare policy to require beneficiaries to work for
their benefits.
Egalitarian thinkers take many different positions on the method and amount
of redistribution depending upon how they interpret the requirements of lib-
erty and autonomy and how they balance liberty with equality. Debates over
these issues reflect many of the controversies over changes in welfare policy
described at the beginning of the chapter. As we will see, questions over people’s
responsibilities for their own choices, and the effect upon our life chances of our
ambitions, our natural abilities and luck are fundamental to liberal egalitarian
theories as well as to the welfare debate.
We should note that while theorists who support the redistributions carried
out via welfare are usually called egalitarians, much controversy arises over what
is being equalized. All democratic political theorists support the idea that all
people should have equal political and legal rights. Egalitarian theorists usually
mean that there should be less disparity in ownership of material resources,
although very few support the idea that there should be absolute equality, in
large part because of differences in people’s needs. one major point of disagree-
ment among egalitarian theorists is over whether we should measure equality in
terms of resources – how many resources we get to use as we wish – or outcomes –
how much wealth we should all ultimately have, irrespective of how we used our
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 31
resources. Theorists often describe this distinction as one between equality of
resources and equality of welfare.
Arguments in favour of state welfare rest upon a fundamentally different way
of seeing the relationship between the individual, their earnings and society,
from that described by nozick. As we have seen, the self-ownership principle
means that everyone has the right to the fruits of their labour and to anything
received in free exchange. Egalitarian thinkers assume instead that we are ena-
bled to enjoy the fruits of our labour because we are working together in society,
within a framework of shared institutions, laws and structures. As John Rawls,
the most important political philosopher of the last century, puts it, society is a
‘cooperative project for mutual advantage’ (1971, 4). We have no automatic right
to whatever we can earn ourselves, as we are only able to earn through our coop-
eration in a larger social project. In fact, it is because we are all members of such
a project that we need principles of justice concerning the distribution of goods,
to which we can all agree and which reflect our shared ideas.
If earned wealth is the result of the individual’s participation in a shared social
system, it follows that individuals should have no exclusive right to the property
they earn. The egalitarian theories we examine here, beginning with Rawls, all
apply different patterns of distribution, reflecting different interpretations of
the relationship between liberty and equality, and corresponding to a range
of welfare policies. In constructing his defence of redistribution, Rawls begins
with the premise that the most basic assumption of society as a system of fair
cooperation is the equality of citizens. We arrive at this premise by imagining
the principles of justice that people would choose to regulate the ‘basic structure’
of society – its main political, social and economic institutions – if they were
setting up a social contract and were not influenced by knowing anything about
their talents and social position. Thus they could not be biased in favour of their
personal interests. In this ‘original position’, principles of justice and distribution
would necessarily be chosen irrespective of factors such as one’s class, race, sex
and abilities. Rawls argues that in such a case people would insist upon at least
some degree of equality – as they would be unable to be sure that they would
benefit from any inequalities. They would thus agree that all should be equal in
terms of their legal, political and civil freedoms, and that this basic equality must
be guaranteed. Rawls’ first principle of justice is thus: ‘Each person has an equal
right to a full adequate scheme of equal basic liberties which is compatible with
a similar scheme of liberties for all.’
This does not mean, however, that it is in the best interest of all to be economi-
cally equal. Rawls allows that incentives may increase the total wealth in a way
that benefits everyone – although the benefits may not be equal. he argues that
if people could choose fairly, they would decide to regulate institutions so that
material inequalities could be justified only if they improved the situation of
those who are the worst-off. Productive citizens may be allowed to make more,
and to keep some of what they make, as long as the increased wealth improves
32 | A P P ly I n G P o l I t I c A l t h E o R y
the situation of the worst-off. This assumes that those at the bottom of the scale
would be concerned more about their absolute economic well-being than about
how their status compared with others. The second principle thus reads: ‘Social
and economic inequalities are to satisfy two conditions. First, they must be
attached to offices and positions open to all under conditions of fair equality of
opportunity; and second, they must be to the greatest benefit of the least advan-
taged members of society’ (Rawls, 1993, 291).
According to the second principle, economic inequalities may be justified
if, firstly, fair equality of opportunity exists for everyone to gain the positions
that were best remunerated. This would prevent people from benefiting unfairly
from the social and economic advantages that come from family, status and
education. But further, any inequalities in natural talents should also be har-
nessed to improve the position of the worst-off in society. That is to say, rather
than insist upon a division of resources that would produce an equal amount
for everyone, people in the original position would agree to goods distributed
so that those who could put resources to the most productive use could have
more, as long as the benefits would trickle down to improve the position of
those who are the least well-off. Rawls means us to follow these rules in order.
liberty (principle one) cannot be restricted in order to satisfy the reasons in
principle two. And fair opportunity can’t be restricted in order to maximize the
position of the worst-off.
Redistribution is thus justified to improve the position of the worst-off group
in society, in accordance with the two parts of the second principle. Both parts,
it could be argued, justify substantial transfers of wealth. Under fair equality of
opportunity, we might justify increased support for early childhood education,
schools in low-income areas, subsidies for schooling of choice or scholarships. It
might be argued that most societies are a long way from ensuring fair equality of
opportunity, as unequal social and economic positions in life have a substantial
effect upon the likely prospects of children. A major study of inequality in the
United States in 1996 showed that the most reliable indicator of what children’s
socio-economic position would be was the socio-economic position of their
parents (Fischer, 1996).
Rawls’ second principle part (a), the ‘difference principle’, is the most contro-
versial part of his theory of justice, as it authorizes redistributing wealth to the
worst-off even if those who earned it did so as a result of fair equality of oppor-
tunity. In practical terms, the principle means that high levels of earning are
acceptable only to the extent at which taxing them improves the situation of the
worst-off group. A balance must be struck – there is an assumed point for Rawls
at which taxation is so high, that the talented stop wanting to earn more. The
task of policy makers is to find the right rate of taxation – which will allow the
wealthy to increase their wealth while at the same time redistributing as much
as possible to the poor. Many countries which have made the changes to welfare
policy we outlined above have also seen popular campaigns to reduce levels of
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 33
taxation over the past two decades. Although those with the highest marginal tax
rates (for example: 59% in Sweden, 55.9% in the United States, including income
taxes at all levels, 52% in the netherlands, 45% in the UK and France) might be
assumed to provide the highest level of welfare, this is not necessarily the case,
as tax income must fund a wide range of government expenditures.
Rawls’ difference principle and its defence of redistribution to the worst-off
rely on several key claims. We have already discussed the idea that earnings and
profits are the product of shared social systems and practices, and that therefore
all in society have a possible claim to them. Further, as our intuitions tell us
that social and economic advantages such as family status and education are
unearned and undeserved, so also do they tell us that our natural abilities and
skills are unearned. We are born with them as a matter of luck, but we don’t
deserve them in a moral sense, and it follows from this, and from viewing soci-
ety as a shared project of cooperation, that our right to benefit from out talents
should be limited by considerations of what is fair for everyone. Rawls argues:
‘the more advantaged representative man cannot say that he deserves and there-
fore has a right to a scheme of cooperation in which he is permitted to acquire
benefits in ways that do not contribute to the welfare of others’ (1971, 104). This
is a controversial claim – even if we do not actually deserve our talents and abili-
ties, some might argue, like nozick, that they are so much a part of us that we are
therefore entitled to what they bring us. And of course it can be very difficult to
distinguish the success brought about by natural talents from the success earned
by hard work in developing and applying one’s talents.
Given that Rawls’ scheme will limit the wealth that high achievers will earn,
and redistribute it to the poor, why should high earners accept it? We have
already considered Rawls’ argument that his principles of justice are those that
would be chosen if everyone were choosing under fair circumstances. Moreover,
fair equality of opportunity is already accepted as a desirable social goal in all
liberal democracies. Finally, and because of these reasons, Rawls argues that his
scheme creates a sense of fraternity or solidarity. The fate of each member of the
community is linked to that of others. As we have seen, some philosophers who
have analysed the decline in support for welfare have ascribed it to insufficient
communal loyalty and solidarity. Rawls suggests that we may be able to build
the same kind of mutuality and fellow-feeling in society that exists ideally in the
family, if we explicitly link the success of the wealthiest with the situation of the
worst-off.
one possible disparity between Rawls’ argument for redistribution and wel-
fare systems as they exist is that he focuses on improving the position only of
the economically worst-off group. Rawls defines this group mainly in terms of
levels of income and wealth, although the contingencies of natural endowment
and luck also play a role in identifying the ‘least advantaged’. Physical and mental
capabilities are explicitly excluded from the operation of the second principle. In
some cases they may be addressed, Rawls argues, by applying the fair equality of
34 | A P P ly I n G P o l I t I c A l t h E o R y
opportunity principle. In other cases, they should be the subject of separate state
provision, designed to ‘restore people by health care so that once again they are
fully cooperating members of society’ (1993, 184). Most welfare policies have
identified the needs of the disabled, and, as we have seen, in many countries
changes to welfare policy have distinguished the needs of the disabled from other
beneficiaries. Even if we put aside the question of compensating the disabled,
Rawls’ focus on the least-advantaged group means that the needs of those who
fall elsewhere on the spectrum, between least- and most-advantaged, are not
directly addressed. In fact, he assumes that there will be a ‘chain-connectedness’
between all groups on the scale of income, and that by improving the position of
the worst-off, the situation of others between the two extremes will necessarily
also be improved (Rawls, 1971, 80).
While needs-based welfare has focused on those at or near the bottom of the
economic scale, the universal coverage of the post-war welfare state included
provisions such as health care and pensions which were accessible to all socio-
economic groups. contemporary welfare reforms are aimed not at improving
the position of the worst-off in society, but rather that of the working poor. As
we have seen, welfare redistribution is now aimed at encouraging labour market
participation. In Rawls’ original discussion of his theory, the principles do not
distinguish between those who work and those who do not – the position of the
least-advantaged is targeted whether or not those in that position work, or seek
work. he has since suggested that ‘leisure’ might be included as a primary good,
and thus that someone who chose it would not be compensated under the differ-
ence principle (Rawls, 1993). The implications of this are, however, not worked
out, and the objections we discuss below concerning the status of unpaid labour
would apply here.

Bad luck or bad choices?

Much of the opposition to welfare is driven by the claim that the choices made
by beneficiaries should matter – that there is a meaningful difference between
being poor as a result of bad luck, and being poor as a result of bad choices. This
is particularly the case with welfare assistance for able-bodied adults. In the case
of children and the disabled, where it is clear that recipients are by definition
prevented from choosing to become self-supporting, the debate has continued
to focus on meeting need. Most European reforms to welfare provision have
excluded the disabled from new restrictions. Those programmes which restrict
benefits to those actively in search of work, or working in low-wage positions,
however, are designed to reward those who make ‘good’ choices – to work – and
penalize those who choose not to.
Several liberal egalitarian philosophers have addressed the question of
whether those in need due to circumstances beyond their control should be
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 35
treated in the same way as those who might be seen as contributing to their
hardship by irresponsibility or negligence. In doing so, they argue for a more
limited view of equality – focusing on equalizing luck, rather than equalizing
material circumstances. one way to address this is to draw a distinction between
the qualities with which we’re naturally endowed and our ambitions to make
use of those qualities. This also has the effect of emphasizing liberty, by holding
that individuals should be bound to the consequences of the free choices they
make concerning the use of their talents and resources. Ronald Dworkin has
developed a scheme which aims to correct for disadvantages in terms of natural
talents, but not to adjust for ambition and hard work when justifying redistri-
butions. Theories such as this are sometimes referred to as ‘luck egalitarianism’
(Anderson, 1999) because they aim to equalize luck: to support those in need
due to bad luck, but not those whose circumstances are caused by bad choices.
Dworkin describes this distinction as being between two different types of bad
luck: ‘brute’ bad luck, which are circumstances that we didn’t contribute to in any
way, and ‘option’ bad luck, which occurs when we land in bad circumstances as
a result of our poor choices.
Dworkin agrees with Rawls that the benefits we derive from our choices and
our luck are the product of our shared membership and cooperation in society:
‘For the distribution of wealth is the product of a legal order: a citizen’s wealth
massively depends on which laws his community has enacted – not only its
laws concerning ownership, theft, contract and tort, but its welfare law, tax law,
labor law, civil rights law, environmental regulation law, and laws of practically
everything else’ (Dworkin, 2000, 1). Within this context, he outlines two basic
principles of ‘ethical individualism’: firstly, that human lives should be success-
ful, rather than wasted, and secondly, that the ultimate responsibility for the
success of each life lies with the person living it (Dworkin, 2000, 5). The first
principle justifies the state redistributing resources via welfare policies, in order
to provide the conditions for autonomy. But the second principle emphasizes
the importance of individual responsibility. This resonates with the concerns of
conservatives about welfare, but we could also see in it a more liberal concern
with the importance of people being actively involved in their lives, rather than
the passive beneficiaries of assistance.
This focus upon free and autonomous human choice helps to distinguish
between two different approaches which might be taken by theories of distri-
butional equality: either to equalize welfare or to equalize resources. Welfare
here refers to outcomes which are good for citizens. As Dworkin points out,
equalizing welfare as outcomes has an immediate appeal. It focuses on ends
rather than means, and recognizes that people have different needs, and will
need different amounts and kinds of resources to achieve equal welfare. needs-
based welfare programmes may be understood as an effort to bring about greater
equality of welfare in terms of outcomes. There are, however, some problems
with this approach, which arise from the rather nebulous way in which welfare
36 | A P P ly I n G P o l I t I c A l t h E o R y
as outcomes may be defined. It is difficult to measure and compare people’s level
of personal happiness, or overall success in life. (This problem of ‘interpersonal
comparisons’ also besets utilitarianism.) certainly a large and intrusive state
bureaucracy would be required to make these comparisons. Some people’s
welfare might depend upon preferences that we consider illegitimate, perhaps
because they are uninformed, or irrational, or because they involve the denigra-
tion of others. others might have preferences that they regard as essential to
their welfare, but which the state cannot ensure are satisfied, for example an end
to global warming, world peace, no more deaths from cancer.
Given these problems, Dworkin argues that the better egalitarian strategy is
to aim at equality of resources rather than of welfare. If everyone has an equal
amount of resources, some will choose to do more with these than others, or be
less or more happy – but these are personal matters in which the state need not
be involved. Focusing on equality of resources re-emphasizes the principle of
individual responsibility and accords with many of the practical critiques made
of the effects of welfare. of course, people will want different resources and dif-
ferent combinations of them, based on their own abilities and desires. Dworkin
proposes a thought experiment to show how this would work. Imagine a group
of castaways who landed on a desert island, and had to work out a scheme for
sharing resources. In order to ensure a just distribution, an auction is held at
which everyone has equal purchasing power. Each castaway then bids for bun-
dles of resources. These bundles are re-divided after each successful bid, until
all resources are accounted for. At the end, everyone will be happy with their
bundle of resources – because if they were not, they would have bid differently.
Individuals are free to choose what collection of resources they would most like,
and a fair and open market allocates resources.
however, Dworkin, like Rawls, thinks that people should not be penalized
for lacking abilities. nor should they receive unregulated rewards because they
have socially valued talents. once the castaways have their initial distribution,
the degree to which they will amass more resources and be successful depends
upon a range of different factors. Some people will choose more remunera-
tive occupations than others, and in this case, they should be entitled to the
profits they make. In some cases, luck will be a factor. Where castaways make
more wealth as a result of luck that depended upon them choosing to take
risks – Dworkin calls this ‘option luck’ – they should be entitled to any gains
they make – and they should also have to bear any losses. choice entails risk.
But what people can make out of their initial bundle of resources may also be
affected by the bad luck that befalls them. As this is not a result of their free
choice, they should not have to bear the brunt of it. Resource redistribution
should thus compensate for Dworkin’s ‘brute luck’ The best way of assess-
ing compensation would be to look at what the castaways would have agreed
to pay in insurance against such bad luck happening. Then, because not all
would choose to take out insurance, a compulsory insurance scheme would be
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 37
instituted, financed by progressive taxation, which would compensate people
for brute bad luck – including natural or physical handicaps.
Unlike Rawls’ theory, Dworkin’s scheme addresses the central concern of those
who support changes to welfare: it distinguishes economic hardship caused by
choice from that caused by bad luck. It also targets a wider range of those in
need; Rawls focuses only on the worst-off group in society, defined in terms of
income and wealth. Dworkin’s compulsory insurance scheme recognizes a range
of hardships that might be produced by bad luck, notably including physical
and mental disabilities. however, Dworkin also wants, like Rawls, to prevent
people benefiting from the possession of unearned talents. This, he argues, can
be achieved by the periodic redistribution of resources through taxation. These
redistributions would be based on the same principle as the insurance scheme –
individuals would make a compulsory contribution to redistribution, through
tax, contributing to insure themselves against having no or few marketable
talents. This is of course an ideal scheme, and the challenge is to implement poli-
cies of ‘defensible egalitarian redistributions’ which most closely approximate its
underlying rationale.
Dworkin’s defence of equalizing resources assumes that a clear distinction can
be drawn between the demands upon us that result from our choices, and those
that result from circumstances that we did not choose. If we have desires or tastes
that are expensive to satisfy, we should not be compensated for them by the state,
because it can be assumed that they are freely chosen. Gerald cohen has pointed
out, however, that we do not necessarily choose our expensive tastes, although
we may be impelled to satisfy them (1989). It follows that we cannot avoid
looking closely at what was chosen and what was not when we are considering
redistribution. Rather than equalizing resources, cohen concludes, we should
equalize access to advantage, which recognizes the legitimacy of redistributing
so that those with unchosen expensive preferences are not disadvantaged. This
accords with Marx’s call for resources to be distributed ‘to each, according to
his need’ (cohen, 2004). We might note here the difficulty in implementing a
policy of redistribution that requires the circumstances of individual choices to
be assessed. In order to carry this out, the state would require an unimaginably
large and intrusive bureaucracy. This objection is, as cohen points out, practi-
cal rather than theoretical – it does not affect the egalitarian case that he makes
against equalizing resources (cohen, 1989). But it does point to the difficulty in
applying ‘ideal’ theory to real-world problems.

Ensuring human capabilities

Dworkin’s is a more complex scheme for redistribution than Rawls’, but has the
possible advantage of aiming to separate clearly between the chosen and uncho-
sen determinants of our own fortunes. This is clearly in accord with some recent
38 | A P P ly I n G P o l I t I c A l t h E o R y
changes to welfare that tighten requirements for eligibility for benefits. But is it
possible to make such clear distinctions? Some egalitarian thinkers have criti-
cized the idea that people should or should not receive financial assistance on the
basis of whether or not they made good choices. Elizabeth Anderson argues that
whether luck egalitarians focus on equality of welfare or equality of resources,
their mistake is to think that luck is what should be equalized. In fact, people’s
abilities to utilize resources depend not upon luck, but rather on the social,
economic and cultural structures within which they make choices, and which
constrain those choices. As Marx put it, people make their own history, but
not under the circumstances of their own choosing ([1852] 1978, 595). Instead
of equalizing luck, justice should aim to end the oppression which constrains
human choice (Anderson, 1999).
The real problem with luck egalitarianism is its assumption of free choice.
Focusing upon luck ignores the way systems affect choices and prospects, and
instead sets up the state as a moral arbiter, tasked with judging individual deci-
sions. It forces people to live with the consequences of ‘bad choices’, no matter
how that choice was constrained. take, for example, a young woman with poor
education, a family history of abuse and no social support who becomes preg-
nant with a second child (a common group of potential beneficiaries targeted by
recent welfare changes). her ‘decision’ to become pregnant may have been due
to lack of education about contraception, an uncooperative partner or her lack
of direction in life. or take a young man who ‘chooses’ to work at a local auto-
mobile plant, because that is overwhelmingly the main employer in town, and
his school and family have not prepared him for other options. When the plant
closes because production has moved offshore, and the worker finds himself
unemployed and, without retraining, unemployable, is his situation the result
of option or brute luck? These examples are importantly different from the case
of someone from a wealthy background who chooses to drop out of university
and go surfing. Even setting aside the structural constraints of choice, those who
‘choose’ to care for dependents – work necessary for social reproduction – will
find themselves penalized under a system that cannot distinguish the various
reasons individuals choose not to engage in remunerative labour.
What these and other similar critiques suggest is that rather than assuming
freedom of choice, and assessing choices made, an egalitarian system should
focus on redistributing resources to ensure that people can in fact make free and
autonomous choices in the first place. Some theorists have suggested that the
aim of redistribution should be to ensure that everyone had enough resources
to exercise their human capabilities in order to make autonomous choices about
the important things in life. Anderson calls this a system of ‘democratic equal-
ity’ and adds that once enough resources are redistributed to ensure essential
human capabilities, there should not be limits on additional appropriation by
the wealthy. Some theorists argue similarly that the goal of justice should be to
ensure that all people are equally capable of functioning as free human beings
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 39
(Sen, 1992). Martha nussbaum lists a range of ‘core capabilities’, which she sees as
essential to being human, and argues that a just society must distribute resources
in such a way as to provide for these. her list of basic capabilities ranges from
physical survival and bodily health to the capability to exercise practical reason,
and the capability to exert some control over one’s environment, including politi-
cal control (nussbaum, 1999).
As we have seen, before the current wave of reforms, the welfare state was
aimed at satisfying the basic needs of citizens, on the grounds that everyone
must have the resources required to satisfy these needs, in order to function
as citizens. The capabilities-based theories I have outlined argue that the sat-
isfaction of essential needs is necessary to living free and autonomous lives.
We should note here that this conception of autonomy is quite different from
that of self-ownership libertarians like nozick. But a more complex concept of
autonomy presents its own problems: can we clearly identify the capabilities
essential to autonomy? And could we fix a point at which we could be sure that
enough redistribution had occurred in order to ensure that these capabilities
were fully provided for? how, given scarce resources, are we to deal with the
problem of expensive needs? Should all redistribution, for example, be targeted
towards improving the condition of the severely disabled with very high needs?
or should support be limited on the basis of the likely improvement in human
capabilities that it can sustain?
notwithstanding these difficult questions, the separation between needs and
choices becomes particularly attractive when we concede more weight to the
structural and institutional factors that constrain and limit choice. Feminist
theorists argue that economic, cultural and ideological factors combine to limit
the abilities of most women to freely and autonomously choose and carry out
their plans and projects in life (okin, 1989, 4). Women in most modern societies
are still assumed to be the primary caregivers for children and other dependents,
and their average income is uniformly lower than that of men. At the same time,
women have tended to be the focus of anti-welfare campaigns, particularly in the
United States, in the figure of the ‘welfare queen’ – the young, low-income single
mother. As we have seen, a needs-based approach avoids penalizing women and
children in this situation for the results of their constrained choices. The left-
libertarian basic income scheme also provides at least some resources for this
group. Stricter luck-egalitarian arguments might attempt to satisfy the child as
an innocent victim from its mother, but it is not possible to completely separate
the interests of dependent children from their caregivers.
The fact that even liberal egalitarian arguments do not take into account
women’s socialization into caregiving roles in the family may be because liberal
political philosophy historically has relegated the family to the ‘private sphere’,
exempt from regulation by political principles of justice (okin, 1989; Elshtain,
1981). okin comments that a central source of injustice for women is that the
law ‘treats more or less as equals those whom custom, workplace discrimination,
40 | A P P ly I n G P o l I t I c A l t h E o R y
and the still conventional division of labor within the family have made very
unequal’ (1989, 4). The feminist critique suggests that more is required for jus-
tice than merely redistribution. Rather, institutions (such as marriage and the
family) and the ideas and ideologies that underlie them must change in order to
really make society more fair, and to provide for those in need. But in the mean-
time, in the non-ideal world, redistribution on the basis of choice must recognize
how constrained choices are.

Sustaining communities through

redistribution
Some feminists argue that redistribution in the form of welfare is important not
because it reflects the claims of individuals to justice, but because it embodies an
‘ethics of care’ (tronto, 1993). Feminists who work in this tradition argue that
we should think of justice not as the balancing of individual rights, but rather in
terms of recognizing and maintaining the network of social relations which sus-
tain the community. The concept of the individual underlying this perspective
is different to that which shapes most of the liberal theories we have discussed:
individuals are not unconnected, ‘atomistic’ selves driven by self-interest, but
rather interdependent members of communities which make them who they
are. Ethics of care theorists base this view on the experience women have gained
through their social roles as caregivers, particularly in families. This experience
(rather than what male philosophers have historically often seen as women’s
‘essential nature’) endows them with what moral psychologist carol Gilligan has
called a ‘different voice’ (Gilligan, 1982), less attuned to regulating competing
claims under justice, and better suited to social reproduction. When it comes to
redistribution, ethics of care theorists tend to support a needs-based approach,
which reflects a common responsibility to care for our fellow community mem-
bers. We might note here that Rawls’ liberal theory also reflects the idea that all
members of a society share their fates – that is why the wealth of the richest is
tied to that of the poorest.
communitarian thinkers more generally support at least some redistribu-
tion on the grounds that large-scale material inequalities are corrosive to social
cohesion. The flip side of this is their argument that communal responsibility
should be re-emphasized as the justification for welfare redistribution. Some
communitarians, as we saw at the beginning of this chapter, think that an exces-
sive focus on individualist rights-based arguments is responsible for the decline
in commitment to the welfare state (Sandel, 1982; 1996). Redistribution through
welfare can only be justified insofar as all citizens are committed to a common
good. The remedy for this involves not only changes in the way we think and
talk about politics, but also changes in the institutions we expect to achieve
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 41
social change. Rather than the state and its bureaucracies, we should reinforce
the role played by the social institutions of civil society (Bellah et al., 1985;
Elshtain, 1995). Right-wing communitarians have argued from this that social,

Box 2.2 taxatIon and redIstrIButIon:

competIng norms and values
The philosophical debate over taxation and redistribution centres on different
interpretations of some key concepts:

• Private property: Libertarian thinkers see private property rights as fundamental,

and independent of questions about the fair distribution of resources. Individuals
who acquired property justly may do with it what they like, and there are no grounds
for the state to take it forcibly and redistribute it to others. Egalitarian thinkers –
liberal, communitarian and feminist – argue that private property is not an absolute
good, but is legitimate as long as it supports principles of justice or the good of the
community. Marxists think that property is produced through social cooperation,
and should be owned in common.
• Equality: Some libertarian opponents of redistribution argue that equalizing
resources or overall welfare is incompatible with liberty. Left-libertarians, however,
claim that everyone is entitled to an equal share in the world’s resources, and that
the benefits and proceeds of resources should be equally distributed to everyone –
not just to the needy. Egalitarian thinkers, across the spectrum from liberal to
Marxist, hold that justice requires equality, whether of overall welfare, or resources,
or of access to opportunity.
• Liberty: Libertarians emphasize people’s liberty to do what they wish with their
own property. For Nozick, this means preventing the state from forcibly acquiring
and redistributing the resources of some to others. For left-libertarians, it means
granting everyone their rightful equal share of resources, and allowing them to
spend it as they wish. Egalitarian liberals think that freedom is expressed through
the abilities of individuals to make independent and autonomous decisions, or to
exercise their human capabilities. The right to private property must be subordinate
to personal freedom and autonomy, and redistribution is thus justified if it enables
people to achieve these. Communitarian thinkers argue that personal liberty is
defined and limited by communal ties. Redistribution must reflect a sense of shared
social commitment and obligation, and must be accompanied by the strengthening
of social institutions.
• The role of the state: Libertarians argue for a minimal state which will protect the
security of citizens and enforce contracts, but not forcibly redistribute resources from
some citizens to others. Communitarians share this sceptical view of state welfare,
but emphasize the role of civil society organizations and institutions in managing
redistribution. Other liberals think that the state should play a more activist role in
creating the opportunities people need to enjoy their liberties. Redistribution that is
tied to choice and responsibility requires close regulation by the state. But a strong
state is also necessary for leftist schemes to redistribute on the basis of need.
42 | A P P ly I n G P o l I t I c A l t h E o R y
particularly religious, organizations should be charged with the responsibility for
social support. to some extent this involves voluntary aid through charity – of
the same kind envisaged by libertarians, although for different reasons. The lat-
ter emphasize the private right to give charity, while communitarians stress the
ways in which charitable institutions contribute to the common good. But these
ideas have been most influential in justifying the state provision of funding to
social groups – as we have seen, a common change to welfare policies in many
countries has been the privatization of service provision and delivery.

Conclusion
All of the theorists we have discussed in this chapter are concerned with the
balance between private ownership and fairness or justice. For nozick, justice is
defined in terms of private ownership: as long as people acquired their property
as a result of free transfer from the previous owner, they are under no obligation
to transfer it to others in need. For egalitarian thinkers, private ownership is an
institution that only has meaning in the context of society and its regulating
principles of justice. ownership and entitlement must thus be balanced with
fairness, reciprocity, the common good, the intrinsic importance of developing
human capabilities and other principles such as the value of taking personal
responsibility for our choices. how they strike this balance determines where
theorists line up in their support of redistribution.
We might also see the debate over welfare as turning on the relationship
between distribution and resources on the one hand, and human autonomy,
or free and self-directed action on the other. Some political theorists who
support welfare redistribution against the current trend to restrict benefits
argue that redistribution is not enough to achieve justice. Fairer redistribu-
tion of resources may provide people with the resources they need to develop
themselves freely, but structural changes to our institutions and values may
be required to allow people to think about themselves in such a way as they
will be able to use their resources. Iris young, one of these more ‘critical
theorists’, argues that people need to be able to exercise two capacities: for
self-determination and self-development. Self-development requires (at least)
adequate material resources, while self-determination means that people
must be free to make their own decisions, and choose the conditions of their
actions. Domination prevents this, and that is exercised through constraining
institutions and social relations (young, 2000). So while welfare will redistrib-
ute resources, broader social change is required in order to treat beneficiaries
fully justly and equally. At the same time, as we saw at the beginning of this
 tA x At I o n , W E l FA R E A n D R E D I S t R I B U t I o n | 43
chapter, opponents of welfare see the system itself as a source of domina-
tion, preventing recipients from becoming autonomous in the sense of taking
responsibility for their own lives. like many of the issues we encounter in this
book, the debate over redistribution is at least in part over what is required in
order for people to be autonomous.
3

Are Minority Cultures

Entitled to Recognition
and Rights?

● Cultural rights versus individual freedom

● deConstruCted identities
● group rights and Cultural Change
● defending Cultural rights: autonomy and the role of Culture in
personal identity
● soCietal Cultures and ethniC groups
● intrinsiC rights for minority Cultures
● group interests versus the Common good
● interCulturalism
● Cultural rights versus egalitarian distribution
● Cultural rights versus gender equality
● ConClusion

One of the most important new political developments in Western democracies

towards the end of the last century has been the emergence of minority cul-
tural groups claiming official recognition and rights. As immigration has made
democratic societies increasingly pluralist and multicultural, minority ethnic
and cultural groups have argued not only that their individual members must be
granted equal rights and protections, but also that groups themselves are entitled
to recognized status and collective rights. The groups making these claims are
diverse: they include ethnic immigrant and refugee communities, indigenous
peoples, religious communities that draw members from different ethnic back-
grounds, national minorities that have existed with some degree of separate-
ness for the entire history of a nation and the descendants of those brought to
their country against their will. Their claims also cover a wide spectrum: some
groups demand that their language, cultural customs, religious beliefs or his-
tory be included in public ceremonies or school curricula. They may go so far

44
 M i n O r i t y C u lt u r e s | 45
as to claim that cultural practices and beliefs should be taken into account as
a defence or mitigation in criminal trials. some groups request that they be
exempted from usual regulations covering dress, or sunday trading. indigenous
groups or national minorities may demand limited self-determination and
self-government, perhaps over territory or resources, or over policy issues that
specifically affect the minority.
Despite their differences, these groups share in common the view that the
identities of individual members are importantly shaped or influenced by their
unchosen or ascribed membership. it is the ‘deep’ and unchosen nature of group
membership that differentiates cultural groups from other kinds of association,
based on shared interests or opinions. As Paul Hirst puts it, cultural groups con-
stitute ‘communities of fate’ rather than ‘communities of choice’ (Hirst, 1994),
and deserve to be treated differently from the voluntary groups and associations
to which people belong. Because of the link between political claims and col-
lective identity, these arguments are sometimes referred to as ‘identity politics’.
While cultural diversity is a fact of life in most modern democracies, rela-
tively few have official policies recognizing minority cultures. in Australia and
Canada, multiculturalism was officially adopted at the federal level in the 1970s,
and entrenched in the Canadian Constitution in 1982 and the Canadian Mul-
ticulturalism Act of 1988. in both countries, governments formally committed
themselves to recognizing the diverse cultural backgrounds of their citizens,
and supporting projects aimed at maintaining and publicly celebrating minor-
ity cultures. some european countries, including sweden, the netherlands and
Denmark, followed suit.
The twenty-first century, however, has seen a widespread popular backlash
against multiculturalism. in many culturally diverse nations, anti-immigration
parties have increased their support, as pressure has grown from majorities for
minorities to assimilate and to drop claims for recognition or rights. Govern-
ments have increasingly expressed scepticism about multiculturalism in the
context of the war against terror, especially in reaction to unrest in immigrant
communities at home, and expressions of support from some Muslim citizens
for militant groups abroad. riots in Britain in 2011 and France in 2012 were
blamed upon unassimilated immigrants. in 2010, German Chancellor Angela
Merkel announced that multiculturalism had failed in Germany, and that new
immigrants should do more to integrate into German society. in 2011, British
Prime Minister David Cameron declared that multiculturalism was a ‘wrong-
headed doctrine’ with ‘disastrous results for British identity’, and had fostered
extremist ideology and home-grown terrorism among British Muslims. shortly
after, then-French President nikolas sarkozy declared the failure of multicultur-
alism also in France. These statements reflect increased popular opposition to
immigration in Western european countries. in the uK, this has been prompted
by the extension of the european union to former eastern european countries,
46 | A P P ly i n G P O l i t i C A l t H e O r y
many of whom have come to the uK to work. The right-wing populist uK inde-
pendence Party – uKiP – opposes British membership of the eu, and advocates
a freeze on migration to the uK. in the 2015 general election, the party gained
the third largest share of votes.
some of the most controversial of multicultural claims have involved the
rights of members of cultural minorities to substitute ethnic or religious dress
for uniforms, either in school or at work in public institutions such as schools,
hospitals and the police force. These claims are not new: in the 1960s, sikhs

Box 3.1 The headscarf conTroversy in

france
In France, where the secular character of public life has historically been fiercely
defended, small numbers of Muslim girls began to wear the hijab or headscarf to school
during the 1980s. Teachers complained, but the state left the decision about whether to
ban this dress up to individual schools. After the terrorist attacks of 2001, however, the
issue attracted increased public anxiety about radical Islam and the apparent failure of
Muslim immigrants to assimilate into French society. In 2002, right-wing presidential
candidate Jean-Marie Le Pen attracted substantial support when he campaigned on
an anti-immigration agenda which included such policies as a ban on the building of
mosques in France. In September 2004, France enacted a national ban on the wearing
of all conspicuous religious symbols in state schools, including Muslim headscarves,
Jewish skullcaps, large Christian crosses and Sikh turbans. While this controversy also
raised issues of religious freedom, much of the dispute focused on questions of cultural
rights:

• Supporters of the ban argue that religious coverings impede free movement and
imply that women’s bodies are shameful, and that girls and women, if freely allowed
to make their own decisions, uninfluenced by religious and patriarchal authority,
would not choose to wear them. Girls who do claim to choose to wear the veil
cannot really be free to consult their own wishes. Moreover, allowing Muslim citizens
to wear religious dress means treating them differently, and exempting them from
general uniform rules. The effect of such a policy would be to encourage separatism
among Muslim immigrants to France.
• Opponents of the ban counter that many girls and women who choose to wear
religious dress insist that they are acting freely. To assume that a decision not to
appear in a sexualized manner in public must be coerced is to assume that Western
values are universal. To prevent Muslim women from following what they see as
their religious duty is to discriminate against them. Moreover, it will force them to be
educated privately, and thus paradoxically will increase their alienation from French
institutions and political values.
Similar bans have also been enacted in the Netherlands and Belgium. In 2014, the
European Court of Human Rights upheld the French law, on the grounds that it was
aimed at a certain idea of ‘living together’.
 M i n O r i t y C u lt u r e s | 47
in Britain employed by bus companies demanded and won the right to wear
turbans to work, and the Canadian government ruled that sikhs could serve as
members of the royal Canadian Mounted Police without removing their turbans
and beards. Most recent cases have involved Muslim immigrants, and while the
most publicized has been that of the headscarf in France (see Box 3.1) similar
cases have arisen in many other european countries, as well as Britain, the
united states and Canada. They raise issues of the freedom of religious expres-
sion, but also the status of minority cultural communities.
Concerns about the assimilation of Asian immigrants had been publicly debated
in Britain through the 1990s, in response to the salman rushdie affair of 1989 (in
which Muslims protested against blasphemy against the Prophet Mohammed in
one of rushdie’s novels). Cases in which young girls were forced into marriages
in accordance with alleged traditional cultural practices provoked further public
debate about the status of minority cultures. in fact, many disputes concerning
minority cultural customs centre around the dress and treatment of girls and
women, as feminist theorists, whose work we consider below, point out. The
most extreme example is female genital mutilation (FGM), which is practiced
by some immigrants from Africa and the Middle east, and has been banned or
restricted to consenting adults in Britain, many european countries, Canada, the
united states and new Zealand. The official policy in Britain has been that inte-
gration does not mean assimilation, and that ethnic and cultural differences may
be maintained unless they are contrary to the public interest, as is the case with
forced marriage and FGM. toleration and recognition of cultural difference has
increasingly come to be extended – not without controversy – to minority reli-
gious groups. The government provides funding for schools reflecting minority
religious cultures and has recently extended this to Muslim schools. neverthe-
less, the recognition of acceptable differences has run up against limits. The hijab
is largely uncontroversial – female Muslim police officers have been permitted to
wear it – but forms of dress that cover the whole body or face have been much
more controversial. in 2002, shabina Begum, a pupil at Denbigh high school,
was expelled for insisting upon wearing the jilbab, a long gown, in contravention
of the school uniform policy. After a lengthy appeals process, the House of lords
in 2006 upheld the school’s right to expel the girl, given that it had determined
its uniform policy in full consultation with local minority community group
leaders. in 2007, the courts ruled that schools could ban pupils from wearing the
full-face veil on the grounds of security, safety or learning. Also in 2006, a young
Muslim woman who was a teaching assistant in a yorkshire school was dismissed
for insisting on wearing her niqab, a veil worn by some Muslim women which
covers all of the face except the eyes. The debate sparked by this about minority
cultural and religious practices was further fuelled when Cabinet Minister Jack
straw remarked that he asked Muslim women attending his office in his Black-
burn constituency, where some 30% of residents were Muslim, to remove their
48 | A P P ly i n G P O l i t i C A l t H e O r y
veils. straw argued that covering the face undermined community relationships.
in 2006, then-Prime Minister tony Blair asserted that all immigrants had a duty
to embrace the values of ‘democracy, the rule of law, tolerance, equal treatment
for all, respect for this country and its shared heritage’, stating that immigrants
should ‘conform to it, or don’t come here’ (Associated Press, 2006). After some
schools banned full-face coverings in Britain in 2013, and women in court were
asked to remove their veils, Prime Minister Cameron expressed his support for
banning the full face veil in courts and schools.
in the united states, the issue of religious dress has been viewed primarily as
one of freedom of expression, and the government has maintained that banning
religious dress would violate a basic right that should be protected. The us Jus-
tice Department, for example, intervened when an 11-year-old Muslim girl was
banned from wearing her headscarf as part of a wider ban on head coverings, and
the school eventually changed its policy. However courts refused the request of
a Muslim woman in Florida to be photographed for her driver’s licence wearing
a face-covering burqa, on the grounds that facial identification was an essential
aspect of the license. The question of minority communities’ rights in the united
states to exemption from legal provisions was addressed in 1972 in the Yoder
supreme Court case. Here, the Amish community was granted the right to exempt
its children from education in a state curriculum that contravened Amish values.
Where ethnic minority groups and separatist communities like the Amish
have requested exemption from legal requirements, indigenous communities
and long-standing national minorities argue for formal constitutional or legal
recognition of their status, and varying degrees of self-management. in the
united states, native American tribes have powers of self-government similar
to those of states in the federal system. They manage natural resources and law
enforcement: most native American communities have local court systems that
deal with matters that relate to local ordinances. in Canada, the indigenous First
nations, inuit and Metis peoples are officially recognized in the constitution, and
claim varying degrees of self-determination and sovereignty. nunavut, the new
self-governing territory formed in 1999, has a population which is 85% inuit,
and its own territorial legislature and institutions. indigenous First nations are
not, of course, the only national minorities in Canada: the province of Quebec
has demanded autonomy and self-determination, and two referenda have been
held on whether or not Quebec should secede from Canada. Although these
failed, federal legislation recognizes Quebec as a distinct nation within Canada.
French is its sole official language, and english speakers are a recognized linguis-
tic minority within the province.
indigenous peoples in Australia do not enjoy the same degree of self-
determination, although since the landmark Mabo High Court case in 1992,
their rights as native title holders over their land have been legally recognized.
Activists have demanded that indigenous Australians be recognized as a cultur-
ally and historically distinct group, with original rights to their land, but they
 M i n O r i t y C u lt u r e s | 49
have achieved limited success in mainstream politics. The situation for indig-
enous peoples is very different in new Zealand, where the Maori people are a
strong and active force in mainstream politics, and Maori cultural practices and
language are to at least some degree incorporated into public life under poli-
cies of ‘biculturalism’. since the 1980s, new Zealand has recognized the treaty
of Waitangi, signed by representatives of the Crown and Maori chiefs in 1840,
as a foundational legal and political document, which apportions sovereignty
and grants limited rights to self-determination and self-management to Maori.
separate seats have been set aside for Maori representatives to new Zealand’s
parliament since the 1860s, and currently number seven.
The myriad of policy responses that nations have taken to the claims of
minority communities must be viewed in an international political and legal
context. The rights and status of cultural minorities are in fact protected by the
united nations’ international Covenant on Civil and Political rights. Article 27
prescribes:
in those states in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language.

A un special rapporteur confirmed the view that this article does not mean
only that members of minority cultures should not be discriminated against:
it concluded that special measures granting rights to minority cultures may
be required (Capotorti, 1979). A un Declaration on the rights of indigenous
Peoples eventually passed in the General Assembly in 2007, with negative votes
from the united states, Australia, Canada and new Zealand. These four coun-
tries opposed self-determination for indigenous peoples on the grounds that
it was contrary to international law, and would result in the creation of two
separate classes of citizens. They have all subsequently, however, endorsed the
Declaration.
Many of the underlying political and philosophical questions that arise in
these cases concern the relationship between group and individual rights; for
example, to what extent should we see individuals’ identity and status as depend-
ent upon the groups to which they belong? is individual freedom or autonomy
affected by the way cultural groups are treated? Does granting rights to groups
threaten individual freedom – particularly in cases where individuals disagree
with or reject their groups’ cultural values and practices? These debates also
raise questions about the relationship between the state and cultures in a plural-
ist society: should – or can – the state be ‘benignly neutral’, not supporting any
cultural group, or maintaining even-handedness between all groups? Or are
some values so important or self-evidently correct that they must be advanced in
legislation (see the contrast between public reason and perfectionist approaches
in Chapter 1). related to this are issues around social cohesion: do recognition
50 | A P P ly i n G P O l i t i C A l t H e O r y
and rights for cultural minorities threaten the cohesion and commonality of the
nation? The answers to these questions might be seen to depend upon the cul-
tural minority in question. Critics have asked, for example, whether indigenous
cultural groups or historical national minorities should be treated differently,
and have more collective rights than other minorities – for example, those of
ethnic immigrant communities (Kymlicka, 1995). And in all cases, we might ask:
what should be the extent of these rights? is simply official recognition of minor-
ity cultures required, or should they be granted some degree of self-government
or self-management, so that they can make their own rules respecting their
members? We might also look critically at the relationship between cultural
recognition or rights and the broader issues of justice we considered in Chapter
2: should we focus instead on ensuring that the members of minorities – and all
in need – receive fairer distributions of material goods? some critics, as we will
see, view the claims of multiculturalism as a distraction from the real causes of
injustice and inequality.
We can group together the arguments in favour of cultural recognition and
rights into three basic categories: liberal concern for the relationship between
cultural membership and individual freedom; the empirical grounds that people
belong to a range of cultural groups which are of value to them; or history-based
arguments that indigenous peoples have been dispossessed and subordinated by
colonization. Arguments opposed to cultural recognition and rights may also
be divided into three groups: liberal concerns for individual freedom (including
the freedom of groups and individuals within minorities); arguments based on
national unity and the common good; and leftist concerns with the relationship
between multiculturalism and distributive justice. i examine first here liberal
individualist arguments against minority cultural rights, because the central-
ity of individual rights in modern liberal democratic societies means that the
presumption tends to be against recognizing collectivities. i also consider briefly
postmodernist and intersectional concepts of identity. i then turn to liberal and
non-liberal theories in support of cultural rights, before considering in more
detail a range of critical perspectives.

Cultural rights versus individual freedom

Our contemporary ideas about multiculturalism and the rights of cultural
minorities are deeply rooted in the history of modern politics. in the wake of the
Protestant reformation, the emerging plurality of religious beliefs formed the
major social context for the development of liberal thought in the seventeenth
century; John locke’s A Letter Concerning Toleration (locke, [1689] 1983) is an
early expression of the liberal view that the business of politics and government
should be distinguished from the range of different religious convictions that exist
in private life. As we shall see, locke’s separation of public from private concerns
 M i n O r i t y C u lt u r e s | 51
still forms the basis of much contemporary liberal criticism of cultural rights.
Most modern liberals have not argued that cultural membership and identity
is unimportant, but rather that it is a matter for private and social life, not to be
regulated by the state. ‘Political liberals’ such as John rawls argue that the public
business of politics must be regulated by principles of fairness that can be agreed
upon by people who have a range of different moral views and, by implication,
cultural identities in private life (1993). Throughout the history of Western polit-
ical theory, philosophers have divided up human activity into separate spheres of
action, each of which is concerned with different aspects of life, and has different
goals. since the seventeenth century and the development of liberal thought,
these spheres have included the private (the sphere of individual action, which
often includes the family), the social (human activity which involves others, but
not formal political activity) and the political or public. The private sphere is
where individuals are socialized and acculturated, and where we derive our sense
of what is good, important and morally valuable in life. There is a distinction,
however, between the ‘deep’ or ‘thick’ identities of private life, and the ‘thin’ selves
who debate and make political decisions in public.
some of the strongest opposition to policies of multiculturalism is associated
with a libertarian liberalism, which emphasizes individual freedom and a limited
state. Philosophers who take this perspective insist that giving groups rights will
endanger important individual rights. This does not mean, however, that they
assume that individuals are necessarily ‘atomistic’ and unconnected individu-
als, for whom culture is unimportant. They argue rather that cultural identities
should be freely chosen, and that cultural communities should be seen as volun-
tary associations or communities of choice, composed of members with shared
interests, and thus be no more deserving of protections and rights than other
voluntary groups (Kukathas, 1992, 239). Chandran Kukathas claims that the job
of the state is to offer security to individuals, and provide a safe and secure envi-
ronment in which they can pursue their private interests and goods (1992). The
state should not intervene to protect and preserve cultural groups, which exist
only as the product of free individual action and allegiance – such groups will
thrive if they are successful in attracting individual followers and adherents; if
they are not, Kukathas concludes, they are not worth preserving. Moreover, state
intervention to recognize minority cultures will inevitably favour some over
others, thus dragging governments into conflicts between groups. An example
in point is the tension that sometimes exists in countries like Australia and new
Zealand between immigrant ethnic groups and those indigenous peoples who
argue that their cultures merit special recognition and rights (Walker, 1993).
Opponents of cultural rights argue that the right to join and leave groups is
essential to human freedom. Political philosophers have particularly emphasized
the ‘right of exit’, as it’s clear that most of us are born and raised within cultural
communities, rather than actively choose to join them. individualist liberals
argue that we must be free to review our membership; that we must be aware of
52 | A P P ly i n G P O l i t i C A l t H e O r y
options, and that we must be free to leave our communities if we choose to do
so. As Martha nussbaum puts it when discussing women members of cultural
groups: cultural membership and the norms, practices and beliefs that flow from
it should only be assumed to apply to a member of that group if ‘on due con-
sideration, with all the capabilities at her disposal’, she has consciously adopted
that identity (1999, 46). i discuss this in more detail below, but it raises some
basic problems: can we really exit from cultural communities based on race or
ethnicity? And what does it mean to meaningfully review our membership?
The Yoder case in the united states is a good example of the difficulties here: if
the children of cultural minorities are excluded from the mainstream system of
education, or curriculum, and educated only according to the mores and values
of their culture, can they meaningfully assess and review their allegiance to their
culture? if adults have not been exposed to alternative cultures and lifestyles, it’s
hard to see how they could be said to have sufficient knowledge to exercise their
right of exit. The same applies to all cultural practices and customs which may
make it difficult for people to leave their communities, or restrict their options.
in practice, this might cover a wide range of practices that, for example, restrict
the education and opportunities of some group members, such as women. The
individualist position that cultural communities should be treated as voluntary
associations potentially justifies significant governmental intervention into
groups that do not allow a real right of exit. On the other hand, it does mean
that cultural groups should not be discriminated against if they advocate restric-
tive or illiberal practices, as long as these do not limit the freedom of members
to exit.
some philosophers have suggested that it is the voluntary associations that
emerge out of identity groups that have real moral value. The rights of these
groups – mini-democratic societies – to regulate their members should not be
interfered with, as long as there exists an effective right to exit from them. nancy
rosenblum argues that voluntary organizations which have formalized repre-
sentative structures and decision-making procedures allow true representative
voices to express group interests – thus avoiding the charge that majority and
powerful groups tend to be allowed to define the identity of the minority (1998).
identity groups, she argues, can too easily be attributed unity and coherence,
with self-appointed spokespeople claiming to speak for the ‘latent voice’ of the
group. They do not encourage an active group life, and may not be happy to see
themselves as a part of a ‘pluralist mosaic’ including other cultural communities
(rosenblum, 1998, 323).
Critics concerned about individual liberty have also pointed out that granting
cultural rights can result in pigeonholing or forcing into fixed categories indi-
viduals who are in fact members of many groups. Jeremy Waldron, for example,
argues for a ‘cosmopolitan’ view of the self, which recognizes ‘the chaotic co-
existence of projects, pursuits, ideas, images and snatches of culture within an
 M i n O r i t y C u lt u r e s | 53
individual’ (1992; 2000). The autonomous individual doesn’t have a single, uni-
tary life-plan, but has a complex identity, with many different forms of expres-
sion and identification. Waldron warns us against assuming that to be a real
or authentic individual, one must be unitary, singly directed. Anthony Appiah
argues similarly that ethno-racial identities tend to become an obsessive focus of
people’s lives, leading them to forget that their individual identities are complex
and multifarious (1996, 103). As rosenblum reminds us, individual identities
may be formed just as much in reaction against the communities to which they
belong, as they are shaped by them (1998).

deconstructed identities
Theorists who argue from postmodernism and intersectionality make simi-
lar critiques of multicultural identity politics, although based on different
foundations. Postmodernist theorists are sceptical that identity is fixed and
permanent – as we saw in Chapter 1, a key aspect of this approach is to be ‘anti-
essentialist’ and ‘anti-foundational’. individual identities are always relational
and indeterminate – contingent on context, and reflect the particular conditions,
ideologies and material needs in response to which they are expressed or per-
formed. There can exist no fixed group-related identities, determining individual
members (Bhabha, 1996). intersectionality, as we saw in Chapter 1, is the idea
that individual identity or subjectivity is always constituted by mutually rein-
forcing axes of social difference and hierarchy: race, gender, class, ethnicity and
sexuality are the most often discussed, but what the axes or relevant hierarchies
are will depend upon the social context (yuval-Davis, 2006). individual identi-
ties are always multidimensional, and multiculturalism policies must recognize
this, rather than assuming that group identities are distinct and separable. Thus,
one is not both a ‘person of colour’ and a woman, but always a ‘woman of col-
our’ – to take just two of many possible axes of identity

group rights and cultural change

recognizing cultural rights has an impact not only upon individual freedom
but also on the nature of groups themselves. Opponents of rights point out that
groups are not fixed and unchanging but are rather always changing and evolv-
ing. There will always be a plurality of group interests and identities, but the
groups that compose that plurality will change, and state policies that attempt
to identify and fix groups will inevitably lag behind social realities. yael tamir
argues that official recognition ‘freezes’ groups in the historical moment, treat-
ing as timeless cultural practices that are in fact in a constant state of change,
54 | A P P ly i n G P O l i t i C A l t H e O r y
and may themselves be shaped by experiences such as colonialism, or recent
oppression, or the adoption of Christianity (1999). in addition, granting rights
to groups assumes that they are fixed not only across time, but that they have
single and unified identities themselves. in reality, groups are not homogeneous,
and are frequently riven by serious conflicts of interest. We are in fact no more
justified in assuming minority cultural groups to be united and homogeneous
than we are in assuming the same of the larger pluralist societies of which they
form parts.
Assigning collective rights to minority communities runs the risk of legitimiz-
ing and privileging group elites that may be better educated and integrated into
mainstream political processes, and so can more effectively make their claims.
Apart from reinforcing power differentials within groups, it will make it more
difficult for those trying to change cultures from the inside to do so. This argu-
ment is sometimes made by feminists, who argue that granting cultural rights
makes it more difficult for women within minority cultures to change discrimi-
natory customs and practices. i discuss this in more detail below. in the case of
Muslim dress for women, the claim is frequently made that male leaders of the
community are demanding that women wear the forms of dress in question, and
that Muslim women are unable to freely choose for themselves in the matter.

defending cultural rights: autonomy and the

role of culture in personal identity
Waldron’s cosmopolitan view of the individual leads us to one of the more com-
mon arguments in favour of the protection of minority cultures: the utilitarian
argument that it generally improves the lives of everyone, including members of
majority cultures, to have more cultural choice available. Many pro-multicultur-
alist arguments defend cultural diversity as a good thing for everyone. There are
two reasons why this argument does not make a strong case for the protection
of minority cultures: first, it does not matter for cultural diversity which actual
cultures exist. All existing cultures could disappear, as long as they were replaced
by others, so there is no particular reason to protect and preserve any existing
culture. second, we could fall back on the individualist liberal rejoinder here: if
people from the majority culture want to preserve the benefits they derive from
the existence of the minority, they will support it themselves, without requiring
intervention from the state. (Although in order to take into account the good
produced by cultural diversity over time, state intervention to protect cultures
in the short term may be justified.)
The stronger argument in favour of cultural protection and rights relies on the
good of individual members of minorities. While some political philosophers
oppose granting rights and recognition to minority cultures, on the grounds
 M i n O r i t y C u lt u r e s | 55
doing so will threaten individual liberty, others argue that the preservation and
maintenance of cultural communities is in fact essential to liberty and to individ-
ual autonomy. These philosophers tend to be influenced by the enlightenment
and romantic belief that cultural membership deeply shapes who we are and
our destinies. This idea was developed by the French philosopher Montesquieu
in the seventeenth century, and later by the German Johann Gottfried Herder in
the eighteenth. in this early romantic view, national cultures are deeply rooted
and natural – they shape individual identity and demand political expression.
These ideas have influenced modern nationalism, as well as arguments for the
protection and recognition of minority cultures.
The connection between individual autonomy and culture might be described
in several ways. The Canadian philosopher Charles taylor argues that individ-
ual self-respect is bound up with cultural membership (1994). People derive an
important sense of who they are from their cultures, and if the culture is not
recognized and respected generally, their individual self-respect and dignity
will suffer. There must therefore be, taylor argues, a presumption of equal rec-
ognition for all cultures – at least those that ‘have animated whole societies over
some considerable stretch of time’ (1994, 66). taylor explicitly excludes ‘partial
cultural milieux’ within a society. But this is, he warns, only a presumption. An
actual judgment of value can only come with real knowledge and understand-
ing, when there has developed a ‘fused horizon of standards’ – an attempt to
understand other cultures in their own terms, rather than simply applying the
standards of our own (taylor, 1994, 70). Avishai Margalit and Joseph raz claim
similarly that the culture in which we are born and raised forms the primary
focus of our personal identification, because it is based upon belonging rather
than accomplishment. if a culture is not generally respected, the self-respect
and dignity of its members suffers also (Margalit and raz, 1990). Other phi-
losophers have followed suit in applying this argument about cultural identi-
fication to nationality and national self-determination, arguing that national
identification is a key factor in building solidarity and shared commitment to
the common good (Miller, 1997, tamir, 1993). We should note, however, that
national identification is not necessarily compatible with recognizing minor-
ity cultural groups. i discuss nationalist-based objections to multiculturalism
below.
Perhaps the most influential argument linking the individual to cultural mem-
bership is made by another Canadian philosopher, Will Kymlicka. His approach
is based on the fundamental liberal assumption that ‘a liberal democracy’s most
basic commitment is to the freedom and equality of its individual citizens’
(Kymlicka, 1995). There is a deep connection, Kymlicka argues, between the
freedom and autonomy of individuals, and the ‘societal cultures’ to which they
belong. it’s important to look carefully at his definition of societal culture, as
key distinctions in his argument, and the strong case he makes for particular
56 | A P P ly i n G P O l i t i C A l t H e O r y
minority-group rights depends upon this. A societal culture is ‘a culture which
provides its members with meaningful ways of life across the full range of human
activities, including social, educational, religious, recreational, and economic
life, encompassing both public and private spheres. These cultures tend to be
territorially concentrated, and based on a shared language’ (Kymlicka, 1995, 76).
societal cultures provide a focus for members to feel solidarity, as Margalit and
raz argue, and to make sacrifices for one another (such as giving up income to
be redistributed by the welfare state). immigrants are encouraged to integrate
into this dominant societal culture, rather than to re-establish their own societal
cultures in their new countries.
All this might be uncontroversial if every nation had only one societal cul-
ture, or if there were several and the state was neutral between them and did
not favour any over the others. However, nations that were formed as a result of
colonialism and the subordination of indigenous inhabitants have both domi-
nant and subordinated societal cultures. indigenous peoples, unlike immigrants,
did not choose to give up their societal cultures; nor did national groups who
came together and agreed to form a new state. These cultural communities have
resisted integration into the dominant societal culture. individualist liberals
often defend this view of the neutral state, taking a position of ‘benign neglect’
towards private and cultural matters. As Kymlicka points out, however, govern-
ments do not take a neutral position towards cultures, but generally support –
both tacitly and expressly – the dominant societal culture. These cultures enjoy
a range of advantages: their language is used, their history is taught, and their
cultural and religious practices are observed in public life. As a result, minority
social cultures which are not recognized and supported in the same ways are
doomed to increasing marginalization, and eventual disappearance. We can see
evidence of this in the way that indigenous cultures have been marginalized, and
their languages have declined since european settlement in the united states,
Canada and Australia. By 1990, of the original 60 indigenous languages spoken
in Canada at european settlement, 13% were extinct, 21% were near extinction
and 38% were endangered (with no children learning them). in Australia, by
1990, 64% of indigenous languages present at european settlement were extinct,
while 28% were seriously threatened, and the process of decline has continued
(McConvell and Thieberger, 2001).
From the liberal individualist, anti-collectivist position, as we have seen, this
doesn’t matter – if minority cultures cannot attract the support necessary to
survive, there is no reason to maintain them. if however, there is a deep con-
nection between the individual and their societal culture – as Kymlicka and
other ‘culturalist’ liberals argue – then the loss of cultures will mean an injury
to the individual. Kymlicka describes the nature of that connection in terms of
individual autonomy: in order to be free, each individual must be able to make
choices about how to live their lives, and what kind of person they will be. Our
societal cultures provide us with the options we need to make those choices, and
 M i n O r i t y C u lt u r e s | 57
they also make those options meaningful to us: in order to choose between dif-
ferent paths in life and different role models to follow, we must be able to attach
value to our options, and we derive these values, at least in the first instance,
from our cultures. Thus some cultures will strongly value solidarity, sacrifice and
commitment to the community over the acquisition of material wealth. Others
will value an individualist drive to succeed. The traditions, norms and narratives
of our cultures – the myths, legends and stories we tell our children – provide
us with ways of seeing our world and our place in it, and ways of valuing certain
courses of life more than others. if we are deprived of these traditions, norms
and narratives, because our cultures have become marginalized by a dominant
societal culture – especially one with a sophisticated technology, media, adver-
tising industry and consumer ethic – we cannot make the kinds of choices we
need to in order to live autonomous lives.
even if Kymlicka is correct in arguing that societal cultures provide us with the
tools we need in order to live autonomous lives, does it matter whether these are
the cultures we are born into, or others that come to take their place? We might
argue that if a minority culture is marginalized by a dominant one, then that
dominant culture will take over the role of providing the norms, roles and narra-
tives that we need in order to shape our lives and identities. Or perhaps individu-
als will grow up in a cultural context that is transitional between a traditional and
a Western societal culture, or draws elements from both of these (tomasi, 1995).
nevertheless, there does seem to be an important distinction between cultures
into which one is born, and those one has to adapt to later in life. Margalit and
Halbertal have argued that the culture in which a person is born and grows up
has a particular role because it is unchosen, and so shapes his or her identity
(1994). We might also agree with Kymlicka that it is very difficult to shift from
one societal culture to another, and that people whose societal cultures have been
eroded are more likely to feel stranded between cultures, or be prey to a shallow,
consumer-oriented popular culture, and to drugs and alcohol. The literature of
native American writers such as n. scott Momaday, leslie Marmon silko and
louise erdrich explores the alienation of indigenous people caught between their
own marginalized culture and a hostile majority society. Their situation is quite
different from, for example, the young white British woman who enjoys eating
Chinese and indian food and listening to Caribbean music. This kind of lifestyle is
possible within a varied societal culture, but does not involve shifting from one to
another. On the basis of this argument, we could defend special rights and status,
and even self-determination for indigenous cultural communities and national
minorities. These are essentially nationalist claims, made by ‘nations within’.
some of these rights are already exercised by indigenous communities – for
example, the right to be educated in their own language, to manage their own
resources, and to adjudicate local disputes. Quebec limits the use of written
english in public, and native American and Canadian First nations communi-
ties place restrictions upon land use, particularly upon the alienation of land, or
58 | A P P ly i n G P O l i t i C A l t H e O r y
upon people’s entitlement to remain in communities (if, for example, they marry
non-members). indigenous peoples in Canada are entitled to have cultural con-
siderations taken into account if they are convicted of crimes, and may be offered
restorative justice processes instead of jail time. specific statutory provisions
of Australian criminal law exempt Aboriginal people following customary law
from criminal responsibility in certain defined situations. Kymlicka describes
these measures as ‘external protections’, which are justified to protect the minor-
ity societal culture (1995).

societal cultures and ethnic groups

This is a strong argument for indigenous rights, but it is important to remember
that it applies only to societal cultures. Kymlicka suggests several reasons why
immigrant groups do not constitute such cultures: they tend not to be territori-
ally concentrated; they develop as the result of conscious decisions to leave an
original culture. immigrants are already in the process of joining the societal
culture to which they have come. This does not mean that they must give up all
their cultural practices and marks of difference, though, and assimilate into the
majority. We can usefully distinguish, as Kymlicka does, between assimilation
and integration: we might argue that immigrant – or polyethnic – communities
should aim to integrate into the mainstream society, while still retaining aspects
of their ethnic heritage. Assimilation, by contrast, entails incorporating oneself
into the majority culture. integration allows ethnic minorities to continue to
express their cultural practices and customs, while also making new commit-
ments to the political processes, institutions and ideals of their adopted society,
and to the language in which these are carried out and expressed (Kymlicka,
2001, ch. 8). immigrants can demonstrate their commitment to these with-
out adopting all the cultural practices and customs of the former, and while
retaining their ability to speak their native tongue. We could defend policies of
bilingual education along these lines. in the case of dress, for example, we might
conclude, as Kymlicka does, that the desire to wear religious dress to school or
work in public occupations in fact indicates a desire to participate and inte-
grate in public schooling and life, rather than a desire to remain separate. This
argument has been invoked to support the right of girls to wear religious dress,
from the headscarf to the burqa – if they are prevented from doing so, they will
be forced out of the public school system and into private schooling, and their
sense of cultural separation and perhaps alienation will only increase. similarly,
laws and regulations that grant to students from non-Christian religious com-
munities exemptions from attending classes and sitting exams on their religious
holidays are aimed at making it fairer and easier for them to participate in
education.
 M i n O r i t y C u lt u r e s | 59
Groups in most countries can be categorized as either societal cultures or
polyethnic groups, but there are some exceptions (Kymlicka, 2001). isolationist
religious groups are one: in the Yoder case in the united states, some of the argu-
ments made by the Amish were similar to those claimed by national minorities
or indigenous groups. Although they are not national minorities, the exceptional
historical isolation and voluntary marginalization of these groups have meant
that their demands for exemption from civic duty have been tolerated. refugees
are another difficult group to categorize: unlike immigrants, they do not come
voluntarily to their new homelands; once they have arrived, however, their aims
to integrate may be similar to those of migrants. African Americans are a more
complex case. Historically, they have followed both the integrationist and the
national separatist approaches, demanding both equal rights as Americans,
and recognition as a ‘nation’. Many of the demands African Americans make
are concerned with rectifying historical injustices, and seeking fair equality of
opportunity. i address these in the next chapter.

intrinsic rights for minority cultures

so far we have examined arguments for cultural rights on the liberal grounds
of self-respect, freedom and autonomy. As we’ve seen, these have been used
to defend quite extensive rights to self-management and protection for some
kinds of cultural minorities. But the fact that these defences are based upon
liberal values means inevitably that when the cultural minorities threaten those
liberal values, or treat their members illiberally, they abrogate their rights.
external protections for cultures are defensible for liberals, but not internal
restrictions, which allow minority groups to limit the freedom of members
(Kymlicka, 1995, 35).
some political philosophers have criticized this approach on the grounds that
it assumes that Western liberal standards should be applied to other cultures, to
determine whether or not they are worthy of support and protection. As Bhikhu
Parekh argues, this is incompatible with the view that culture plays a fundamen-
tal role in human life, not necessarily because it allows us to be autonomous, but
because it is through culture that we make sense of our lives and world (2006).
ideas about what is reasonable and moral are not universal, as liberals claim,
but are in fact embedded in and mediated by culture. it follows that minority
cultures must be recognized and granted rights because these cultures form a
deep basis for human beings’ sense of who they are. The basic respect we owe
one another implies a basic respect for each other’s culture. We have already
considered taylor’s argument that self-respect and cultural membership are
deeply intertwined (1994). But Parekh specifically rejects liberal arguments for
recognition of culture on the grounds that it is essential to individual autonomy.
60 | A P P ly i n G P O l i t i C A l t H e O r y
He counters that there is no reason to assume that autonomy is crucial to all
people – many people want to value the beliefs and decisions that they inherit or
derive from communities, rather than consider and evaluate them. Members of
non-liberal cultures often relate to their cultures differently, and do not attempt
to critically judge them or their allegiance.
if we do not tie cultural membership to individual autonomy or the exercise of
liberty, we are not restricted to defending cultures which promote, or even allow
for autonomy as it is understood by Western liberalism. Parekh rejects the ‘crude’
dichotomy drawn by liberals between liberal and non-liberal cultures, arguing
instead that cultural communities should be respected and allowed to transmit
their culture, as long as they do not contravene any basic universal values, such
as respect for human life (2006, 110). A culture has a right to exist, and to be
recognized if it is important to members, and would not survive without pro-
tection. The specific form that recognition should take will vary. in some cases,
communities require non-interference (as in the case of the Amish), in some
cases exemptions from general laws and requirements (in the case of religious
communities exempted from holiday closings and dress laws), and in some cases
positive support from the state (as in the case of indigenous groups to maintain
language and culture). notwithstanding his critique of the ‘false universalism’
of Western liberal ideas such as autonomy, Parekh maintains that as individual
rights remain as or more important than the rights of the group to survive,
members of the group should have a say in its decision-making; they should
have collectively acceptable modes of redress; and they should be able to exit the
group without undue loss (2006).
neither Parekh’s nor taylor’s arguments depend upon a specific distinction
between the rights claimed by indigenous or national minorities, and those
claimed by polyethnic or religious groups. A special case might be made for
indigenous groups, however, without the liberal link Kymlicka makes between
such groups and individual autonomy. James tully argues that indigenous com-
munities are distinctive political communities that have been subjected to ‘inter-
nal colonization’ by the majority societal culture (1995; 2000). We can defend
the rights of indigenous peoples to sovereignty on the same grounds that we
would any independent state now threatened with imperial control. indigenous
sovereignty should be recognized over territory that is reserved by such peoples
for themselves, and territories which are shared by the dominant cultural com-
munity and the indigenous people should have shared jurisdiction. Both the
indigenous and the majority culture should recognize each other as ‘equal, self-
governing and co-existing entities’, constantly negotiating the terms of shared
sovereignty (tully, 2000, 53). Claims similar to this are made by the Maori in
new Zealand, who have increasingly come to argue for shared sovereignty on
the basis of the treaty of Waitangi. some argue that this amounts to defend-
ing the rights of indigenous peoples to secede from their state, but in the new
 M i n O r i t y C u lt u r e s | 61
Zealand case, no such right is claimed. The Maori insist rather that sovereignty
should be shared within the confines of a single territorial state.

group interests versus the common good

As we have seen, one argument made against minority cultural rights is that
these interfere with individual freedom. such rights might also be opposed,
however, on the grounds that they threaten a shared commitment to the com-
mon good. The nineteenth-century utilitarian philosopher Jeremy Bentham
warned of ‘sinister interests’: the agendas of minority groups which threatened
to take over individuals, and blind them to the interests they shared in common
with all citizens (1825). The ‘civic republican’ tradition of political thinking has
been very suspicious of organized internal diversity within societies. The eight-
eenth century French philosopher Jean-Jacques rousseau thought that factions
or ‘partial associations’ interposed their own partial viewpoint between the indi-
vidual and the social good – the goal towards which they would otherwise strive
([1762] 1973). This republican line of thinking has been particularly influential
in France, and much of the opposition to French schoolgirls wearing the head-
scarf has been on the grounds not that it compromises their individual rights,
but rather that it encourages identification with a subnational group, rather than
commitment to a common French identity.
A similarly strong strand of thinking along these lines continues in the united
states, where commitment particularly to racial or ethnic groups has often been
viewed as contrary to a common American identity. Jean elshtain argues that it is
only in the context of incorporation within a single body that diversity becomes
meaningful (1995). too much focus upon group identity, which she terms ‘the
politics of displacement’, becomes group triumphalism, in which no recognition
of commonality is possible. elshtain claims that our commitment to democratic
values – including equality, justice, freedom and fairness – turns on our acknowl-
edgement that we share a common identity with our fellow citizens. David Miller
argues similarly in his defence of civic nationalism that ‘radical multiculturalism’
– strong identification with ethnic and cultural groups – detracts from identifica-
tion with the nation. it is that shared national identity which forms the basis of
trust which makes democratic debate about common problems possible (1997).
Approaches such as these are not opposed to the observance of separate cultural
practices in private, but insist that cultural difference should not be emphasized
or officially recognized in the public sphere. schools are particularly important
institutions here because of the role they play in inculcating a national culture,
and bringing people together from different communities and backgrounds.
Without this experience of commonality, civic republican theorists fear that
society will become ‘balkanized’ – fragmented into small groups.
62 | A P P ly i n G P O l i t i C A l t H e O r y
interculturalism
some theorists and scholars have advocated interculturalism as an alternative
to multiculturalism. interculturalism is described as promoting dialogue and
exchange between cultural groups, with the aim of preventing the segregation
of groups, and contributing to a shared and inclusive national discussion. This
approach is obviously designed to respond to the criticism that multiculturalism
and identity politics encourage the ‘balkanization’ of society into closed groups,
to the detriment of any common civic identity. nussbaum has argued that inter-
culturalism recognizes common human needs common to all cultural groups,
and implies that we can understand and appreciate the experience and perspec-
tive of those in other cultural communities (1997). As critics have pointed out,
however, these claims are not incompatible with civic and liberal versions of
multiculturalism (Meer and Modood, 2012).

Cultural rights versus egalitarian distribution

egalitarian philosophers, both liberal and more explicitly socialist have also
questioned state support for minority cultures, on the grounds that it under-
mines effort to achieve distributional equality. Brian Barry defends an egalitar-
ian liberalism based on equity and fairness, and the assumption that all human
beings share common interests or ‘conditions of self-development’ which are
deduced from ‘universal human nature’ (2001). Barry argues that everyone has
the same basic needs and wants, and that the state should treat all its citizens
equally and uniformly, granting them an equal basket of legal, political and
social rights. equality of opportunity means making these identical rights avail-
able to everyone – and in practice, is more likely to mean encouraging cultural
assimilation than separateness.
socialist critics have agreed that multiculturalism’s focus on recognition dis-
tracts attention from the true source of injustice: economic inequalities. Marx
himself was suspicious of cultural identity and inheritance, and their constrain-
ing effects upon human freedom, writing that ‘the tradition of all the dead gener-
ations weighs like a nightmare on the brain of the living’ ([1852] 1978). Marx and
engels believed that the international proletariat would unite together irrespec-
tive of local cultural and national differences, all of which only served the inter-
ests of the ruling class. Marxists historically have regarded cultural identification
as a form of ‘false consciousness’ that prevented workers from realizing their real
class interests. Modern leftists have pointed out that economic inequalities have
become greater while minority groups were agitating for cultural recognition.
They argue that cultural claims distracted attention from growing inequalities in
wealth, and made it more difficult for alliances to be forged across groups (Git-
lin, 1995). sociologist todd Gitlin argues that multiculturalism emphasizes the
 M i n O r i t y C u lt u r e s | 63
differences between people, rather than their common humanity, and detracts
from the solidarity required to agitate for and support programs of equitable
redistribution. in a more nuanced approach to the issue, critical theorist nancy
Fraser argues that justice requires redistribution and recognition – that cultural
recognition cannot be a goal in itself without the fairer redistribution of material
resources (1995). iris young agrees that the cultural recognition necessary for
individual self-determination must be combined with structural changes in the
distribution of resources, to allow for self-development (2000).

Cultural rights versus gender equality

The final critique of rights and recognition for minority cultures that we con-
sider develops from the first – from liberal individualist arguments that cultural
rights are incompatible with individual freedom. it deals with the difficult case
of minority cultural groups which do not themselves recognize liberal rights
nor endorse liberal practices that respect individual freedom and autonomy.
Feminists have raised this issue in the case of groups which are, in Western lib-
eral democratic terms, discriminatory against women. susan Okin argues that a
tension exists between the rights of women and increasing multiculturalist con-
cern for cultural diversity (1999). This is particularly clear when cultures openly
discriminate against women, and attempt to deny them the rights to which they
have legal or constitutional guarantees in the wider society – to be educated, or
to marry freely, or to be allowed to move around or vote or express themselves.
We should note that in many of these cases, most theorists we have discussed
who defend minority cultural rights, including Kymlicka and Parekh, would
argue that such rights should not be invoked over the wishes of members.
But there are also many cases, Okin argues, in which cultural groups are
apparently liberal but in fact discriminate against women. like other critics we
have considered, she points out that cultures are not homogeneous, and groups
within minorities are often engaged in struggles to define what the minority
culture itself means and requires. it is easy to overlook the way men impose cul-
tural definitions and regulation upon women, because most such discrimination
occurs in the private sphere, out of public view. it is here that people’s identi-
ties are importantly shaped by cultural communities in the ways described by
liberals – that norms, roles and narratives are passed on to the young. in the pri-
vate sphere, however, women are often treated as second-class members of their
culture. Okin points out that the sphere of personal, sexual and reproductive
life is crucially important in many cultures and an area subject to considerable
regulation in terms of cultural expectations and normalized practices. issues of
marriage, child custody, the division of labour and inheritance are at the centre
of many cultural differences, and because of women’s central role in these issues,
regulation of them will impact particularly strongly on women.
64 | A P P ly i n G P O l i t i C A l t H e O r y
According to this argument, we might see many of the demands of cultural
minorities for group rights as, in effect, claims to be able to exert control over
women members. Cases in which people accused of crimes cite their cultural
customs as a defence, or to mitigate their sentence, are a good example here
(Phillips, 2003; renteln, 2004). Feminist philosophers like Okin and Anne Phil-
lips point out that such cases often involve the status and treatment of women
and children. The ‘cultural defence’ has been invoked by many ethnic groups
in the united states, often to reduce the crime (and sentence) for defendants
accused of beating or murdering women in cases of sexual infidelity, but also
in a case (People v. Kimura) where a Japanese mother killed her children and
attempted suicide after learning that her husband was being unfaithful. The
cultural belief invoked here was that her husband’s rejection of her rendered the
lives of her and their children worthless. A laotian Hmong man in the united
states invoked cultural defence in People v. Kong Pheng Moua to justify the prac-
tice of ‘bride capture’, after he was charged with kidnapping and rape. He was
found guilty of the lesser crime of false imprisonment and was sentenced to 120
days in prison and a fine of $1000. A Chinese immigrant to new york invoked it
after he battered his wife to death with a hammer after discovering that she had
been unfaithful to him (People v. Kong Pheng Moua). Here, the judge accepted
that the man was ‘driven to violence’, convicted him of second degree manslaugh-
ter (a lesser homicide charge) and sentenced him to five years’ probation.
in Britain, legislation has now been passed preventing the arranged marriage
of underage girls. However, the defence is still sometimes raised to mitigate the
seriousness of an offence on the basis of how it would be seen in the defendant’s
home culture. One such case involved a British man born in Pakistan who mur-
dered his sister-in-law because she defaulted on a marriage arranged for her when
she was a child, and began an affair with a married man. At retrial after an appeal,
the defendant pleaded manslaughter on the grounds of provocation, because the
victim’s behaviour was particularly shocking to his cultural beliefs. The judge
reduced his original sentence from life to six and a half years (Phillips, 2003).
We might, like Okin, argue against decisions like these on the grounds that
they compromise the individual rights and equality of the women involved. But
we might also focus on the view of culture they imply. Critics of the cultural
defence often allege that cultural customs in the home country do not in fact
justify the violence that is the subject of the charge. There may be considerable
internal debate about cultural practices, and the ‘defence’ may rely upon a domi-
nant interpretation. Moreover, as Phillips points out, there are particular dangers
in allowing a cultural defence when those involved are children, and cannot give
an alternative view of what their culture might require and entail.
Okin has been strongly criticized for attempting to judge other cultures and
the ways in which they treat women. Critics allege that she mistakenly applies
Western standards of what is acceptable, in what is often referred to as ‘cultural
imperialism’. Thus she misses the particular ways in which Western culture
 M i n O r i t y C u lt u r e s | 65
subordinates and manipulates women, and fails to notice the meaning that
non-Western cultural rituals have for women in those minority communities.
she assumes that Western values of liberty and autonomy, interpreted in West-
ern ways, must apply universally to everyone. This is, ironically, similar to the
criticism made of Kymlicka, although his defence of minority cultures is one of
her targets. The extent to which they scrutinize minority cultures for illiberal
practices differs, with Okin focusing on the private sphere, but both agree that
cultures should only be recognized if they promote liberty and autonomy.

Box 3.2 recognizing minoriTy culTures:

compeTing norms and values
The debate over recognizing minority cultures centres on some key norms: autonomy,
liberty, equality and the common good, but the ways in which these are interpreted lead
to very different conclusions:

• autonomy and liberty: Multicultural liberal philosophers, who support recognizing

minority cultures, argue that membership in cultural groups has a profound effect
on individual identity. Autonomy requires making choices, and liberty allows us to
act upon them. Supporters claim that our cultures are essential in providing us with
the options from which we choose. Given that the majority culture is recognized
and supported, if implicitly, by the state, minority cultures must also be supported
so that their members can act autonomously and freely. Libertarian opponents of
cultural rights see individuals as more distinct from their cultural communities.
People must be free to exit from their communities or change them from the inside.
Both of these are potentially more difficult if the state officially recognizes cultural
groups. This is particularly important for feminist critics who argue that women are
oppressed in patriarchal cultures.
• equality: Supporters of cultural rights argue that treating people equally does not
mean treating them as if they were the same. Because the state either officially or
unofficially supports the majority and dominant culture, to refuse recognition to
minority groups means treating their members unequally. Recognizing minorities
allows everyone more equal access to culture. For liberals, this means equal
opportunity for autonomy. Opponents claim that recognizing cultural minorities and
allowing specific cultural practices means treating their members differently, and
creating two classes of citizens. They maintain that in order for the state to treat all
citizens equally, they must be treated the same.
• the common good: Supporters of cultural rights argue that, paradoxically,
recognizing people’s cultural differences will encourage social cohesion. If members
of minority cultures can express their cultural differences in public, they will be
more likely to participate in and support common political principles, processes
and institutions. Civic republican and communitarian opponents counter that
encouraging the public expression of cultural differences encourages a sense of
difference and separatism inimical to common citizenship.
66 | A P P ly i n G P O l i t i C A l t H e O r y
More recently, feminist critics have argued that a better approach to address-
ing conflicts between cultural claims and gender rights is to recognize that
cultural minorities are themselves pluralist, and that the meaning and value of
cultural practices is constructed and contested within these communities. tak-
ing full account of these processes of construction and contestation undermines
the simple opposition between gender and culture, and suggests deliberative
strategies for dealing with apparent conflicts (Deaveaux, 2006; song, 2007).

Conclusion
The claims of minority cultures are likely to be a continuing feature of the political
landscape in Western democracies, given the increasing ethnic pluralism of their
populations. in Australia, for example, the 2011 Census recorded that 18% of the
population spoke a language other than english at home – a figure which has stead-
ily increased over the past few decades. The 2011 Census in Canada found that 19%
of the population identified themselves as ‘visible minorities’ (excluding Aboriginal
peoples) – as compared to 4.7% in 1981. in new Zealand, the 2013 Census found
that the population of Maori had increased by 13% since 2001, and the proportion
of Asian ethnic groups nearly doubled in the period 2001 to 2013. in Britain, where
there is more homogeneity, the 2011 Census nevertheless found that the white or
non-minority population had dropped from 94.3% in 1991 to 86%.
As we have seen, rights and recognition for minority cultures can be defended
upon quite different grounds. The differences between the liberal arguments
based upon freedom and autonomy, and the more general cultural rights based
upon belonging or identification, may only emerge when illiberal cultural prac-
tices are considered. even explicitly non-liberal arguments, however, such as
Parekh’s, are based upon the assumption that cultural membership is a good for
the individual. similarly, opposition to cultural rights has most commonly been
based on liberal concerns about the ways in which individual freedom may be
limited by recognizing and protecting collectivities. There are signs, however,
that this may be changing in the post-9/11 context, where national security and
public safety have come to be seen as balancing individual rights. As public anxi-
ety about the threat of terrorism from fundamentalist religious groups within
society increases, along with ethnic and cultural plurality, concerns about social
fragmentation and the importance of committing to a common good are likely
to become stronger.
4

Is Affirmative Action
Fair?

● Weak and strong affirmative action

● the case in favour: Justice and fairness
● the case in favour: Positive consequences
● the case against: Justice and fairness
● the case against: negative consequences
● conclusion

Affirmative action covers a wide and controversial range of programmes designed

to benefit disadvantaged groups: from advertising jobs to women or minorities
who tend not to apply for them, to special training schemes for minorities, to
the consideration of race as a factor in university admission or employment, to
establishing quotas for hiring or appointing under-represented groups. Unlike
the redistribution of wealth and cultural rights, which we considered in previous
chapters, affirmative action refers to specific policies, designed to serve goals that
are particular to each national case. Some countries do not refer to these policies
specifically as affirmative action, and the term has been particularly controver-
sial in the United States, which is where it first entered common currency. In
1961, President John F. Kennedy established the Committee on Equal Employ-
ment Opportunity, with the aim of eliminating discrimination in employment
by the US federal government, and issued an Executive Order directing state
employers to take ‘affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race,
creed, color or national origin’. Since then, many other countries have developed
policies designed to offer special assistance to disadvantaged minority groups
and women.
Affirmative action emerged in the United States as a response to the Civil
Rights movement, and is fundamentally intertwined with America’s history of
slavery and segregation. It became part of federal government policy with the

67
68 | A P P ly I n g P O l I t I C A l t h E O R y
1964 Civil Rights Act, which banned discrimination on the grounds of sex, race,
colour, ethnicity and religion. President Johnson’s statement is worth quoting in
full, as it explains the rationale of applying affirmative action – which formally
takes race into account – to achieve equality:

you do not wipe away the scars of centuries by saying: ‘now, you are free to go
where you want, do as you desire and choose the leaders you please.’ you do
not take a man who for years has been hobbled by chains, liberate him, bring
him to the starting line of a race, saying ‘you are free to compete with all the
others’, and still justly believe you have been completely fair. Thus it is not
enough just to open the gates of opportunity. All our citizens must have the
ability to walk through those gates. This is the next and more profound stage
of the battle for civil rights. We seek not just freedom but opportunity – not
just legal equity but human ability – not just equality as a right and theory, but
equality as a fact and result. (Johnson, 1965)

The Civil Rights Act and subsequent presidential Executive Orders prescribed
affirmative action to eliminate discrimination, to ensure equality of opportunity
and provide remedial relief to those who had been injured by discrimination.
This was interpreted to cover a wide range of measures, and in the early 1970s,
the nixon Administration began to push employers to develop goals and targets
with respect to minority hiring. Since then, critics have complained that affirma-
tive action was being applied not just to ensure equal opportunity in employ-
ment and education, but to justify race-based preferential treatment contrary to
the provisions of the Civil Rights Act. They have singled out preferences in hir-
ing for less qualified minorities and race-based quotas in employment and uni-
versities. In 1978, in Regents of the University of California v. Bakke, the Supreme
Court held that racial preferences could be used by universities in admissions
decisions, as a remedial measure given the under-representation of minorities
in the professions. however, the Court rejected strict quotas for minorities, and
stipulated that the process had to be subject to ‘strict scrutiny’. This meant in the
case of affirmative action that such measures could only be justified if they were
closely designed to achieve racial equality, and were in addition the least restric-
tive means of achieving racial equality in the case in question.
Much of the academic discussion of affirmative action in the United States
turns on interpretation of the American Constitution – particularly the Four-
teenth Amendment, adopted after the American Civil War, which guarantees
equal protection for all Americans under the law. We will not consider the
constitutionality of affirmative action in the United States in this chapter, but
instead the broader philosophical issues which these policies raise. Many of
these emerge in some key Supreme Court decisions (see Box 4.1).
grutter vs. Bollinger was upheld in 2012 by the Supreme Court in Fisher
vs. University of texas at Austin, although the case has been appealed, and the
 I S A F F I R M At I v E A C t I O n FA I R ? | 69
Box 4.1 The UniversiTy of Michigan
cases
In 2003, the US Supreme Court ruled on two cases concerning the use of race in
admissions at the University of Michigan: one for undergraduate entry to the University,
and one for the Law School (Gratz v. Bollinger, Grutter v. Bollinger, 2003). In Grutter v.
Bollinger, the court held that the Law School was justified in using race preferences in
admissions with the purpose of ensuring that a ‘critical mass’ of minority students was
enrolled. This was crucial in order to gain the benefits of diversity for the Law School
student body, and to promote integration by ensuring that minorities were represented
in the next generation of Michigan’s professionals and leaders. However the Court
struck down the University’s use of race in undergraduate admissions because it gave
automatic preference to race, rather than considering each student’s case individually.

• Supporters of the University’s policies argued that members of race minorities still
suffer because they belong to groups which experienced past discrimination. This
affects both their self-esteem and their access to resources and opportunities. While
minor injustice is done to applicants who lose places due to race, those applicants
still benefit from their membership in the majority group.
• Supporters maintained that no applicant could be said to have a right to a place at
university. Decisions about the appropriate criteria for admitting students should
be made by society as a whole, with a view to broad moral goals such as diversity.
• Finally – and not least – the increased presence of minorities on campus would lead
to better understanding between racial groups, and stronger social solidarity.
• Critics argued that universities in the past have used race to exclude some groups
of applicants, and preferences now amount to continuing unequal treatment. Those
minorities who benefit now are not those harmed by past race discrimination. And
those who lose places to less-qualified minority applicants are not guilty themselves
of wrongful discrimination, so should not have to bear the burden of restitution.
• Moreover, the best qualified students are entitled to assume they have a right to a
position, because of their qualifications.
• Finally, critics argued that if race is counted towards admission, under-qualified
students will be admitted who will be unable to succeed at university – and whose
self-esteem will be further damaged. Moreover, racism will increase as a result of
resentment on the part of better-qualified whites who miss out on places, and a
sense of superiority among whites towards struggling minority classmates.

Court will consider it again. In 2006, Michigan voters passed a referendum

amending the state’s constitution to ban affirmative action in public employment
and education, except where it was required by federal law. Similar bans have
been passed in other US states. In 2014, the Supreme Court determined that the
Michigan ban on affirmative action was in accordance with the US Constitution.
(Schuette v. Coalition to Defend Affirmative Action, 2014).
70 | A P P ly I n g P O l I t I C A l t h E O R y
In the UK, the 2010 Equality Act formally consolidated prohibitions on dis-
crimination that had been part of separate legislation in the past. Discrimination
on a range of grounds was prohibited, including sex, race ethnicity and religion.
however the Act allows ‘positive action’ provisions which allow employers to
apply measures aimed at targeting women or under-represented ethnic groups
for recruitment and training. It would be permitted under the Equality Act, for
example, to hire a woman on the grounds of sex, if she and a man are equally
qualified for a position, and women were under-represented in positions at
this level in the company or organization. It is also lawful for an organization
to introduce training programmes for ethnic minority employees, if they are
under-represented at senior levels of the organization. Positive action is designed
to ensure that women and members of minorities can compete more equally,
while positive discrimination is understood to discriminate against one class of
people in favour of another; I discuss this distinction in more detail in the sec-
tion below. The Act preserves an exemption until 2015, under which political
parties are permitted to produce all-women lists of candidates.
European countries have taken a cautious approach to affirmative action, for
some time restricting it to programmes designed to promote equal opportunity
for women, particularly in the provision of childcare services and provisions
designed to allow women to balance family and work. In the 1997 Marschall
case, the European Court of Justice upheld public sector programmes targeting
women. It is only recently that the increasing ethnic plurality of many European
nations, the rise of racial tensions and the perceived failures of integration have
led some states to extend this to other groups. The treaty of Amsterdam was
amended in 1999 to allow positive action in the area of gender equality, and
more recently, the EU has issued directives allowing member states to consider
positive action against all forms of discrimination. Measures aimed at improv-
ing women’s representation in employment are the most widespread: in some
states, including Sweden, France and Poland, public and private sector employ-
ers are required to develop action plans to address the under-representation
of women and achieve equal pay. France and norway apply quotas to women’s
representation on publicly listed and state-owned corporate boards. Positive
action measures are also applied to people with disabilities, and in some states, to
ethnic minorities. In germany and norway, for example, measures are in place
to ensure that bias on racial or ethnic grounds does not affect the hiring process.
In Canada and new Zealand, human rights legislation has allowed affirma-
tive action, understood similarly to positive action, to extend beyond gender. In
Canada, the Charter of Rights and Freedoms (1982) provides constitutional pro-
tection against discrimination, but specifically exempts laws and programmes
which are designed to overcome disadvantages experienced by people because
of race, ethnicity, sex, religion, colour age or disability. The federal Employment
Equity Act of 1986 aims to ensure that these groups are represented in the work-
place. Canadian courts have interpreted federal legislation to as being designed
 I S A F F I R M At I v E A C t I O n FA I R ? | 71
to ensure not only formal, but also substantive equality, and to consider the
effects of systemic discrimination.
In new Zealand, the 1993 human Rights Act prohibits discrimination on
the grounds of race, ethnicity, sex and so on. however, it specifically exempts
provisions designed to ensure the equality of disadvantaged groups, such as
training schemes or employment assistance measures. The politicized relation-
ship between the new Zealand government and the country’s indigenous Maori
people has led to considerable public controversy over the legitimacy of special
measures designed to ensure the equality of Maori people. governments on both
the right and the left have refocused some programmes so that they target eco-
nomic need, rather than race. As we shall see later in this chapter, the charge that
affirmative action should address economic need rather than group membership
is supported on both empirical and philosophical grounds.
Quotas, preferential hiring programmes and other positive discrimination
measures have been adopted in countries with large minority populations, and
histories of racial exploitation and conflict. Instituted after race riots in 1969,
Malaysia’s new Economic Policy has given preference in jobs, business and uni-
versities to ethnic Malays, at the expense of the Chinese and Indian populations.
In India, ‘protective discrimination’ for scheduled castes and tribes is set out in
the Constitution. Quotas in government positions, employment and education
are reserved for members of scheduled castes and tribes.
The wide variety of affirmative action policies which have developed in different
countries and the controversy they have provoked raise some fundamental ques-
tions. The most important of these centre around the meaning of equality: does
treating people equally mean treating them in the same way? Or should different
needs justify different treatment, in order to achieve an egalitarian result? Other
questions at stake include: Do we deserve our talents and what they make possible
for us in society? What counts as the kind of disadvantage which should be rem-
edied by government? Is damage to self-respect and confidence as relevant as hav-
ing fewer material resources? Is diversity essential to a good society? Should our
elites and institutions mirror demographic patterns in society? In order to con-
sider these, we will first identify some basic categories of affirmative action policies
and then consider the philosophical arguments both for and against. Much of the
philosophical debate about affirmative action has taken place in the United States,
and most of the philosophers whose work we discuss here are American – the
principles they discuss, however, apply to these policies more broadly.

Weak and strong affirmative action

We can identify two main types of affirmative action (Pojman, 1992). The first,
‘weak’ affirmative action policies, are mainly designed to remove unfair barriers
to equality of opportunity. This typically includes the removal of all prejudicial
72 | A P P ly I n g P O l I t I C A l t h E O R y
selection criteria, advertising jobs aggressively to minorities and the gender
who do not usually apply for them, and, in the case of tertiary education, spe-
cial scholarships for disadvantaged groups who would not otherwise be able
to attend university. These policies fall into the category of ‘positive action’, a
policy applied by many states, as we have seen. ‘Strong’ affirmative action (or
‘positive discrimination’) involves more positive steps to eliminate the effects
of past injustice, and might include preferential treatment in employment or
education to minority candidates with lesser qualifications, requiring represen-
tation in a job or institution proportionate to the ethnic makeup of the wider
population, and quotas (Beckwith, 1999). It is important to note that while
strong affirmative action may involve selecting minority or female candidates
with comparable, although not equal qualifications, no affirmative action pro-
grammes in Europe, the United States, and most other countries permit the
hiring of unqualified employees, irrespective of their race, ethnicity or gender.
Some measures are difficult to categorize: treating membership in a group
previously subject to discrimination or under-representation as a tie-breaker
when candidates have approximately equal qualifications for a job or place is
sometimes also considered to be weak affirmative action. Some critics, however,
are sceptical of the way in which such a policy is applied, and argue that other
factors, such as class or degree of financial hardship experienced by the appli-
cants, might also be used to make the final decision. This in turn suggests that
it operates as strong affirmative action. (This was the decision of the US Court
of Appeals in the 1997 Piscataway case, which considered the use of race as a
tie-breaker (1996).
Both types of affirmative action aim to eliminate wrongful discrimination and
to reduce the inequalities suffered by minorities and women. The fundamental
distinction between them, however, lies in what it is that is meant to be equal-
ized. Weak affirmative action focuses on equality of opportunity and process,
while the strong version aims in addition to achieve outcomes that are more
equal for disadvantaged groups. Advocates of strong affirmative action argue
that it involves looking at the deeper causes of inequality, and at the social conse-
quences of inequalities which might continue even if formal equality of opportu-
nity has been achieved. There are other important differences: weak affirmative
action assumes that all obstacles, both direct and indirect, should be removed
so that people may freely exercise their natural talents (goldman, 1976). This
would mean, for example, prohibiting regulations that prevented women from
applying for and being hired into positions, but it would also mean ensuring that
bathroom facilities are available for women, and possibly even that childcare is
provided. It could also encompass special advertising targeted at women if they
tend not to apply for jobs in this area. Of course, as individuals have different
abilities and preferences, these policies are not aimed at ensuring that all groups
are equally represented in jobs or universities (although this may happen).
 I S A F F I R M At I v E A C t I O n FA I R ? | 73
Advocates of strong affirmative action, by contrast, do not believe that people
necessarily deserve their talents and abilities, nor that they are necessarily enti-
tled to gain any position or place because of them. They argue that the need to
break down discrimination and its effects are more important than an individu-
al’s claim to a particular job on the basis of their abilities or skills. In practice, this
might mean companies or institutions giving preference to women applicants for
a job even if they are less qualified than men, until a substantial proportion – if
not half – of employees are women.
Most of the contemporary political thinkers I discuss here share the general
consensus in liberal democracies that weak affirmative action programmes
designed to promote and foster equality of opportunity are generally justifi-
able. There are of course, as we shall see differences of opinion on the degree to
which the state is justified in intervening in order to bring this about. It is strong
affirmative action – which I also refer to here as preferential treatment – which
attracts the greatest controversy. Its critics argue that it defeats the very egalitar-
ian purposes it is designed to achieve. According to its supporters, however,
weak affirmative action policies are only effective in dealing with cases where any
discrimination is obvious on the surface. Where discrimination and inequality
are deeply entrenched in social and economic structures and social and cultural
attitudes, more radical measures will be required.

The case in favour: Justice and fairness

Arguments in favour of affirmative action may be divided into deontological and
consequentialist categories. According to deontological arguments, which here
are essentially backward-looking, affirmative action is fair and just. Advocates
argue that group preferences are not the same as group discrimination, and
that we must take into account the broader context in which racial and gender
preferences are applied. In addition, group preferences do not compromise fair-
ness, because individuals do not have an automatic entitlement to any particular
benefits as a result of their natural talents and abilities. It is the task of society to
distribute benefits according to reasonable and publicly justified criteria, and in
pursuance of broader social goals. According to consequentialist or utilitarian
defences, affirmative action has a range of positive effects – which either rein-
force the justice of the policy, or outweigh any injustices it may involve.
The fundamental argument in favour of affirmative action is that set out by US
President Johnson in 1965: merely removing legal barriers to advancement will
not by itself enable historically disadvantaged people to compete equally. Extra
help, encouragement and support is needed, as well as addressing inequalities
built into the popular attitudes, and the social and economic system, in order
to achieve true equality of opportunity. Both weak and strong affirmative action
74 | A P P ly I n g P O l I t I C A l t h E O R y
programmes are justified, their supporters contend, because they aim to change
structures – rather than being just in every individual case.
In response to perhaps the most common critique of affirmative action,
advocates maintain that the preferential treatment of minorities is not morally
equivalent to discrimination against them, and does not seriously compromise
individual rights. We must look at these programmes in their broader social con-
text. Dworkin argues that ‘malign forms of discrimination’ violate a fundamental
individual right that most preferential treatment programmes do not: the right
of each citizen to be treated as equally worthy of concern and respect (2000,
405). Affirmative action does not reflect prejudice against whites or men, and
does not entrench their inequality, as discrimination does. Richard Wasserstrom
suggests a similar defence of preferential treatment programmes such as quotas:
discrimination against people of colour was ‘part of a larger social universe
which systematically maintained a network of institutions which unjustifiably
concentrated power, authority and goods in the hands of white male individuals,
and which systematically consigned blacks and women to subordinate positions
in the society’ (1997). On this account, quotas which favour minority groups do
not entrench their positions, or add to their already disproportionate share of
resources.
A major hurdle for defenders of affirmative action is the claim that those who
are best qualified are entitled to their job or position. Supporters of affirmative
action make a complex argument here about desert (deservingness) and the
ownership of goods and resources. First, they point out that we do not morally
deserve our natural talents and abilities. Rawls points out: ‘It seems to be one
of the fixed points of our considered judgments that no-one deserves his place
in the distribution of native endowments, any more than one deserves one’s
initial starting place in society. The assertion that a man deserves the superior
character that enables him to make the effort to cultivate his abilities is equally
problematic; for his character depends in large part upon fortunate family and
social circumstances for which he can claim no credit’ (1971). Thus it cannot
be said that we deserve anything except what has been agreed to by all in a just
system of distribution. Rawls and other egalitarian liberals take the view that
all have a claim on primary goods, resources and the benefits they produce,
because it is only in society as a voluntary scheme for fair cooperation that they
are able to be generated, produced and made valuable. The relationship between
natural talents and incomes, jobs or places at universities is not a natural one –
it is rather the product of social agreement, and can be altered or modified to
achieve other social goals. In Rawls’ scheme, this allows contracting parties to
agree to his principles of justice (see Chapter 2) and to goals such as the equal
representation of minorities.
Some critics have also pointed out that the assessment of qualifications is not
a simple matter. Dworkin argues that in the case of university admissions, quali-
fication is a matter of forward-looking promise (2000). The aim of universities is
 I S A F F I R M At I v E A C t I O n FA I R ? | 75
in part the advancement of knowledge, for which high academic achievement at
school may be a good indicator of future success. (Although we might add here
that a range of qualities are required to make a good doctor, for example, some
of which have more to do with personality or character than academic ability.)
But Dworkin adds that universities also aim to improve the collective life of their
communities and the nation – to make it more just, more secure. When they
are assessing the forward-looking promise of candidates with this goal in mind,
race, and other markers of diversity, may be considered as relevant indicators.
We will consider this in more detail when we turn to the consequentialist argu-
ments in favour of affirmative action, later in this section.
There are difficulties involved in defending affirmative action from an indi-
vidual rights perspective. Dworkin (like other liberals) relies upon a rights-based
liberal theory to defend his claim that no individual deserves, or is entitled, to
be admitted to university. This theoretical perspective assumes individuals to
be discrete, distinct bearers or owners of rights. In the communitarian view, by
contrast, individuals are embedded in their communities and networks of social
relations – relations which constitute them and make them who they are. Com-
munitarian philosopher Michael Sandel points out that Dworkin abandons the
claims of the meritocratic individual, who is ‘entitled’ to benefits, in favour of
the community, which is to establish its own goals and the criteria for benefits
and positions. A rights-based argument provides no grounds, however, as Sandel
argues, for showing how the goals of the community are developed, or for assess-
ing them. Supporters of the rights-based argument are forced to fall back upon
the utilitarian arguments they reject – as we discuss below. Sandel argues that a
stronger case can be made for policies such as affirmative action, which require
individuals to sacrifice some of their prospects for a common endeavour, if we
accept that people are ‘participants in a common identity’ (1982).
Once they have established that those with natural talents and abilities do
not necessarily deserve jobs and positions, supporters of affirmative action must
show that the policy is a legitimate response to injustice. Judith Jarvis Thomson
argues that even though the beneficiaries of affirmative action may not have
directly suffered discrimination themselves, the damage of past discrimination
is recent enough to continue to affect young people of colour and women now
(1973). young blacks and women ‘have not merely not been given that very
equal chance at the benefits generated by what the community owns which is
so firmly insisted on for white males, they have not until lately even been felt to
have a right to it’ (Thomson, 1973, 381). Even if they are not downgraded them-
selves, they experience a lack of self-confidence and self-respect as a result of the
way other blacks and women are treated. This affects their sense of what they can
achieve, and the way in which they choose to develop their skills and abilities.
Ideally, Thomson argues – and other supporters of affirmative action
concede – the wrong that minorities suffer as a result of their membership
in unjustly treated groups should be redressed without causing harm to any
76 | A P P ly I n g P O l I t I C A l t h E O R y
individual – so that the burden of making good past mistreatment is shared by
the community as a whole. Some opponents of preferential treatment agree with
this, and argue for weak affirmative action programmes (positive action) such
as training schemes and scholarships to ensure equality of opportunity. leftists,
as we have seen, favour fairer redistribution of wealth to those who are worse
off. Thomson suggests, however, that professional jobs are an excellent way of
redressing past damage. What the recipient has missed and wants is equal mem-
bership in the community and self-respect, and a job confers this better than a
welfare payment. Preference in employment and education does mean that the
burden of making good falls harder on the shoulders of the white male candidate
who misses out on a job or place at university due to preferences. Supporters of
affirmative action contend, however, that while these candidates may never have
discriminated against others themselves, they have benefited from a system of
historical discrimination because of their race and sex.
Before we turn to consequentialist arguments in favour of affirmative action,
we will consider a libertarian defence. As we have seen, the libertarian position,
emphasising individual liberty and a minimal state, is most often opposed to
affirmative action because it involves state interference with commercial and
contractual decisions. As we saw in Chapter 2, however, nozick argues that
ownership and transfers of property are only legitimate if they are based on an
unbroken string of legitimate transfers, starting with first acquisition. If property
has been unjustly transferred at any point in the historical process, the state may
be justified in intervening to rectify the injustice. We might view affirmative
action as a form of rectification, as Andrew valls argues in the case of African
Americans (1999). As rectification is designed to improve the situation of those
who would have been better off if the injustice had not taken place, it may legiti-
mately focus not only on those who were most directly discriminated against,
but any who have suffered as a result of the unjust transfer. But rectification is
notoriously difficult to apply: how are we to work out what would have hap-
pened if an unjust transfer had not taken place? Many intervening circumstances
between the historical injustice and the present complicate this matter. Further,
rectification simply assumes that a past wrongdoing can be corrected. We might
conclude that affirmative action incorporates a stronger claim, not just for recti-
fying past wrongs, but for compensating as a group those who suffer as a result
of them. Finally, we should note that the libertarian view rejects any assumption
that rectification would necessarily lead to an egalitarian result today.

The case in favour: Positive consequences

Consequentialist or utilitarian arguments in favour of affirmative action depend
upon claims about the effects of the policies that must be assessed by looking
at the facts of particular cases, and reflect a utilitarian approach to politics,
 I S A F F I R M At I v E A C t I O n FA I R ? | 77
according to which policies and principles are assessed solely in terms of the
social welfare they produce. They are particularly important, as several political
philosophers concede that such programmes may involve some small burden
on those denied jobs or places, but that such injustice is outweighed by the
overwhelming social good which affirmative action brings about (nagel, 1973;
Thomson, 1973). All supporters of affirmative action, whether strong or weak,
make their case at least in part on the basis of the positive consequences of the
policy, both for beneficiaries and for the wider society. Consequentialist argu-
ments are particularly relevant in cases where the targeted groups have not
necessarily been subject to long historical injustice, but nevertheless experience
social and economic inequalities – for example, recent Asian and Muslim immi-
grants in the UK and Europe.
The advantages of affirmative action to beneficiaries are not only tangible;
Peter Singer, who relies purely on a utilitarian position, argues that inequalities
between members of different groups are likely to produce feelings of superiority
and inferiority. This leads to feelings of hopelessness on the part of the minor-
ity, as they feel they cannot do anything about their race or gender (Singer,
1993). Feminists from nineteenth-century British philosopher John Stuart Mill
to the present have pointed to the ways in which women have been socialized
to think that because of their biological and social roles in the family, they are
incapable of and unsuited for professional employment (Mill, [1869] 1989; Okin,
1989). Affirmative action is required to overcome this self-perpetuating cycle
of low self-esteem, low achievement, and reinforced inequality (Singer, 1993).
It is important to remember here, in balancing these positive effects against
efficiency, that preferential treatment policies do not award jobs or places to
unqualified candidates. Proponents of affirmative action concede that a specific
level of qualifications is required in order to basically perform a job, or mean-
ingfully participate in an institution like a university. A study of the effects of
30 years of affirmative action in American universities by former presidents of
harvard and Princeton Universities found that black graduates accepted into
prestigious institutions under affirmative action applauded the policy, and were
more likely to go on to successful professional careers, with higher incomes, than
their counterparts who had not taken advantage of affirmative action (Bowen
and Bok, 1998). In a notable example of this, harvard law professor Randall
Kennedy has reflected recently on the undoubted help that affirmative action
gave to his own career (Kennedy, 2013).
We might also claim that affirmative action has positive consequences for non-
beneficiaries because it fosters diversity, and it is better for people at work and
university to come into contact with others who are different from themselves.
It introduces new perspectives, experiences and views, and encourages learning
and new ideas. This argument depends upon the liberal view that diversity of
opinion is socially valuable irrespective of how true various opinions may be – a
principle set out by Mill in the nineteenth century (Mill, [1869] 1989). As critics
78 | A P P ly I n g P O l I t I C A l t h E O R y
have pointed out, however, the groups that affirmative action targets – minori-
ties and women, who have historically been discriminated against – are not the
only sources or varieties of diversity. We might argue that it is diversity of ideol-
ogy or opinion which should be represented, and in fact critics of affirmative
action sometimes argue (facetiously) that it would better be applied to political
conservatives, who tend to be under-represented in university faculties. Even if
we took a more identity-based approach to diversity, we might think that differ-
ent geographical areas should be represented, or perhaps different age groups.
nevertheless, Bowen and Bok found that by 1989, a majority of white and black
respondents reported that they valued the ability to get along with people of
other races, and that their university experience had helped to prepare them for
this (Bowen and Bok, 1998).
Other utilitarian arguments are also advanced in support of affirmative action:
it will result in more minorities and women in universities and positions of
social prestige, to act as role models for young people with similar identities to
aspire to. In addition, minority professionals may be more likely to want to work
amongst and for people of their own race group, and have a better understanding
of the problems facing fellow group members.
Arguments along these lines for affirmative action assume that diversity
in education and employment has a substantial effect on social attitudes. But
we might also argue that it is, more fundamentally, essential to democratic
legitimacy. One of the more ambitious consequentialist arguments in favour of
affirmative action is advanced by Elizabeth Anderson, who defends the policy
on the grounds that it promotes democratic civil society (2002). Analysing the
American case, Anderson argues that de facto racial segregation is the chief bar-
rier to equal opportunity for racial minorities. Segregation is not just the result
of past race discrimination, but the cause of racial inequality, and a threat to the
legitimacy and stability of democratic government. The empirical evidence in
the United States shows that blacks tend to go to school in predominantly black
schools, and to work mainly with other blacks. The effect of this self-reproducing
pattern is entrenched economic inequality: blacks tend to be concentrated in
low-wage jobs, and find it difficult to build up wealth over generations. Because
of de facto segregation, the effects of discrimination tend to last longer, become
entrenched and spread across families and social groups. But in addition, de
facto segregation means that there are few opportunities for social interaction,
political cooperation and the sharing of public goods across race lines. A robust
civil society requires the participation of people from all walks of life, and the
legitimacy of political outcomes depends upon our knowing that everyone
affected by them participated in deciding the policies that led to them. If minori-
ties are not effective participants in the political process, society cannot function,
in Rawls’ terms, as a scheme of fair cooperation. The purpose of affirmative
action is to end de facto segregation and to reshape democratic politics.
 I S A F F I R M At I v E A C t I O n FA I R ? | 79
Anderson’s argument builds upon a deliberative and participatory approach
to democratic government. Iris young argues, for example, that democratic
deliberation and decision-making must involve the full inclusion of structurally
subordinated groups (2000). This applies of course within the legislature as well
as at the level of civil society: we might think here of forms of positive action
such as reserved seats in legislatures for women, as are provided in a number of
countries, including Afghanistan, Argentina, Bangladesh and Rwanda. Several
countries also maintain reserved seats for ethnic minorities, including Belgium,
Croatia, Cyprus, new Zealand, Fiji and India. The aim of all of these descriptive
representation schemes is to ensure that the legislature more accurately reflects
the diversity of society.
The case here for affirmative action assumes that the (roughly) proportional
representation of race, ethnic and gender groups in the economy and in govern-
ment will increase the likelihood that people’s viewpoints and experience will be
represented. As we have already seen, however, it might be claimed that ideologi-
cal diversity is at least as valuable as a range of group identities. We might also
point out, with leftist critics of affirmative action, that economic or class diversity
is also crucial. The emphasis upon identity groups based on race, gender and
ethnicity raises some of the same concerns about internal ideological and eco-
nomic diversity within these groups that we discussed in the previous chapter.
One of the most common criticisms made of affirmative action is that it tends
to benefit the middle-class members of the target groups only – we could extend
that argument here to suggest that affirmative action only draws in to democratic
debate the perspective of middle-class minorities and women. Affirmative action
may well be only one part of a wider strategy required to increase democratic
participation and legitimacy.
One final challenge confronting consequentialist arguments for affirmative
action is to show why the policy continues to be required, many years after it
was first introduced. (We might apply this to race in the US case, and gender
in the case of European countries.) Critics point out that if preferential treat-
ment was in fact successful at raising the self-esteem, and social and economic
status of its beneficiaries, creating role models, and teaching the wider society
the benefits of diversity, why do members of minorities continue to suffer the
ill-effects of past discrimination? The aim of affirmative action must ultimately
be to eliminate these ill-effects, so that individuals can compete equally for jobs
and places. however, as many supporters of preferential treatment have argued,
the ill-effects of wrongful discrimination are deeply embedded in the social and
cultural views of majorities and minorities, and in social and economic struc-
tures. This is particularly clear in the case of women, who continue to suffer
economically as a result of their role in the family. Change is slow in these areas.
Moreover, as Anderson has shown, the economic inequality and segregation that
discrimination produced cannot be eliminated over a single generation.
80 | A P P ly I n g P O l I t I C A l t h E O R y
The case against: Justice and fairness
Arguments against affirmative action fall into four basic categories. First: the
policy is self-defeating, as preferences on the grounds of race and sex are incom-
patible with the goal of ending wrongful discrimination. According to this view,
any discrimination on the grounds of group membership or identity is unfair,
whether it is positive or negative. Second: it interferes with individual freedom
of contract, by regulating employment decisions. Third: it fails to rectify past
injustices, as it does not assist those who were actually victimized by direct
discrimination. Fourth: it produces negative consequences both for minorities
themselves and for society more broadly.
The first three of these arguments are deontological – that is, they argue that
affirmative action is contrary to justice, irrespective of its consequences. They
are based upon the liberal principles of individual freedom and the equality of
persons. Of course, these principles can be used both to support and oppose
preferential treatment: all liberals, whether opponents or supporters of affirma-
tive action, agree that direct discrimination interferes with the freedom and
autonomy of individuals, by preventing them from carrying out their life plans
and projects. Discrimination on grounds such as race or gender fails to rec-
ognize people as individuals, with their own particular characteristics, talents
and abilities, and treats them instead as identical members of a group. While
supporters of preferential treatment believe that it is required to combat the
effects of such discrimination, opponents of the policy see it as simply another
form of wrongful discrimination: Establishing preferential treatment to counter
past injustice, critics argue, continues to disregard the needs and rights of indi-
viduals in order to benefit a group. This runs counter to the fundamental liberal
maxim set out by the eighteenth-century german philosopher Immanuel Kant,
that individuals must never be used as the means to others’ ends and purposes,
but must always be treated as ends in themselves ([1785] 1993). Accordingly,
whether the benefited group is a majority or a minority, discrimination on the
grounds of group identity is simply wrong. In strictly individualist terms, the
state should treat people in all cases as individuals, their membership in groups
a matter of free and private association, with no relevance in the public sphere.
This position is similar to that used to oppose collective multicultural rights, as
we discussed in the previous chapter.
The strict individualist position might appear to be incompatible with
support for weak affirmative action, which focuses upon disadvantaged and
under-represented groups. But as such policies are aimed only at fostering and
encouraging members of minorities to succeed, and removing legal, economic
and cultural barriers that might stand in their way, we might also make indi-
vidualist arguments in favour of weak affirmative action. Affirmative action
policies in Britain, for example, which encourage positive action, are based
upon the grounds of equality of opportunity and individual rights. however,
 I S A F F I R M At I v E A C t I O n FA I R ? | 81
the argument from individual liberty suggests a stronger critique of affirmative
action in both its forms.
Both strong and weak affirmative action may impose state requirements upon
private employers, regulating at least the support and training services they
offer, and at most their decisions to enter into employment contracts. From the
libertarian perspective, commercial activity and the contractual employment
relationship are domains of free action (nozick, 1974). Private property, freedom
of association and freedom of contract are fundamental values, and any interfer-
ence with these is regarded as problematic. This freedom extends to the right of
corporations to discriminate against minority groups. Such rights and liberties,
libertarians argue, cannot be overridden by considerations of social welfare. As
nozick concludes, considerations of fairness cannot overcome the requirement
that people voluntarily consent to any limitation or regulation of their activi-
ties. nozick does not admit even weak affirmative action to ensure equality of
opportunity, although other libertarians have conceded that the state’s duty is to
ensure formal equality of opportunity (hayek, 1962). Of course, this argument
defines freedom in terms of property and contractual rights. If we take a broader
view, and interpret freedom as including the ability to formulate and carry out
life plans and projects, then the damage to self-respect and the unequal social
and economic status caused by discrimination may in fact be interpreted as an
impediment to freedom.
Opponents of affirmative action also argue that it fails as a form of rectification
for past injustice – largely because it does not address the problem of discrimina-
tion where it actually occurs. As Alan goldman (who supports some affirmative
action programmes) points out, reduced numbers of people of colour in univer-
sity departments do not necessarily indicate discrimination against people of
colour with PhDs – rather, they probably indicate discrimination at the level of
primary and secondary education, which led to fewer minorities achieving PhDs
in the first place (1976). Similarly, lower numbers of women in professional
positions might well reflect not discrimination in professional recruitment but
less support available to women to enable them to combine families with career.
Weak affirmative action policies increasing equality of opportunity are more
likely to address these problems – and this is in fact the rationale behind the
positive action/equal opportunity approach adopted in several countries.
Moreover, those who benefit from preferential treatment in hiring are usually
not those who were directly harmed by institutionalized discrimination – such
as slavery, segregation, colonialism or the denial of civil rights to women (Sher,
1975). If we accept that even those who were not directly harmed by legally sanc-
tioned discrimination still suffer because they are members of a group against
which prejudice exists, it is difficult, as Thomas nagel points out, to identify
the contribution that such injustice makes to inequality (1973). It is also not
clear that strong affirmative action is the best way to redress such harm – many
arguing along these lines advocate ensuring equality of opportunity instead.
82 | A P P ly I n g P O l I t I C A l t h E O R y
Moreover, not all women or members of minorities will have experienced harm
from prejudice to the same degree. In fact, we might question the assumption
behind affirmative action that membership in minority groups and gender
are important determinants of individual identity. Critics often point out that
affirmative action programmes have the effect of encouraging people to identify
with minority groups that might not otherwise have played an important role
in their sense of who they are. Even in cases where people do identify strongly
with historically disadvantaged groups, strong affirmative action policies do not
favour those who are suffering the worst harms as a result of discrimination – in
fact, some critics argue that as they benefit middle-class minorities and women,
they are likely to advantage those amongst their group who have suffered the
least (goldman, 1979).
This last argument is consistent with two quite different philosophical per-
spectives: liberal individualists reject the view that collective factors such as
race or gender define personal identity. The same arguments as those discussed
in Chapter 3 against ascribing a group identity to people who share a common
sex, race or ethnicity might be made here. to assume that women or blacks
must have diminished self-respect and abilities because they are female or black,
and thereby the victims of prejudice, is to ignore their individual experience
and identities. But in addition, leftist philosophers concerned about economic
equality will oppose measures which maintain inequalities. goldman suggests,
for example, that affirmative action may be justified if the economic status of
the minority is also taken into account (1979). The point of affirmative action
is to produce fair equality of opportunity for all, and it is the chronically poor,
he argues, who are least likely to benefit. This argument is similar to the critique
of multiculturalism by leftists who see economic status as far more important a
source of injustice than membership in a less-respected social or cultural group.
From this perspective, all forms of affirmative action are inadequate to bring
about real equality. While affirmative action policies aim to produce more equal
results in terms of gender and race, they do nothing to change the underlying
unequal distribution of wealth based on educational and employment oppor-
tunities. Inequalities are not abolished – they are just rearranged. At the most,
these measures could only be a step towards a more fundamental change to the
economic system that would produce more egalitarian outcomes. At the least,
they reinforce an inegalitarian system, by co-opting economic elites amongst
women and minority groups. It’s important to note here a significant difference
between these leftists and libertarians, although both believe that strong affirma-
tive action is misguided. The latter argue that people are entitled to whatever
values and benefits they can gain on the free market from the use of their tal-
ents. (We should note that this does not mean that people morally deserve their
natural talents.) leftists contend that it is society’s task to distribute goods and
benefits. This basic position is shared by many liberal egalitarians, as we saw in
Chapter 2: they reject the argument that anyone deserves or is entitled to a job or
 I S A F F I R M At I v E A C t I O n FA I R ? | 83
position. The difference lies in whether the ultimate goal of society’s distribution
of benefits is to share them out unevenly, but without regard to race or sex, or to
share them out more evenly to all.
Thomas nagel defends affirmative action in the limited circumstances where
there has been specific disadvantage, directly caused by injustice (1973). In
other cases, he argues, justice is better served by separating the criterion of
efficiency – by which performance and skills criteria best select people for jobs –
from the question of whether people deserve the benefits that come from jobs.
The most fundamental cause of injustice is differential reward. Fair equality of
opportunity – as might be achieved through weak affirmative action policies –
cannot produce just outcomes when some natural talents and abilities earn more
income than others. The real injustice, nagel argues, is that those with higher
intelligence are disproportionately rewarded by society. Justice requires that we
reduce the connections between material advantages, cultural opportunity and
institutional authority. But we can only do this by large alterations in the social
system, including major changes to taxes and salaries. We can’t do this by chang-
ing the hiring policies of corporations or the admissions policies of universities
(nagel, 1973).

The case against: Negative consequences

We have already considered utilitarian arguments in favour of affirmative action;
critics emphasize other more negative consequences of the policy. They contend
that preferential treatment for minorities and women is wrong because they
damage the very groups they set out to assist, as well as producing more gen-
eral negative social consequences. Carl Cohen argues, for example, that strong
affirmative action hinders the quest for an integrated society, and damages and
corrupts institutions (Cohen and Sterba, 2003). This critique has both indi-
vidualist and communitarian dimensions. From a liberal individualist position,
affirmative action affects those who lose positions and places simply because of
their race and gender. But it also damages its beneficiaries, by refusing to treat
them as individuals. On a psychological level, critics allege that this reinforces
their sense of inferiority and victimhood, and their fear that their fates are deter-
mined by their race, ethnicity or sex (Pojman, 1992). It leaves them vulnerable to
charges of tokenism, and places them in jobs and universities where they do not
have the skills to cope and achieve, setting them up for failure.
The central problem with claims like this is that the evidence supporting them
is anecdotal and difficult to assess. Richard Rodriguez, for example, describes the
helpless failure of unprepared minorities admitted under affirmative action to
study at the elite University of California Berkeley (1982). however, the Bowen
and Bok study of affirmative action in a range of American universities tells a
different story (Bowen and Bok, 1998). A study of employees conducted in 1994
84 | A P P ly I n g P O l I t I C A l t h E O R y
found that there was no evidence that affirmative action ‘blighted the psycho-
logical functioning’ of beneficiaries (taylor, 1994).
Similarly, communitarian concerns may suggest that affirmative action creates
division and resentment, and reduces the legitimacy of social institutions and
the commitment of citizens to them. Pojman argues that hiring less qualified
people will not break stereotypes against them, but will only reinforce them –
presumably because such people will perform in a less than satisfactory way
(Pojman, 1992). Even if they do not, affirmative action may reinforce the percep-
tion that members of minority groups are inferior, and unable to achieve their
positions on their own merits. Again, the evidence is mixed and often anecdotal,
although the US study discussed in the previous section suggests that affirmative
action, by increasing racial diversity in the workplace, the professions and public
life builds, rather than diminishes, social solidarity.
Finally, critics of strong affirmative action allege that allocating jobs to less-
well-qualified candidates is contrary to efficiency. The most efficient and produc-
tive way to organize an economy is to allocate jobs and responsibilities to those
best qualified for them. The economic evidence for this claim is not conclusive
(holzer and neumark, 2000). Moreover, as nagel has argued, we cannot assume
that economic efficiency should trump moral considerations (1973). If, like
Rawls, we take a contractarian approach to politics, according to which the basic
structures of society must be subject to reasonable agreement by all, society may
reasonably decide that economic efficiency is only one of the important goals of
social policy.
What, then, if anything, do the opponents of affirmative action suggest should
be done by the state to bring about greater racial and gender equality? After all,
if minority groups and women were represented in institutions and professions
in proportion to their share of the population, and this pattern seemed likely
to continue into the future, there would be no need for the policy. Some liber-
tarians, as we have seen, insist that it is not the business of the state to pursue
such a goal. Other critics argue that equality of opportunity will go a long way
toward ensuring more equal representation, and that any final differences in
outcomes will be because of individual differences in talent and performance.
Still others – controversially – ascribe these differences in outcome to biologi-
cal or cultural differences between races and sexes. According to the biological
‘essentialist’ position, different races and sexes do in fact have different levels of
intelligence and different kinds of ability (herrnstein and Murray, 1994). The
former President of harvard University, Dr lawrence Summers, made a similar
suggestion in 2005, when he commented that the small proportion of women
at higher levels in maths and sciences might be due to their lack of innate
abilities in these areas – a deficiency that might be genetic in origin. Many have
criticized these essentialist assertions (Fischer, 1996); taking a critical position,
however, does not necessarily entail support for strong over weak affirmative
action. Other critics argue, without making a link to innate intelligence, that the
 I S A F F I R M At I v E A C t I O n FA I R ? | 85
Box 4.2 affirMaTive acTion: coMpeTing
norMs and valUes
The debate over affirmative action centres on different interpretations of equality,
justice, liberty and the common good.

• Equality: Supporters of affirmative action argue that in order to treat people equally,
differences between them must be taken into account. Minority group membership
and gender are relevant differences, because of the way minorities and women have
been treated historically, and the consequences of this for their present position.
Opponents respond that in order to treat people equally, the state must treat them
the same. Recognizing differences in a ‘positive’ way is just as unfair as recognizing
them negatively.
• Justice: Supporters of affirmative action argue that justice requires compensating
for historical injustices, and recognizing the effects of these injustices upon members
of minority communities, and upon the distribution of wealth and power in society
more broadly. Opponents counter that justice requires considering people as
individuals rather than group members, and rewarding or advancing them based on
merit and performance.
• Liberty: Supporters argue that freedom of contract means that the state must not
intervene in hiring decisions to mandate affirmative action. Opponents counter that
freedom of contract must be balanced against other considerations of justice.
• Social cohesion: Supporters argue that affirmative action will lead to greater
representation of minorities and women at university, in the professions, and in
public life. This will improve communication and relations between the majority
and minorities, and ultimately foster social cohesion. Opponents contend that the
resentment that majorities will feel towards positive discrimination will undermine
community cohesion.

cultural practices of groups lead them to take fewer opportunities to educate and
develop their children (Pojman, 1992). Thus it is not discrimination that limits
the success of minority group members, but their own identities and decisions.
Those who hold this position are likely to support equality of opportunity, but
not strong affirmative action, as they believe that state regulation cannot achieve
equality without change from members of minority groups themselves.

Conclusion
While much of the discussion of affirmative action has focused on the Ameri-
can experience, recent increases in ethnic diversity and race-based conflict are
likely to mean that these preferential treatment policies will be considered more
closely in Britain and Europe. As we have seen, while there is fairly wide support
86 | A P P ly I n g P O l I t I C A l t h E O R y
for measures which promote equality of opportunity, both deontological and
consequentialist arguments can be offered on both sides of the issue of preferen-
tial treatment. Despite the claims of opponents, however, recent evidence does
seem to suggest that the consequences of years of affirmative action in the United
States are generally positive. Utilitarian arguments are the most powerful offered
in support of preferential treatment – even philosophers like Dworkin who offer
a deontological defence of the policy also rely heavily on consequentialist claims.
This may appear to be less than satisfactory to supporters of affirmative action
for two reasons. First, consequentialist claims will always be subject to dispute
– empirical evidence is frequently cited both for the positive and negative con-
sequences of the policy. Second, claims about beneficial effects do not address
the most powerful argument made by critics of preferential treatment: that it is
unfair to those individuals who are passed over for jobs or education by appar-
ently less-qualified minorities. The stronger case for affirmative action depends
upon principles of justice, and upon the view that justice cannot be considered
ahistorically. The benefits and goods of society should be distributed in a way
that takes into account membership in groups which were the subject of histori-
cal injustice, and which aims to compensate for, and ultimately overcome those
injustices.
5

Should Prostitution and

Pornography Be Legal?

● The conservaTive case againsT prosTiTuTion and pornography

● communiTy values and sex work
● sex as a commodiTy
● marriage and prosTiTuTion
● False consciousness
● The FeminisT case againsT pornography and prosTiTuTion
● liberTy, conTracT and sex work
● FeminisT argumenTs For sexual Freedom
● conclusion

Every year billions of dollars are generated by the global sex industry, a term
covering a wide range of activities, from prostitution in its various forms, traf-
ficking and sex tourism, to pornography, adult entertainment and advertising.
The exact worth of the industry is impossible to gauge, in part because much of
it is, at least in some countries, illegal. A vast network of law and regulation to
regulate the sex industry has developed at every level of government, from local
ordinances to international treaties. Some of this, particularly those aspects deal-
ing with children, human trafficking and sex slavery, is uncontroversial; it deals
with activities that are widely agreed across nations and cultures to be wrong.
The United Nations Convention on the Suppression of the Traffic in Persons
and the Exploitation of the Prostitution of Others, signed in 1949, declared
that forced prostitution was incompatible with human dignity. The controversy
over commercial sex focuses on two issues: should prostitution be legal when it
involves women who appear to consent to working as prostitutes, and should the
distribution and consumption of pornography by adults be legal?
Pornography and prostitution are regulated separately, but both have been
substantially liberalized in developed countries over the past three decades.
Both raise issues of consent and the status of women: the great majority of
prostitutes are women, and the great majority of consumers of pornography are

87
88 | A P P ly i N g P O l i T i C A l T h E O r y
men – although there are of course also male prostitutes, and women who use
pornography. (Women are in fact the fastest growing group of consumers of
internet pornography, and were largely responsible for the unprecedented suc-
cess of the 2011 erotic novel by E.l. James, Fifty Shades of Grey.) in both cases,
the arguments against legalization were traditionally made on the grounds of
community morality, although, as we shall see, the debate is increasingly driven
by feminist arguments that prostitution and pornography are inherently exploit-
ative of women. As we explore these debates, it will be clear that liberty, equality,
consent and power are not just academic issues. Some of the most central ques-
tions of political theory are invoked by policy makers, activists and sex workers
themselves in arguing their cases.
The legal regulation of prostitution is complex: in countries in which it is legal,
it is often closely regulated, with special licences required for brothels. Where it
is illegal, national laws differ on whether they target those who sell or buy sex.
‘Pimping’ or living off the prostitution of others – also targeted in the 1949 UN
Convention – is illegal in most countries, as is soliciting on the street. Some
countries impose stringent penalties: in iran women convicted of prostitution
face the death penalty, while Chinese law imposes the death penalty for those
who organize prostitution rings in which women are abused. Among Western
countries, the United States has some of the strictest legislation. Prostitution is
regulated by the states, and both the buying and selling of sexual services is illegal
in all states except for Nevada, while street prostitution is illegal throughout the
country. Nevertheless, prostitution is common (as it is in most countries where
it is illegal), and there are periodic public calls for legalization. Critics point out
that following the 1988 California Supreme Court decision People v. Freeman,
actors may be paid for sex if they are being videotaped for commercial pornog-
raphy, while the same activities are criminalized in the case of prostitution.
Prostitution is legal in almost all European countries, although most impose
restrictions on where it can be carried out. The most liberal regime is that of the
Netherlands, where prostitution (including streetwalking) was legalized in 1988,
and brothels in 2000, with the express aim of protecting the rights of sex work-
ers (see Box 5.1). Some countries have followed the Dutch model: prostitution is
legal in germany, for example, although local authorities are permitted to regu-
late it, and several restrict street walking and impose a tax on brothels. A ger-
man government report in 2007 found that legalization had failed to improve
the welfare of prostitutes and protect them from exploitation. New Zealand fully
legalized prostitution, including street walking and living off earnings, in 2003.
While policy in these countries is directed at normalizing prostitution, others
aim to eventually eliminate it on the grounds that it exploits women. This was
the position taken by the UN Women’s Conference in Beijing in 1995, which
declared that prostitution and pornography – as well as sexual harassment,
gender-based violence, sexual slavery and exploitation – ‘are incompatible with
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 89
the dignity and worth of the human person and must be eliminated’. The strong-
est approach along these lines is taken by Sweden, which in 1999 became the first
country in the world to criminalize all activities around prostitution, including
buying sex, but not actually selling itself (see Box 5.1).
Several countries take a regulation and restriction approach, which criminal-
izes not the actual sellers and buyers of sex, but rather third parties who benefit
from prostitution. This commonly involves prohibiting all of the commercial
activities around prostitution, although not the transaction itself. in France, for
example, the actual buying and selling of sex is not illegal, but owning or operat-
ing a brothel, advertising for prostitution and soliciting customers in public are
all banned. (legislation following the Swedish model, which would have crimi-
nalized the buying of sex, but decriminalized soliciting, failed to pass the French
Senate in 2014.) The UK also permits the buying and selling of sex, but bans
pimping, soliciting and the operating of brothels. (Northern ireland, however,
prohibited paying for sex in 2015.) Prostitution is regulated under the Sexual

Box 5.1 The DuTch anD SweDiSh

approacheS To proSTiTuTion
The Dutch and Swedish approaches to prostitution both aim to empower women,
but go about doing so in very different ways. Neither country criminalizes prostitutes
themselves. In the Netherlands, prostitution (of adults) is recognized as work, and is
fully legal. No health checks are required of prostitutes, who have full rights to join
unions, and are treated by law no differently from other self-employed workers. Pimping
and trafficking in people are prohibited. In Sweden, by contrast, buying sex and third-
party involvement in prostitution are criminalized, but prostitutes themselves are not.

• The Netherlands’ liberal legislation has widespread popular support. A 1999 opinion
poll found that 78% of Dutch regarded prostitution as a job like any other.
• Opponents of decriminalization claim that by recognizing prostitution as work,
the state makes it acceptable to see it as a legitimate avenue of employment
for the poor and immigrants. The number of prostitutes in the Netherlands has
increased since legalization, as also has the proportion of them who are foreign. The
government has only recently attempted to crack down on the trafficking of women.
Opponents claim that the legalization of prostitution has increased the demand for
it in all its forms – including child prostitution.
• In Sweden, the ban is supported by 80% of the population, and supporters point out
that it has drastically reduced the number of prostitutes, including the numbers of
foreign women illegally trafficked in the sex industry.
• However, some Swedish sex workers have complained that the ban forces them
to work in unsafe conditions, and increases their risk of violence and abuse. The
government has had to invest in drug treatment services and social support for
prostitutes forced to leave the industry.
90 | A P P ly i N g P O l i T i C A l T h E O r y
Offences Act of 1956, which reflected the findings of the Wolfenden Commit-
tee on homosexual offences and prostitution. The Committee concluded that
street prostitution, unlike homosexuality (see Chapter 6), caused community
instability and the weakening of the family, and could be regulated as a moral
issue. Similar restrictive legislation is in force in most Australian states, and was
recently in Canada, where prostitution was not illegal, but keeping brothels,
soliciting and living on the profits of prostitution were. in a 2013 case brought by
sex workers in Ontario, the Canadian Supreme Court struck down these restric-
tive laws, on the grounds that they violated sex workers’ constitutional rights to
life, liberty and security of the person (Canada (Ag) vs. Bedford). in 2014 in
response, Canada passed legislation following the Swedish model, according to
which it became illegal to buy, but not to sell sexual services.
like prostitution, pornography has been increasingly legalized in developed
countries. Most restrictions focus on the age of users and performers, and
the extremity of the material permitted. Pornography covers a wide variety of
material – from soft to hardcore, to violent pornography, material depicting
sexual fetishes, bestiality and child pornography. Child pornography is illegal
in almost all countries (although there are some differences with respect to the
cut-off age for children, and some states criminalize distribution but not pos-
session) and all pornography is illegal in some states, including iran, Pakistan,
Malaysia and indonesia. But it is notoriously difficult to regulate – in the past
because much of it has been delivered by mail – and more recently because much
of it is accessed over the internet. Few countries have been able to control access
to internet pornography, although China has tightly regulated service provid-
ers, with the aim of blocking pornography as well as political dissidence. Many
countries have attempted to impose filters to block material that is illegal in their
own jurisdiction.
Most developed countries have adopted policies of legalizing pornography,
often with exceptions for violence and some fetishist practices, and focusing
control efforts on child pornography. Much of the international political and
academic debate on the issue has taken place in the United States, where regula-
tion is a state matter, and where defenders of legalization base their arguments
on the constitutionally protected right to freedom of speech. First Amendment
protection of freedom of speech has been held by the US Supreme Court in the
Miller v. California case of 1973 to apply to material which is not ‘obscene’. The
Court acknowledged the possibility of a threat to freedom of speech, and set up
three requirements classifying material as obscene. in order for regulation to be
permitted, the average person, applying contemporary community standards,
must find the material appeals to the prurient interest, the work must define in
a patently offensive way sexual conduct or excretory functions, and the work
must lack ‘serious literary, artistic, political or scientific value’. it’s important to
note here that the standards to be applied in determining whether material is
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 91
obscene or not in the US are those of local communities, rather than the nation
as a whole. Since the Miller decision, local communities have banned sex shows,
pornographic materials and sometimes art exhibitions on the basis of these com-
munity standards.
legislation in the UK permits ‘obscene’ material to be published and sold, as
long as it does not ‘tend to deprave and corrupt’ those who read, see or hear it
(there are no restrictions on possession of such material). in practice, the courts
have increasingly limited their assessment of what is held to deprave and cor-
rupt, endorsing instead protective measures such as age limits and restrictions
on places of sale. in 2014, however, an amendment to the 2003 Communications
Act imposed a series of regulations on British pornography producers. Support-
ers point out that the practices banned include for example threats to the lives
of those involved, bestiality and necrophilia. Opponents claim that this will
prohibit non-abusive behaviour freely engaged in by consenting adults. in New
Zealand, government censors are charged with banning ‘objectionable’ material
that is ‘injurious to the public good’. Objectionable material is defined as pro-
moting the sexual exploitation of children, sexual violence, and other extreme
sexual acts. A similar approach prohibiting child sex, violence and extreme acts
is followed in Australia.
Denmark, the Netherlands and Sweden take the most permissive approach
to pornography, allowing any material except child pornography to be distrib-
uted to adults. in Canada, the Canadian Supreme Court decision in 1992 in
R v. Butler defined as obscene – and subject to ban – material that promotes
gender inequality. gay and lesbian bookstores allege that the definition of objec-
tionable material is applied in a discriminatory way by Canada’s border officials,
which target gay and lesbian pornography.
This chapter addresses prostitution and pornography together, as case studies
in the commercialization of sex. While they raise important separate issues, as
we shall see, those who defend legalization in each case base their arguments
upon liberty: in the case of pornography, freedom of expression, and in the case
of prostitution, freedom of contract. The case against both may be divided into
two basic categories – firstly, conservative or communitarian arguments which
emphasize the damage that commercialized sex does to the moral character
of society, and secondly, feminist arguments, which focus not on the alleged
immorality of prostitution and pornography, but rather on the damage that they
cause to women and gender equality. Conservative and communitarian argu-
ments apply to prostitution and pornography involving men as well as women,
while the feminist case focuses of course on women, but sees male prostitution,
which mainly involves gay men, as repeating gendered power relations between
men. liberals arguing for the legalization of sex work rely on principles that
apply whether the workers are male or female – but in practice, because they are
responding to feminist claims, focus more on women.
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Both prostitution and pornography raise questions about how to balance
different freedoms, and what it means to act freely: does liberty mean being
permitted to act or to make any kind of contract one wishes, even actions or con-
tracts of which the majority disapproves, and believes to be damaging? Should
individual freedom to engage in activities which deeply offend others be limited?
Can there be contractual freedom in a society in which groups such as women
do not have equal social and economic power? What is the relationship between
sex and women’s equality? Some of these issues concerning liberty will also arise
in Chapter 7, in which we consider censorship and freedom of speech more
broadly. i begin here by outlining conservative, communitarian and feminist
arguments against prostitution and pornography, and then turn to the liberal
case for legalization. As we shall see, both sides in these debates employ both
deontological arguments based on their respective views of what is right and just
and consequentialist arguments based on the implications for individuals and
society of regulating the sex industry.

The conservative case against prostitution

and pornography
The case against both prostitution and pornography has traditionally been made
upon conservative or moralist lines, and depends upon particular views of sex,
the family and the obligations of the individual to the common good. liberals,
as we shall see, are committed to the idea that adults should be able to make
their own sexual choices, and oppose government regulation of people’s sexual
activities and transactions. This is consistent with the broader liberal belief that
individuals should be free to behave in private in ways not approved of by others.
Conservatives, however, want to preserve traditional morality’s restriction of sex
to marriage. Christian (and Jewish and Muslim) conservatives cite injunctions
against prostitution in their holy scriptures. however, Christian conservatives
also base their opposition to all forms of commercialized sex upon natural law,
which they believe to be established by god (Finnis, 1980).
The idea of natural law dates back to ancient philosophy, but became cen-
tral to the Christian view of politics and ethics with the work of the medieval
roman Catholic philosopher Thomas Aquinas ([written 1265–1274] 1952).
Natural law theorists believe that god’s laws for the universe and for human
society are revealed in nature and human nature, and are made known to human
beings through their reason. Christians believe that if people reason properly
and follow their natural moral instincts, they will know what is right and good.
in terms of sex, this means restricting sexual activity to heterosexual married
couples, where sex enables men and women to unite together – the physical
procreative act expressing a deeper religious or spiritual union. (i discuss some
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 93
related implications of this in Chapter 6.) The problem with pornography and
prostitution according to this perspective is that they treat sex as a commercial
commodity, rather than part of an intimate and married relationship, and they
assume that its purpose is pleasure and enjoyment, rather than procreation and
commitment.
Conservatives (both religious and otherwise) also focus on what they
believe to be the consequences of commercialized sex – both for the indi-
viduals involved in it, and for the broader community. They argue that sexual
behaviour shapes and influences public life, and that to allow people unlim-
ited liberty from regulation of their sexual choices will degrade public life
and the good of families and the community. The state must therefore take
a ‘paternalist’ approach, protecting people from their own worst impulses.
Both prostitution and pornography are viewed as being corrupting – as
destructive to people’s willingness both to commit to permanent sexual rela-
tionship and to observe their commitments. (Again, a similar argument is
made about homosexuality, as we shall see in the next chapter.) Critics argue
that the legalization of prostitution and pornography will damage the family,
by encouraging men to abandon marital fidelity. Prostitution obviously pro-
vides a ready alternative to sexual fidelity, and publically available pornogra-
phy, critics claim, destroys the sense of shame that restrains people’s sexual
impulses (Kristol, 2004). The American neo-conservative irving Kristol
insists that the ready availability of pornography coarsens society, and basi-
cally changes its moral character. More specifically, religious conservatives
blame pornography and prostitution for rape and sexual violence, adultery,
family breakdown, premarital sex and the sexual abuse of children. in 1986,
American conservatives persuaded President reagan to commission Attor-
ney general Edwin Meese to investigate pornography. The Meese Commis-
sion, which numbered several religious conservatives among its members,
focused on the alleged harmful social effects of pornography. it concluded
that pornography represented a clear danger, and recommended stricter
and more extensive controls upon sexually explicit matter. The Commission
was widely criticized by liberals for its biased and unscientific approach to
evidence; as we shall see, liberal critics contend that there is no evidence of
a causal relationship between either pornography or prostitution and social
dysfunction.
Arguments about the negative consequences of sex work for women, both
individually and as a group, are also of course made by feminists, and this is
why the Meese Commission’s work, for example, was supported by both anti-
pornography feminists and pro-family conservatives. But some conservative
arguments, such as Kristol’s, also reflect a communitarian view that communi-
ties should be able to maintain and enforce their collective moral views and
commitments, against the claims of individuals.
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Community values and sex work
The claim that pornography and prostitution should be regulated by the state to
reflect and reinforce community morality is also based on harmful consequences –
but the harm invoked here is the destruction of the character of a community
generally, rather than specific effects upon the family or children. in 1957, the
Wolfenden Committee’s report into prostitution and homosexuality in the UK
recommended that homosexuality should be decriminalized, but that street prosti-
tution was destructive to the family, and should continue to be banned. The British
high Court Justice lord Devlin, commenting on the report, made the public case
that the state was justified in banning an act or practice if it were regarded as mor-
ally unacceptable by popular opinion, in order to protect and preserve the moral
fabric of society (1959). (For a fuller discussion, see pp. 120–121 in Chapter 6.)
This communitarian defence of prohibitions against pornography and prosti-
tution doesn’t imply that all communities necessarily would or should prohibit
either. if public debate and discussion revealed no strong feeling in a particular
community against the commercial availability of sex or images of it, and no
feeling that the community would be damaged by it, then there would be no
reason for a prohibition. Michael Sandel has argued that communities should
be able to choose and protect in law their own moral standards. Debates about
what a community finds acceptable and unacceptable are an essential part of the
political process (Sandel, 1984). As we’ve seen, this local community standard
approach is used to define what counts as obscenity in the United States.

Sex as a commodity
religious opposition to pornography and prostitution, as we’ve seen, depends
not only on concern about social consequences but also on the belief that sex
should express a spiritual union between married men and women. The view
that sex and sexual bodies should not be treated as commodities to be bought
and sold underlies not only conservative thought, but also leftist and feminist
opposition to pornography and prostitution. These critics see sexual activity and
expression not as divine gifts, but as fundamental to what makes us human –
aspects of the person which must not be exchanged for money, any more than
human beings themselves should be bought or sold. Marxists have termed the
process by which human relationships are transformed into commercial rela-
tionships commodification. The worker’s labour power, an integral part of him,
becomes under capitalism a commodity to be sold, and as it is, part of the worker
is sold away, and he becomes alienated from himself (Marx and Engels, [1848]
1978). Marx and Engels thought that that the process by which human relations
become commercialized, and governed by market forces and market power
was an essential aspect of capitalism. The ascendancy of the bourgeoisie – the
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 95
capital-owning class – destroyed all earlier forms of human relationships: ‘The
bourgeoisie has torn away from the family its sentimental veil, and has reduced
the family relation to a mere money relation’ (Marx and Engels, [1848] 1978).
We see this process particularly clearly in slavery, the selling of human organs, or
commercial surrogate motherhood contracts, where intimate bodily services –
and body parts themselves – are transformed into commodities.
in the cases of pornography and prostitution, sex itself, images of it – and,
critics argue, bodies themselves – are turned into commodities. As the prostitute
and sex worker sells her (or his – the argument applies irrespective of gender)
sexual labour, she becomes alienated from herself, and exploited, like other
workers, by the agents of capitalism – pimps and others who live off the profits of
her labour. Marxists see commodification and exploitation as the real problems
with prostitution and pornography (as they are with all labour under capitalism).
But it is not only Marxists who see similarities between prostitution and other
forms of labour. The liberal philosopher Martha Nussbaum, for example, argues
that there is no more reason to prohibit prostitution than there is to proscribe
other forms of low-paid labour requiring bodily exertion, often performed under
conditions of exploitation (2008). By the same token, there is a strong argument
for improving the conditions of people who work in the sex industry.
This analysis of commodification has been very influential on a range of left-
ist critics, who share a broad concern about applying the norms of the market
to other human relationships. Michael Walzer suggests that human beings exist
and act in the world in a range of different spheres of action, each of which has
its particular social good – for example, education, political power, or love and
affection. in each sphere, the principles by which goods are distributed are based
on principles agreed to and meanings shared among the community. Each good
must be distributed according to its appropriate principles, and money, particu-
larly, must not be used as a universal criterion of distribution. Wealth should
not mean automatic success in other spheres of action, because some things
should not be sold: such as human beings, political power, basic freedoms,
public honour, marriage, love and friendship. Sex can be sold only when it is
not understood exclusively in terms of love and commitment (Walzer, 1983).
Elizabeth Anderson argues similarly that personal relations should be governed
by the norms of intimacy and commitment, rather than market norms. Prostitu-
tion and pornography both commodified women’s bodies, which made it more
difficult for women to be fully recognized as sexual beings (1993).

Marriage and prostitution

Modern feminists have sometimes argued that (heterosexual) prostitution
was not very different from traditional marriage, which required a woman to
guarantee her sexual availability to her husband, in exchange for income and
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support (Jeffreys, 1997). This argument was first made at length by Marx’s col-
laborator Friedrich Engels, in The Origins of the Family, Private Property and the
State. he traces the relationship between prostitution and marriage, which he
describes as ‘inseparable opposites, poles of the same social conditions’ ([1884]
1948). Engels argued that the ideal of monogamous marriage developed so that
men could ensure that they could pass on their private property to their heirs.
As sexual fidelity was only required of women as mothers, prostitution allowed
men to continue to enjoy sexual freedom – a freedom denied to their wives. it
has continued to be tolerated, despite remaining illegal, because it is necessary
as an outlet to keep men stable in otherwise monogamous marriages. Efforts to
ban prostitution in the name of morality or community standards are merely
hypocritical moralism, as the institution is essential to bourgeois marriage. it is
thus not surprising that the situation of the prostitute is not all that different to
that of the wife under bourgeois marriage. Unlike the prostitute, the wife does
not ‘hire out her body like a wage-worker, on piecework, but sells it into slavery
once for all’ ( Engels, [1884] 1948).
Engels concludes (rather romantically) that when the economic foundations
of monogamy disappear, so will prostitution. Once private property and class
power are abolished, men will no longer have to marry to ensure they can pass
on their private wealth, and men and women will be able to enter into sexual
relationships purely out of choice. As we shall see, the argument for individual
freedom of choice is also made by liberals defending the legality of prostitution
and pornography. Unlike liberals, however, Marxists do not believe that such
freedom can be established while property remains concentrated in the hands
of a capitalist class.

False consciousness
One further Marxist concept helpful to understanding radical feminist opposi-
tion to pornography and prostitution is that of ‘false consciousness’. in Marx and
Engels’ terms, the role of ideology in capitalism is to persuade workers to believe
that they are rational economic agents making free choices, and that they can
improve their class position through labour. This false consciousness (as later
Marxists referred to it) of who they are and what are their interests maintains
the very system that dominates them. leftist critics sometimes use this idea to
describe what happens when people identify in ways, or claim interests, which
critics believe to be contrary to their ‘true’ identities and interests (Eagleton,
1991). For feminists, this helps to explain why women often reject feminism,
and claim to freely subordinate themselves to men. Women who insist on their
rights and liberties to participate in prostitution and pornography might be
seen as identifying with their patriarchal oppressors, rather than with their true
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 97
interests. Most feminist opponents of legalizing prostitution and pornography
do not make the false consciousness argument by name, but rely on a version of
it to answer the objection that some women claim to freely choose to participate
in and enjoy both institutions.

The feminist case against pornography and

prostitution
States which have opted for restrictive legislation on prostitution, following the
Swedish model, justify their position by feminist arguments about the exploi-
tation of women, rather than by community values and concerns about com-
mercialization. Feminists opposed to pornography and prostitution believe that
these institutions do not represent simply the private career choices of individu-
als, or the expression of women’s sexual freedom. Nor is the issue with sex work
its immorality or the danger it poses to the community good. The real problems
of prostitution, pornography and all forms of sex work are, according to this
argument, both deontological and consequential. Sex work is unjust and wrong
in itself, because it subordinates women to men, and it causes damage both to
those engaged in it and all women. Feminists see the sex industry as being linked
to broader systems and relationships of power. Whereas for Marxists, class eco-
nomic power shapes all social institutions and practices, feminists believe that
the underlying cause is patriarchy – the system of gender relations by which
men are able to subordinate, exploit and exercise control over women. While
the industry may involve men as workers – particularly gay men – its terms of
operation are set by patriarchy, so that when men are subordinated in gay male
pornography, or work as prostitutes, they are treated like women. Banning or
ending pornography or prostitution is not an end in itself for the feminists who
support these policies. rather, it is part of a broader reform of socio-economic
and cultural structures which will ensure women’s freedom and equality. This
is broadly the approach behind the Swedish ban on prostitution – although it’s
notable that Sweden takes a very different and much more liberal attitude to
pornography.
The most influential feminist case that pornography is inherently unjust and
damages women directly and indirectly has been made by the American femi-
nist legal theorist and activist Catharine MacKinnon (1985, 1995). MacKinnon
argues that pornography is a violation of women’s civil rights – it causes (rather
than simply reflects) their inequality, and diminishes their liberty. MacKinnon’s
work – together with that of Andrea Dworkin (A. Dworkin, 1981, 1985) – has
been a powerful support to international women’s groups arguing for more
restrictive laws against pornography in many countries. in the 1980s, MacKin-
non and Dworkin drafted city regulations in the American cities Minneapolis
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and indianapolis, allowing women to sue the makers and distributors of por-
nography. The ordinances were based on the claim that pornography was unjust
because it subordinates women, but as the basis for legal action was damage
actually caused to victims, the hearings on them were dominated by women’s
(often shocking) accounts of the harm that had been done to them by male con-
sumers of pornography.
The direct harm experienced by many (although not all) workers in the sex
industry is well documented; many studies of the lives and experience of sex
workers have found evidence of systematic violence and abuse (renzetti et al.,
2001). The indirect harm done to all women – particularly by pornography,
because its nature is to be circulated beyond those involved in making it – takes
two forms. First, critics allege that men who consume pornography use it to
sexually abuse and coerce other women, both intimates and strangers (itzin and
Sweet, 1993; russell, 1993; Weaver, 1993). Second, pornography justifies and
reinforces the continued social, cultural and economic exploitation of women,
because it perpetuates sexist stereotypes that women are servile beings, who exist
for male sexual pleasure.
While no defender of legal pornography would wish to deny the reality of
women’s experience of sexual abuse, the difficulty of harm-based arguments lies
in drawing a causal connection between pornography and abuse. Some empiri-
cal studies have shown a relationship between consuming pornography and
sexual abuse or rape, but have not shown that pornography causes abuse – and
it would in fact be ethically impossible to do the kind of controlled study that
would prove this. Critics point out that sexualized imagery and messages are
common in popular culture, and that ordinary advertising and entertainment
may also inspire men to abuse women. in fact, by concentrating on pornography,
we run the risk of ignoring the way the mainstream media and advertising sexu-
alizes women and girls (A. Dworkin, 1991; Strossen, 1995). in addition, there is
considerable variety in women’s responses to pornography – some of it is made
by women, either for profit or for amateur websites, and as we have seen, women
are a fast-growing proportion of the market for internet pornography.
From a philosophical point of view, it is the argument that pornography is
inherently unjust and subordinating that is most controversial. MacKinnon
rejects the traditional definition of pornography as material that is sexually
explicit or obscene. She restricts it to material that is not only sexually explicit,
but that also shows women – or in fact anyone – being dominated, subdued,
coerced, or humiliated, or in servile positions, in such a way that endorses what
they depict. From this feminist perspective, images and text that are sexually
explicit but do not subordinate women are categorized as legitimate erotica. Por-
nography, prostitution and other forms of commercialized sex must, MacKinnon
argues, be seen in the context of women’s subordination to men. Pornography
is not, as liberals claim, a form of speech, and prostitution is not an expression
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 99
of contractual freedom – rather, both are actual political practices that reflect
and reinforce the power of men and the powerlessness of women. Pornography
makes abuse, domination and harassment erotic. it defines sex as being about
domination and submission. its practical effect is to reinforce patriarchy and the
subordination of women.
One of the most controversial aspects of MacKinnon’s argument is the way in
which she categorizes so much sexually explicit material as pornographic and
objectionable. She condemns not only violent or obviously degrading materials,
but anything which depicts women in a way that could be construed as servile.
images that many liberals see as neutral performances of sexual acts can be
interpreted according to this feminist perspective as objectifying women – as
treating them as objects that are acted upon by men, rather than autonomous
individuals who direct their own lives. As we shall see, other feminists have
been strongly critical of this approach, arguing that pornographic images may
be interpreted as empowering to women.
in order to understand MacKinnon’s perspective, we have to bear in mind
that she sees patriarchy as a powerful system of meaning that shapes the way we
interpret, and the way in which we’re affected by, images of sex. Pornography
exists in a context of social ideas and relations of power – like ideology for Marx-
ists, it reflects and reinforces social structures. For this reason also, MacKinnon
argues that women cannot be said to choose to participate in pornography. The
inequality of gender relations makes it virtually impossible for women to consent
freely. As for the claim of some women to enjoy pornography, this is in fact a
sign of the overwhelming power of patriarchy to define sex for women as well as
men. As a result, women accept their servile status as normal, and even pleasur-
able. This observation was first made by the nineteenth-century liberal feminist
philosopher John Stuart Mill who wrote in his critical analysis of marriage that
men want not only women’s obedience, but also their sentiments ([1869] 1989).
MacKinnon is describing something close to the concept of false consciousness
here – although she rejects the term itself, arguing that women’s consciousness
of themselves as objectified cannot be said to be false, when it is the reality of the
world in which they live.
The main target of anti-pornography feminists is the liberal defence of por-
nography on the grounds of freedom of speech (which we examine below). The
debate between them addresses one of the fundamental problems in modern
political philosophy: how to balance liberty with equality. MacKinnon does not
deny that consuming pornography is an exercise of individual liberty, but argues
that other factors outweigh the value of that liberty. her argument has several
strands here. First, she maintains that the freedom of men to consume por-
nography should not outweigh the damage to women’s equality which it causes
(MacKinnon, 1985). This argument on the basis of women’s equality was sub-
stantially accepted by the Canadian Supreme Court in the Butler case (see p. 91).
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Second, the liberty of men to consume is incompatible with women’s freedom –
because while women are structurally unequal in society, they cannot really be
free. Third, on the specific question of freedom of speech, pornography silences
women, and prevents their free speech. it does so by creating an environment
in which women are unwilling to complain of sexual abuse, and unlikely to
be believed. Moreover, by creating the illusion that women are always happily
available for men’s sexual pleasure, it causes their speech to be misunderstood –
suggesting, most obviously, that ‘no’ to sexual invitations in fact means ‘yes’.
ronald Dworkin points out that MacKinnon’s argument here turns on the dis-
tinction between negative and positive liberty. Negative liberty is freedom from
restraints – whether imposed by the state or by others, while positive liberty
means being able to direct and manage one’s own life, and to participate in pub-
lic decision making about matters of common concern. MacKinnon argues that
men’s negative liberty from censorship damages the positive liberty of women to
act as equals in public life (r. Dworkin, 1991).
As in the case of pornography, feminists are divided on the issue of prostitu-
tion. The case against legalization is based on a rejection of the claim that pros-
titutes are exercising contractual freedom, and on the evidence of harm caused
to them (Jeffreys, 1997). Critics who take this position argue that economic and
social inequalities, and lack of opportunities for women, drive some into pros-
titution. Because they believe prostitutes to be the victims of wider social and
economic injustices, they advocate criminalizing men who employ prostitutes,
and all those who make a living as third parties from the industry, rather than
prostitutes themselves. Sweden’s law reflects this perspective. MacKinnon, for
example, argues that women cannot be said to be free to enter into contracts
to sell sex when their place in society is structurally unequal. To pretend that
they are equally free to contract is to deny them both equality and freedom.
The vast majority of prostitutes, she claims, are forced into the work by lack of
other choices, histories of sexual abuse and drug dependency. Criminalizing the
practice, however, would punish women for being victims (MacKinnon, 2005).
Similarly, the feminist political philosopher Carole Pateman argues that pros-
titution is based on gender inequality and the subordination of women (1988).
The fact that the overwhelming majority of prostitutes are women, while clients
are men, is not an accidental or contingent fact – rather it reflects gendered
power structures. What women are selling are not sexual services, but the right
of someone to impose their will over the body of a woman. Prostitution is the
public recognition of men as sexual masters.
Feminist opposition to pornography and prostitution on the grounds that
private choices are not free under current social and economic conditions is
always vulnerable to counterarguments by women who claim to work in the sex
industry of their own free will and choice. Some feminists deny that consent
to prostitution can ever be meaningful. Kathleen Barry maintains that with or
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 101
without consent, prostitution is the ‘institutional, economic and sexual model
for women’s oppression’ (1996). As we’ve seen, feminist opponents respond that
patriarchal culture and ideology persuades women to enjoy their subordination,
and to identify with the perspective – what laura Mulvey calls the ‘gaze’ – of
their male oppressors (Mulvey, 1975) – rather than with their own true inter-
ests. Some go further to argue that the norms of the market, such as the right to
contract can never liberate women – that the rules of free market behaviour were
formulated assuming the exclusion of women, and unless they are fundamen-
tally restructured, can never be extended to include women. Against this, liberal
feminists counter that equal access to the market, and freedoms of contract and
expression, will liberate women, freeing them from their gendered status. This
reconciliation of equality with liberty by defining equality in terms of equal
access to and rights in the market forms the basis of the feminist anti-censorship
position. Before we examine it, however, we turn to the mainstream liberal argu-
ment in favour of legalized prostitution and pornography.

Liberty, contract and sex work

The most common defence of legalized prostitution and pornography is on the
grounds that it is not the business of the state to interfere with or regulate what
are private relationships and behaviours, as long as those private matters do not
cause harm to others. This distinction between public or common matters and
the private sphere is, as we have seen, fundamental to modern liberalism, in both
its free market libertarian and its egalitarian forms. it underlies John Stuart Mill’s
argument against a paternalist state in On Liberty, in which he maintains that
governments should intervene in the behaviour of individuals only to prevent
actions of individuals which directly harm others ([1869] 1989). Mill believed
that people must be free to make their own choices about their self-regarding
behaviour – paternalistic intervention by the state to protect them would only
hinder them from developing themselves as free and autonomous individuals.
This ‘harm principle’ has remained a standard by which to judge legislation
in liberal democracies, and was invoked by the Wolfenden Committee in its
recommendation to decriminalize homosexuality. Mill argued specifically that
contracts for the sale of sex should not be prohibited, although he did think the
state was justified in discouraging them ([1869] 1989).
liberals are suspicious of state intervention into private behaviour, even
when it is supposedly for the good of those concerned, because they believe
that society contains an unavoidable range of different views about what makes
a good life. This in itself results from the co-existence of a plurality of moral,
religious and cultural beliefs and perspectives. Political theory must accommo-
date the realities of a pluralist society (see the discussion of public reason versus
102 | A P P ly i N g P O l i T i C A l T h E O r y
perfectionism in normative theory in Chapter 1). liberal pluralists argue that
while people may hold strongly to particular viewpoints or beliefs in their private
lives, the nature of politics is that we must separate our private views of the good
from the principles and rules we must agree upon across a range of viewpoints,
in order to live together in a plural society. Contemporary liberals often refer to
this as giving the ‘right’ – meaning what is just and fair in the eyes of all, priority
over the ‘good’ – meaning what is acceptable within the framework of deep or
comprehensive moral values (rawls, 1993). Basic to rawls’ principles of justice
and to Dworkin’s egalitarianism, this distinction between the right and the good
maps onto a liberal separation between the public and private spheres – with
the public principles of what is right being separate from private beliefs about
what is good. The reason the state should not interfere in private, self-regarding
actions, including sexual behaviour, is because public political action should be
limited to matters about what is fair and just, which can be agreed by all, rather
than what is moral and good, upon which values will differ.
The liberal principle of non-intervention in private matters underlies three
strands of arguments in favour of legalizing pornography and prostitution: the
libertarian case based on individual freedom, liberal egalitarianism and liberal
feminism. in the case of pornography, libertarian liberals emphasise the right of
individuals to free speech and expression, on the grounds not only of an irreduc-
ible plurality of views, but also because human autonomy and self-development
requires that people choose and freely hold their own opinions (Mill, [1869]
1989). This principle is most entrenched in the United States, where, as we have
seen the First Amendment to the Constitution, guaranteeing freedom of speech
and expression, has been held to cover more than just verbal communication, and
to include the expression of sexuality. Anti-censorship liberals invoke Mill to sup-
port their argument that individuals have the right to possess and enjoy whatever
materials they choose, as long as they are not causing direct harm to others.
Dworkin cautions against treating pornography as a pure freedom of speech
issue, pointing out that pornography is not quite the expression of dissident
political views. As much of it can be argued to be basic and repetitive, it’s dif-
ficult to argue that the availability of more porn will give people more choices,
and increase their opportunities to be autonomous. So the argument that free
availability of porn is necessary for full human self-development is hard to
sustain (r. Dworkin, 1986). Dworkin suggests instead a rights-based argument
in favour of the legalization of pornography: individuals have a ‘right to moral
independence’ which authorizes them to make decisions about the morals by
which they will live. This means that we can’t prohibit porn on the grounds that
people find it offensive or obscene, or think that it demeans or degrades others.
This doesn’t mean that some restrictions cannot be placed upon it, in the name
of the community good. But ultimately, concerns about the common good can-
not outweigh the individual right to moral independence.
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 103
The libertarian defence of prostitution is based on the individual right to con-
tract. libertarians argue that adults, in the absence of direct coercion, are able to
make their own decisions to enter into whatever contractual relationships they
wish to – to sell sex or to make pornography for a fee – and that we should not
prohibit certain kinds of contract because we think they are damaging to society
or to individuals. These principles underpin the legalization of prostitution in
the Netherlands. As we saw in Chapter 2, this freedom of contract approach is
taken by robert Nozick (1974). Nozick argues that human beings have property
in themselves, and thus are entitled to make whatever contracts for the use of
their bodies and minds that they choose. lars Ericsson makes a strong case
along these lines for legalizing prostitution as free exchange on an open market
(1980). Ericsson argues that sexual services are no different from any other kind
of service involving the body that might be sold (an argument also made by
Martha Nussbaum). This counters the conservative argument that sex must be
part of a marital relationship, but it also challenges more egalitarian and feminist
arguments that sexuality is necessarily a deep and meaningful aspect of human
personality. Ericsson dismisses this view as sentimental.
Of course, the freedom of contract argument doesn’t apply to cases where
prostitutes or sex workers are forced into selling sex by threats of violence. Nor
does it mean that once a sex worker has contracted to sell sexual services, her
client can do anything to her that he wishes. in cases such as this, libertarians
argue that the proper approach is to criminalize the abuse or coercion, rather
than the sex work itself. But what about cases where women resort to sex work
because of economic hardship, or drug addiction, or pressure from husbands
and boyfriends? As we have seen, feminist critics argue that consent in such
cases is not meaningful. libertarians are sceptical of such claims, and maintain
that the state should assume that if women are not forced to enter into contracts
for sex work, then they do so freely. This reflects a long-standing way of thinking
in liberal thought. The seventeenth-century philosopher Thomas hobbes, one
of the originators of social contract theory, argued that people could not escape
their contractual obligations just because they had agreed to contracts under
duress – even contracts ‘extorted by fear’ are valid, writes hobbes ([1651] 1962).
Modern law takes a more protective approach than hobbes, and does not uphold
contracts agreed to under duress. But the pressure of economic circumstances or
personal relationships are not usually held to render contracts void.
The case for legal prostitution and pornography can also be made from a
more egalitarian liberal perspective. rawls defends state action to redistribute
resources, but not to enforce any particular moral perspective. rawls argues
that public reason – by which he means public political debate based on com-
mon reasons – and state regulation should be limited to regulating matters that
affect the reproduction and maintenance of political society over time. This is in
practice a much more limited role than protecting particular cultural and social
104 | A P P ly i N g P O l i T i C A l T h E O r y
institutions. As long as political society continues, it is not the business of the
state to enforce or ensure particular cultural values or customs, including those
concerning family life or the relations between the sexes (rawls, 1997). it is only
in cases where these practices or customs affect political society – say the liberty
and equality of sexes – that should be open to political debate and state regulation.
Of course, as we have seen, this is precisely the main argument made by
MacKinnon: that pornography substantially contributes to women’s inequality.
Some egalitarian liberals claim that because the sex industry impacts upon gen-
der equality, it is in fact a fit subject for state regulation (Dyzenhaus, 1992). From
this perspective, the legality of the sex industry depends upon whether it could
indeed be shown to impact upon gender equality. Dworkin argues, however, that
even if such an impact can be shown, the right to freedom of expression out-
weighs it. As he points out, verbal claims that women were inferior to men would
not be censored – even if they were made to an impressionable audience likely
to believe them (r. Dworkin, 1991). in any case, defenders of censorship must
show that pornography has a particular impact upon women’s equality as distinct
from the media, advertising and other forms of public expression. MacKinnon’s
argument that men’s negative liberty from censorship damages women’s positive
liberty to participate in public life runs up against a similar problem.
The liberal arguments we have examined so far are more interested in freedom
in general, whether of contract or expression, than in sexual freedom in particu-
lar. Some theorists, however, have drawn on the relationship between sexuality,
individuality and liberty in their defence of legal prostitution and pornography.
They argue that individuality includes a right to sexual expression and sexual
autonomy (Altman, 2005). Joshua Cohen argues that pornography is important
to the expressive interests of human beings (1996). We have an expressive interest
in expressing and articulating thoughts, attitudes and feelings on a range of mat-
ters of human concern – to express ourselves. Much depends here upon how we
view sex. As we have seen, conservatives see it as a demonstration of marital com-
mitment, while others who take what Ericsson calls the sentimentalist view see it
as an expression of love. if we view it rather as an expression of individual identity
or autonomy, then we can have no justification for discriminating between differ-
ent expressions of sexuality: pornography, sex outside marriage, homosexuality
and prostitution are all expressions of sexual autonomy. Our rights to them are
qualified only in the usual egalitarian manner by respect for the rights of others.

Feminist arguments for sexual freedom

As the sex industry overwhelmingly involves women selling their sexual ser-
vices to men, it’s not surprising that many feminists, as we’ve seen, argue that
women are not really free to make these contracts, and that the freedom of men
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 105
to enjoy them is bought at the expense of the exploitation and subordination
of women. But an equally strong case supporting the decriminalization of the
sex industry is also made by feminists. Their perspective is sometimes termed
‘pro-sex’, as opposed to anti-pornography or prostitution, but in fact neither side
in this debate admits to being ‘anti-sex’. Their views of the liberatory potential
of sex work for women, however, differ widely. Feminist libertarians believe
that reinforcing and extending women’s contractual rights in the market will
increase their liberty. But many liberal feminists also defend the right of women
to express themselves sexually through sex work. Wendy McElroy argues that
women have been prevented from autonomous sexual self-expression, and that
liberalizing pornography and prostitution allows them sexual freedom (1996).
To insist that women are not really free to decide to participate in the sex indus-
try is to infantilize them, as they have been historically infantilized by a paternal-
ist state. Of course, as feminist theoreticians recognize, this argument depends
on the assumption that women are really able to choose to enter the sex industry,
and are not compelled by poverty or lack of alternatives.
Nussbaum examines what is required by free choice in the case of the sex
industry – and indeed all employment (2008). She suggests that anti-sex-work
feminists who argue that women would not autonomously choose work that
affected such an essential and intimate part of their identity are setting the bar
of autonomy too high. Many people are forced to work at jobs they might not
otherwise choose by economic circumstances. (Marx claimed of course that all
workers under capitalism lack autonomy, because they do not have full control
over their labour and its products.) like other egalitarian liberals, Nussbaum
emphasizes the relationship between sexuality and autonomy, arguing that the
ability to freely express oneself sexually is a key aspect of human flourishing.
As we saw in Chapter 2, Nussbaum argues that legislation and policy should be
judged by the degree to which they allow people to flourish as human beings,
exercising central human capabilities (1999). We cannot assume, she warns,
that only sex which is part of a loving, intimate and continuing relationship
is required for human flourishing. Nussbaum concludes that if women who
become prostitutes indeed have sufficient central capabilities, there is no reason
to be concerned as long as her rights as a worker are protected. Similarly, lau-
rie Shrage suggests that rather than criminalizing prostitution, the state should
ban the exploitative labour practices that follow the sex industry, and allow sex
workers to unionize (1994). For feminists who emphasize the effects of eco-
nomic inequality, the real issue raised by prostitution is the lack of employment
opportunities open to working women, and their control over the conditions of
their employment.
in practice, this is the position of the many prostitutes and sex-workers’
rights groups that have sprung up over the past three decades. Organizations
like the Californian group COyOTE (Call Off your Old Tired Ethics) and the
106 | A P P ly i N g P O l i T i C A l T h E O r y
international Prostitutes Collective insist that their members have freely chosen
their work, and that their working conditions should be protected in the same
way as other workers. They maintain that abuse of women in the sex industry
isn’t inherent in the work itself but is rather the result of the fact that women’s
rights as sex workers are not protected. As we’ve seen, this argument has influ-
enced legislation in some countries, notably the Netherlands. Many sex workers
have spoken up against feminist arguments like MacKinnon’s, and asserted their
free choice (Nagle, 1997). Anti-sex-work feminists counter with studies show-
ing that large numbers of prostitutes at least would leave the industry if they
could. Of course, men and women in many low-wage and unskilled jobs might
evince a similar lack of enthusiasm about their work. All that we can conclude
for certain is that women’s experience of sex work varies widely – some find it
liberating and empowering, some just a job, while for others it is oppressive and
degrading.
Much of the liberal feminist case for legalizing the sex industry appeals
to principles of liberty and individual rights. But many feminists are also
concerned with the consequences for women of granting the state the power
to censor sexually explicit materials. historically governments in almost all
nations have been dominated by men and have reinforced male privilege, and
women’s movements have had to struggle against them to achieve basic civil
rights. Sex roles, appropriate sexual behaviour for women, and the relation-
ship between sex and reproduction have all been regulated: civil libertarian
Nadine Strossen points out that historically the state has used censorship to
prevent the publication of material providing women with information about
sex, birth control, lesbianism – information that they can use to exercise con-
trol of their sexuality (1995). What is more, repressive regimes have banned
political dissidence on the grounds that it is pornographic. Strossen concludes
that state authorities cannot be trusted to make the best decisions concerning
women’s interests.
Postmodernist feminists take a similar position, based on their argument that
rather than thinking of ‘the state’ and ‘women’ as fixed categories, we must see
structures of power, both political and ideological, as shifting and contingent,
and ‘women’ as a plural and intersectional category. Strategies to overcome the
exploitation of women must thus be more flexible than outright bans on pros-
titution and pornography. Feminist theorist Judith Butler argues that the better
approach for women to take against pornography is to mimic it ironically, and
amusingly, so that it loses its power to hurt (1997). Moreover, postmodernist and
intersectionalist ‘diversity feminists’ point out that to assume that all women are
affected in the same way by prostitution and pornography is to treat them as a
fixed and homogeneous category, ignoring internal multiplicity, as well as the
ways in which women respond to and reconstruct the sexual culture that shapes
their lives (Krause, 2011).
 ShOUlD PrOSTiTUTiON AND POrNOgrAPhy BE lEgAl? | 107
Box 5.2 proSTiTuTion anD porno­
graphy: compeTing normS anD
valueS
The debates over whether to legalize prostitution and pornography turn on different
interpretations of some key norms: gender equality, liberty and the common good:

• Gender equality: Supporters of legalizing prostitution and pornography argue that

women are entitled to make autonomous decisions about their sexual behaviour
and expression in the same way as men. Women’s inequality is due not to sexual
expression, but to their position in the labour market. The best way to ensure
equality is to prevent the exploitative practices that often accompany the sex
industry rather than the industry itself. Opponents counter that both prostitution
and pornography reflect and perpetuate the structural inequality of women, which
is based on their sexual subordination to men.
• Liberty: Supporters of legalizing prostitution and pornography argue that individuals
are entitled to freely enter into contracts to sell their sexual services – whether
through prostitution, or the production and sale of pornography. Freedom of
expression includes the right to free sexual expression, whether through the
consumption of pornography or involvement in prostitution. Opponents counter
that prostitutes and women who make pornography do not really freely choose their
work, but are forced or manipulated into it by their lack of economic opportunities,
and exploitative sexual relationships.
• The common good: Supporters of legalizing pornography argue that banning it
amounts to censorship, and accords too much power to the state to establish and
enforce morality. Feminist opponents counter that pornography and prostitution
legitimize wider sexual exploitation and violence. Conservative critics argue that
they destroy traditional morality and the institution of the family.

Conclusion
Debates over the sex industry have been particularly divisive for feminists over
the past two decades – each accusing the other of, in effect, supporting the
male exploitation of women, and ignoring the real experience of sex workers
themselves. MacKinnon charged the Feminist Anti-Censorship Taskforce which
opposed her anti-pornography ordinance with being the ‘Uncle Toms’ and scabs
of the women’s movement. Anti-censorship feminists claimed in turn that she
promoted a Victorian view of sex, in which men are sexually rapacious beasts
and women unwilling victims of their passions. it’s impossible to imagine a
reconciliation between opposing camps as long as there is so much diversity
in women’s experience of commercial sex, and their interpretations of that
108 | A P P ly i N g P O l i T i C A l T h E O r y
experience. A similar problem emerges with prostitution, where the Swedish and
Dutch legislative approaches differ on the fundamental issue of whether women
should be empowered as sex workers, or empowered to escape it. in both cases,
even many of those critical of sex work and its consequences for women’s equal-
ity are sceptical about the capacity of the state to intervene positively to balance
liberty and equality. We saw similar concerns expressed by some theorists in our
discussion of distributive equality in Chapter 2.
in any case, the realities of globalization have recently begun to change the
focus of activism and state policy on these issues. All feminists – and in fact all
liberals, conservatives and communitarians – agree that whatever the case for
legalizing prostitution by citizens, the rapidly growing trade in internationally
trafficked women, and of course children, poses obvious threats to liberty, equal-
ity and human security. in the case of pornography, the rise of the internet has
made it more difficult to regulate the content of globally available sexually explicit
images – and of course at the same time has made it easier for these images to
be viewed in private. here the focus of governments in developed countries has
shifted to children’s access to internet sex sites, and to child pornography, an
industry which crosses national borders, and where abuse and harm are uncon-
troversial. global economic inequality has opened up the sex industry to large
groups of vulnerable and easily exploited people. While states are responding by
tightening law enforcement, we can also argue that redistributive inequalities
need to be tackled. We will look at this question directly in Chapter 11.
6

Should Same-Sex
Marriage Be Legal?

● Same-Sex marriage and gay and leSbian rightS

● the freedom of contract argument
● liberal argumentS, rightS and the role of marriage
● communal valueS and moral argument
● conServative oppoSition
● radical oppoSition to marriage
● concluSion

While historians of sexuality have traced back ceremonies uniting homosexual

couples for most of recorded history, in both Western and non-Western cultures,
the demand that same-sex couples be allowed to formally marry emerged only
over the past couple of decades. Same-sex marriage has come to be one of the
most controversial and divisive social policy issues in Western countries, as in
the second decade of the twenty-first century, Western democracies have begun
to shift to legalization. Same-sex marriage raises questions concerning not only
the rights of gay and lesbian people and what is required for their equality, but
also the status of marriage – an institution declining in popularity in many
countries – and the relationship between the state and the institutions of civil
society. Although public debate centres on rights to marriage, there have also
developed a range of different types of legally recognized and protected relation-
ships which various countries have adopted for same-sex couples, as a substitute
for marriage, and which have often been precursors to full legalization. (The
first country to adopt such an arrangement was Denmark in 1989.) Often called
civil unions or domestic partnerships, these officially recognized relationships
offer many of the same legal and economic rights and benefits that accompany
marriage, including rights to property and inheritance, hospital visitation rights,
rights to housing and insurance benefits and in some cases the right to adopt
children together. In some cases they are also open to heterosexual couples who
do not wish to formally marry. These parallel institutions make this a complex

109
110 | A p p ly I n g p O l I t I c A l t h e O r y
issue from a political point of view, although as we shall see, most political
philosophers who support civil unions or domestic partnerships also support
same-sex marriage.
As of the middle of 2015, 20 countries have legalized same-sex marriage, the
first being the netherlands in 2000 and the most recent, the United States. The UK

Box 6.1 The UK Marriage (SaMe Sex

CoUpleS) aCT (2013)
The UK passed legislation allowing for civil partnerships for same-sex couples in 2005.
The Conservative government claimed that the Civil Partnership Act conferred all the
same benefits upon gay and lesbian couples – pension rights, access to hospital records,
inheritance tax exemptions – and imposed upon them the same responsibilities,
including child support payments after separation as did marriage. At the time the
law was passed, a clear majority of citizens polled supported civil unions, but a slim
majority also supported same-sex marriage, and the campaign for same-sex marriage
only stepped up in the wake of the Civil Partnership Act. Radical gay and lesbian groups,
such as Outrage!, argued that while civil partners would now be entitled to almost all
the material benefits associated with marriage, the fact that their unions were not
called marriages would mean they would be seen as second-class. Because it was a
separate institution, civil partnerships could not be equal to marriage. ‘Separate but
equal,’ they pointed out, was discredited by apartheid in South Africa and segregation
in the United States. According to this position, justice and equality required treating
same-sex couples in just the same way as heterosexuals.

• By 2010, the three major parties had indicated their willingness to consider legalizing
same-sex marriages. However the leaders of the Church of England, the Roman
Catholic Church in Britain, the Methodist Church of Britain, the Muslim Council and
the Chief Rabbi all maintained opposition, and expressed concern that they would
be forced to solemnize religious marriages for same-sex couples.
• Religious freedom was a key issue in the legislation, and refers here to the freedom
of religious organizations from interference from the state (as protected by Article 9
of the European Convention on Human Rights, which guarantees religious freedom).
The government’s initial proposal was to separate civil and religious marriage, and
to extend only civil marriage to same-sex couples. After consultation, the final
legislation allowed religious bodies to opt in to performing same-sex marriages if
they wished, but ensured that no religious organization or individual minister would
be compelled to perform such ceremonies.
• The Church of England (and the Church in Wales), as the established church, is
in a special situation: its Canon Law, which is also part of the public law of the
UK, prevents the Church from performing same-sex marriages. Thus the Marriage
(Same Sex Couples) Act of 2013 specifically notes that the Church or its ministers
cannot opt in to performing same-sex marriage ceremonies, unless the Canon Law
is changed.
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 111
(with the exception of northern Ireland) passed legislation allowing same-sex
marriage in 2013. Ireland was the first country to legalize on the basis of a popu-
lar referendum, in 2015. most countries recognizing marriage equality are in
europe, with the exceptions of the United States, canada, new Zealand, Argen-
tina, Brazil, Uruguay and South Africa. Amongst european countries, germany
still recognizes only registered ‘lifetime partnerships’ for same-sex couples, and
most eastern european countries have no provisions at all. In Australia, popular
support for same-sex marriage is increasing, and legislation to allow it is regu-
larly introduced to parliament. A popular referendum to decide the issue will be
held some time from 2016.
The issue has particularly mobilized and polarized public opinion in the
United States, where the struggle over same-sex unions has been waged at both
the federal and the state levels, and in the legislatures and courts. In 1996, the
republican congress passed (and Democratic president clinton signed) the
federal Defense of marriage Act, which declared that marriage under federal
law referred only to a union between two people of opposite sexes, and that
the federal government need not recognize same-sex marriages performed by
states. It also provided that states could refuse to recognize same-sex marriages
performed by other states. The impetus for this was the possibility that same-
sex marriage could be legalized in some states, either by judicial interpretation
or by legislation. In 1993, in Baehr v. Lewin, the Supreme court of hawaii had
declared that the restriction of marriage to heterosexuals might violate the equal
protection clause of the hawaiian state constitution. In the wake of the Defense
of marriage Act, over half the states of the United States, including hawaii,
passed by popular vote amendments to their constitutions which limit marriage
to unions between a man and a woman. A popular movement to introduce an
amendment to the federal constitution prohibiting same-sex marriage attracted
the support of president Bush, but in 2006, the Federal marriage Amendment
which would have prohibited the recognition of same-sex marriage was ulti-
mately defeated in congress.
meanwhile, in 2003, the Supreme court of massachusetts ruled (in Goodridge
v. Department of Public Health) that it was contrary to the state’s constitution
to restrict marriage to heterosexual couples and, the following year, marriage
licenses were issued to same-sex couples. Attempts to amend the state consti-
tution to restore the traditional definition of marriage were unsuccessful. This
began a movement among states to reverse bans and allow same-sex marriage,
and by 2015, it was legal in 36 out of 50 states. In 2013, the US Supreme court
declared the Defense of marriage Act in breach of the Fifth Amendment of
the US constitution, which guarantees due process and equal protection to all
citizens (US v. Windsor). That decision meant that the federal government was
required to recognize same-sex marriages. In 2015, the Supreme court extended
that ruling to require all states to recognize same-sex marriages performed in
112 | A p p ly I n g p O l I t I c A l t h e O r y
other states (Obergefell v. Hodges). By the time it was achieved, full legalization
was supported by over 60% of Americans.
The introduction of civil unions or same-sex marriage has been accompanied
in every case by strong organized opposition to them on the part of conserva-
tive lobby groups – particularly religious organizations. In Spain, the catholic
church declared the law illegitimate, and urged state officials to refuse to carry
out same-sex wedding ceremonies. In 2003, the Vatican launched a world-wide
campaign against gay marriage. In the United States, both black and white
evangelicals, as well as the roman catholic church, strongly oppose same-sex
marriage, although individual catholics and protestants are more likely to be
accepting.

Same-sex marriage and gay and lesbian rights

The question of same-sex marriage is a particular – and particularly controver-
sial – case in the wider debate surrounding the rights of homosexual people.
Since the enlightenment in the seventeenth and eighteenth centuries, equal civil
rights and liberties in Western countries have gradually been extended to more
groups of people – to working class people, women, and people of different
races, ethnicities and religions. As members of these groups, gays and lesbians
have enjoyed this extension of liberties and rights in most areas, but have until
recently been prohibited from freely and openly engaging in sexual relationships
with the partners of their choice, and have been subject to prejudice, discrimi-
nation and exclusion on the grounds of their sexuality. prohibitions against sex
between men were widely in force until well into the twentieth century, although
the law in most countries was silent on lesbians. homosexual behaviour was
regarded as evil, insane or sick. historians have traced the way in which it has
been characterized as both immorality – the result of bad choices – and psy-
chological illness (D’emilio, 1998). The American psychiatric Association only
removed homosexuality from its list of mental disorders in 1973, and it was listed
by the World health Organization as a mental illness until 1990. most scientists
now believe that homosexuality, like heterosexuality, is the product of a combi-
nation of genetic, early psychological and environmental factors. Whatever was
the reason given for their sexual orientation, gays and lesbians were subject to
discrimination and harassment on both private and public levels. homosexual
acts were only decriminalized in Britain in 1967, while the first American state
to do so was Iowa in 1962. They are still illegal in about 70 countries today, most
of which are in Africa or Asia.
While there continues to be strong conservative religious opposition to
homosexuality, and controversy about recognizing the rights of gays and les-
bians as a group, there is a fairly wide consensus in Western democracies that
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 113
private acts between consenting adults should not be criminalized. even the
conservative philosophers whose opposition to same-sex marriage I discuss
below argue that the value of allowing people to act freely is more important
than the damage allegedly done to them by homosexual relationships. They
conclude that the state should discourage, but not criminalize, homosexual
behaviour (Finnis, 1980). At this level, much of the public debate about homo-
sexuality is less a matter for politics than for personal ethics. But when the
equal rights of gays and lesbians are disputed – in employment, for example,
or in membership in associations, or to marry – then that debate becomes
political.
The widespread acceptance or at least toleration of homosexuality as private
behaviour is a result of the clear split between the public and private spheres
of human action that has become fundamental to politics in Western societies.
The notion that human freedom depends upon the existence of areas of activity
that are cordoned off from state interference is a distinctly modern one, dating
from the emergence of liberalism in the seventeenth century. In the classical
world of ancient greece and rome, freedom meant men’s ability to exercise
their capacities as citizens and to take part in the development and administra-
tion of the laws which governed them. to be free was to be a citizen – a status
denied to women and to those who had to earn their own living. modern liberal
philosophers have changed our view of freedom, so that we now more com-
monly understand it to mean the absence of restraints – from both others and
the state – upon our actions. Thomas hobbes wrote in 1651 in Leviathan that
freedom was the absence of ‘impediments to motion’ (hobbes, [651] 1962). The
twentieth-century political philosopher Isaiah Berlin described this absence of
regulations and restrictions as ‘negative freedom’ (Berlin, 1969) and it has come
to mean freedom from interference and regulation by others and by the state. It
is what John Stuart mill defended in his essay On Liberty ([1869] 1989) and is
a cornerstone of modern liberal democracies, shared by liberals and conserva-
tives alike. As long as behaviour does not injure or cause harm to others, there
is at least a presumption that it should be regarded as private, and exempt from
state control.
While individual liberty is now understood to protect sexual activity between
consenting adults, irrespective of their gender, the question of same-sex mar-
riage involves not just private action, but rather state recognition of homosexual
relationships. In this case, the state is called upon not simply to accept or ‘tolerate’
private behaviour, but rather to confer on private relationships official recognition,
and all the practical and economic benefits that attach to being married. As we
shall see, the argument in favour of same-sex marriage is still sometimes made
upon the grounds of personal freedom. Some libertarians see marriage as essen-
tially a contract and subject to the same rules of freedom of contract as any other.
But most political philosophers agree that marriage is a public institution, and
114 | A p p ly I n g p O l I t I c A l t h e O r y
plays a special role in society – and that access to it cannot be considered in the
same way as freedom to enter into other contracts. many of the arguments on both
sides of the same-sex marriage debate, as we shall see, are perfectionist (see chap-
ter 1) and depend upon particular views of the meaning of marriage, and the role
it plays in supporting individuals and social cohesion. many who oppose same-
sex marriage do so because of the negative effects they argue it will have upon the
institution of marriage. many who support it do so because they claim it will have
a positive effect upon both marriage as an institution, and the broader society.
As we shall see, arguments made in favour of same-sex marriage are made
on both deontological and consequentialist grounds. Deontological arguments
focus upon rights and equality, while consequentialist arguments look at the
effects of marriage upon gays and lesbians and the broader society. Theorists
who take this latter perspective argue that same-sex marriage will reduce
homosexual promiscuity and promote more long-term committed and stable
relationships, particularly amongst gay men. moreover, it will help to reduce
homophobia, by normalizing gay and lesbians relationships, so that children
grow up thinking of them as legitimate. many consequentialists also argue that
same-sex marriage would have positive consequences for marriage but redefin-
ing it away from its patriarchal origins. These deontological and consequentialist
arguments cut across a range of philosophical perspectives. Some few phi-
losophers take a strictly consequentialist approach. richard posner, for example,
argues that moral philosophy provides no guide in deciding any claims about gay
rights – rather, he argues, we should look only at the pragmatic consequences of
same-sex marriage – such as a reduction in the spread of AIDS (posner, 1997).
We will begin by briefly considering the libertarian argument on the grounds
of personal freedom before turning to both liberal, feminist and communitarian
perspectives in support of same-sex unions that take into account marriage’s insti-
tutional role. The impact of redefining marriage to include same-sex couples is
interpreted very differently by conservatives, who are sceptical of the value of rede-
fining and reforming institutions with a long history to conform to recent ideas of
what is just. Their scepticism is, ironically, shared by those on the opposite end of
the political spectrum: we examine finally feminist and radical gay and lesbian the-
orists who argue that the movement for inclusion in marriage is a mistake. These
leftist critics do not aim to exclude gays and lesbians from marriage, but rather to
challenge the whole institution as irredeemably patriarchal and hierarchical.

The freedom of contract argument

marriage is at one level a contractual agreement between two people, made for
the mutual purposes of sex, affection and support, and thus we might argue that
any people able to make a contract should be able to enter into marriage as they
would into any other contractual relationship. This would rule out marriage with
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 115
children, who are not presumed to be sufficiently rational to enter into binding
contracts. But it would permit it between same-sex partners, as well as between
close relatives, and between several partners (polygamous and polyandrous mar-
riages). libertarian advocates of this position point out that the religious view
of marriage as a divinely ordered institution, with special roles for husbands
and wives, is irrelevant to civil marriage. In the civil ceremony, both parties are
contracting equals, relating to each other not in terms of the conventional status
of husbands and wives, but rather as contracting parties (eskridge, 2002). This
radical view of marriage reflects a broader tendency in Western societies towards
seeing people as being in a deep sense defined by the contracts that they make,
rather than the status or position into which they are born. The english legal
theorist Sir henry maine coined and described this shift from status to contract
in the late nineteenth century (maine, 1901), but it is also central to marx and
engels’ critique of capitalism.
not all libertarians, however, would be happy with this treatment of marriage
as purely a matter of free contract. They might argue that a political theory of
limited government and regulation relies upon a healthy civil society, with insti-
tutions strong enough to provide the social support that the state should not.
The family is obviously a key institution responsible for providing care for people
in the absence of state welfare. This is not necessarily grounds for libertarian
opposition to same-sex marriage; some libertarians, like other liberals, argue
that same-sex marriage is beneficial in that it extends family support to gays and
lesbians, thus reducing demand on public resources. An even stronger argument
along these lines is made by Andrew Sullivan, a self-described small-government
libertarian conservative who is also gay. Sullivan argues that limited government
requires a focus on personal responsibility and stable relationships, for homo-
sexual as well as heterosexual people (1995). On the other hand, libertarians, like
most conservatives, might argue that same-sex marriage would undermine the
family and should be opposed on those grounds. In any case, the role played by
marriage as an institution is key to most arguments on both sides of this issue.

Liberal arguments, rights and the role of

marriage
If we recognize marriage as a basic social institution, we can argue on liberal
grounds that access to it is essential to enabling individuals to live good lives that
they have chosen for themselves. The most basic liberal argument for same-sex
marriage is on the ground of equal rights – not just to enter freely into contracts
but also to participate in a fundamental social institution. The ancient greek
philosopher Aristotle established the basic principle of justice that similar cases
should be treated similarly, and liberals assert that because homosexual people
are in almost all respects no different to heterosexuals, with the same needs,
116 | A p p ly I n g p O l I t I c A l t h e O r y
they deserve equal treatment at work, equal freedom from discrimination and
of speech and association, and equal rights to participate in sexual relationships
with other consenting adults. The same argument justifies their right to enter
into marriage contracts, or at least recognized relationships that confer the same
benefit as marriage. ronald Dworkin argues that attempts to restrict the rights of
homosexual people are just the extension of private prejudice into public policy
(1978). A fundamental principle of liberal equality is that people have the right
to be treated equally by the government – that is, to have access to the same
goods and opportunities as has everybody else.
All but the most individualist of philosophers have recognized that marriage
not only provides goods and opportunities essential to human happiness and
welfare but also – with the family – forms the environment in which people are
socialized in the values of justice and equality. This also has a long heritage in
liberal thought. In his defence of women’s rights, John Stuart mill argued that
inequality between the sexes in marriage meant that the family promoted selfish-
ness and exploitation: ‘If the family in its best forms is, as it is often said to be, a
school of sympathy, tenderness and loving forgetfulness of self, it is still oftener,
as respects its chief, a school of willfulness, overbearingness, unbounded self-
indulgence, and a double-dyed and idealized selfishness…’(mill, [1869] 1989,
153). I discuss feminist criticism of marriage in more detail below. But liberals
have wanted to preserve the idea of the family as a ‘school of sympathy’, an insti-
tution in which (once women were made equal) the virtues of justice, respon-
sibility and care could be taught. The family schools children in the virtues of
mutual responsibility and sharing that they need in order to be good citizens.
Admitting same-sex couples to the institution of marriage – particularly given
that these marriages cannot by definition involve the exploitation of wives by
husbands – can only increase the opportunity for this positive socialization
to occur.
According to this argument, it makes no difference whether families are based
on heterosexual or homosexual relationships – what matters is that they promote
and reinforce the values that will nurture good citizens. As we saw in chapter 2,
John rawls designed his two principles of justice in A Theory of Justice to regu-
late society as a ‘scheme for mutual cooperation’ (1971). While families are not
subject to regulation like economic institutions, they are essential in that they
ensure the orderly reproduction of society over time. As long as they fulfil this
role, rawls argues, there is no reason for the state to regulate family life. In a later
essay, he explains that no particular form of the family (monogamous, hetero-
sexual or otherwise) is required for a just society so long as the family is arranged
so that it effectively nurtures and develops citizens, and doesn’t threaten other
political virtues. (1997, 788).
rawls sees disagreements about same-sex marriage and what counts as
legitimate family as belonging to people’s comprehensive systems of moral belief,
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 117
which must in a pluralist society be separated from the ‘overlapping consensus’
between these systems of belief on the political values that all can share. In A
Theory of Justice, rawls based his principles of justice upon the premise that they
would be agreed to by all who did not know what their social or natural talents
and disadvantages would be – who were reasoning from an ‘original position’
(see chapter 2). In his later work, rawls shifts to the more realist justification
that principles of justice should be those which can be commonly agreed to by
people with diverse moral commitments (1993). So long as the family based on
a same-sex union can effectively nurture and develop citizens, and foster values
like toleration and respect, it must be permitted irrespective of the private moral
views of citizens who oppose it. If the state prohibits same-sex marriage, it is
intervening to impose comprehensive moral views upon citizens, rather than
confining itself to commonly agreed political principles. The question as to
whether families based on same-sex marriages do nurture and socialize children
to become good citizens is an empirical one – while there has not been extensive
research into this question, studies done on children raised in same-sex families
show that they show no harmful effects as a result (eskridge, 2002).
Some liberals and feminists have in fact argued that same-sex marriage will
not only extend the right to participate in an institution which nurtures citizens
for a just society but will socialize children to be more just and egalitarian.
Same-sex marriage is sometimes argued to contribute to the reforming of the
family – a goal urged by liberals, feminists and male supporters of women’s
rights since the early nineteenth century. It is a central tenet of all varieties of
feminism that marriage and family should involve a more equal distribution of
rights and duties between men and women (Okin, 1989). much has improved in
this respect over the twentieth century. previously, in Western countries, women
lost their independent legal identity when they married, as well as their rights
to hold most property independently. They had fewer rights over their children
than did fathers, and fewer grounds on which they could divorce their spouses
than did men. They could not legally refuse their husbands sex – rape in mar-
riage has only recently been recognized as a crime in most countries. In fact, as
the feminist philosopher Susan Okin argues, justice was regarded as an inappro-
priate virtue for families, which were supposed to rely instead on the goodwill
and mutual sacrifice generated by love and intimacy (1989).
Some feminists argue that same-sex marriage, which does not rely upon
the different roles and expectations traditionally assigned to men and women,
will free the institution of marriage of its associations with the subordination
of women. Studies of gay and lesbian relationships show that they make fewer
assumptions about gender roles and the division of labour than do heterosexual
couples who live together (Blumstein and Schwartz, 1983). robyn West claims
that same-sex marriage has a better chance of reconstructing marriage as an
egalitarian institution, in part because these relationships do not emphasize
118 | A p p ly I n g p O l I t I c A l t h e O r y
reproductive sexuality (West, 1998). West points out that the producing and
rearing of children has traditionally been thought to foster the disposition to
care for others – thus reducing selfish behaviour. In fact, this argument is often
made by conservative opponents of same-sex marriage. West suggests, however,
that there is a selfish element to this care, as parents have a genetic interest in
their children’s survival. The mutual care of spouses for each other provides a
more selfless model of care – though in this case, of course, the model offered
would be to the broader society rather than to children in the family.
West’s larger argument is that liberals should not emphasize freedom to
contract and individual rights over the communitarian and communal nature
of marriage. If we take too individualist a view of it, we ignore the entrenched
inequalities of men and women as partners to the marriage contract. The issue of
what is required for freedom of contract has been a controversial one for liberals.
As we saw in the previous chapter, hobbes argued that anyone who entered into
a contract could be assumed to consent freely to it – irrespective of whether they
were coerced to do so by circumstances ([1651] 1962). Since mill in the nine-
teenth century, liberals have recognized unequal power relations between differ-
ent groups in society, and are now much more likely to look at the circumstances
of parties to a contract, in determining whether or not it is valid. In the case of
marriage, the unequal gender expectations attached to men and women lead
many feminists to conclude that neither the contract nor the institution is just.
The liberal arguments about the positive role of same-sex marriage that I have
discussed so far focus largely on its exemplary function – the way in which it
models for children and others a more egalitarian partnership. But we can also
look more directly at the positive role marriage plays in the lives of spouses
themselves. carlos Ball argues that human beings have certain basic needs that
must be satisfied, and capabilities that must be exercised in order for them to lead
‘lives that are fully human’ (2003). martha nussbaum makes a similar argument
based on human needs, which we discussed in chapter 2. We might see theories
like these as more detailed explorations of what is required for autonomy. lib-
eral philosophers such as rawls and Dworkin justify their principles of justice
on the grounds that they ensure that people can live autonomous, freely chosen
lives, which express their understanding of what is good. Ball’s ‘moral liberal-
ism’ requires the state to identify these basic needs and capabilities, and ensure
that they are met and exercised, in order for people to live autonomous lives.
This, he argues, is different to rawls’ neutral liberalism, which, as we have seen,
separates the right from the good, and which makes no judgment about what
constitutes a good human life. In rawls’ view, principles of justice are those that
are reasonably agreed across a diverse range of moral perspectives. As we have
seen, he concludes that there is no justification for prescribing what families are
legitimate, as long as they effectively nurture citizens. Ball thinks, however, that
a stronger case for same-sex marriage can be made on the grounds that marriage
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 119
is required for people to fulfil their needs and capabilities for love, intimacy and
mutual care – needs and capabilities which are the same for gays and lesbians as
they are for heterosexual people (2003).
Any of these related liberal justifications for same-sex marriage, whether
based on rights or the role played by marriage, might bring defenders into
conflict with the views of more traditional and conservative minority cultures.
There is no more consistency on this controversial issue among the plurality of
cultures in any society than there is within the dominant culture itself. As we
saw in chapter 3, liberal multiculturalists argue that cultural rights should be
recognized because of the role cultures play in guaranteeing the autonomy of
individual members, and the rights of cultures must always be subordinate to
basic individual rights and freedoms. minority cultural opposition to gay and
lesbian rights – including same-sex marriage rights – should thus not be permit-
ted to prevail over the individual rights of gays and lesbians. A liberal defence
of minority cultural rights would not mean a rejection of the rights of gays and
lesbians to marry.
We should note finally that all the liberal arguments I have canvassed above
in favour of same-sex marriage are also consistent with supporting civil unions
or other state-recognized relationships which carry the same rights and benefits
as marriage. The point of marriage here is to support long-term committed
and caring relationships between people with equal standing, and civil unions
or partnerships carry out that same role. But there is no liberal argument for
restricting the term marriage to heterosexual couples, and liberals who support
civil unions tend to see these pragmatically as a short-term policy solution, until
the time when public support has accumulated for same-sex marriage (eskridge,
2002). The strongest argument along these lines was made by the consequential-
ist theorist posner, who concluded that although same-sex marriage would have
overall positive consequences, because there is insufficient public support for
extending actual marriage to same-sex couples, civil unions should be adopted
instead (1997). Of course, the dramatic shift in public opinion in Western
democracies on this issue over the past decade suggests that short-term solutions
should now be replaced by full marriage rights.

Communal values and moral argument

Where liberals see marriage and family as institutions that help to develop a dis-
position towards justice, communitarians go further and emphasize the moral
commitments to the common good that are developed in the family. Underly-
ing this argument is their broader claim that what is ‘right’ cannot be separated
from what is ‘good’ in political discourse, and that controversial political ques-
tions, such as that of same-sex marriage cannot be settled politically without
120 | A p p ly I n g p O l I t I c A l t h e O r y
considering moral arguments. This is clearly distinct from rawls’ neutral liberal-
ism: according to which, political principles should be drawn from what is com-
monly held in an overlapping consensus between moral views. michael Sandel,
who represents one strand of communitarian thinking, argues that the govern-
ment cannot in fact remain neutral between various ‘competing conceptions
of the good’. Our conceptions of the good inevitably shape our ‘thin’ political
principles. moral discourse, Sandel argues, plays an important role in political
debate (1996).
Same-sex marriage should thus be defended not on the grounds of individual
choice or equal rights, but ‘in the name of the intrinsic value or social impor-
tance of the practice it protects’ (Sandel, 2005, 126). We might invoke here
all the commonly agreed benefits of marriage: security, stability and mutual
care – goods which can benefit gay and lesbian as well as heterosexual couples.
In the civic republican tradition, upon which communitarians draw, and which
was very influential upon the founders of the United States, marriage plays an
important political role as well. As the fundamental social unit of the republic, it
binds citizens together by mutual affection, modelling the egalitarian and mutual
relations which citizens were to have with one another.
like West and Ball, Sandel points out that to defend same-sex marriage on the
grounds of state neutrality towards private goods leaves prejudices and negative
attitudes towards homosexuality unaddressed. This issue arose in the 2003 US
Supreme court case, Lawrence v. Texas, in which the Supreme court struck
down a law criminalizing homosexuality in texas. The Supreme court decided,
reversing an earlier case, that intimate sexual conduct was protected by due pro-
cess under the Fourteenth Amendment to the constitution, but the majority also
cited the positive benefits that flow from homosexual relationships. As Sandel
points out, Justice Scalia’s dissenting opinion in that case pointed out that once
the court rejected moral disapproval of homosexual behaviour as a legitimate
ground for criminal sanction, it would be difficult to justify the prohibition
against same-sex marriage (2005, 143).
If we accept that same-sex marriage must be defended by moral arguments
about the good that it accomplishes, it also, of course, becomes possible to argue
that it should be prohibited as ‘immoral.’ It is for this reason that some liberals
prefer to defend their case using rights or, as does Ball, human needs and capa-
bilities. conservative communitarian arguments are sometimes made against
same-sex marriage, on the grounds that it offends popular morality. perhaps the
strongest case along these lines was made by the British high court judge and
legal theorist, lord Devlin, in response to the Wolfenden report of 1957. This
was the report of a British government-appointed committee commissioned
to investigate the law on homosexuality and prostitution (see chapter 5). It
recommended the decriminalization of homosexuality, on the grounds that the
law should not intervene in the private lives of citizens, or attempt to enforce
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 121
particular moral views about private conduct. Devlin argued that society was
acting to protect itself and its children, so that it could be reproduced in the
same form over time. his argument is vulnerable to the same criticism made
of multiculturalists that we discussed in chapter 3: that it assumes that cultures
are not internally contested, and constantly developing and changing. This is
one of the responses made to Devlin by the liberal philosopher h.l.A. hart,
who pointed out that if ‘society’ included a complex of moral views, these were
constantly changing, and could not be protected. If, on the other hand, one took
what he called a more ‘conventional’ view of society, assuming a common moral
code, there was no evidence that a practice commonly regarded as immoral or
disgusting could be seen to threaten it (hart, 1963).

Conservative opposition
conservative opposition to same-sex marriage also reflects different philosophi-
cal perspectives. conservatism itself is a difficult political term to define, as it
encompasses different positions in various real-world political debates. In pre-
vious chapters we have not identified conservative positions as such, although
libertarians who are opposed to state regulation are often referred to in political
debate as conservative. Same-sex marriage involves deeply held convictions
about sexual morality, and not surprisingly elicits a range of strong conservative
responses. Some religious conservatives such as Finnis oppose same-sex mar-
riage on the grounds that it is inherently immoral and contrary to natural law
(Finnis, 1980). As we saw in chapter 5, natural law theorists believe that god’s
laws for the universe and for human society are made known to human beings
through their reason, and expressed in human nature. reasoning properly, as
well as following their natural moral instincts, people will follow what is good,
and perfect their natural inclinations. The new natural law theorists claim that
homosexuality is contrary to natural law, and opposed by human instinct and
reason, except where these have become corrupted. They argue that traditional
marriage (required for the legitimate expression of heterosexuality) is a natural
and divinely ordered institution, with the purpose of procreation, which results
in ‘one flesh’ – a kind of mystical union between the sexes. homosexual sex,
by contrast, is claimed to be non-procreative, selfish and contrary to nature’s
purposes. It prevents gay and lesbian people from participating fully in human
community. While most natural law theorists do not argue for the criminaliza-
tion of homosexuality, they strongly oppose same-sex marriage.
liberals of all varieties would respond that in a pluralist society like our own,
it is no longer possible to appeal to a single shared moral code based on religious
doctrine. We see this fundamental idea expressed, for example, in rawls’ argu-
ment that political principles must be supported by a consensus among a range
122 | A p p ly I n g p O l I t I c A l t h e O r y
of different moral viewpoints. In the light of this, the conservative philosopher
roger Scruton makes a parallel case which aims to avoid the religious basis of
natural law, and to rely upon nature itself – upon what he sees to be the innate
differences between the two sexes. heterosexual intimacy forces people to con-
front difference or otherness, while homosexuality is narcissistic (Scruton, 1986).
many conservatives concentrate their arguments instead on the alleged nega-
tive consequences of same-sex marriage – for heterosexual marriage and for
children. conservatives claim that same-sex marriage weakens the special nature
of marriage, and diminishes the strong commitment it requires (george, 2003).
It suggests that non-procreative sexual expression has the same social value as
procreative sex. Thus it offers a damaging lesson to children in general, and
perverts the natural development of children raised by gay and lesbian families.
critics have responded to this that if we accept the argument that procreative
sex should be privileged and protected over recreational sex, we should disallow
contraception and marriages between infertile or older people (macedo, 2003).
These arguments follow from the particular and special character and role
ascribed to traditional marriage. But some conservative arguments focus less on
the substantive role nature of traditional marriage, and more on its importance as
a long-standing institution. Some conservatives allow that while unions between
gay and lesbian people should entitle them to the same legal rights, privileges
and protections as marriage, their recognized relationships should not be mar-
riages as such, simply on the grounds that the historical nature of marriage as an
institution should not be radically changed. This argument is in fact sometimes
made by gays and lesbians themselves, who see marriage as a potentially oppres-
sive institution. I discuss this position in more detail below. But it also reflects
a conservative scepticism about change – particularly about large-scale change
to institutions made in the name of political principles or ideals. conservatives
often argue that the beliefs and institutions that exist may be presumed to be of
value, because they may be long standing, and have stood a ‘test of time’. This
position was set out as a fundamental principle by the eighteenth-century Brit-
ish political theorist and politician edmund Burke, who used it to help justify
his opposition to the French revolution ([1790] 1955). Following Burke, later
conservatives have argued that institutions are valuable because of the stability
they afford to human lives, and should not be challenged in the name of abstract
ideas about justice.
With respect to same-sex marriage, some conservatives point to the contro-
versial nature of the issue, uncertainty as to the consequences of legal change,
and the need to reform slowly and cautiously (rauch, 2004). John Witte Jr sets
out this position: ‘For nearly two thousand years, the Western legal tradition
reserved the legal category marriage to monogamous, heterosexual couples who
had reached the age of consent, who had the physical capacity to join together
in one flesh, and whose joining served the goods and goals of procreation,
companionship and stability at once… In the face of such a long and venerable
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 123
tradition, we would be wise to exercise some humility before declaring our
current arguments ineluctable and some patience before rushing to radical legal
change’ (2003, 45).

Radical opposition to marriage

There are some gay and lesbian theorists who feel that marriage is such a patri-
archal and inegalitarian institution that it cannot be reformed and revised to
accommodate same-sex relationships. This position reflects the more radical
feminist critique of marriage. These theorists argue that emphasizing marriage as
a political issue is locking gay and lesbian people into conforming to traditional
institutions which have historically been hostile to them (card, 1996; Warner,
1999). marriage as an institution depends upon conventional understandings of
gender, and privileges monogamous relationships (the very reason that liberal
and communitarian supporters of the family advocate extending it to gay and
lesbian couples). According to this argument, the demand for gay marriage is
crushing the potential of gay and lesbian relationships to achieve greater free-
dom for those in them, and to fundamentally challenge the social order (Smith,
2001). moreover, as postmodernist theorists point out, marriage assumes a fixed
sexual identity and orientation, and does nothing to improve the well-being and
status of those who identify not as gay or lesbian, but as bisexual, transsexual
or queer (conrad, 2010). Queer theorists, who are influenced by postmodern-
ism and Foucault, emphasize the radical constructedness and indeterminacy of
sexual identity. They are not opposed to same-sex marriage, but regard it as only
one of a range of issues involved in achieving equality for lgBtQ (lesbian, gay,
bi-, trans-, queer) people.
Other lesbian and gay critics have challenged this scepticism about marriage,
arguing that same-sex marriage will not just give gays and lesbians the right to
participate in a traditional institution, but rather will change the definition of
what counts as a family (calhoun, 2000). They cite research that suggests that
lesbian and gay relationships are more egalitarian and less based on traditional
roles than heterosexual marriage (Ball, 2003). They maintain that the institution
can be reformed from the inside, and doesn’t necessarily reflect patriarchal roles
and attitudes.
Finally, we also find scepticism about marriage and the degree to which it can
be reformed in the marxist socialist critique. Socialists have contended that the
traditional family unit underpins capitalism – an argument first made by marx’s
collaborator engels in his The Origin of the Family, Private Property and the State
([1884] 1948). engels argued that monogamy developed not to express the roman-
tic love between individuals, but to cement what he referred to as the victory of
private property over original, naturally developed common ownership. marriage
appears as the subjection of one sex by another and, historically, has existed side
124 | A p p ly I n g p O l I t I c A l t h e O r y
by side with prostitution. engels predicted in 1871 a social revolution in which
the economic foundations of monogamy would disappear, as the individual fam-
ily ceased to be the economic basis of society ([1884] 1948). marx himself argued
that simply allowing more people to have access to bourgeois liberal rights – we
might include the right to marry here – would not bring about equality or free-
dom. In On the Jewish Question, marx distinguishes ‘political’ emancipation from
‘human’ emancipation ([1843] 1978). The former would be achieved by granting
equal political rights to all. But political rights, marx argued, were premised on
the idea that people were in competition with one another, and required protec-
tion of themselves and their property, from both each other and the state. human
emancipation allowed all to live together as full members of a community, sharing
resources based on need. Although marx does not refer specifically to marriage,
we can conclude that relationships designed to protect exclusivity and private
property would be incompatible with human emancipation. We should note how-
ever, that despite their critique of traditional marriage, marx and engels were not
sympathetic to homosexuality. While marx did not write explicitly on the subject,
he was critical of fellow socialists who were homosexual. engels condemned ‘the
abominable practice of sodomy’ in ancient greece ([1884] 1948).

Box 6.2 SaMe-Sex Marriage: CoMpeTing

norMS and valUeS
The key norm shared by both sides in the debate over same-sex marriage is equality.
Supporters also invoke justice, and opponents, the common good to support their arguments:

• Equality: Supporters of same-sex marriage argue that gay and lesbian couples should
be treated equally to heterosexuals. Like should be treated equally with like, and
long-term and committed homosexual relationships are no different to long-term
and committed heterosexual unions. There is no principled ground for civil unions
rather than same-sex marriage: supporters accept them as a compromise, recognizing
the historical association of marriage with different-sex couples. Opponents maintain
that the gender of parties to a couple does make a significant difference, and that
same-sex couples should not be treated the same as those of different sexes.
• Justice: Supporters maintain that justice requires that the state does not
discriminate against gays and lesbians, and confers the same rights upon them as
it does heterosexual couples. Opponents counter that justice cannot require the
recognition of relationships which are contrary to the common good.
• The common good: Supporters argue that allowing same-sex marriage will encourage
more gay and lesbian couples to commit to exclusive long-term relationships – thus
strengthening social stability. Opponents insist that homosexuality is destructive to
traditional morality and to the institution of the family. While most accept that it
should be tolerated as private behaviour, they argue that to recognize homosexual
relationships officially will damage the common good.
 ShOU l D S A m e - Se x m A r r IAg e Be l e g A l ? | 125
Conclusion
The debate over same-sex marriage in countries which have not yet passed legis-
lation is unlikely to diminish. But as more and more states pass legislation allow-
ing for either marriage or parallel institutions like civil unions, gay and lesbian
groups elsewhere can argue that at least in Western democracies, recognizing
same-sex unions has become an established norm. Those governments who have
refused to introduce changes have pointed to the relative unpopularity of same-
sex marriage with their voters. In fact, popular support for same-sex marriage
is increasing in many countries which do not permit it: a 2015 poll in germany
found support for same-sex marriage at 65%. In Australia, a 2014 poll found
that 72% of Australians are in favour. In these countries at least, continuing
resistance to legislative change appears to come from ideologically committed
governments, rather than popular opposition. Ironically, the marriage equality
movement has developed at the same time as marriage has declined in popu-
larity in almost all developed and many developing countries. The proportion
of married households in the United States declined from 72% in 1960 to 50%
in 2012, an all-time low, while in the UK, the marriage rate (which measures
numbers of people marrying per thousand) declined from nearly 80 for men
and 60 for women in 1972, to just over 20 for both sexes in 2012. One of the
unanticipated effects of allowing same-sex marriage may well be to arrest the
decline of the institution of marriage, although we cannot tell whether that will
be a long-lasting consequence.
7

Should the State

Prohibit Abortion and
Euthanasia?

● Abortion lAw
● MorAlity And Politics
● the foetus As A Person And the cAse AgAinst Abortion
● self-ownershiP And bodily rights
● distinguishing huMAn life froM Personhood
● woMen’s rights And the feMinist defence of Abortion
● cAre And our duties to others
● Abortion And sexuAl inequAlity
● deAling with the divide over Abortion: PlurAlisM And tolerAtion
● euthAnAsiA
● AutonoMy, liberty And the right to die
● the liMits of AutonoMy And the vAlue of ‘bodily life’
● utilitAriAn ArguMents in fAvour of Assisted suicide
● the consequences of legAlizing PhysiciAn-Assisted suicide And the
‘sliPPery sloPe’
● conclusion

Abortion and euthanasia are not only deeply divisive political issues in many
countries – they are, as Ronald Dworkin writes, the great moral issues that
bracket life in earnest (1993). The questions of when life begins, and when it may
end, appeal to our moral convictions, our religious and spiritual beliefs and our
cultural traditions. They also require us to think about what the role of govern-
ment should be in deciding and imposing answers to moral questions. Philo-
sophical arguments about both abortion and euthanasia range over all of these
issues – our focus is on the political dimensions of these issues, although as we
shall see, it is not possible to separate these completely from moral arguments.
The issues we will consider include the role of the state in imposing policy
where there is moral disagreement, the ways in which individual rights justify

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various arguments for and against in each case, the tension between individual
rights and communal obligations, and the implications of gender difference
and inequality. Many of these problems arise in both abortion and euthanasia,
and in both cases the role of physicians is an important aspect of the debate.
however, there are also crucial differences: abortion as an action or procedure
is performed upon, or done to the pregnant woman and the foetus – as one
side in this controversy claims, to two living beings. euthanasia, however, is an
action performed upon, or done only to the patient him or herself. This of course
has important consequences for the kinds of arguments made in each case. in
addition, feminist arguments play a key role in the abortion issue, while they
are not central (although, as we shall see, they have been made) in the case of
euthanasia. For these reasons, we will consider these issues separately. We begin
with abortion, by comparing some of the legal approaches countries have taken
to this issue.

Abortion law
it was only in the nineteenth century that many Western countries began to reg-
ulate abortion by statute. before then, laws had reflected a complex and changing
range of religious attitudes and concerns about the broader social good. in the
ancient world, the practice was prohibited by the doctors’ hippocratic oath, but
the Athenian philosophers Plato and Aristotle both argued that it was sometimes
justified in the interests of the common good. Plato advocated abortion for what
we would now see as eugenic reasons, when the parents were considered too old
for childbearing (1981). Aristotle, who argued that the soul entered human foe-
tuses only at 40 days after conception for boys, or 90 in the case of girls, viewed
abortion before this stage as an acceptable method of limiting the size of families
and populations (1981). neither philosopher was concerned with the individual
rights of either the pregnant woman or the foetus.
early Christian theologians focused on the morality of the act itself, rather
than its social consequences, and gradually adopted the view that abortion
after ‘ensoulment’ – when the soul was thought to enter the foetus’s body –
was murder. This position was set out by the medieval Christian philosopher
St. Thomas Aquinas (Aquinas, 1952, written 1265–1274), and is a view still very
influential on Christian thinking today. The Catholic Church continued to make
a distinction between abortions committed before and after ensoulment, usually
set at 40, 80 or 116 days of gestation, and coinciding with ‘quickening’ – when
the pregnant woman senses the movement of the foetus. before the nineteenth
century, the Church’s position was that abortions before quickening destroyed
only potential human life – and thus were a sin, but not such a serious one as to
justify excommunication. it was only in 1869 that Pope Pius iX forbade all abor-
tions without exception.
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laws in most countries reflected the distinction between before and after
quickening, penalizing only later abortions, until the nineteenth century. From
this period on, most Western countries enacted laws to prohibit abortion at any
stage, unless required to save the life of the pregnant woman. Arguments appeal-
ing to the rights and concerns of women were by this point a key factor in the
debate. The tightening up of laws was promoted not only by religious conserva-
tives, but also by social reformers concerned about threats to women’s health
posed by the procedure, which, because of its social stigma, was more likely to
be performed in unsanitary conditions by untrained and exploitative practition-
ers. This meant that regulation was supported by doctors, as it enabled them to
gain control over abortion. but several prominent nineteenth-century feminists
also opposed the practice on the grounds of women’s health, and because they
believed that it made women more vulnerable to what was perceived as aggres-
sive male sexuality. The early feminist Mary Wollstonecraft blamed abortion on
the fact that women had been socialized by men to be weak and irresponsible
([1792] 1995).
it was also an alliance of social reformers and medical professionals that
helped to liberalize abortion law in most Western countries from the 1960s.
today, abortion is most strictly regulated in a few countries where the influence
of the Catholic Church is strong – it is prohibited without any exceptions in
Vatican City, Malta, nicaragua, Chile and el Salvador. African, Asian and latin
American countries tend to have stricter provisions about abortion – some
restricting it to cases where the mother’s life is in danger. ireland also limits
access to abortion to only these cases, although there is a growing popular move-
ment to liberalize the law. Canada is exceptional in that it has no laws concerning
abortion at all – only regulations on how, where and by whom the procedure is
performed, imposed by the provinces. Most european countries allow it more
freely in the early stages or first trimester (three months) of pregnancy, although
some countries impose restrictions, such as medical certification about the likely
dangers of the pregnancy, counselling and waiting periods. however, they are far
less permissive when it comes to later abortions. in France, for example, abor-
tions are permitted until the twelfth week of pregnancy, with counselling and an
enforced waiting period – after this point abortion is illegal unless it is to protect
the health of the mother or the foetus is severely deformed.
britain’s legislation is more liberal in that it does not have a first trimester cut-
off date for legal abortion, but less in that health reasons must be given to justify
the procedure. The Abortion Act of 1967 made abortion legal in most cases
under 28 weeks, as long as two physicians certified that the pregnancy posed a
risk to the life or physical or mental health of the woman or her family greater
than the risk of terminating it. Past this date, abortion was permitted only to
prevent serious permanent injury to the mother’s mental or physical health, to
save the mother’s life, or where the foetus was likely to be severely physically or
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Box 7.1 ABortion And sex selection
The entrenched divide between pro-choice and pro-life groups falters on the issue
of abortion to select the sex of a child. In some cases this is done to select female
embryos, which will not be affected by serious genetic disorders carried on the male Y
chromosome. But in many countries, the practice reflects cultural norms which value
male rather than female children. Abortion for sex selection is practiced in many
developing countries, but is particularly common in China, India and South Korea,
where it has contributed to an imbalance in the sexes: more boys are born than girls.
Ultrasound and abortion for sex selection are illegal in China and India, although these
laws are not strongly enforced. Abortion for reasons of sex alone (without medical
grounds) has also become an issue involving South and East Asian communities in the
UK, the United States and Canada. In the UK, an amendment was proposed to the
Serious Crime Bill in 2015 to make abortion on the grounds of sex a crime, but it was
defeated.
Opponents of abortion rights reject all abortions, including those done for sex
selection. But the position is more complex when it comes to supporters:

• Strong liberal and feminist supporters of abortion rights argue that women’s
rights to control their own bodies, and to decide whether or not to support and
nurture a developing foetus, must outweigh moral concerns about any particular
reason to have an abortion. While feminists see sex-selective abortion as
evidence of gender inequality, the individual freedom and autonomy of pregnant
women are the most important concerns. However, it might be particularly
important to ensure that the decision to abort is freely made by the woman
herself in sex-selection cases, and is not imposed by male family or cultural
authorities.
• Sex-selective abortion poses more of a challenge for arguments that offer a more
limited defence of abortion, on the grounds that the value of a pregnant woman’s
life is greater than the sanctity of developing human life. If the state has a legitimate
interest in ensuring that decisions about life and death are treated as morally serious,
we might argue that a preference for one sex over another is not morally serious – is
in fact morally indefensible – and may not serve as a ground for abortion.
• Sex-selective abortion is most problematic from the critical perspective on sexual
inequality and abortion. We might argue that the practice reveals the ways in which
abortion rights are necessitated by, and reinforce a system of, gender inequality. The
continued subordination of women as a group is maintained, ironically, by invoking
the rights of individual women ‘to choose’.
• As this practice is most prevalent in Western countries within cultural minorities,
it raises some of the issues concerning cultural rights and gender equality that we
discussed in Chapter 3. Those who argue that gender equality takes precedence over
cultural norms are likely to support banning sex-selective abortions, while on the
other hand they may conclude that a woman’s right to self-determination must
ultimately guarantee her right to an abortion.
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mentally handicapped. This was later amended to 24 weeks, and there have been
calls for the limit to be lowered to 20 weeks, as advances in medical techniques
have reduced the age at which babies, with extensive medical intervention, might
survive premature birth. in britain, as in other Western countries where a dan-
ger to physical or mental health must be shown to justify abortion, these grounds
tend to be interpreted broadly, so that abortion is freely available. A 2011 survey
showed that approximately 70% of britons support a woman’s right to choose
whether or not to have an abortion in all or most cases. Abortion is not permit-
ted, however, to select the sex of a child (see box 7.1).
because abortion raises issues of women’s rights, sexual equality, the protec-
tion of life and the role of religion in public life, it has been almost universally
controversial. but in no country has it been so divisive and, at times violent,
as the united States. until the 1970s, the practice was regulated independently
by each state, nearly all of which prohibited abortion, although some granted
exceptions for pregnancies caused by rape and incest, those which threatened
the life of the mother and cases where the foetus suffered a serious abnormality.
in 1973, however, the landmark Supreme Court case Roe v. Wade established
that no legislation could prevent abortion in the first trimester of pregnancy.
Regulation was permitted in later stages, and abortion could be prohibited in the
last trimester. The Supreme Court held that the Fourteenth Amendment to the
united States Constitution, guaranteeing that no one be deprived of life or lib-
erty without due process, implied a natural right to privacy. The Court held that
this right, although not enumerated in the Constitution, had been established
by earlier decisions, and protected a woman’s right to terminate a pregnancy
until the foetus had developed to the point at which the state had an interest in
protecting it as human life. This point was fixed at the beginning of the third
trimester, by which time the foetus was viable (it could live outside its mother’s
uterus). After this point, abortions could be banned by the states, except when
necessary to preserve the health or life of the mother. The Court declined to rule
on when after conception human life began, but concluded that the foetus was
not at any point a person with rights.
The subsequent Supreme Court decision Planned Parenthood v. Casey in
1992 affirmed Roe v. Wade, but replaced the trimester scheme with the point of
viability. This and later cases have also legitimated various restrictions imposed
by state legislation upon the right to choose abortion before foetal viability,
including requiring counselling, a waiting period and parental notification for
minors. in 2003, President bush signed into a law the Partial birth Abortion ban
Act, which prohibits a particular procedure used sometimes in late pregnancy.
in 2007, the Supreme Court determined in Gonzales v. Carhart that the Act did
not impose an undue burden on a woman’s Constitutional right to an abortion.
but in general, abortion is available at a later stage in pregnancy in the united
States than it is in europe.
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Since Roe v. Wade, the pro-choice (in favour of abortion rights) and pro-life
(opposed to legal abortion) groups in the united States have waged a fierce battle
over this issue. During the 1980s and 1990s extremist pro-life groups picketed
and attacked abortion clinics, in some cases killing medical staff. even now, there
are no abortion providers in the vast majority of uS counties. Access to abor-
tion has become the single biggest defining and mobilizing issue for American
feminists, and Congressional and Presidential candidates are assessed in terms
of their attitude to Roe v. Wade, and their views on whether Supreme Court
justices should be chosen on the basis of their support of, or commitment to,
overturning the decision. it is no coincidence that uniquely in the united States,
the debate has centred on the role of the Supreme Court and its interpretation of
the Constitution. in most other countries, the focus of the abortion issue is on
legislation. even some commentators who support legalized abortion have been
critical of the way in which policy in the united States has been imposed by the
judiciary rather than subject to democratic deliberation and debate, and many
critics have suggested that this is the reason for the particularly polarizing nature
of the controversy in the united States (glendon, 1987). Americans themselves
are divided on the issue of abortion: poll results differ considerably depending
on how the question is asked, but most results show that the majority of people
support the right to abortion in the first trimester, although they approve of
regulations such as waiting periods. Support for the right to abortion diminishes
as pregnancy advances beyond the first trimester.

Morality and politics

Contemporary debates about abortion centre on the conflict between the duty
of the state to protect human life and people on the one hand, and the rights of
women to make decisions about their own bodies and lives on the other. The
issues involved here are clearly moral, religious and biological, as well as politi-
cal. Political philosophy cannot solve the problem of where life begins, or what
the status of human life is before birth. but it can help us to think about implica-
tions of the fact that considerable disagreement exists over whether or not the
foetus is a person, or a form of human life, and if it is, over how to balance any
rights it might have with those of the pregnant woman. Moreover, we might
argue that even if abortion is considered to be immoral, there is an important
distinction between holding this and concluding that it should be illegal. As we
shall see, this distinction appears also in the debate over euthanasia. of course,
those who oppose abortion argue that it is immoral and must also be prohibited.
We will consider these arguments first. in public debate, this case is made by
political conservatives, as the pro-choice position is associated with liberals, but
the fundamental claim of anti-abortion philosophers is ontological – it is based
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on what the foetus actually is as a living being. ontological questions are part of
many political debates, but they do not necessarily imply any particular political
agenda. (For example, the ontology of communitarianism sees human beings as
embedded in and constructed by a network of social relations, rather than sepa-
rate or atomistic individuals, but communitarian political philosophers can take
conservative or radical political positions.) Much of the debate around abortion
focuses on the ontological status of the foetus, although, as we shall see, some
supporters of abortion rights concede the argument that the foetus is a person,
and defend the practice on other grounds.

The foetus as a person and the case against

abortion
The strongest argument against abortion is made on ontological and moral
grounds. it is the position of the Roman Catholic Church, the Anglican Church
and most evangelical protestant groups, as well as some philosophers and scien-
tists without religious affiliation that the foetus is a human person, with the same
fundamental right to life as human beings who have been born. The foetus is not
just a potential person or a form of human life, but a human person. once this
has been established, opponents of abortion conclude that it cannot be permit-
ted, either at all, or with few exceptions, as it involves the taking of an innocent
person’s life. The most commonly advanced natural law argument advanced here
is that upon conception, a human being comes to exist, with both its own soul
and its distinct genetic identity (lee and george, 2005). it is this individual soul
and, in secular terms, this unique genetic identity that defines a human being,
rather than, for example, being independent, or autonomous, or visible, or a
member of any social community (noonan, 1970). other philosophers have
emphasized different aspects of the foetus that, in their view, identify it as a
person. Catholic philosopher germain grisez acknowledges the power of argu-
ments based on community membership when he maintains that it is member-
ship in the human species that defines a human person (1970). The secular claim
proposed by Don Marquis is that foetuses are human persons because they have
futures like our own (1989).
All these theorists share in common the belief that, while foetuses are not
capable of all the specific rights that children and adults possess (just as children
are not entitled to all the rights of adults), they have a right to life in virtue of
what they are (lee and george, 2005). This takes precedence over other claims,
including that of the pregnant woman to rights over her own body, as these
rights do not allow her to damage innocent others. Some who hold this posi-
tion take the view that abortion to save a woman’s life may be permitted as the
killing is in self-defence, although others counter that even in this case abortion
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is unjustified, as the foetus does not intend to harm the woman. once the pro-
life case has been made that abortion is immoral because it involves killing an
innocent person, it follows that it must be illegal – since hobbes’ defence of state
power in the seventeenth century, the fundamental role of the modern state has
been understood to be protecting the physical security of its members (hobbes,
[1651] 1962).

Self-ownership and bodily rights

even if the foetus has the moral status of a person, we can make a libertarian
defence of abortion rights, on the grounds of a pregnant woman’s rights over her
body. This is in fact one of the strongest feminist arguments in favour of abor-
tion rights, as i discuss on pp. 136–38. The more general case for self-ownership
is made by Robert nozick, who argues that our most fundamental property is
in our own bodies – that we have rights over our bodies and rights to use them
to exercise our capacities for self-realization (1974). no one has the right to use
another’s body against their will (Rothbard, 1998). This in fact invokes a com-
monly held fundamental premise of all liberalism – the Kantian principle that
individuals cannot be used as the means to others’ ends (Kant, [1785] 1993).
even if a foetus is a person, a pregnant woman is not obliged to nurture or sup-
port it within her own body. This position justifies abortion before viability –
although after that point, we might conclude that the foetus, once expelled from
the woman’s body, would have to be sustained alive.

Distinguishing human life from personhood

Several philosophers who defend abortion rights have made the ontological case
that while the foetus is undoubtedly living, and is entitled to respect, it is not a
human person with rights. As they point out, this accords with our intuitive sense
of things: we do not treat foetuses, especially early on in pregnancy, as the same
as babies – an early miscarriage is not mourned in the same way as the death of
a child. on the other hand, abortion seems to be importantly different from, for
instance, the surgical removal of a tumour. Some rely on the distinction between
human life and full personhood to distinguish early and late abortions. Jane eng-
lish argues that there is no single definition of the person, and no group of agreed
necessary and sufficient characteristics for personhood. ‘Person’ is a cluster of
features – some biological, some psychological, some rational, some social and
some legal (english, 1974). These factors develop at different rates – not all
are present at birth, and a later foetus exhibits more of them than does an early-
stage foetus. The conservative legal philosopher Mary Ann glendon describes
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with approval the legal approach taken in most european countries, where the
gravity of abortion is expressly recognized in legislation, and abortion rights are
generally freely accorded in the early stages of pregnancy but restricted closely
after the first trimester. This reflects, she argues, a commitment to the sanctity of
developing human life, and acknowledges that while it may be acceptable to ter-
minate a pregnancy in the early stages, as the foetus develops it must be accorded
respect similar to that accorded a person (glendon, 1987).
utilitarian philosopher Peter Singer builds his case for abortion rights by
arguing that the foetus is a member of the human species, but is not a person.
utilitarians argue the policy and legislation should promote the greatest welfare
of individual persons; consequently if the foetus counts as a person, abortion
in most cases (excepting those where there is grave foetal abnormality) cannot
be justified. Singer defines sentience as an essential aspect of being a person – a
definition that excludes foetuses (1993). on the other hand, once the foetus has
developed to the neurological point of being able to feel pain, abortion methods
that are excessively painful to it cannot be justified. Singer has made the con-
troversial argument that newborn babies also do not have the same full rights
as older children and adults – a case also made by Michael tooley, who argues
similarly that the foetus is a member of the human species, but not a human
person. A human person, tooley claims, must have a concept of the self as the
subject of experiences over time – a capacity not reached until an infant is a few
months old (1972).
Mary Ann Warren defends abortion, but counters these claims about infan-
ticide by emphasizing not only the developmental character of a foetus or new-
born, but also the way in which it is viewed by others. birth is the point at which
human beings cease to be completely dependent on the body of the mother, and
become members of the human community, able to be cared for as a ‘known and
socially responsive individual’. before birth, and particularly before sentience,
the foetus is entitled to only modest moral status, which can be overridden by
the moral claims of the pregnant woman. its moral status increases with develop-
ment: the more advanced in development it is, the more likely it is to be sentient,
and the more it invokes feelings of recognition and mutual responsibility in us,
other members of its community (Warren, 1997).
Dworkin attempts to use this distinction between human life as a broad
category, and an individual person with rights and interests to find common
ground between the pro-choice and pro-life camps (1993). Dworkin describes
two different kinds of objection to abortion. First: foetuses have the same rights
and interests as other human beings – including the right not to be killed. This
is what he calls the derivative objection, because it derives from the rights and
interests that all human beings, including foetuses, are alleged to have as per-
sons. Second: the foetus is human life, and thus shares in the intrinsic, innate
and sacred character of all human life – although it is not a person with the
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same rights and interests as children and adults. This is the detached objection,
because, unlike the derivative objection, it doesn’t depend upon rights and
interests of the foetus as a person. it is the detached objection, Dworkin argues,
that really underlies most pro-life arguments. once this is understood, we see
that opponents and supporters of abortion rights can agree on the crucial claims
that – generally – human life deserves respect and – specifically – that the foetus
is a form of human life deserving of respect. both sides accept that something –
although not an individual person with rights and interests – is alive at the point
of abortion which can be destroyed, and that it is a pity that it is destroyed.
Where they differ is how they strike the balance between the respect due to the
foetus, and that due to the pregnant woman and other members of the family
affected by the pregnancy. This detached objection seems to explain the fact that
opinion polls in the united States regularly report that majorities of Americans
surveyed think that abortion is taking human life, but majorities also favour
limited rights to abortion.
As Dworkin suggests, it’s also possible to make pro-choice arguments that
appeal to the value of human life – arguments which emphasize the value of the
life of the pregnant woman, and of the lives of other children in the family when
weighed against that of the early foetus. Some feminists, as we shall see below,
emphasize these arguments rather than arguing, against the derivative view,
that the foetus is not a person with interests and rights. interesting evidence in
support of this is provided by one of the best-known accounts of the reasoning
of a group of pregnant women who were considering abortions. in the 1970s,
after the Roe v. Wade decision, feminist psychologist Carol gilligan interviewed
a group of pregnant women who were considering having abortions (most went
on to do so). She found that when they talked about what they should do, they
did not refer to rights which they or their foetus might have; rather they empha-
sized their concerns about what kind of life and prospects they could provide for
a child, the importance of caring for others in their families and their responsi-
bilities to make something of their own lives (gilligan, 1982).
understanding the foetus as human life, but not a human person, allows us to
accept the value of life but still defend the right to abortion in some, if not all,
cases. The life of the foetus must be balanced against that of the mother, and of
others who will be affected by the birth of the child. The state can recognize that
the sanctity of life is contestable, and leave people to make their own decisions
about protecting it in the early stages of pregnancy, and about balancing the
protection of foetal life with the quality of life of the mother and other family
members. As the foetus develops, its life becomes more worthy of protection. As
this suggests, Dworkin thinks that the approach of Roe v. Wade, distinguishing
the right to abortion in early from later stages of pregnancy, is appropriate. but
restrictions and regulations on abortion, if designed to make pregnant women
aware of the sanctity of life, may also be defended. As Dworkin puts it, the state
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has ‘a legitimate interest in maintaining a moral environment in which decisions
about life and death are taken seriously and treated as matters of moral gravity’
(1993, 168). Restrictions, such as those considered in the 1992 Casey Supreme
Court decision in the united States, must be judged by whether they are in
conformity with this requirement, or if they impose an undue burden upon
women’s rights.

Women’s rights and the feminist defence of

abortion
Much of the philosophical debate about abortion focuses on the status and
claims of the foetus, rather than its essential and intimate relationship with the
body of the pregnant woman. What feminists remind us of is that the foetus
uniquely exists inside the body of another human being, drawing all its sus-
tenance from her body without her express consent or even intent. Many of
the arguments about abortion (including some made by feminists) proceed by
analogies – between the foetus and a baby or an animal, between pregnancy
and temporary illness, between killing someone in self-defence and abortion.
The fact is that pregnancy is a unique condition, posing particular difficulties
for Western philosophy, which holds as a fundamental assumption that human
beings are physically separate and distinct. This assumption is deeply related to
our beliefs about individuality and autonomy. Feminist arguments take a range
of approaches to dealing with the bodily reality of pregnancy, and the need to
balance what obligations we owe to a foetus, with the rights and interests of preg-
nant women. As we shall see, feminists build on both the libertarian and liberal
arguments we have discussed above.
The strongest (and most libertarian) feminist argument asserts that women
have a right to full and equal personhood, which includes the right to control
their own bodies and maintain their bodily integrity (Cornell, 1995). Whatever
the ontological status of the foetus, and whatever its point of development, it
cannot take precedence over this right. other feminist philosophers emphasize
the claim that the foetus is a form of human life, but not a human person with
rights. More specifically, it is a form of life which cannot be seen as separate from
and independent of the woman’s body. As Margaret little points out, the preg-
nant woman’s body is not just housing for the foetus – it physically makes it what
it will become (2005, 28). The foetus does not simply grow in the uterus – it must
develop, and that development requires the active contribution of its mother’s
body. While the foetus is indeed a potential human being, its ability to reach its
potential depends crucially not just upon a passive environment, but upon the
actions of the woman as an autonomous agent. The foetus makes extremely per-
sonal and intimate demands upon the maternal body, and both pregnancy and
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motherhood create enormous obligations and fundamentally change personal
identity. Are women obligated to provide what little calls ‘gestational assistance’
to the foetus and to take on these obligations? little concludes that while the
early foetus has value as human life in progress, it does not have the same value
as the person who must work to ensure that such progress occurs. Abortion is
not a decision to destroy, but rather not to create – to withdraw physical sup-
port from a life that wouldn’t have existed without the woman’s physical support
in the first place (little, 2005). by the same argument, a more advanced foetus
later in pregnancy has greater value, and as the pregnant woman has already
made more investment in it, it is less justifiable for her to withdraw gestational
support.
Judith Jarvis Thomson also focuses on the physical sacrifices required by
pregnancy in her famous and influential analogy about abortion rights (1971).
Thomson starts from the position of accepting, just for argument’s sake, that the
foetus is a person from the moment of conception, with full rights to life. She
argues that even so, a pregnant woman is no more obliged to use her body to
sustain and nurture it than anyone would be to sustain and nurture a stranger
dependent on them for life support.
Thomson asks us to imagine a hypothetical situation, in which you wake up
one morning to find yourself in bed attached to a famous unconscious violinist.
he has been found to be suffering from a fatal kidney ailment and needs kidney
support, and you alone have the right blood group to help him. you have been
kidnapped, and your circulatory system has been plugged in to the violinist. The
director of the hospital tells you that they didn’t know this was being done, but
now that it was done, you must accept it. however, this state of affairs will only
last nine months. After that, the violinist will have recovered from his illness, and
can be unplugged from you. Do you have to accept this? As Thomson argues,
both our moral intuitions and laws answer no. The violinist undoubtedly has a
right to life, but he has no right that you should be forced to use your body to
keep him alive.
Thomson’s analogy suggests that the pregnant woman did not in any way
contribute to her situation – which is clearly the case with rape. but what if the
woman voluntarily engaged in sex, with or without contraception (which after all
she knows may fail)? in Thomson’s second analogy, ‘people seeds’ drift around in
the air like pollen; you open a window and one drifts in and takes roots in the
carpet. you don’t want children, so you buy good screens for your windows, but
one is defective, and a seed makes its way in. Are you responsible because you
should have foreseen that the screen might be defective? but what if you took all
reasonable precautions? in this case also, Thomson concludes, nobody is mor-
ally required to make the large sacrifices required to keep someone else alive for
nine months – and then to nurture and raise them after birth. no country’s laws
require that we give long stretches of our lives to sustain others. At most, the
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woman may have the obligations of a ‘minimally decent’ (as distinct from ‘good’)
Samaritan, to carry a pregnancy to term if it is almost over, and she is not sick or
seriously discomfited. of course, this argument does not justify killing a foetus
which has reached viability, if it can be removed and survive outside its mother’s
body.

Care and our duties to others

Many of the objections made to Thomson’s analogy rest on her assumption that
killing the foetus is the same as withdrawing support from it. From a public
political perspective, however, the more interesting responses focus on the
duties we owe to others. As we have seen, we can argue for abortion rights on
the grounds that weighing up the value of human lives – that of the foetus, the
mother and other family members – leads us to conclude that the best way of
respecting the value of human life is not to continue with the pregnancy. This
recognition of the interrelationship between the pregnant woman, the foetus
and others in the family is what is missing in Thomson’s argument, according
to many critics from both the pro-life and pro-choice sides of the debate. Con-
servatives and some communitarians argue that her analogy fails to recognize
the special relationship between the pregnant woman and her foetus, and the
special moral obligations that pregnancy produces. Conservative philosopher
Francis beckwith argues that moral obligations are not necessarily voluntary
(1998). in addition, Thomson’s argument, like others based on women’s rights to
bodily integrity, do not take into account the sentiments and claims of fathers
who wish their foetuses to survive. The survival of families – and of social
structure – depends on the fact that familial relationships produce moral obliga-
tions in us – particularly to dependents like children and the elderly. of course,
as we have seen, feminists also make the communitarian argument that obliga-
tions and duties to the child that would eventually be born, and to other family
members, are what motivate some women to choose abortion. gilligan’s study
of pregnant women found that some were concerned about their responsibilities
to their existing children, while others without children expressed their concern
about the permanent nature of motherhood, and whether or not they could
responsibly take on those obligations.

Abortion and sexual inequality

As we saw earlier, some nineteenth-century feminists opposed abortion on the
grounds that its purpose was only to ensure that men would continue to have
free sexual access to women, without worrying about consequences. Some
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contemporary feminists, while not opposing abortion rights, are similarly scep-
tical about the degree to which they will advance women’s equality – viewing
abortion as rather a symptom of sexual inequality. Adrienne Rich wrote that
in a society in which women voluntarily entered into sexual relationships, with
freely available and completely reliable contraception, there would be no abor-
tion issue (1986).
nevertheless, an egalitarian liberal case is often made for abortion rights,
on the grounds that requiring women to continue with unwanted and
unplanned pregnancies denies them equal status as citizens (Rawls, 1997).
Catharine MacKinnon relies on a deeper analysis of sexual inequality in
her defence of abortion rights (1983). She argues that the approach taken
by the united States Supreme Court in Roe v. Wade, based on the right to
privacy, only reinforces women’s exploitation and inequality, while appearing
to grant them equal rights with men. The alleged constitutional right to pri-
vacy emphasizes the idea that there exists a private sphere, distinct from the
public, which is immune from state regulation and open to the unrestricted
exercise of power. Such an idea has been used to exploit women, by ignoring
the abuse and exploitation that goes on in private, particularly in the family.
MacKinnon maintains that we cannot separate pregnancy from the private
sexual relations that cause it. Women do not control the terms of sex. often,
she asserts, they are raped and coerced into it – and even if the act itself is
voluntary, the system of meanings around sex, and male and female roles in
it, are not. if women do not use contraception, that is because to do so looks
like taking control of sexuality from men, and acting in an inappropriately
feminine manner.
by emphasizing privacy, and the limited role of the state, the Supreme
Court in Roe v. Wade left the disposition of power between the sexes as it
was. Men’s domination of women is undisturbed, while the availability of
abortion rights is meant to signal to women their equal autonomy – despite
the sexual inequality that produced their unwanted pregnancies in the first
place. MacKinnon concludes that abortion rights must be accompanied by
a critique of gender inequality. ironically, her position is similar to that of
conservative feminist Mary Ann glendon (1987). both offer a critique of the
liberal language of rights – MacKinnon from radical feminism, and glendon
from a conservative and communitarian perspective. She argues that the pri-
vacy doctrine of Roe v. Wade and the abortion on demand that it guarantees
should be replaced by the more limited availability offered by european states,
but that this should be accompanied by a large-scale review of laws that bear
on maternity and child-raising. Maternity leave, child care, paternal child
support and welfare assistance must be adequate to support women as equals
while they are raising children, and should reflect the strong commitment of
the state to families.
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Dealing with the divide over abortion:
Pluralism and toleration
As long as opponents of abortion insist that the foetus is a full human person,
innocent and possessing rights (making what Dworkin calls the derivative
objection), no compromise on the issue seems possible. in fact, forceful resist-
ance to abortion providers appears justified and necessary. We might claim that,
given the plurality of views on abortion, the state should not promote a particu-
lar position on it, but rather should allow people to make their own decisions
about whether or not to choose to abort – in the same way as, for example, the
law allows people to decide whether or not to smoke or to drink alcohol. lib-
erals have adopted this general approach since John Stuart Mill argued in the
nineteenth century that the state should not intervene to prevent actions that do
not affect others ([1869] 1989). This view is consistent with the public reason-
based approach to normative theorizing which we discussed in Chapter 1. it is
not satisfactory, of course, for those who insist that the foetus is a human person
who must be protected in the same way that a child or adult is protected by
the state – nor would it answer the concerns of those who support only limited
abortion rights.
Rawls’ political liberalism is built upon a similar liberal view about the relation-
ship between politics and private morality. Rawls argues that political values –
those defining justice and the basic legal and political structure of society –
refer to different subjects and problems than do private moral values. Political
values must be independent of comprehensive moral views, philosophies or
religions, in the sense that they must be capable of being agreed to across a
range of different moral perspectives (Rawls, 1993). Personal moral issues are
not appropriate subjects for political debate – what Rawls calls public reason
(1997). (We should remember though, that Rawls did not define abortion as
a private issue.) A similar principle underlies the separation of religion from
politics that is enshrined in the constitutions of some countries – most notably
the uS separation between church and state, but also France’s principle of laïcité
or state secularism. Prominent Roman Catholic political leaders in the united
States who are personally opposed to abortion on religious grounds have con-
cluded that it is inappropriate for the state to impose their views upon those
who disagree.
The pro-choice case is based on the idea that the government may not enforce
a moral view about the beginning of life over the private capacities of people
to choose their own moral principles and ways of life. in practice, Canada is
the only country to take the approach of imposing no legislative restriction
on abortion, but the uS Supreme Court’s privacy doctrine is based upon the
same refusal to regulate what it sees as private moral decisions. Michael Sandel
suggests that the continued controversy over abortion shows up the futility of
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liberals’ attempts to separate private moral issues from public political decisions,
and to maintain the neutrality of law on moral questions (2005). Moral issues
such as the status of life before birth must be argued out in public debate, rather
than bracketed or left up to unelected authorities like the courts.

Euthanasia
The term euthanasia is from the greek, and literally means dying well, or a good
death. in practice, it has come to mean medical assistance to bring about death –
either by administering lethal drugs or ceasing to provide essential means of
life-support. euthanasia covers a range of practices, but in this chapter we will
restrict it to voluntary physician-assisted suicide, which has recently become
the subject of widespread controversy in many countries. (The term voluntary
euthanasia is sometimes used interchangeably with physician-assisted suicide,
although it generally means that the physician performs the act of ending life,
rather than assisting the patient to do so.) We will exclude, for example, eugenic
practices, such as the killing of disabled newborns in the ancient world, and
the nazi programme of putting to death the mentally and physically infirm in
1930s and 1940s germany. Providing the means to help someone take their
life is expressly prohibited by the hippocratic oath, and has been sanctioned
in Western societies for most of human history, although the prohibition on
unassisted suicide arose with Christianity. Suicide itself in ancient greece was
judged generally in terms of its effects on the social duties and obligations of the
suicide, while the Roman Stoics believed that the ability to choose death when
life had become unbearable was a fundamental expression of human freedom.
both Christian and Jewish laws forbid physician-assisted suicide, and there are
very few defences of the practice through most of Western history until the
twentieth century.
For most of the twentieth century, euthanasia was associated with the mur-
derous eugenic policies of fascism, and it is only relatively recently that popular
movements have emerged attempting to liberalize the law against voluntary,
physician-assisted suicide. it remains illegal in the great majority of countries.
The first government in the world to legalize the practice was the northern ter-
ritory in Australia in 1996 – four cancer patients ended their lives with medical
assistance before the law was overridden by federal legislation the following
year. The netherlands, belgium and the American state of oregon (see below)
currently have the most permissive legislation: in belgium, physician-assisted
suicide has been legal since 2002, and from 2005, pharmacists have been allowed
to supply drugs for euthanasia to physicians. euthanasia was effectively legalized
in the netherlands in 2002, formalizing a long-standing practice of not criminal-
izing doctors who performed euthanasia in limited circumstances. The Dutch
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law is widely supported by the country’s medical profession and by the general
public. Similar legislation was passed in 2009 in luxembourg, and since 2010,
voluntary euthanasia of the terminally ill has been permitted in Colombia. in
2015, the Canadian Supreme Court ruled that Canadians experiencing ‘severe
and intolerable suffering’ have a constitutional right to physician-assisted suicide
(Carter v. Canada). The decision takes effect in 2016. Switzerland allows anyone,
including non-physicians to assist in a suicide – as long as they do not actually
themselves administer the drugs or perform the act causing death. Assistance
short of this is a crime only when the person assisting acts from selfish motives.
The law applies also to non-citizens, and people from many countries have trav-
elled to Switzerland to end their lives.
in the uK, active intervention to help someone die is a criminal offence, but
the british law distinguishes between acting and refraining from acting, and
people can demand to have life support removed. The courts have recognized the
delegated rights of family members to make this decision when the patient is not
conscious. A series of cases in the 1990s established that doctors were justified in
withholding treatment from newborns who were so disabled that they would not
be able to have any quality of life. This decision was applied to adults in the 1993
case of Airedale NHS Trust v. Bland, involving a young man who was in a per-
sistent vegetative state since being crushed in the hillsborough soccer stadium
disaster in 1989. his parents and the nhS sought permission to cease providing
him with artificial hydration and nutrition. Permission was granted by the high
Court and the house of lords. Active assistance to die, however, continues to
be illegal. in 2001, Diane Pretty, a british woman suffering from terminal motor
neurone disease that left her severely disabled, sought a court ruling that would
allow her husband to help her end her life. The case went to the high Court and
the house of lords, both of which refused to allow her husband to assist her,
on the grounds that legislation clearly forbade mercy killing. She then appealed
to the european Court of human Rights, on the grounds that the law infringed her
human rights, but her case was dismissed. She died naturally shortly afterwards.
The Pretty case galvanized into action lobby groups both in favour of and against
euthanasia. A bill permitting Assisted Dying for the terminally ill was rejected
by parliament in 2006. in 2015, the european Court for human Rights rejected
applications by two british citizens seeking to overturn the 1961 Suicide Act’s
prohibition of assisted suicide. The united States similarly distinguishes between
allowing people to die and assisted suicide. The right to refuse medical treatment
has been recognized by the Supreme Court, which interprets it to mean that legal
guardians of people unable to consent can refuse medical treatment. in Cruzan
v. Director, Missouri Department of Health in 1990, the Court held that if there
was clear and convincing evidence that the person had not wished to remain
alive in such a state, life support could be removed. Just how controversial this
position continues to be is clear, however, from the terri Schiavo case. Schiavo,
a young woman in Florida, collapsed for unknown reasons and lapsed into a
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coma in 1990. She was diagnosed as being in a persistent vegetative state, and in
1998, her husband and legal guardian petitioned the court to have her feeding
tube removed, on the grounds that before her illness she had expressed a desire
not to continue living if she were ever in a vegetative state. her parents opposed
the request and a protracted court battle began, eventually involving the state
government in Florida, the federal Congress and President bush, all of whom
attempted – ultimately unsuccessfully – to override the decisions of several
courts that Schiavo’s husband was entitled to order his wife’s feeding tube to be
removed.
Physician-assisted suicide remains illegal in most states. but in 1994 following
a state referendum, oregon passed the Death with Dignity Act, which allowed
doctors to assist in suicides under specific and controlled circumstances. A
patient with a terminal illness which is expected to kill them within six months
may request a prescription for a lethal dose of medication. The request must
be confirmed by two witnesses, one of whom cannot be a family member or
physician of the patient, or a legatee to the patient’s estate. The request must
then be confirmed by another physician. The patient must then wait at least
15 days, and then make a second request for the prescription. he or she must
be in sound mind. The bush Administration tried to prosecute doctors acting
under the law on the grounds that they were illegitimately prescribing controlled
substances, but the oregon law was upheld by the Supreme Court in 1993, in
Gonzales v. Oregon. Washington and Vermont have since also passed laws allow-
ing physician-assisted suicide. nevertheless, the Supreme Court has refused to
strike down laws that prohibit the practice. in 1997, the Supreme Court heard
two cases, Vacco v. Quill and Washington v. Glucksberg, involving physician
assisted suicide – in both cases the Federal Court of Appeals had overturned
legislation preventing assisted suicide. in these, two groups of physicians argued
that the statutes of new york and Washington State preventing assisted suicide
was in violation of the equal treatment provision of the Constitution, because
terminally ill patients were allowed to refuse treatment and choose to die, but
couldn’t authorize a doctor to end their life. The Vacco and Glucksberg cases
established that there is no constitutional right to die, and that a clear distinction
exists between killing and letting die.
Where abortion raises questions about the rights of individuals to end the
lives of human others, whether persons or not, the central issue of euthanasia is
whether individuals are entitled to end their own lives. Arguments in support of
euthanasia fall into two broad categories: firstly, the liberal case that autonomy
and liberty require that we be permitted to determine the end of our own
lives. Secondly, utilitarians argue that the consequences of allowing voluntary
physician-assisted suicide are more positive than insisting that they continue
living until death comes naturally. in both cases, supporters must overcome the
difference generally relied upon in law between allowing someone to die, and
actively intervening to bring about their death. The philosophical case against
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legalizing euthanasia also takes two corresponding forms. Some critics argue
that liberty and autonomy do not extend to deciding when our lives should end,
and that our obligations to others and to our communities must override our
personal wishes to die. The more common secular argument against euthanasia,
however, depends upon consequences, and focuses explicitly upon the role
of physicians and others who assist. Critics argue that if voluntary physician-
assisted suicide were allowed, a ‘slippery slope’ would be established, which
would lead to people who did not want to die being pressured to do so by their
families and doctors.

Autonomy, liberty and the right to die

Supporters of physician-assisted suicide argue that autonomy – the right to make
choices and determine the direction and shape of our own lives – includes the
right to choose the manner of our own deaths. People have dramatically different
ideas about death, and the state, physicians or relatives should not be entitled to
impose their ideas upon others. As John harris argues, making someone die in
a way that others approve, but that the person dying believes to be a horrifying
contradiction of her own life, is a form of tyranny (1995). Similarly, Dworkin
argues that forcing people to live who genuinely want to die causes serious
damage to them (1993). individuals have what Dworkin calls ‘critical interests’
in living the kind of life we choose ourselves, and to live on suffering when we
would prefer to die runs counter to our critical interests. Several countries, as we
have seen, recognize this insofar as patients have the right to refuse medicines
and life-saving treatments. underlying this position is the belief that individual
life is valuable because of its value to the person living it – rather than because
all human life is sacred. it is this latter view that justifies opposition to abortion,
as we have discussed above.
but liberal philosophers have also argued that autonomy requires not only
allowing people to die by not acting or stopping acting – ceasing to provide life
support – but also assisting people to end their own lives. one way of defending
this on autonomy grounds is to argue that individuals may delegate the right to
end their lives to others, as they may delegate other rights. We might also think,
as harris does, that killing is wrong because it involves depriving somebody of
what they value and want – their life. When a person does not value or want their
life, killing them or assisting them to die cannot be wrong (harris, 1995). James
Rachels argues that the crucial issue involved in these cases is the intentional ter-
mination of the life of one human being by another (1986). This applies equally
whether a physician is turning off a life-support machine or administering an
injection.
The argument from autonomy cannot be used to defend any form of non-
voluntary euthanasia, and those who make it usually require strict conditions
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to be observed – all of which are designed to ensure that the decision to die is
indeed freely made. These conditions typically include the requirement that the
patient be suffering from a terminal or extremely incapacitating condition, or be
suffering great pain, that no cure or acceptable pain relief be available, and that
the request to die be discussed with physicians, and be made more than once,
over a period of time.
A clear statement of the liberal autonomy-based argument for physician-
assisted suicide is found in the amicus curiae (‘friend of the court’) brief submit-
ted to the united States Supreme Court in 1997 in the cases of Vacco v. Quill
and Washington v. Glucksberg (Dworkin et al., 1997). The brief was written by
six senior American political philosophers: John Rawls, Robert nozick, Thomas
Scanlon, Ronald Dworkin, Judith Jarvis Thomson and Thomas nagel. The phi-
losophers based their argument in support of physician-assisted suicide on the
grounds that individuals have the right to follow their own moral convictions at
the end of life. (They also argued that, in Constitutional terms, individuals have a
liberty interest protected by the Fourteenth Amendment, similar to that granted
to pregnant women seeking abortions.) They argued further that there was no
important difference between these cases involving active physician assistance,
and the earlier case of Cruzan, in which the Supreme Court had recognized the
right of patients to refuse life-saving measures. The crucial characteristic is the
desire of the patient to die, rather than whether it is act or an omission that’s
required to cause death. The philosophers conceded that no doctor should be
required to help a patient end their life. They also addressed the second argu-
ment made by the federal government in the Vacco and Glucksberg cases, con-
cerning the consequences of allowing physician-assisted suicide, and i examine
this aspect of their argument below.

The limits of autonomy and the value of

‘bodily life’
There are two key elements to the case against euthanasia on the grounds of
autonomy: first, that individual autonomy cannot override the intrinsic value
that all human life has, even the bodily life lived in a vegetative state, or life lived
in suffering and pain. Second, that it cannot override the duties of care and jus-
tice that we owe to our families and communities. Christians have argued along
these lines that life is a gift from god, and does not belong to the individual
who lives it. Sandel points out that both Kant and locke, who placed individual
autonomy at the centre of their philosophies, rejected a right to suicide, on the
grounds that only god could end life. locke thought that because the right to life
is inalienable, we cannot end it any more than we can send ourselves into slav-
ery, and Kant thought that suicide meant treating ourselves as means (Sandel,
2005). As Dworkin has shown, a widely held and similar secular view holds that
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human life is intrinsically valuable and sacred. natural law philosopher John
Finnis argues along these lines that human bodily life is an intrinsic and basic
good, rather than being an instrumental good – valuable because of what the
individual living it can do (1995). it follows that even a person living in a vegeta-
tive state or in pain remains a human person with full intrinsic value – just as,
according to this line of argument, an early human embryo is a person with full
human value.
The argument that suicide in general is a betrayal of our duties to others is
long-standing. We can see this clearly in the case of duties to family members,
but we might also argue more broadly that suicide means opting out of the
duties and responsibilities we owe to our broader community. Communitarian
critics have argued that physician-assisted suicide would mean abrogating the
duties that we owe to care for the dependent and needy, and assuming that only
autonomous and independent individuals have lives worth living (Sandel, 2005).
Feminist philosopher Susan Wolf has argued that the emphasis on individual
autonomy and rights fails to recognize that people are embedded in social net-
works and relations of dependency. A focus instead on the context and history
of the patient, and on her relations with her caregivers, would allow us to explore
alternatives to dying, and focus on improving care (Wolf, 1996).

Utilitarian arguments in favour of assisted

suicide
Perhaps the most obvious argument in favour of physician-assisted suicide is
utilitarian: those who are ill and suffering, and wish to end their lives, will have
their desires satisfied, and be able to end both their physical pain, and their
psychological frustration and helplessness. A utilitarian argument draws no
distinction between allowing someone to die by withdrawing life support (as
in the Cruzan case in the united States, and Bland in britain), and intervening
medically to bring about death. As Singer argues, once we have decided that
death is justified, what counts is how painless and easy that death should be
for the patient, rather than whether it is brought about by acting or ceasing to
act (1993).
once we look beyond the suffering individual, however, it might seem that
the consequences of allowing the practice are potentially very damaging – in
that someone who does not really wish or choose to die may be persuaded to
do so. given this, the safer or more conservative approach might appear to be
to ban the practice. but this assumes, as the philosophers’ brief to the Supreme
Court points out, that a person who is forced to stay alive against their will is not
damaged by this. Rather, the brief argues, preventing people who are mentally
competent from ending their lives, when they believe that to continue living
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contradicts all the principles by which they have lived, ‘grievously and irrevers-
ibly harms such people’ – it does to them a terrible injury (Dworkin et al., 1997).
From a feminist perspective, we might add that this damage is particularly likely
to be experienced by women, who are socialized to accept suffering by a long
cultural history of women’s self-sacrifice (Davis, 1998).
Moreover, as Singer argues, there is no reason to think that allowing
physician-assisted suicide would lead to a slippery slope descent into involun-
tary or forced euthanasia (1993). opponents of the practice often cite the eugen-
ics policies of the nazis as a cautionary warning about where physician-assisted
suicide may lead. but there is no relationship between these cases. The nazi
euthanasia programme was designed with goals of racial purification in mind,
rather than relieving individual suffering. in fact, lines between different types
of euthanasia can easily be drawn, and have been in history. The ancient greeks
exposed infants, but did not kill innocent adults. in any case, given that surveys
of doctors show that some do in fact assist in suicides unofficially (Meier et al,
1998), supporters point out that legalizing the practice would subject it to more
scrutiny, thus ensuring that decisions to die are not made under pressure.

The consequences of legalizing physician-

assisted suicide and the ‘slippery slope’
Some opponents of physician-assisted suicide concede that in individual cases
the wish to die might in fact be interpreted as an expression of the patient’s
autonomy, and therefore a good to them as individuals. nevertheless, the social
consequences of a public policy legalizing the practice would be so damag-
ing that they would outweigh the good of allowing it in particular cases. on
utilitarian grounds, therefore, the practice ought not to be legalized. one danger
of legalizing the practice might be that decisions to die would not in fact be
autonomous – that unscrupulous people, or even well-meaning family members
and physicians, might try to persuade the ill to suicide, against their real wishes.
in addition, removing the prohibition against killing might have a powerful
symbolic effect, allowing others to argue that killing is legitimate in others – in
a slippery slope argument. Arguments about the scarcity of medical resources
might be used to justify recommending euthanasia to the long-term ill. Volun-
tary physician-assisted suicide would soon lead to involuntary euthanasia, where
the ill or disabled are killed without request. Some critics argue that this is in
fact what has happened in the netherlands, since physician-assisted suicide was
legalized (Keown, 1995).
Those who take this position do not always insist that the law should punish
doctors who, in individual cases, assist patients to die out of compassion. tom
beauchamp warns that we should not assume that there is a close fit between a
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Box 7.2 ABortion And euthAnAsiA:
competing norms And vAlues
Debates over abortion and euthanasia debates are generally distinct, and much of the
controversy around abortion centres on the specific issue of foetal personhood. But they
also raise competing interpretations of some key norms and values:

• Liberty and autonomy: Supporters of rights to abortion and voluntary euthanasia

argue that individuals must have the freedom to make decisions about their own
bodies and their own lives. This includes the right to terminate an unwanted
pregnancy and to end life. Opponents counter that individual liberty and autonomy
are not absolute rights, but must be limited by concern about the social consequences
of choices, the duties we owe to others, or higher principles of natural law.
• Equality: Equality is a key norm in the abortion debate. Supporters argue that
women cannot be equal to men unless they are allowed the choice about whether
or not to continue with pregnancy. Radical critics argue that women are not equal
in sexual relations, and thus it is doubly unfair to require them to bear the burden
of unwanted pregnancy. Opponents deny that preventing abortion affects women’s
equality.
• The role of the state: Libertarian supporters of abortion rights argue simply that
women own their own bodies, and the state has no right to intervene in decisions
about them. Similarly, libertarian supporters of the right to voluntary euthanasia
insist that the state has no right to intervene in decisions to end life. Other more
egalitarian liberals argue with respect to abortion that the aim of government
must be a just society, which protects the rights and freedom of women to choose
pregnancy, rather than a society based on common comprehensive moral code.
Critics contend that the state must protect the foetus as it protects the lives of
citizens. Here legalization is a failure of the duty of the state to protect. In the case
of euthanasia, critics fear that legalization will ultimately accord the state too much
power to direct and control the end of life.

moral justification for a doctor assisting death, and a public policy that allows
this (1996). one option here would be to continue the practice that currently
exists, whereby physician-assisted suicide is prohibited, but authorities selec-
tively fail to enforce prohibitions where there is clear agreement among everyone
concerned that euthanasia was morally justified (Velleman, 1992).

Conclusion
because it involves other human life, whatever its status, abortion raises issues
importantly different to euthanasia. yet it is no coincidence that those who sup-
port abortion rights tend also to support a right to voluntary physician-assisted
 S h o u l D t h e S tAt e P R o h i b i t A b o R t i o n A n D e u t h A n A S i A ? | 149
suicide. liberal philosophers who emphasize individual autonomy argue that
the rights and liberties of the pregnant woman to decide her own identity and
to shape her own life override the respect that is owed to developing human life,
at least in the early stages of that development. This is essentially the justifica-
tion for abortion rights in early pregnancy in both the united States and other
countries. Similarly, the argument for autonomy requires that that we respect
the right of individuals to choose, freely and without coercion, to end their lives.
While earlier liberals such as Kant and locke rejected suicide, secular liberal-
ism does not assume that human life is the gift of, and remains ultimately the
property of, god.
The cases against abortion and euthanasia are, however, importantly different.
While opponents of abortion do often claim that the procedure is damaging to
women, the main argument against turns on the status of the foetus as a human
person, with full individual rights. There is no way satisfactory to both the pro-
choice and pro-life sides of determining whether or not the foetus is a person,
simply because there is no agreed upon full set of criteria for what makes a per-
son (rather than a form of human life). in the case of euthanasia, however, claims
about the possible negative social consequences of legalization are much more
commonly made than arguments about the limits of autonomy. The difference
between these issues is also a difference between two different models for the
ways in which political decisions are made. because arguments about negative
effects can be responded to by attempting to control those effects, public delib-
eration about euthanasia – at least in the form of voluntary physician-assisted
suicide – is likely to continue. in the case of abortion, despite the attempts of
those like Dworkin to find common ground, policy will reflect not deliberative
decision-making, but rather the success of one side or the other on the competi-
tive stage of electoral politics.
8

Should Offensive
Speech Be Regulated?
● The civil liberTarian argumenT againsT regulaTing speech
● Freedom oF speech and good selF-governmenT
● democraTic selF-governmenT and The case againsT oFFensive speech
● Freedom oF speech ‘righTs’ versus The communiTy ‘good’
● Free speech versus The recogniTion oF culTural minoriTies
● oFFensive speech and personal harm To group members
● conclusion

Freedom of speech is a widely accepted central principle in liberal democracies,

but debates regularly surface over its limits. Should it encompass all speech –
even that which attacks fundamental democratic or egalitarian principles? The
paradox of this liberal right is that it allows people to call into question the very
political system that guarantees it and all other rights. The growing pluralist and
multi-ethnic nature of democratic societies from the last century onward, and
the increase in claims by ethnic and cultural groups for collective rights, which
we discussed in Chapter 3, have led to new challenges to freedom of speech.
Should it extend to curtailing the liberty with which people make statements and
claims, or use names and epithets to insult or vilify others on the basis of their
race, gender, ethnicity, religion or sexual orientation?
This question was forcefully and most recently brought home to liberal
democratic states in January 2015, when two men identifying themselves as
Islamist terrorists forced their way into the Paris offices of French satirical
magazine Charlie Hebdo and opened fire. They killed twelve people and injured
eleven others, before being killed by police. The magazine had a long history of
satirizing religion, including Islam, and in 2006 had been sued unsuccessfully
by a Muslim organization under French hate-speech laws after publishing a
satirical picture of the prophet Muhammad. These were reprinted cartoons from
the Danish newspaper Jyllands-Posten, which in 2005 published a series of 12
editorial cartoons satirizing Islam and the Prophet Mohammed. At first Dan-
ish Muslim organizations protested, and then demonstrations spread amongst
Muslim immigrants in western countries, as the cartoons were reprinted around

150
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the world. Muslim activists targeted Danish embassies, boycotted Danish goods
and protested outside the embassies of other countries which had published the
cartoons. While most protests were actually peaceful, by February 2006 there
were increasing threats of violence both in Muslim countries and in the west,
and demonstrations became violent. over 100 people were killed. The response
of western governments was mixed: British, european and American leaders
maintained the right to freedom of speech, and condemned the violence; though
as the situation escalated they increasingly conceded that the cartoons were
indeed offensive. Western media organizations insisted upon their right to pub-
lish material satirizing religions, claiming that Christianity was subject to satire
without restriction. Public opinion in western liberal democracies was generally
critical of Muslim immigrants for allegedly failing to understand western norms
and values around freedom of speech, and for placing loyalty to their religion
above their civic commitments to their newly adopted home countries.
The cartoon’s controversy reflected deep social anxieties about immigration
and assimilation. But it and the Paris attacks also raise the issue of whether
freedom of speech is an absolute right, or whether it should be constrained by
the demands of cultural pluralism and sensitive relations between majorities and
minority ethnic and religious groups. After the Charlie Hebdo shootings, mil-
lions of people demonstrated in public in France and other western countries in
support of free speech. As we shall see, most liberal democracies balance a gen-
eral commitment to freedom of speech with restrictions upon statements which
are designed to provoke hatred or resentment on the basis of membership in
particular minorities. The Danish cartoon case called into question the extent of
these restrictions, and the legitimacy of the balance – making clear how different
it looks from the perspective of members of minority groups. Many defenders of
the cartoons felt that they were mild and inoffensive, while Muslims argued that
they deeply insulted their religion.
In this chapter, we examine the way political philosophy deals with the prob-
lem of offensive speech. This is a broad category, but here we will focus on two
of its most controversial forms: speech which offends members of minority
groups, and ‘hate speech’, which is designed to stir up hatred against minority
group members. hate speech is almost always offensive to its targets, but not
all offensive speech is designed to incite hate, as we shall see when we consider
the Salman Rushdie case. offensive speech broadly understood is of course only
one aspect of freedom of speech – we have already examined the related issue
of pornography in Chapter 5, and we will consider freedom of speech and other
civil liberties in the context of the terrorist threat in Chapter 9. our discussion
here also relates to the more general claims of minority cultural groups which
we examined in Chapter 3. We focus in this chapter on what happens when the
claims of minority groups to equal rights and recognition come up against well-
entrenched western rights to freedom of speech.
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Most european countries, as well as Canada, Australia and new Zealand, have
passed legislation criminalizing speech that amounts to the vilification of racial
and ethnic and in some cases other groups. This has been in part a response
to the rise in xenophobia and race-related tensions that countries with large
immigrant populations have experienced since the 1980s. States must balance
their commitments to human rights, under the united nations Declaration
on human Rights, which specifies the right to freedom of expression, with the
requirements of the International Convention on the elimination of all forms
of Racial Discrimination (CeRD). CeRD, which entered into force in 1969,
requires states under Article 4 to: … declare an offence punishable by law all
dissemination of ideas based on racial superiority or hatred, incitement to racial
discrimination, as well as all acts of violence or incitement to such acts against any
race or group of person of another colour or ethnic origin, and also the provision
of any assistance to racist activities, including the financing thereof…. european
union members agreed in 2007 to make incitement to hatred or violence against
a person on the basis of race, ethnicity or colour a criminal offence across the
eu. european states also follow Article 10 of the european Convention for the
Protection of human Rights and Fundamental Freedoms, which guarantees
freedom of speech as essential to the development of democracy. The european
Court has interpreted this to mean that some restrictions to speech may be
necessary in a democratic society, and that this includes the right to restrict hate
speech directed against religious, racial and ethnic groups.
The balance between guaranteeing free expression and preventing the expres-
sion or incitement of racial hatred inevitably reflects current politics. In the
wake of the Charlie Hebdo shootings, French police stepped up arrests for incit-
ing religious and racial hatred. But it also tends to depend upon the historical
place of freedom of speech in their legal systems, and upon the national history
of minority treatment. In countries with relatively recent constitutions, free
expression tends to be interpreted in the light of recent history. The german
Basic law stipulates that freedom of speech is limited by, among other factors,
‘the inviolability of personal honour’. This has been interpreted to include the
honour of groups, and the expression of hatred against a minority is a criminal
offence. nine european countries, including germany, Austria and France, have
passed laws which make denial of the historical fact of the holocaust a criminal
offense. These have been upheld by the european Court of human Rights as a
justifiable limit on freedom of expression. In 2006, author and holocaust denier
David Irving was sentenced to jail in Austria under this legislation, based on a
speech he gave in 1989. More general legislative prohibitions on racial vilifica-
tion tend to be interpreted to reflect the continued relevance of freedom of
speech as a basic principle. Denmark, norway and Sweden, for example, all pro-
hibit hate speech, defined as speech which threatens or insults groups defined
on the basis of race, ethnicity, religion and sexual orientation. In Denmark,
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however, the Public Prosecutor held that the anti-Muslim cartoons did not
constitute a criminal offence, because they dealt with matters of public interest.
The right to freedom of speech must be taken into account, he concluded, when
assessing whether or not a violation of the Criminal Code had taken place.
The dominance of freedom of speech is even more marked in the united
Kingdom, where it is a fundamental principle in the light of which others must
be interpreted. The British commitment to freedom of expression dates from
the religious conflicts and Civil War of the mid-seventeenth century, when it
was famously defended by the poet John Milton in his pamphlet Areopagitica
(1644). Increased racial diversity in Britain as a result of post-Second World War
immigration has meant the balancing of this fundamental right with the need to
prevent racial and ethnic conflict. The Race Relations Act of 1976 and the Public
order Act of 1986 made ‘incitement to racial hatred’ an offence. The limitations
of this legislation, which addressed only racial and not religious groups, became
apparent in the Salman Rushdie case. In 1998 Rushdie, an Indian–British author,
published the novel The Satanic Verses, which contained an unflattering depic-
tion of a character modelled on the Muslim prophet Mohammed. The issue
in this case was offence to the sensibilities of a group, rather than incitement
of hatred towards them. Muslims condemned the book as blasphemous, and
protests broke out against Rushdie and his publishers in the uK and abroad. In
February 1989, the Supreme leader of Iran, the Ayatollah Khomeini, issued a
fatwa calling for the death of Rushdie and his publishers.
Political leaders and the press in Britain and abroad strongly defended the
right to publish the book. As in the Danish cartoons case nearly a decade later,
Muslim immigrants were criticized for failing to integrate and subscribe to
western values such as freedom of expression. They countered that it was unjust
that Sikhs and Jews, but not Muslims, were protected from ridicule aimed at
inciting racial hatred. Moreover, blasphemy laws in Britain protected Christian-
ity (as defined by the Church of england) but no other religion (Parekh, 1990,
57). This was rectified in 2006 when the Racial and Religious hatred Act was
passed, making the intentional incitement of religious hatred an offence. like all
uK legislation, the Act must be interpreted in the light of the human Rights Act
(1998) guarantee of freedom of expression.
Some religious groups have been among the strongest critics of laws that limit
speech critical of religion. These laws cover not only the criticisms of sceptical
secularists, but also attacks by some religions against others, as we see in a recent
case testing offensive speech regulation in Australia (see Box 8.1).
In Canada, freedom of speech is protected under the Charter of Rights and
Freedoms (1982). Canadian legislation on offensive speech protects more groups
than similar laws in other countries: advocating genocide or inciting hatred
against any particular group – defined as being based on race, ethnicity, colour,
religion or sexual orientation – is a criminal offence under the Criminal Code.
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Box 8.1 Freedom oF speech in social
media
Online or cyberbullying is a recent and alarming special category of hate speech, which
is targeted particularly at young people using social media. The global social networking
site ask.fm, based in Latvia, was linked in 2013 to several suicides (nine reported
by mid-2015) by teenagers who had received bullying messages on the site. These
comments were not usually focused on race, ethnicity or religion, but rather referred
to personal characteristics and physical appearance; they were personally abusive and
openly expressed hate against the site users they targeted. Organizations investigating
this phenomenon estimate that at least one in three young people using social media
have been bullied online.

• This form of hate speech is particularly difficult to investigate, as users of social

media can hide behind anonymity. Campaigns to end cyberbullying have thus
focused on those who own and run the websites. The British Prime Minister has
called for people to boycott sites such as ask.fm if they do not ‘clean up their act’.
• In 2013, ask.fm announced a series of changes designed to allow it to detect bullying
content earlier, and to require users to register with their full contact details.

• Legislation designed to prevent cyberbullying has been considered in several

countries. The US state of California has passed a law allowing schools to discipline
students who engage in the practice. However, a New York State law criminalizing
cyberbullying was struck down in 2014 by the New York Supreme Court as
unconstitutional. New Zealand’s Harmful Digital Communication Act of 2015
requires web hosts or publishers to respond within two days to complaints by people
offended by comments about them or pictures of them posted online. If the material
remains public, victims can complain to an independent agency, and if the matter
isn’t settled, criminal charges can be brought against the poster of the comments or
pictures, and the web host. Some in the media protested that the Act would have a
chilling effect on satirical and critical comment in the online media.

The law provides exceptions for cases of truth, matters which are the subject of
public debate, and religious doctrine. Freedom of speech is protected under the
Canadian Charter of Rights and Freedoms (1982), which guarantees freedom of
expression. The Canadian Supreme Court considered the relationship between
these racial hatred provisions and constitutionally protected freedom of speech
in the 1990 case R. v. Keegstra, in which a high school teacher was charged
with promoting hatred towards Jews. The Court upheld the constitutionality of
the Criminal Code provisions, finding that the prohibition against hate speech
was aimed at ‘fostering harmonious social relations in a community dedicated
to equality and multiculturalism’. It followed that speech did not have to lead
directly to violence in order to be exempted from protection; it was enough that
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it caused damage and harm to its targets, and caused racial, religious or ethnic
tensions within broader Canadian society.
Quite a different approach has been taken in the united States to regulating
offensive speech. The united States has no legislation against racial vilification
or incitement to racial hatred because of the crucial role of the First Amendment
to the Constitution, which states that ‘Congress shall make no law …. abridging
the freedom of speech or of the press’. The united States signed, but never rati-
fied, CeRD, because of its concerns about the implications of Article 4. Because
the Supreme Court is charged with interpreting the Constitution in the united
States, much of the American debate concerning freedom of speech centres
on its decisions. While some regulation of speech has been upheld if it applies
generally, the courts have rejected both content-based restrictions of speech
(those which target, for example, particular racist content) and viewpoint-based
restrictions, which prohibit only the expression of a particular viewpoint (such
as white supremacy, or anti-Semitism). Apart from the well-recognized cases
of ‘falsely shouting fire in a crowded theatre,’ established by the Supreme Court
in the Schenck case of 1919, personal libel and obscenity (see Chapter 5), the
only class of exceptions are those cases where the speech prohibited is what the
Supreme Court calls ‘fighting words’ likely to result in immediate violence. This
was established in 1942 by the Supreme Court in the Chaplinsky case, which held
that fighting words (in that case ‘damned fascist’) did not have enough social
value to justify protection under the First Amendment. The social interest in
order and morality outweighed the interest in freedom of speech. Initially, this
line of reasoning led the Court to refuse protection to hate speech. In the 1952
Supreme Court case of Beauharnais v. Illinois, an Illinois law making it illegal to
publish or exhibit any material which suggested that a group of people based on
race, colour, creed or religion were criminal, or otherwise immoral, was declared
to be constitutional. The Court described speech of this kind as a group libel,
which was dangerous to the peace and well-being of the state, and not protected
by the First Amendment.
Beauharnais has been undermined, however, by subsequent cases. The land-
mark decision is the 1978 Supreme Court case of National Socialist Party of
America v. Village of Skokie, where the Supreme Court held that an American
nazi group was entitled to march through the suburb of Skokie in Chicago, an
area with a large population of Jewish holocaust survivors. The fighting words
exception of Chaplinsky was restricted to personally insulting epithets which
were likely to lead directly to violence, and held not to apply in this case. The
Skokie decision affirmed that the First Amendment protected free expression of
even extremely offensive and unpopular views. In Brandenburg v. Ohio, a 1969
case involving the KKK and anti-Black and anti-Semitic speech, the Supreme
Court had held that the state cannot punish inflammatory speech unless it
immediately incites lawlessness or violence. The Supreme Court upheld this
position again in 2011, in a case in which homophobic protesters had picketed,
156 | A P P ly I n g P o l I t I C A l t h e o R y
with offensive signs, the funeral of a gay serviceman killed in Iraq (Snyder v.
Phelps). The uS Supreme Court’s position is actually similar to that of legislative
provisions in other democracies, in that speech can be regulated because of its
consequences. The difference is that it requires that those consequences include
an immediate violent response, rather than the promotion of hatred or ill-feeling
against groups.
The issue of freedom of speech resurfaced in the united States in the 1980s
and 1990s with the proliferation of university and college campus speech codes,
which prohibited speech offensive to particular – usually racial or ethnic –
groups. universities justified the codes on the grounds that offensive speech
encroached upon the equal rights of minority students to their education, and
that regulation was necessary to ensure a civil environment in which all students
were equally able to learn. Some prohibited only action, but many extended to
speech which victimizes or stigmatizes individuals on the basis of their race,
ethnicity, religion, sexual orientation or other group affiliation. Civil liberties
groups opposed the codes, arguing that freedom of speech was essential to aca-
demic endeavour, and that racist speech should just be combated by more speech
in opposition (Downs, 2005).
The most fundamental problem raised by legislation and court cases deal-
ing with offensive speech is how to balance liberty with other political values.
offensive or hate speech is often referred to as a hard case, because one of the
common defences of freedom of speech – that the exchange of ideas enables us
to discover the truth – might seem to apply less to this kind of expression. This
is what the united States Supreme Court meant in Chaplinsky when it described
offensive speech as having low social value. Critics argue that hate speech is an
exercise in the freedom of its perpetrators at the expense of the equality of its
targets. It also pits the individual liberty of speakers against a common good, or
against democratic politics.
As we shall see, the contested balance between liberty and equality reflects
debates between libertarian and egalitarian political philosophers, as well as
disputes over the meaning of equality. Should egalitarians focus on ensuring that
everyone has an equal legal right to speak, or on making sure that everyone feels
equally included and worthwhile, and therefore able to speak? underlying this
is the question of what poses the greater danger to individual freedom: the law,
or the opinions and attitudes of others? We might also see offensive speech as
a problem in reconciling individual rights with a common good, such as social
cohesion. Should individual rights always take precedence over considerations
of the social good, or do these rights in fact depend upon shared moral beliefs?
offensive speech also raises the question of whether we should value an
abstract right to freedom of speech independently of the effects, both psycho-
logical and social, that it might have. Arguments in favour of freedom of speech
are both deontological (in that they appeal to what is right) and consequential-
ist (Scanlon, 1972), while most arguments for regulation focus on the negative
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consequences of offensive speech. Because freedom of expression continues to
be such a centrally important value in liberal democracies, even those that allow
exemptions for offensive speech because of its damaging effects require the state
to consider whether or not the circumstances and nature of the speech justify
prohibiting it as offensive. And those who argue against exemptions for offensive
speech often concede its negative social effects but argue that to make exceptions
for it might lead to eroding the central principle of free speech. We have exam-
ined similar ‘slippery slope’ arguments with respect to euthanasia in Chapter 7.
I begin here by outlining the civil libertarian argument against prohibiting offen-
sive speech. We then turn to the various arguments in favour of limiting speech.
Most of these are based upon the effects of offensive speech upon the good of the
community, or upon individuals or the groups to which they belong. Because of
these negative consequences, critics argue, such speech is of low value, and does
not deserve protection. A few scholars go further and challenge the deontologi-
cal defence of freedom of speech, arguing that it’s mistaken to talk in terms of a
fundamental right to freedom of speech at all.

The civil libertarian argument against

regulating speech
The argument against regulating speech is based upon the fundamental liberty
of the individual and upon the positive consequences of freedom of speech for
both the individual and the community. Freedom of speech is good for society
because it produces more vigorous debate and engagement, in which good and
true ideas are more likely to emerge and to attract supporters. But it is also essen-
tial to individual freedom and autonomy – our capacity to direct and shape our
own lives. We must all choose and commit to our own beliefs and values, and if
the state regulates the expression of our opinions, it prevents us from expressing
who we truly are. The eighteenth-century german philosopher Immanuel Kant
argues along these lines that the public use of reason was essential to individual
autonomy (Kant, 1991), and this has become a fundamental tenet of modern
liberalism.
Kant is addressing legal prohibitions on freedom of speech. John Stuart Mill,
who published his famous and influential defence of freedom, On Liberty, in
1859, is concerned not only with the dangers of state censorship, but also with
the censoring powers of public opinion, which deters people from developing
their own views. Mill defends freedom of speech because it will strengthen true
opinions and weaken false, and because it is essential to individuality. Mill argues
that being freely able to express oneself is an essential part of being a free and
autonomous individual: ‘It is desirable … 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,
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there is wanting one of the principal ingredients of human happiness, and quite
the chief ingredient of individual and social progress’ (Mill, [1869] 1989, 57).
Freedom of thought and expression are necessary for individuals to develop
their own selves. We might call this ‘expressive liberty’. It is this relationship
between freedom of speech and individual autonomy that Rawls has in mind
when he describes freedom of expression as one of the basic liberties guaranteed
equally to all by his first principle of justice (1971).
In addition to guaranteeing individual autonomy, Mill contends that freedom
of speech would lead to the discovery and acceptance of the truth: ‘But the pecu-
liar evil of silencing the expression of an opinion is, that is robbing the human
race; posterity as well as the existing generation; those who dissent from the
opinion [expressed] 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’ ([1869] 1989, 20). opinions that are
true should of course be able to be expressed. Those that are false will only be
proved so and discredited if they are subject to public debate. And in the case of
opinions which are partly true and partly false, open debate is required to sort
out the truthful from the false elements. It is this position which underlies the
common contemporary argument that offensive speech is best countered not by
censoring, but by more speech – so that debate and discussion ensues in which
the better opinion (or the truth) is likely to triumph (Sunstein, 1995).
Another quite different argument made for more speech, rather than restric-
tions upon it is made by postmodernist theorists; the case here is based not on
the best way to reach ‘the truth’, but on the belief that the meaning of words is
always shaped by context and performance. Judith Butler contends that hate
speech can be better neutralized when it is ‘mimicked’ ironically by its recipients,
so that its meaning changes, and it loses the power to damage (1997). A good
example of this is the adoption of traditionally derogatory terms for minority
groups by group members themselves, in order to redefine them and take own-
ership of them away from racists and bigots.
of course, if freedom of speech were to cause direct harm to others, such as in
cases of incitement to violence, it could not be defended from a liberal perspec-
tive no matter what its relation to autonomy and truth. After all, the purpose of
the state for liberals is fundamentally to protect our security and safety. Some
supporters of the regulation of hate speech do in fact cite the harm it does to its
targets, as we shall see below. But liberals are careful to restrict harm to dam-
age which is direct, and which is to the interests of individuals, rather than to
their sensibilities or feelings. As we saw in the liberal case against regulating
pornography and prostitution, merely being offended by speech or conduct is
not enough to justify banning it (hart, 1963). As Mill argues in On Liberty, the
only justification for state intervention or regulation is to prevent the individual
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from directly harming others ([1869] 1989). Mill’s views, we should note, assume
that our sentiments and feelings are not deeply related to our identities as moral
beings. As Kant puts this, individuals deserve respect because they are agents
who can make moral choices, and choose their ends – their purposes, goals and
affiliations in life ([1785] 1993). It is not those purposes, goals or affiliations in
themselves which are worthy of respect. our feelings can be hurt without hurt
being done to our real selves.
Critics might argue that while encouraging full and fair public debate is neces-
sary for true and good ideas to defeat wrong and bad ones, this does not apply
in the case of offensive speech. This speech makes no arguments or reasoned
claims, and we might conclude that it is of little social value. Civil libertar-
ians respond that speech which deals with political matters, or issues of public
concern, including race relations, cannot be considered low value, even if it is
offensive (Sunstein, 1995). This, as we have seen, was the approach taken by the
Danish authorities in the case of the cartoons, and has been followed by the
courts in the united States, Britain and Australia. It was the basis of the Supreme
Court’s decision in the Skokie case.
Civil libertarians also point out that restrictions on speech might be used
to ban public expression by or from the perspective of minorities targeted by
offensive speech. Freedom of speech, particularly concerning public matters,
has been an important tool for minority groups to use in making their political
case, a point often made about the Civil Rights movement in the united States.
Banning the speech of oppressed minorities in the past made it more difficult for
them to make and garner support for their political cases (Karst, 1990). gays and
lesbians, for example, have been persecuted when they ‘come out’ and declare
their sexuality openly (Rubenstein, 1994). From this perspective, the chief threat
to individual liberty is the state representing censorious majorities, and it is dan-
gerous to grant it the power to make judgments about which speech should be
tolerated and which should not. We might see this as a particular application of
Thomas Scanlon’s argument that the Millian principle of freedom of speech rests
upon the need to balance the authority of governments, rather than the rights of
individuals (1972). The state is not a neutral and objective institution, and may
ban speech necessary to the freedom and autonomy of just those minorities who
demand a ban on the offensive speech of others. A similar argument can be made
along Marxist lines, as I discuss below.
While civil libertarians are suspicious of allowing the state to determine
whether speech is legitimate or not, they do not necessarily oppose – indeed,
most support – the goals of inclusiveness and equality that critics of offensive
speech support. As Kent greenawalt concludes, direct commitment to positive
values of equality and prohibitions against discriminatory behaviour, rather than
speech, are better ways for governments to show their support for equality than
silencing speakers (1995).
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Freedom of speech and good self-government
So far we have focused on the defence of freedom of speech from the perspective
of both individuals and minority groups. But it is also important, as we have seen
Mill argue, from the wider social perspective of the requirements of a demo-
cratic society. Most obviously, democratic government requires public debate
and discussion, and restrictions on freedom of speech might easily be seen
to obstruct that process. (We consider a counterargument made on the same
grounds in the next section.) Ronald Dworkin suggests that free speech is neces-
sary because it ensures that everyone has an equal chance to influence the politi-
cal process, the laws and mores under which they live (2000). Sexists and bigots
don’t have the right to have their views institutionalized, or even respected, but
they do have the right to express them (Dworkin, 1996). Dworkin addresses the
difficult balance between liberty and equality by arguing that freedom of speech
is justified on egalitarian grounds: everyone has an equal right to be heard and to
participate in and influence politics. This includes what Dworkin calls ‘the right
to ridicule’. According to this view, the Danish cartoons should not have been
censored, although, as he points out, this does not mean that every newspaper
had a duty to print them, as they were available on the web. Free speech does
not mean the public has the right to see whatever they want wherever they like
(Dworkin, 2006). From this perspective, freedom of speech protects individuals
not only from the imposition of state-sanctioned official views, but also from
the ‘tyranny of the majority’ – the chief danger of democratic politics, at least
as Mill saw it. It also, as Robert Post argues, allows citizens to feel that they are
participating in the legislative and policy-making process, and this ensures that
the laws are perceived as legitimate (1991).

Democratic self-government and the case

against offensive speech
While Dworkin believes that citizenship entails the right to express whatever
unpopular views we like, other liberal philosophers distinguish between speech
which is necessary for democratic politics, because it contributes to democratic
deliberation – the reasoned, public and inclusive discussion of political issues –
and speech which subverts or undermines deliberation. Political philosophers
today increasingly understand politics in democracies as a deliberative process,
rather than a competition for political power between elites representing organ-
ized interests (Cohen, 1989; Dryzek, 2000; gutmann and Thompson, 1996). This
view emphasizes the way in which political views are shaped, influenced and
changed as a result of public debate. Some speech, we might argue, prevents or
corrupts everyone’s ability to participate in democratic deliberation. This is cer-
tainly true of personal libel, which is proscribed speech, and of ‘fighting words’
 S h o u l D o F F e n S I v e S P e e C h B e R e g u l At e D ? | 161
which are likely to provoke immediate violence. We might also argue that offen-
sive speech prevents democratic deliberation by undermining the equal respect
of citizens. If we take this position, we agree with Mill that the most important
threat to individual freedom comes not from the state, but from other citizens.
The threat here is not necessarily the power of a majority, however. even the
hateful speech of a few can undermine the self-respect of minorities. Moreover,
such speech often does not contain reasoned arguments or claims, so will add
nothing to the search for the truth.
Some American legal and political philosophers have developed these argu-
ments to support a distinction between speech which deals with matters of
public concern, and should be protected under the First Amendment, and non-
political speech which may be restricted if there is a social interest in doing so.
This distinction is recognized in other democracies which exempt matters of
public concern from hate speech laws. While the arguments I describe in this
section focus on the uS Constitution, the issues they raise about the relation-
ship between democratic society and free speech apply much more widely. As
we have seen, the european Convention for the Protection of human Rights has
been interpreted to allow restrictions on speech as they are necessary to sustain
a democratic society.
Alexander Meiklejohn argued that the First Amendment was designed not
to maximize individual autonomy, but rather to protect the speech necessary
to serve common needs by ensuring that citizens would make good democratic
decisions (1965). The state should function as a ‘parliamentarian,’ setting the
rules for open and fair debate. owen Fiss claims similarly that it is a mistake to
see the First Amendment as a guarantee of individual autonomy – its purpose
is rather to enable the public debate necessary for collective self-determination
(1996). In order to carry this out, the state must be able to manage the terms of
public engagement. It may legitimately restrict some speech in order to enhance
the relative voice of others, because the key aim of politics is to achieve a rich
and informative public dialogue. Citizens must therefore have access to all the
options, and be able to judge and make decisions. Insulting speech interferes
with the speech rights of minorities, discouraging them from participating in
the deliberative activities of society. Members of minority groups withdraw into
themselves and are effectively silenced (Fiss, 1996).
A similar argument is made by Cass Sunstein, who also interprets the purpose
of the First Amendment as being the protection of popular sovereignty and dem-
ocratic government (1995). Free speech concerning political or public matters is
necessary to deliberation, because people will only be able to consider alternative
views if they are exposed to a diversity of opinions. But this does not necessarily
mean that non-political speech must be protected so carefully. Sunstein points
out that much free speech now available is trivial and sensationalized, rarely
dealing with public issues in depth. Dissenting views rarely get a hearing – not
because of legal limits on freedom of speech, but because commercialization
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dominates the market of ideas and opinions. government regulation of speech
may therefore be justified precisely in order to promote free speech as part of a
deliberative democracy. The rules for regulating speech should be: do any regu-
latory rules promote greater public attention to public issues? Do they allow a
diversity of viewpoints to be heard?
While Sunstein allows that it is difficult to define what constitutes political
speech, he argues that we can distinguish between hate speech which consists
simply of epithets and name-calling, and hate speech that makes an argument –
however prejudiced that argument may be. The former is clearly ‘low-value
speech,’ and should be amenable to regulation, while the latter should be pro-
tected, however offensive or injurious to the self-esteem of targeted groups it
may be. Again, this distinction is reproduced in national laws (such as Den-
mark’s) that allow otherwise prohibited hate speech if the speech deals with
matters of public concern. It means that arguments alleging, for example, the
natural inferiority of people of colour or women would be protected under free-
dom of speech, while public taunting with racist or sexist names would not. This
is despite the fact that these forms of expression might be equally offensive to a
black person or a woman.

Freedom of speech ‘rights’ versus the

community ‘good’
The case we’ve considered for regulating offensive speech on the basis of good
self-government and deliberative democracy draws our attention back to the
relationship between speech and the community in which it is heard. Commu-
nitarian theorists take this a step further by arguing that freedom of speech can
only be meaningfully discussed in terms of the moral values of the community,
rather than the rights of the individual. This is part of a broader challenge to
the liberal emphasis upon individual rights over communal understandings of a
common good. Communitarians argue that rights-based liberalism is mistaken
in its ontology (its view of what the person is) and consequently misunderstands
the way individuals act in politics. ‘Political liberals’ understand that individu-
als are members of communities with shared conceptions of the good, but they
believe that people may bracket or set aside these moral values in public life,
committing instead only to more minimal political values, such as individual
rights. Rawls sets out this view when he argues that his principles of justice are
those shared across overlapping conceptions of the good (1993). Communitar-
ians do not accept this separation between what is politically ‘right’ and what is
morally ‘good’ (MacIntyre, 1981, Sandel, 1982). Michael Sandel argues that the
debate over freedom of speech demonstrates the relationship between rights
and the goods rights protect (2005). Free speech absolutists try to sever the link
between the right and the good by protecting freedom of speech independently
 S h o u l D o F F e n S I v e S P e e C h B e R e g u l At e D ? | 163
of the moral value of what is expressed. American courts express this in their
rejection of content-based restrictions on speech.
once we recognize a connection between moral discourse and freedom
of speech, we might go on to argue from a communitarian perspective that
free-speech rights should be balanced against the moral values of the commu-
nity. These considerations were explicitly taken into account by the Canadian
Supreme Court in the Keegstra case, and led the Court to uphold a hate-speech
law banning speech inconsistent with Canada’s commitment to equality and
multiculturalism (1990). opinions and positions are not to be treated equally –
those consistent with broader social purposes and values merit protection,
while those subversive of societal values do not. Content-specific restrictions
on speech can thus be justified, and liberal democratic societies may prohibit
the racist speech of nazis, for example, but not the expression of civil rights
protesters. We might note that arguments against the absolute nature of freedom
of speech that appeal to the way a community good shapes and gives mean-
ing to free speech could potentially justify more extensive restrictions than the
racial vilification laws on the books in most western states. They allow the state
to take into consideration the values of specific communities in a historical
context when considering offensive speech. We might thus justify legislation
against holocaust denial because, although it is not explicitly racial vilification,
it could be said to contradict any reasonable conception of a good enshrined
in a state that has in the past been guilty of supporting the persecution of Jews
and other minorities. In the case of campus speech codes, we might argue (as
universities did) that a supportive environment promoting learning for people
of all ethnicities and races is a fundamental good in university and college com-
munities. Insulting speech which compromises this basic value may therefore
be proscribed. (In practice, the courts have focused instead on whether or not
direct harm is caused to individuals by offensive speech.)
All of the above assumes that the interests of minorities must be balanced with
a fundamental right to free speech. But what if there is no such fundamental and
absolute right? Stanley Fish has controversially made this case (1994). Freedom
of speech in Fish’s view is not an ideal to be balanced against a community good –
rather it is a weapon used in the conflict between competing goods and aims,
which makes up politics. In There’s No Such Thing as Free Speech… And It’s a
Good Thing Too, Fish argues that free speech is not independently valuable, but
rather is a political prize: ‘Free speech is just the name we give to verbal behavior
that serves the substantive agendas we wish to advance’ (Fish, 1994). We have
already noted that all legal jurisdictions recognize exceptions to free speech,
including libel, incitement to violence and fighting words. Fish argues that affir-
mations of freedom of speech are defined by the inevitable exceptions for which
they provide. Where people stand on freedom of speech, and the exceptions they
are willing to recognize, reflect their conception of the good. Thus campus hate-
speech codes may be defended on the grounds that learning is the substantive
164 | A P P ly I n g P o l I t I C A l t h e o R y
purpose of the university, and freedom of speech, while advanced as a value,
is tolerated only as long as it is compatible with learning. The alternative to an
absolute guarantee of freedom of speech, Fish concludes, is politics: the struggle
over different moral conceptions and over the right to define what is and is not
acceptable in a given society. It is a mistake to put our faith in ‘apolitical abstrac-
tions’ like freedom of speech.
Fish’s argument that free speech is a counter for supporters of one moral view
or another to use in politics is in itself ideologically neutral, but it has a family
resemblance to Marx’s critical view of the relationship between liberal rights
and freedoms and political power. Marx’s On the Jewish Question was written
in response to the demand by Jews that equal civil rights be extended to them
([1843] 1978). he argued that civil rights and liberties, including freedom of
speech, could lead to political emancipation for minorities, but it could not
break the stranglehold of the system of property relations over society and indi-
vidual lives. Civil liberties would be used as a tool by the property-owning class
to reinforce their power, under the guise of applying equally and universally to
everyone. It was only when the real power relations generated by unequal own-
ership of property and capital had been changed that civil rights and freedoms
would really be available equally to all. Marx’s analysis also parallels the critical
argument made against pornography as a form of speech by feminist theorist
Catharine MacKinnon (1995). As we saw in Chapter 5, MacKinnon contends
that freedom of speech impacts differently depending on the relative power
of the group speaking. Those who are relatively powerful will be able to use
free speech to maintain their position, and to enforce the inequality of others.
I discuss MacKinnon’s work in more detail below.

Free speech versus the recognition of cultural

minorities
The communitarian case that freedom of speech must be in the service of the
moral good of the community also underlies multiculturalist concerns about
offensive speech. From this perspective, pluralist societies committed to rec-
ognizing and respecting the rights of cultural minorities may be justified in
banning offensive speech, because it fails to treat cultural minorities as equal
members. Bhikhu Parekh has argued that this was behind the angry Muslim
response to Salman Rushdie’s The Satanic Verses in Britain in 1989 (2006; 1990).
Muslims felt that their concerns about how their religion was represented were
not taken seriously in British society, and that this reflected broader attitudes
of marginalization. They pointed out that the fact that the offence of blasphemy
only applied to Christianity suggested that other religions were not equally
legitimate and worthy of respect.
 S h o u l D o F F e n S I v e S P e e C h B e R e g u l At e D ? | 165
It’s apparent from this that freedom of speech here was not an absolute right,
but was meaningful in a material social context, in which some people were able
to take advantage of it, and some were not (Parekh, 1990). The Rushdie affair
clearly demonstrated that demands for freedom of speech must be understood
within their political context. Those who criticized British Muslims for not sub-
scribing to western civil liberties went on to suggest that Muslim immigration
into Britain should be reduced because immigrants were failing to assimilate.
This tapped into a xenophobic anti-immigrant discourse that had emerged in
the 1970s in Britain, and reflected deep suspicions and tensions between the
majority and minority ethnic groups. Similarly, hate-speech cases in the united
States and other pluralist democracies have led to protests and unrest on the
part of minority ethnic and racial groups – most notably in the Danish cartoons
case. The Canadian Supreme Court recognized the threat posed by hate speech
to multicultural equality in the Keegstra case. These are societies and cultural
environments quite different to that faced by Mill when he justified free speech
to protect the eccentric and intellectual individual in the much more homogene-
ous society of mid-victorian Britain.
Parekh argues that the crime of libel, a well-recognized exception to freedom
of speech, should be extended to group defamation (2006). In most countries,
libel applies when the individual reputation of the target has suffered damage,
rather than the reputation of the group to which she belongs. But as Parekh
points out, libel is a crime not because it injures the feelings of the victim, but
rather because it damages her public reputation and social standing. It is a social
crime. The reputation and social standing of racial, ethnic and other groups can
also suffer as a result of insulting speech, and this affects individuals because they
are, as communitarians argue, socially embedded: their sense of self-worth and
self-respect depends partly on the standing of their communities. Communal
libel is objectionable, Parekh argues, because it is a form of social and political
exclusion, a declaration of hostility against a social group. These are in fact the
arguments used to justify the laws in many countries against racial vilification
and inciting racial hatred. There is no reason, Parekh contends, why these laws
should lead to a slippery slope extension of controls on freedom of speech.
Personal libel laws have not done so, and the distinction between libel and fair
critical comment should be easy to maintain in practice.

Offensive speech and personal harm to group

members
underlying concerns about the damage offensive speech does to cultural groups
and communities is the argument that such speech damages individuals. A pow-
erful case can be made for prohibiting offensive speech on the grounds that
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it injures both its targets and others who belong to the same group. We have
already examined one of these arguments, in the anti-pornography writings of
feminist philosopher Catharine MacKinnon (1995). As we saw in Chapter 5,
pornography is defended in the united States on the grounds that it is free
expression protected under the First Amendment. MacKinnon argues that por-
nography causes real harm to women, by legitimizing violence and sexual abuse.
Where it is freely available, men are more likely to abuse women, and women live
in fear of male abuse and come to internalize assumptions about their inequal-
ity, and about the legitimacy of sexual exploitation. hate speech can be seen as
causing psychological harm in similar ways to its targets. These arguments were
made in the Skokie case, and are one of the reasons used to justify the racial
vilification laws in many western states. MacKinnon contends that because
words cause this direct damage, they should not be treated by the law as if they
functioned differently from actions (1995).
A critique of offensive speech has been developed along these lines in the
last couple of decades by critical race theorists – an important new movement
that emerged in legal scholarship, and has been influential upon political theo-
rists (Matsuda et al., 1993). Critical race theorists are sceptical about claims to
objectivity, neutrality and colour-blindness on the part of the law. They contend
that legal principles and rules, as well as the legal system, reflect instead racial
inequality. The experiences of racial minorities are crucial because from them
we can gain an ‘experiential knowledge’ which provides a basis for analysing law
and society – it allows us to see the lived experience of racism (Matsuda et al.,
1993). Critical race theorists argue that the experience of victims shows that an
attack upon a racial group in general is experienced as a direct and personal
attack by members of that group. This supports the communitarian claim that
people feel their identities and self-esteem are in part dependent upon the sta-
tus of the communities to which they belong (taylor, 1994). victims of ‘vicious
hate propaganda’ experience physiological symptoms and emotional distress,
‘ranging from fear in the gut to rapid pulse rate and difficulty in breathing,
nightmares, post-traumatic stress disorder, hypertension, psychosis and suicide’
(Matsuda et al., 1993, 24). Matsuda contends that the victims of hate speech are
restricted in their personal freedoms. They live in fear. In order to avoid offensive
speech, they have to quit their jobs, drop out of university and leave their homes.
Minorities must also watch their own governments intervening to support hate-
ful speakers, an experience that further alienates them from the societies in
which they live. The damage done by hate speech is overwhelmingly done to
its targets. But it also impacts upon the majority: those who are associated with
minorities are also damaged and made to feel inferior.
From the perspective of minorities we see that offensive speech is in fact
‘assaultive speech’, which silences, intimidates and subjects to psychological
and physical trauma victims. Those who use such speech are ‘racist assailants’
(Matsuda et al., 1993). If we follow MacKinnon’s argument here, there is no
 S h o u l D o F F e n S I v e S P e e C h B e R e g u l At e D ? | 167
Box 8.2 regulating oFFensive speech:
competing norms and values
Much of the debate around regulating offensive speech turns on different interpretations
of rights, freedom and autonomy, and the common good:

• Rights: Public argument against regulating offensive speech often cites the
fundamental individual right to freedom of expression. But supporters of regulation
argue that members of minority groups who are the targets of such speech have rights
not to be harmed by offensive speech – particularly speech that incites racial hatred.
• Freedom and autonomy: Opponents of regulation argue that freedom of
expression is fundamental to human liberty and autonomy. Moreover, being able to
express one’s view in public and participate in public debate and conversation are
essential aspects of being a free citizen. Supporters of regulation argue that freedom
of speech is never absolute, and always subject to some limits (for example, speech
that incites violence is not protected in liberal democracies). Our freedoms must be
compatible with the freedoms of others – and here, the freedom and autonomy of
the speaker must be balanced with the effect that the speech has on the autonomy
of its targets.
• The common good: Opponents of regulating offensive speech argue that the
circulation of a full range of views and opinions is necessary for a healthy society.
Censorship stifles social change and progress, and while hate speech may not
contribute substantively to this end, allowing the state to prohibit it will ultimately
allow it to gag the expression of views favourable to minorities. Supporters of
regulation argue that offensive speech, particularly hate speech, alienates minorities
and exacerbates racial and religious tensions. It prevents open and democratic
deliberation about politics. Some argue also that unrestricted freedom of speech is
damaging to the moral values that hold a society together.

reason to distinguish racist speech from actions which may be prohibited by law.
In practice, critical race theorists accept a distinction between assaultive speech
and statements of opinion about the alleged inferiority of one or another racial
group. The key element justifying prohibition is the expression of hatred, or calls
for persecution. This is the standard adopted by most democratic societies in
their anti-racial vilification laws.

Conclusion
While the commitment to freedom of speech continues to occupy a central role
in the constitutions of liberal democracies, and is affirmed in all major interna-
tional human rights documents, an international norm or principle is gradually
emerging that exempts speech expressing or inciting racial hatred, vilification
168 | A P P ly I n g P o l I t I C A l t h e o R y
or persecution from protection in most cases. The united States is unique in
remaining outside this consensus. Most countries balance freedom of speech
with concerns about promoting equality, democratic government and multicul-
turalism, thus reflecting the new political realities of increased ethnic, cultural
and religious pluralism in liberal democratic nations. When Mill published his
famous defence of freedom of speech in 1859, he was not speaking to a nation
composed of large and mobilized cultural minorities able to make public claims
for equality.
of course, as we have noted throughout our discussion, this new norm pro-
vides only for a balance. Anti-racial vilification laws do not allow for the ban-
ning of offensive speech in most cases if it is held to refer to matters of public
or political concern. They did not prevent the Danish cartoons controversy. For
some who support the regulation of offensive speech, it is tempting to try to find
the perfect legislative wording that would prohibit hate without encroaching
upon individual expression or vital public debate. Critics of free speech absolut-
ism remind us, however, that political principles and values do not operate in
an ideal world. They are inextricably part of and reflect the real-world political
context of plurality, difference and the competition for power. As we saw in both
the Rushdie and the Danish cartoons case, the controversy over offensive speech
was only part of a deeper divide about the role and status of Muslim minori-
ties in western societies. governments and courts cannot pre-empt or avoid
this or any debate about cultural pluralism, by either regulating or refusing to
regulate speech.
9

Should Civil Liberties

Be Restricted in
Responding to the
Threat of Terrorism?

● Liberty and security: framing the debate

● state power and the protection of citizens
● the dangers of state power
● the democratic process and checks on executive power
● the fundamentaL roLe of Liberties
● the seLective impact of anti-terrorist measures on minorities
● security and Liberty: criticaL perspectives
● concLusion

Since the terrorist attacks of September 11, 2001 in the United States, a raft
of new measures designed to control and prevent terrorism has been passed
into law in democratic states. The USA Patriot Act, passed shortly after the
attacks, was among the most controversial, but similar legislation was enacted in
the UK and other European and Commonwealth countries. To varying degrees
these anti-terrorist laws extend the powers of governments to monitor citizens;
they make customary legal protections granted to those accused of criminal acts
unavailable to individuals accused of involvement in terrorism, and they further
restrict the rights of foreign nationals. Some legislation has also created new
criminal offences around expressing support for terrorism, and belonging or
giving money to groups which may in any way be associated with terrorism. In
addition, recent leaks have revealed practices of extensive surveillance of citizens
in some western countries, which are not democratically authorized by legisla-
tion. I discuss these in Chapter 10.
In the immediate aftermath of September 11, there was strong popular support,
particularly in the United States, but also in other countries for governments to
169
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do ‘whatever it takes’ to reduce the threat of terrorism, and many of these laws
were passed in haste and with little debate. But in the years since, there have been
increasing concerns about the ways in which they infringe civil liberties; extend-
ing the powers of the state and restricting individual freedom – the cornerstone
of liberal democratic societies. In this chapter we examine whether or not dimin-
ishing civil liberties is justified by the threat of terrorism. We begin by surveying
some of the key anti-terrorist measures that have been introduced by national
governments, and then explore the different ways in which philosophers have
analysed and evaluated the relationship between public security, the threat of
terrorist violence, and rights and liberties. In some ways this raises a familiar
and long-standing political problem. Balancing individual rights with security
for all is a fundamental challenge for modern democratic societies, underlying,
for example, the way criminals and those accused of crimes are treated, the way
the state responds to demonstrations and protests (see Chapter 10) and whether
or not citizens should be permitted to own guns. But it has become particularly
pressing in the twenty-first century.
Specific legislation on terrorism already existed before 2001 in a range of
countries which had direct experience of terrorist violence, including the
United States, Israel, the UK, germany, France and Italy. The scale of the 2001
attacks was characterized as unprecedented, however, and the anti-terrorist
legislation that followed them was justified in terms of the need to protect lib-
erty and democracy, and national ways of life. There was strong pressure on the
American Congress from the Bush Administration to pass emergency measures
immediately to deal with the threat. The USA Patriot Act was signed into law
in late october 2001. Its provisions which affect civil liberties fall into three cat-
egories: those expanding surveillance of citizens, those diminishing the rights
of non-nationals and those dealing with support for terrorist groups. Among
the most controversial of its provisions were those which modified the Foreign
Intelligence Surveillance Act, expanding the powers of the state to undertake
surveillance of citizens, without judicial oversight. The Act empowered the FBI
to search telephone, email communications, medical, financial and other records
of anyone suspected of involvement in terrorism, without a court order, and
with only the authorization of a ‘national security letter’ issued by the FBI itself.
State officials were authorized to conduct ‘sneak and peek’ searches of homes
and businesses well in advance of obtaining warrants that notified the subjects
of their searches. The FBI was empowered to demand that books, papers or
records used or produced by individuals under investigation for involvement in
terrorism be made available by third parties – a provision strongly objected to by
public libraries. roving wiretaps were permitted, which allowed the FBI to con-
duct wide-ranging and open-ended searches of electronic communication. Both
sneak and peek searches and roving wiretaps were declared unconstitutional by
the US District Court in 2007 in Brandon Mayfield v. USA.
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 171
The Patriot Act also tightened laws around immigration and the rights of non-
nationals. Foreign nationals deemed by the Attorney general to be engaged in
any activity dangerous to US security may be detained for seven days before they
are arrested or deportation proceedings are begun. If they cannot be deported,
they may be detained indefinitely. In the third category of restrictions on civil
liberties, the Act creates an offence of ‘domestic terrorism’, which, according to
the American Civil liberties Union, threatens to define protesters as terrorists if
they engage in activities potentially dangerous to life. It broadened the range of
organizations that could be designated terrorist and provided for the detention
of anyone, citizen or foreign national, who contributes money to even the peace-
ful activities of any group designated as terrorist. Providing expert advice and
assistance to such organizations was declared to be illegal. This provision was
found by the US Court of Appeals (in Humanitarian Law Project v. Gonzales) to
be contrary to the First Amendment’s protection of freedom of speech.
There has been strong opposition from civil liberties groups to all of these
measures, and more generally to the extending of the powers of the execu-
tive branch of government, without judicial oversight. Some proposals were
abandoned after public outcry – including the Total Information Awareness
Program, and the Terrorist Information and Protection System, which would
have allowed systematic collection and analysis of mass information about
individuals, and encouraged people to inform on the apparently suspicious
doings of their neighbours. In another controversial extension of executive
power, a Presidential Military order issued shortly after the attacks allowed
for the detention without trial of terrorism suspects and enemy combatants,
suspending habeas corpus (the right of citizens not to be detained without a
court warrant, long recognized in liberal democracies and protected by the US
Constitution). Foreign nationals have been held at the US naval Base at guanta-
namo Bay, Cuba. The Supreme Court subsequently upheld (Hamdi v. Rumsfeld)
the constitutional right of US citizens to seek habeas corpus, even if detained as
unlawful combatants. In 2008, in Boumediene v. Bush, the Court extended this
right to non-citizens.
Despite considerable opposition from civil liberties groups, the Act was reau-
thorized in 2005 and 2006, with those provisions not overruled by the courts
intact, on the grounds that the United States was engaged in a continuing war
against terrorism. Further measures were added, including providing the death
penalty for terrorists, new measures to combat the financing of terrorism and
new powers for the Secret Service. In 2011, President obama signed a four-
year extension for some provisions of the Act that were due to expire, including
roving wiretaps, searches of business records and ‘lone wolf surveillance’ – the
monitoring of individuals not linked to terrorist groups, but suspected of ter-
rorist activities. In 2015, Congress passed the USA Freedom Act, which con-
tinued Patriot Act measures, but prevented the national Security Agency from
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continuing its programme of mass telecommunication data (meta-data) collec-
tion (see Chapter 10). now the nSA will only be able to collect data relating to
targeted suspects with a court order. This measure had been recommended by
the Privacy and Civil liberties oversight Board, created in 2004 by the Intel-
ligence reform Act of 2004.
Anti-terrorist provisions existed in the UK prior to 2001, as a result of the
experience of IrA terrorism. The Prevention of Terrorism Act, which gave
emergency powers to the police, was passed in 1974, after the Birmingham
pub bombings killed 21 people. It was renewed several times, and in 2000, the
Terrorism Act recognized that anti-terrorist measures were to be permanent.
After the September 11 attacks, the Anti-terrorism, Crime and Security Act
was signed into law in December 2001, only a month after it was introduced to
Parliament. The most controversial aspect of the British legislation concerned
detention of non-nationals: the Act provided that any non-British citizens sus-
pected of involvement in terrorism could be indefinitely detained and deported.
This suspension of habeas corpus effectively renounced Article 5 of the Euro-
pean Convention on human rights (EChr), which specifies that no one is to
be deprived of their liberty unless they are brought before a court. The British
government invoked Article 15 of the EChr, which exempts states from their
obligations under the Convention ‘in time of war or other public emergency
threatening the life of the nation’. It was the only signatory to the Convention to
rely on this provision to justify anti-terrorist legislation. In 2004, the law lords
considered a case in which a terrorist suspect had been held without trial for
two years, and held that the detention provisions did indeed violate the EChr.
There was no observable state of emergency existing in Britain. Moreover the
law was discriminatory, as it applied only to aliens, and not to British citizens
suspected of involvement in terrorism. This section of the Act was replaced in
2005 with the Prevention of Terrorism Act, which replaced detention in prison
with control orders that allowed for extensive conditions to be placed on the
movements of suspected terrorists, amounting to a form of house arrest. These
could be applied to British citizens and non-citizens alike. But in 2007, the high
Court found that these orders also amounted to a deprivation of liberty contrary
to Article 5 of the EChr.
like the Patriot Act, the British legislation provides for increased surveillance:
the secret services or police were empowered to request any information from
government agencies necessary to pursue or investigate suspected terrorists. The
police could also demand physical features like fingerprints from individuals to
ensure their identity. Telephone companies and internet providers had to retain
data on communications. Further restrictions on civil liberties were imposed by
the Terrorism Act of 2006, which followed the london bombings of July 7, 2005.
This Act made it an offense to glorify or encourage terrorism, and extended the
period a suspect could be held without trial to 28 days. An attempt to extend
this to 42 days in 2008 was voted down by the house of lords. nevertheless,
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 173
Box 9.1 Deterring home-grown
fighters for terrorist
organizations aBroaD
Western governments have watched with alarm as ISIS, a radical Islamic group, seized
control of large sections of Iraq and Syria from 2014, using terrorist tactics such as
mass executions and videoed beheadings. They have also been increasingly concerned
as their own citizens travelled abroad to fight for ISIS. The UN estimated in mid-2015
that 25,000 overseas fighters have now joined ISIS in Iraq, Syria, Libya and Yemen. Most
of these are from Middle Eastern countries, but an estimated 700 came from Britain,
100 from the United States, and 100 from Australia. In response, several countries have
passed laws to deter and punish their citizens who actively support terrorism abroad.

• Australia passed the Foreign Fighters Bill in 2014, which allows the government
to cancel passports and declare certain regions off-limits for Australian travellers.
The government cancels the passports of Australian citizens fighting in foreign
insurgencies, and is currently considering legislation revoking the Australian
citizenship of dual nationals in these circumstances. The government is also
considering a proposal to strip Australians who do not have other nationalities of
their Australian citizenship, where the government believes that they would be able
to apply for citizenship of another country. France also allows the stripping of French
citizenship from dual nationals who have engaged in terrorism. These laws are a
modern form of the ancient practice of banishment, which has generally in modern
times been reserved for citizens who fight on the side of foreign states with whom
their home state is at war.
• The UK Counter-Terrorism and Security Act of 2015 allows the government to
confiscate the passports of British citizens suspected of planning to travel overseas
to engage in terrorism, and to ban temporarily the return to the UK of a British
national suspected of terrorist activity abroad.
• Human Rights organizations and international lawyers argue that the removal of
citizenship provisions in laws passed are too general and inclusive, for what should
only be a remedy of last resort. International law (the 1961 Convention on the
Reduction of Statelessness) requires that persons not be stripped of citizenship
where to do so might leave them stateless – the requirement that they merely
be eligible to apply for citizenship elsewhere is insufficient. Moreover, the UN
Declaration on Human Rights provides that nationality is a right, and no one shall
be arbitrarily deprived of their nationality.

the UK has the longest period of pre-charge detention of all liberal democracies.
The Counter Terrorism Act of 2008 allowed police questioning of suspects after
they have been charged, and requires convicted terrorists to notify the police of
their whereabouts. The 2015 Counter-Terrorism and Security Act, among other
provisions (see Box 9.1), required internet service providers to retain data which
would allow individuals to be matched to internet use.
174 | A P P ly I n g P o l I T I C A l T h E o r y
other European countries passed anti-terrorist legislation in the wake of the
2001 attacks. The Council of Europe Convention on the Prevention of Terror-
ism of 2006 created three new offences: public provocation to commit a terrorist
offence, solicitation of others to commit a terrorist offence and providing train-
ing in terrorism. These provisions were all, however, made explicitly subject to
the right to freedom of expression protected in the EChr. Along with the UK,
France and germany, both of which passed security packages of exceptional
anti-terrorist measures in late 2001, have been singled out by human rights
groups for their curbs on civil liberties. legislative changes allowed personal
records like bank accounts to be monitored and required internet service provid-
ers and phone companies to keep records. law enforcement officials were given
greater power to conduct searches. In 2015, germany substantially restricted the
right to travel abroad to receive military training (see Box 9.1). In 2005, France
passed legislation which vastly increased the power of the state to conduct elec-
tronic surveillance, including closed-circuit cameras, the recording and moni-
toring of internet activity, and the retention of data that must be supplied to the
state. The period of detention of terror suspects without charge was increased to
six days, and the crime of ‘associating with miscreants’ was created – which crit-
ics claimed would criminalize those who frequented the same cafes as suspected
terrorists. In 2015, after the Charlie Hebdo attacks (see Chapter 8), France passed
legislation allowing intelligence agencies to tap the phones and internet commu-
nications of anyone linked to a terrorist inquiry without a court order.
Anti-terrorist laws in Australia and Canada have similarly been singled out
by critics for their impact on civil liberties. In Canada, the Anti-terrorist Act
was rushed through in December 2001, and includes several provisions which
critics have argued are contrary to the Canadian Charter of rights and Free-
doms. As well as increasing the surveillance powers of the police, the Act allows
terrorism suspects to be arrested and held without charge for up to 72 hours,
and authorizes judges to compel witnesses to testify in secret. Its controversial
‘motive clause’ defined as a terrorist act a crime committed with ideological,
religious or political motives. The ontario Superior Court struck down this
provision in 2006 on the grounds that it violated the Charter of rights and
Freedoms. Unlike the US Patriot Act, the Canadian legislation provided for
judicial review of surveillance orders and for some more controversial provi-
sions to expire after five years. nevertheless, critics complained that it was over-
broad, and would define illegally striking workers or peaceful anti-globalization
protesters as terrorists. In 2015, Canada passed legislation increasing the pow-
ers of the Security Intelligence Service, and making preventative detention for
suspected terrorists easier.
Australia passed the Anti-Terrorism Act of 2005 in response to bombings
in 2002 and 2005 in Indonesia that killed a number of Australians. The Act
allows for the detention of individuals thought to be able to provide information
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 175
about a terrorist offense, whether or not they were suspected of being involved
themselves. Disclosing that an individual had been detained was made a crime.
Control orders issued without judicial review allow restrictions on individuals
suspected of involvement, their free movement, their association with others
(including their lawyers) and their movements, including wearing tracking
devices. It is a crime under the law to praise a terrorist act, to urge others to
attempt to change the law by illegal means or to provide funds for any aspect
of a terrorist organization without enquiring into its purposes. Police were
empowered to request information from any source about any named person –
professional privilege did not apply. Critics have complained that the Austral-
ian legislation doesn’t have the same provisions for parliamentary and judicial
review as its British counterpart. This was particularly dangerous given that
Australia has no constitutional bill of rights, nor any legislative charter of rights.
In 2014, new legislation made it crime to advocate terrorism in Australia.

Liberty and security: Framing the debate

In Chapter 8 we looked at the relationship between freedom of expression for
individuals on the one hand, and various ideas about what constitutes a good
society on the other. As we saw, powerful arguments for regulating individual
free expression are made on the grounds that unrestricted offensive speech
threatens the fundamental democratic and egalitarian character of a society.
In the case of anti-terrorist legislation, the very survival of a society is invoked
to legitimize arguments for diminishing individual rights and freedoms. What
are the liberties under threat here? As we have seen in our survey of national
legislation, they include freedom of movement, expression and association, as
well as rights that establish how individuals are to be treated by state authorities:
rights to privacy, to be treated with due process, and the right not to be detained
without trial. Following David luban, we might distinguish between powers, or
substantive liberties – the right to do something, such as join a group or visit a
website – and protections, which are liberties from state mistreatment (2005). In
this chapter, however, we will follow the convention of grouping these together
as civil liberties. This concept covers both freedoms and rights, in the sense that
individuals have rights to be free from various forms of state interference or
mistreatment. John rawls takes a similar approach when he argues at the begin-
ning of A Theory of Justice that all citizens are to have an equal right to the basic
liberties (1971).
We begin by acknowledging common assumptions. All those involved in
the debate over terrorism and security in democratic societies recognize the
importance of civil liberties. Even those who defend restrictions claim that
their ultimate purpose is to preserve freedom and democracy in some broader
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sense. Similarly, political philosophers in liberal democracies share in the com-
mon popular condemnation of terrorist attacks, and agree that states must take
some measures to protect their citizens. The question at stake is whether these
measures may include restricting civil liberties on the grounds of maintaining
national security. In public debate this issue is usually framed in terms of the
need to ‘strike a balance’ between individual liberty and security. As we shall
see, however, several political philosophers have criticized the applicability of
the idea of balancing. Critics focus also not only on the restrictions themselves,
but on the way in which they were passed into law. Many anti-terrorist laws have
been accused of being formulated and pushed through in haste, so that they were
not subjected to suitable scrutiny (haubrich, 2003).
We begin by examining arguments which support security measures despite
the restriction of civil liberties they involve. The most commonly made case
here is consequentialist: that the consequences of terrorism are so damaging that
restrictions on liberties, while unfortunate, pale by comparison. But as we shall
see, scholars also argue that these restrictions are necessary in order to maintain
the very political system and order upon which liberty depends. We then turn
to critical perspectives, some of which also emphasize consequences, focusing
on the dangers that follow from allowing states to gain more extensive powers.
As we shall see, however, critics also argue that fundamental human rights and
liberties are at the basis of all systems of order, and that therefore there can be
no legitimacy in a political system which denies them. Some argue more specifi-
cally that the security measures are unjust because they impact differently upon
different groups. Both sides of this debate require us to think about the purpose
of the state, and the relationship between justice and order, both of which are
perennial and central questions of political theory.

State power and the protection of citizens

Before the terrorist attacks of 2001, the relationship between liberty and security
had not been a central concern in recent Western political theory. Both liberal
philosophers and their critics had for the most part focused on the relative rights
of individuals, civil associations and the state, but had assumed the relation-
ships between them to operate within the context of a stable and secure society.
rawls limits his principles in A Theory of Justice, for example, to well-ordered
societies, and in the later The Law of Peoples restricted his scope to peaceful,
legitimate and non-expansionist governments (1971; 1999). one of the effects
of the attacks and their political aftermath has been to bring questions about
security back into normative political theory. Most political philosophers have
responded to this, as we see below, by asserting the fundamental importance of
civil liberties. But some have defended restrictions on liberties on the grounds
of the protective role of the state. From this perspective, all normative political
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 177
arguments presume the need for a secure state, because it is only in the context
of civil order that we can develop principles of justice.
From the emergence of the modern state, which historians date from around
the seventeenth century, the power and authority of government have been justi-
fied on the grounds that it is essential to maintaining order and stability. It’s in
the interests of individuals to agree to a concentration of power in the hands of
the state in order to protect their security, as they would be unable to effectively
protect themselves on their own. Social contract theorists of the seventeenth
and eighteenth centuries suggested that individuals come together in a ‘state of
nature’ to form government, in a social contract made in order to ensure their
own protection. The pre-eminent theorist of this position is Thomas hobbes,
who wrote during the English Civil War – the bloody struggle between Parlia-
ment and the royalists. In his Leviathan, published in 1651, hobbes describes
human life in the state of nature, without government, as being dominated by
each individual’s insecurity and constant fear of others. Under these conditions
life was, as hobbes famously put it, ‘solitary, poor, nasty, brutish and short’
([1651] 1962). only the establishment of a single and all-powerful authority
would protect individuals from each other, and allow them to live free from
fear, and to cooperate, work together, make contracts and develop civilization
and order. But the state would only be able to offer this protection if it could
command absolute obedience. hobbes argued individuals must obey all of its
commands, with the only exception being for those which were contrary to
self-preservation. Individual self-protection and preservation were the reasons
for which the state had been formed in the first place, and if it threatened them,
individuals were not obliged to obey.
The idea that civil liberties and rules of justice only apply in the context of a
secure society is not restricted to a hobbesian defence of absolute state power.
The eighteenth-century philosopher David hume argued that justice was a mat-
ter of mutual advantage, and when law and order had broken down, or survival
was at stake, its principles ceased to apply ([1751] 1983). During the debate over
the constitution of the new United States in the eighteenth century, Alexander
hamilton wrote: ‘Safety from external danger is the most powerful director of
national conduct. Even the ardent love of liberty will, after a time, give way to its
dictates’ (Madison, hamilton and Jay, 1987). The late American Supreme Court
Chief Justice rehnquist expressed this idea in 1998, when he said that in times
of war, the laws speak ‘with a muted voice’ (1998, 225). As we have noted, some
international agreements such as the EChr include provisions that they do not
apply at a time of national emergency, when the very cohesion and security of
the state is under threat.
From this perspective, as Benjamin Barber observes, the terrorist attacks of
9/11 undid the social contract at least in the United States, bringing Americans
back to a state of nature, characterized by fear, where liberty meant unaccepta-
ble risk (2003). Anti-terrorist laws represent the state’s response: an assertion
178 | A P P ly I n g P o l I T I C A l T h E o r y
of power in order to protect both individual liberties and the common good.
We might note that these extended state powers can as well be justified on the
grounds that they are designed to protect communitarian emphasis upon com-
munal moral discourse and social networks, as it is with individual rights. As
Jean Elshtain argues, civil security is essential for all other goods to flourish
(2003). If some limited civil liberties must be sacrificed in order to ensure secu-
rity, the trade-off is worthwhile, as no liberties and rights could be guaranteed
without it. richard Posner insists that rights are not absolute, but rather depend
upon security (2003). Posner even advocates what he refers to as civil disobedi-
ence, arguing that public officials should, if they think it necessary, refuse to fol-
low human rights rules designed to restrain the state (see below). The difficulty
is in determining, as Posner argues, the point at which the expansion of a right
would detract more from public safety than it would add to personal liberty,
and when restricting a right would detract more from liberty than it would add
to safety. nevertheless, the task of the courts is to determine that point (2006).
The dilemma of how to balance rights with security is avoided if we accept
the consequentialist argument most commonly heard in public debate: that the
damage caused by terrorism is so terrible that protecting people from future
attack obviously outweighs any discomfort caused by restrictions on civil lib-
erties. Those who take this position might invoke the benefits of state action
as described by the late eighteenth-century Utilitarian philosopher, Jeremy
Bentham. Bentham argued that the most important objective of legislation was
security, so that individuals could enjoy the fruits of their labour ([1802] 1931).
From this position, he criticized the various protections of English common law
that had grown up to protect the individual against the exercise of state power.
Such measures could not be legitimate if they hindered the state in protect-
ing individual security. Bentham’s concern here was with criminal law, and he
argued, for example, that the state would be justified in arresting a criminal to
prevent him from committing a future crime ([1802] 1931).
of course, as critics point out, restrictions on civil liberties imposed by anti-
terrorism legislation may be quite substantial to the minorities of citizens who
must endure them. For many in the majority, the measures have very little
practical effect. I discuss these concerns about unequal burdens imposed by
anti-terrorist measures below.

The dangers of state power

hobbes wrote during a period of civil upheaval in England, in which the great-
est source of danger to individuals came from their fellow countrymen. This
is reflected in his reliance on the peace-keeping power of an absolutist state.
But once peace was restored, and as the state subsequently became entrenched
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 179
and increased its power and influence over individual lives, it came to be seen
as a greater threat to individuals. liberal theorists from the eighteenth century
onwards relied more on the liberal philosophy of John locke, who saw the state
as an impartial umpire in disputes among citizens, rather than an absolutist
authority. (For an alternative interpretation of locke’s view of the state, see
below.) locke’s citizens retain the rights to life, liberty and property which they
had in the state of nature, rather than surrendering all except self-preservation
to the state. he established what Judith Shklar has called the liberalism of fear:
the idea that liberalism is primarily concerned with protecting individuals
from state coercion (Shklar, 1989). The worst evil is physical cruelty and the
most dangerous force is an all-powerful state. For these reasons, state power
must be limited (locke, [1690] 1988). In practical terms, what is to be feared,
according to Shklar, are the extra-legal, secret and unauthorized acts of public
officials. The only way to check these is by subdividing political power so there
is always scrutiny and oversight of state action.
Concern about state encroachment on individual liberties has continued to
be a central focus of liberal philosophy since locke. In the nineteenth century
John Stuart Mill defended individual liberty against state interference ([1869]
1989). But for Mill and more recent liberals, the security of citizens has been
treated as a settled question. Some critics suggest now that even those who take a
lockean rather than hobbesian approach must acknowledge that personal safety
is a prerequisite of liberty. Tamar Meisels poses this as a question: how should
lockean liberals respond to a hobbesian state of war (Meisels, 2005)? If we see
state power as threatened by terrorism, with the result that individuals are at risk
from each other (a description of the effects of terrorism that many liberal critics
would challenge,) then we can defend abrogating some civil liberties for reasons
of expedience in times of national emergency. Preventive detention without trial
for a specified period may be justified on the grounds that it takes some time
to amass evidence against suspected terrorists. But national emergency cannot
justify, Meisels argues, giving up procedural liberties which deal with how the
state treats us, for example, our right to be free from torture. From a hobbesian
point of view, these rights are essentially to do with self-protection, and there-
fore are never handed over to the state. From a lockean perspective, the state is
inherently limited and cannot compel us by force to implicate or harm ourselves
(Meisels, 2005).
Some philosophers insist that even terrorism on the scale of the 2001
attacks does not amount to a hobbesian ‘war of all against all’ (goodin, 2006).
robert goodin points out that there was no breakdown of law and order on
September 11, and no social breakdown. We might add, in fact, that there was
evidence of considerable social cooperation in Manhattan in the aftermath of
the attacks, not the least of which was the selfless performance of their civic
duty by public officials like firefighters. Terrorism does not return people to a
180 | A P P ly I n g P o l I T I C A l T h E o r y
pre-social contract state of nature. It leads rather to a war of ‘some against all’,
which, as goodin argues, produces fear, but does not justify on hobbesian terms
the exercise of absolutist power by the state (2006). It is governments which
promote and reinforce that fear by their own actions, in order to reinforce their
own power.
on a more specific level, critics of state power, including several who defend
emergency measures against terrorism, argue that even if we accept the hob-
besian position, there is no justification for restrictions on civil liberties to
continue on a long-term and even semi-permanent basis (Ackerman, 2006;
Ignatieff, 2004; Meisels, 2005). As the British law lords observed in 2004, there
is no evidence that Britain is in a state of emergency, and we might conclude
the same of other democracies. Emergency powers once institutionalized rein-
force the powers of the state over citizens (Dworkin, 2002). For these reasons,
Bruce Ackerman proposes for the United States a limited ‘emergency constitu-
tion’, which allows the President to make executive orders to deal with terrorist
emergencies, but subjects these to legislative review (2006). Michael Ignatieff
argues that some restrictions on civil liberties are an unavoidable lesser evil.
Because they are morally questionable, however, they must be ‘strictly targeted,
applied to the smallest possible number of people, used as a last resort, and kept
under the adversarial scrutiny of an open democratic system’ (Ignatieff, 2004, 8).
recognizing that any state of emergency must be only short term is particularly
important given that it is almost impossible to show that restricting civil liberties
has actually caused a diminished threat from terrorism (Waldron, 2003). Even
if states experience a reduction in terrorist attacks after introducing restrictions,
this could in fact be brought about by other, less controversial measures, such as
increased security at borders.

The democratic process and checks on

executive power
Critics of anti-terrorist measures often point to the way in which they were
passed into law, and the degree to which they are subject to review. As we have
seen, many countries rushed to introduce laws curtailing civil liberties after
September 11, and this meant that they were subject to no process of public
deliberation about them, and little legislative debate. The Patriot Act was passed
only six weeks after it was introduced to Congress, despite the major changes
it brought about in the American government’s surveillance powers, and in the
legal rights of anyone suspected or accused of terrorism (leone, 2003). Crit-
ics who protested in the United States were told that they were giving aid and
comfort to the enemy, and subjecting others to risk of a further attack. Similar
criticism was made of the rush to pass legislation in the UK and in Canada.
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 181
As we discussed in Chapter 8 when we considered the impact of hate speech
on public debate and discussion, the democratic political process requires
debate, discussion and public participation. A climate of fear, desperation and
hate is not conducive to open and thoughtful consideration of the relationship
between liberty and security. like many critics, ronald Dworkin has argued
that the American Congress did not consider the implications of the Patriot Act
closely enough; nor did it insist upon sufficient legislative and judicial review
of its provisions once enacted (2003). goodin goes further along these lines to
suggest that states are themselves guilty of a kind of terrorism in inducing and
promoting fears in the populations, out of all proportion to the actual risk of ter-
rorist attack. They then use these fears to push through legislative programmes
that would never be agreed to were the populations less panicked, and to pro-
mote their own re-election (goodin, 2006).
The absence of adequate provisions for legislative and judicial review of
anti-terrorist measures in much of the legislation passed since 2001 points to a
troubling increase in the power of the executive branch of government, over the
legislative and judicial arms. In democratic societies based on the parliamen-
tary system, we tend to think of the legislature as the most important branch of
government – it’s there that popular sovereignty is embodied, and the executive
is drawn from the legislature. In presidential systems like the United States, the
Constitution provides for power to be shared between the legislative, execu-
tive and judicial branches. The balance between them is designed to prevent
any single one from becoming too powerful, particularly the executive arm of
government, which is responsible for carrying out the law. There is indeed less
of a formal separation between the branches of government in parliamentary
democracies, but in these systems the executive is responsible to the legislature,
and the judiciary may review its actions.
legislative responsibility and judicial review check abuses of power by the
executive, by promoting at least some degree of openness, publicity and demo-
cratic accountability. Civil libertarian Alan Dershowitz relies on this argument
in his controversial defence of the right of the state to use torture to extract
information about terrorist activities and plans. States should only have such a
right, Dershowitz argues, when authorized by judicial warrants (2002). This will
ensure that decisions to torture – which Dershowitz views as inevitable – are not
made and carried out in secret. If they must be authorized by the courts, there
will be greater scrutiny of each case, and more reluctance to allow torture. of
course, the courts in both the United States and the UK have often in the past
deferred to executive decisions concerning what is a legitimate infringement
of civil liberties. one of the most notorious of these cases in the United States
was the Supreme Court’s decision in the Korematsu case of 1944, upholding a
Presidential executive order to intern Japanese Americans during the Second
World War.
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The fundamental role of liberties
The arguments we have considered so far against restricting civil liberties for
security all assume that liberties must be balanced against the role of the state in
guaranteeing personal security. But we might also argue that individual liberty,
autonomy and rights are so important that state action which threatens them
cannot be justified for any reason. According to this view, individuals should be
understood fundamentally as more than bodies that can be hurt; rather, they are
moral agents. As the eighteenth-century german philosopher Immanuel Kant
puts this, people are ‘ends in themselves’, morally valuable for their own sakes,
and defined by their ability to decide on and carry out moral purposes ([1785]
1993). our ability to function as moral actors making autonomous decisions
is protected by the guarantee of civil liberties: the basic liberties of expression,
movement, association and the other protections which ensure that the state
respects our rights. As a result, these rights, liberties and protections are funda-
mental. Dworkin expresses this as ‘rights are trumps’, which means that a pre-
sumption exists that rights will take priority over considerations of consequences
(1984). libertarian philosopher robert nozick takes an even stronger view of
the non-negotiability of rights, arguing that they impose ‘side constraints’ on the
actions of others, which means that they set limits to what is morally permissible
(1974). We might note that the conception of rights advanced in this case has to
be strong, because the potential damage done by terrorist action is so great that
concerns about consequences might easily outweigh rights and liberties.
liberals who take this position are strongly critical of those measures the state
has introduced to combat terror which infringe civil liberties. These include not
only obvious breaches of rights like torture, but also many of the provisions we
surveyed at the beginning of this chapter: the power to conduct surveillance of
citizens, to detain suspects without trial and to deny them access to due process
and proper legal representation, and to criminalize support for the lawful activi-
ties of groups which may be classified as terrorist. Dworkin argues that these
measures are immoral because they breach basic human rights – rights which
are independent of the state, and do not depend upon state security. We have
them because we are human, not because we are citizens, law-abiding or other-
wise (Dworkin, 2003). It’s not appropriate to speak of balancing these rights with
security, as they cannot be bartered away for any purpose. As Dworkin points
out, ordinary criminals retain basic rights in their dealings with the state no mat-
ter what threat they pose to citizens – we do not abandon these rights because of
concerns about state security (2002). In war, where the parties are not bound to
respect the civil liberties of their enemies (a case where rights do not completely
trump consequences) most nations nevertheless accept that there are rules that
regulate what states may do, particularly in their treatment of civilians. (It was to
avoid these rules, of course, that the Bush Administration declared the prisoners
at guantanamo Bay enemy combatants rather than prisoners of war.)
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 183
of course, Dworkin’s reference to civil liberties in wartime does point to the
fact that even if we do not think in terms of consequences, we tend not to regard
rights and liberties in absolute terms. The state may override an individual’s
rights, for example, to protect the rights of others (Dworkin, 1978). In practical
terms, liberal democracies have agreed that rights and liberties can be limited
for national security, territorial integrity or public safety, a caveat expressed in
Article 15 of the EChr.

The selective impact of anti-terrorist

measures on minorities
A further problem with restricting civil liberties to maintain a balance with
security is that those measures which have been introduced operate selectively.
They are more likely to adversely affect non-citizens, and citizens who belong
to ethnic minorities originally from Muslim states, and are regarded as being
more likely to be involved in terrorist activities. racial profiling has been con-
troversially employed in both the United States and UK in investigating possible
terrorism. After the July 2005 bombings in london, the British Transport Police
chief constable said that his officers would not ‘waste time searching old white
ladies’. In the United States, Dworkin claims that no American who is not a Mus-
lim and has no Muslim connections is in danger of any government surveillance
or action (2003). Detention without trial has been imposed disproportionately
upon non-citizens in both the United States and the UK, although the courts in
both countries have now ruled against these discriminatory provisions.
Jeremy Waldron argues that the balance being struck here is thus not between
security and liberty, but between the security of the majority on one hand, and
the liberties of minorities on the other (2003). This is much harder to justify,
given the fact that every person’s life is held to be intrinsically and equally
valuable and worthwhile in liberal democracies. Equal treatment and non-
discrimination are widely recognized principles of human rights, expressed in
the principle that the law applies equally to everyone. We see this embodied, for
example, in rawls’ first principle of justice: everyone has the right to equal basic
liberties. restricting the liberties of some for the security of others amounts to
an unequal distribution of liberties (Moeckli, 2008). We might point out here
that that members of minority groups also benefit from the protection offered
by security measures. But benefits for all are still traded off against the rights of
a few.
of course, it is much easier to take a utilitarian approach emphasizing the
value of security when only the rights of minorities are threatened (luban,
2005). Cass Sunstein points out that the fact that the burden of restrictions falls
overwhelmingly on minorities is an important reason why governments have
not encountered more opposition in pushing them into law (2005). Where
184 | A P P ly I n g P o l I T I C A l T h E o r y
restrictions fall equally upon all, they are much more likely to be subject to pub-
lic debate, and citizens will be forced to consider the realities of the actual risk
that they are introduced to counter. As the political economist and theorist Frie-
drich hayek argued, when restrictions to liberties apply to everyone, it is reason-
able to conclude that they will be kept to a minimum (1962). Sunstein advocates
judicial review of all restrictions on liberties, and argues that the courts should
be relatively lenient in allowing restrictions that apply equally to everyone,
because they can be assumed to have already undergone public scrutiny and
approval (2005). restrictions of liberties that apply only to minorities, however,
should only be permitted if the benefits to all are clear and significant, and the
costs to the few are minor. We might express this in terms of Kant’s dictum that
moral principles should be universalizable (Kant, [1785] 1993) or, as contem-
porary theorists put this idea, that they should be capable of being impartially
defended to others. This would require politicians and citizens to think about the
balance between liberty and security in each specific measure, and would make
any decisions reached more legitimate (Moeckli, 2008). It would not necessarily
rule out profiling if there was a clear link between ethnicity and involvement
in terrorism, but it would require us to defend that link, and to think about its
limits – about characteristics other than ethnicity and religion that also tend to
be shared by terrorists.

Security and liberty: Critical perspectives

Most of our discussion to this point assumes that liberty and security are fun-
damentally opposed and competing values in liberal democracies. Some recent
theorists who adopt a Foucauldian perspective on the state and power (see
Chapter 1) take a more critical perspective on security studies. They argue that
security and liberty are intertwined, and that the liberties of individuals have
always been circumscribed by the state’s drive to protect itself and its interests.
liberty is possible only as it is limited in exceptional conditions (neal, 2010).
Mark neocleous contends that the idea of a ‘balance’ between liberty and secu-
rity is not an obvious good, but rather an ideological device of liberalism, which
obscures liberalism’s central concern with security. In fact, the liberal defence of
civil liberties has long been subordinate to a justification of the right of govern-
ment to act unilaterally when matters of national interest are at stake (neocleous,
2007). neocleous points out that even locke, whose defence of a limited state
we discussed above, allowed that the state had the ‘prerogative’ to take action
where necessary to protect national security. And as we have seen, subsequent
philosophers defending liberty have continued to acknowledge the fundamental
importance of security as the ground upon which liberty rests. This is also the
position of contemporary defenders of at least limited restrictions on civil liber-
ties such as Meisels.
 ShoUlD CIvIl lIBErTIES BE rESTrICTED? | 185
neocleous concludes that restrictions on civil liberties to combat terrorism
do not express the necessary evil of a balance between the competing values of
liberty and security. rather, they reveal the inherent subordination of individual
liberty to state interests, which is inherent in liberal democracies. Although
security is invoked to mean the safety of citizens, it refers in fact to the protection
and preservation of the state. liberal democratic states have frequently invoked
prerogative or special powers to override civil liberties to deal with ‘states of
emergency’. Such measures are justified on the grounds that they are temporary,
but in fact they easily become entrenched and permanent. Security, he con-
cludes, has always been the ‘political trumps’ for liberals – rather than rights, as
Dworkin has argued (1978). Andrew neal argues similarly that counterterror-
ism legislation expresses and enacts the normalization of an ‘exceptional’ state –
infringements on liberty in the name of security are justified as exceptions, but
the state of exception (the double meaning is intentional) becomes the norm as
the emergency that justified it recedes (2012).

Box 9.2 restricting civil liBerties to

comBat terrorism: competing
norms anD values
The debate around civil liberties and anti-terrorism measures centres around competing
interpretations and values assigned to liberty, security and the role of the state, and
equality:

• Liberty: Those who defend restricting civil liberties to combat terrorism argue
that liberties can only be exercised when people do not fear for their lives and
safety. Liberty has no value if security cannot be assured. Critics of restricting civil
liberties counter here that even large-scale terrorist attacks do not constitute the
fundamental breakdown in law and order that makes freedom impossible to exercise.
Some make the stronger case that individual liberties are fundamentally constitutive
of what it means to be a person, and cannot be abrogated.
• Security and the state: supporters of restrictions argue that protecting the security
of citizens is the most essential duty of the state, and anti-terrorist measures are
designed to preserve the safety of individuals, including members of minority groups
targeted by restrictions. Critics counter that anti-terrorist measures exceed what is
required to protect the safety of citizens, and are designed instead to reinforce the
power of the state. Their aim is state security, rather than the security of individuals.
• Equality: opponents of anti-terrorist measures claim that they are unequal in their
application and impact. Members of particular minorities are much more likely to be
targeted, and to have their civil liberties reduced. Many supporters of these measures
are not unsympathetic to this argument. They point out, however, that members of
minority groups also benefit from improved security.
186 | A P P ly I n g P o l I T I C A l T h E o r y
Conclusion
There is more general agreement among political philosophers on the impor-
tance of preserving civil liberties in anti-terrorist legislation than might first
appear. Even those, like Barber and Elshtain, who are uncomfortable with
criticism of the measures introduced by the United States and other countries
to counter terrorism focus more on what they see as the unpatriotic rhetoric
of critics than on their substantial arguments. All agree that civil liberties are
valuable, and that they should not be sacrificed except where there is a clear and
imminent threat of terrorist violence – and then not without careful assessment
of the benefits that sacrificing them brings, and the burden that sacrifice places
upon individuals and groups.
These provisos require us to focus on the way in which decisions about the
extent of individual rights are made in democratic societies. They are particu-
larly important given that the threat of the mass destruction caused by terrorism
is a powerful inducement to think in consequentialist terms, and to regard the
consequences of terrorist violence as outweighing everything else. As American
historian Alan Brinkley has noted, public support for protecting basic freedoms
is highly contingent, and can easily evaporate, as it has historically during war-
time (Brinkley, 2007). Public fear of mass violence may easily be manipulated
by governments in the interests of extending executive power. The debate about
civil liberties reminds us of the dangers and difficulties involved in making sim-
ple consequentialist arguments in policies. As Dworkin reminded us, civil liber-
ties and the rules in place to protect them in liberal democracies are important
because they prevent governments from resorting to the crude sacrifice of some
lives in the name of protecting others (Dworkin, 2002).
10

Is Leaking Classified
Material Justified?

● WhistlebloWing
● Civil disobedienCe
● the rule of laW and politiCal obligation
● Civil disobedienCe on the grounds of ConsCienCe
● CiviC and demoCratiC defenCes of Civil disobedienCe
● the Case for regarding the leaking of Classified materials as Civil
disobedienCe
● against reCognizing the leaking of Classified materials as Civil
disobedienCe
● ConClusion

The rapid development of the internet has fundamentally transformed the

ways in which we connect with each other, and access and distribute informa-
tion, creating new mass public spaces that transcend geographical and national
boundaries. The online revolution has made possible new opportunities for
action on the part of individuals, states and organizations that use the internet
strategically in political campaigning, but it has also made possible new forms
of political action, such as online participatory democracy. In one of the most
controversial examples of the impact of the internet on political action, govern-
ment employees have used their access to electronic data to reveal classified state
security-related policies and activities, with the aim of launching a critical public
debate about them, and ultimately bringing them to an end. The WikiLeaks
scandal and the public disclosures of classified material by Julian Assange,
Bradley Manning, Edward Snowden and others challenge, as we shall see, our
understanding of what kind of protest action against government policies is
legitimate, and under which circumstances. In modern liberal democracies, two
concepts, or doctrines, grant protests against the state legal or moral legitimacy.
The first of these, whistleblowing, has only attracted legislative protection in
many countries in the past 25 years. The second, civil disobedience, cannot by

187
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definition be lawful, but is, however, a long-recognized moral practice, and a
commonly accepted strategy for political reform. Whether or not the disclosure
of classified materials counts as whistleblowing or as civil disobedience, and in
what circumstances, is the theme of this chapter. As we shall see, some similar
philosophical arguments are raised here as those we discussed in chapter 9.
however in that case, the key theoretical problem was the tension between indi-
vidual liberty and national security. In this, the central issue is the relationship
between national security on the one hand, and the moral duties of individuals
and citizens on the other.
WikiLeaks was founded by Australian internet activist Julian Assange in
2006, as an online not-for-profit organization which published news leaks, and
classified material from anonymous sources. Its professed aim was to promote
accountability and transparency in government by publishing secret material,
some highly political, much of it routine. Early material released by WikiLeaks
revealed details of spending on equipment in the Afghanistan war. In 2010,
more direct materials concerning that war and the war in Iraq were released,
provided to WikiLeaks by Bradley (now chelsea, following gender reassign-
ment) Manning, a US army intelligence analyst. These documented deaths as a
result of friendly fire, and civilian casualties. A particularly shocking upload to
the WikiLeaks website was the ‘collateral Murder’ video showing a US military
helicopter gunning down journalists and civilians in Baghdad. Manning down-
loaded almost three quarters of a million documents until his arrest in May
2010, including classified military documents, but also diplomatic cables from
US embassies abroad, and classified files from the guantanamo Bay detention
centre. In 2011 the ‘Spy Files’ were released, including hundreds of documents
from global intelligence contractors involved in mass surveillance. Manning’s
illegally disclosed materials, which have been gradually published by British,
European and American newspapers, constituted at the time the largest security
breach in US history.
The US government called the leaks a threat to national security, likely to
damage national interests and the individuals mentioned in the cables. The
chairman of the Joint chiefs of Staff claimed that they had placed the lives of
US soldiers and Afghan informants in jeopardy. president obama reiterated
that Manning had broken the law – he was charged with breaches of the 1917
Espionage Act – and must face punishment: ‘he broke the law…. We are a nation
of laws. We don’t individually make our own decisions about how the laws oper-
ate’ (2011). In november 2010, US Secretary of State hillary clinton said at
a press conference that the leaks were ‘not just an attack on America’s foreign
policy interests. It is an attack on the international community’ (2010). At the
same time, in the wake of protests against repressive regimes in the Middle East,
clinton praised the role of the internet and digital publishing in bringing about
transparency in government (2011).
 I S L E A k I n g c L A S S I F I E d M At E r I A L J U S t I F I E d ? | 189
Manning was charged with 22 counts relating to the leaks in 2013, including
the theft of classified documents, and communication of them to unlawful recip-
ients. he pleaded guilty to ten of these. In his pretrial statement, he explained
his purpose in releasing the information was to show the American public ‘the
true costs of war’, and ‘to spark a domestic debate about the role of the military
and our foreign policy in general as it related to Iraq and Afghanistan’ (Manning,
2013). Manning was convicted of 20 charges, including seven under the 1917
Espionage Act, which until then had been used only against those involved in
actual spying, rather than leaking information about spying. he was acquitted,
however, of the most serious charge under this legislation, aiding the enemy,
which would have carried the death penalty. Manning was sentenced to 35 years
in prison.
A second key unauthorized disclosure case involves Edward Snowden, a for-
mer cIA employee and government contractor who leaked to journalists from
British and American newspapers classified information from the US national
Security Agency (nSA) in 2013. Snowden’s leaked documents revealed global
surveillance programmes including substantial surveillance exercised by the US
government over the electronic communications of citizens. he also revealed
thousands of documents from US allies (Britain, canada, Australia and new
Zealand) shared with the United States as part of the ‘Five Eyes’ intelligence
sharing programme. This in turn revealed electronic surveillance of their own
citizens by the Australian, British and canadian governments (and surveillance
by new Zealand of their citizens abroad). The number of documents and files
Snowden disclosed has been estimated at well over a million, and publication in
the media continues. Snowden claimed that the nSA’s activities were contrary
to the US constitution (the Fourth and Fifth amendments, prohibiting unrea-
sonable search and seizure, and guaranteeing due process) and Article 12 of the
Universal declaration of human rights. he also claimed that political parties
and human rights organizations did not move the issue to the top of the political
agenda, so his action was the ‘last resort’ (Snowden, 2013). In May 2013, before
his identity was made public, Snowden left the United States for hong kong, and
fled from there to russia. The United States charged him with offences under the
Espionage Act, cancelled his passport, and demanded that he return home to
face charges. Snowden has been granted permission to stay in russia until 2017.
Manning and Snowden have been hailed as heroes by many on the left of
politics, and reviled as traitors on the right. The governments affected by their
disclosures have maintained that they were not justified. however, they have had
some demonstrable effects on intelligence practices and legislation: following
Snowden’s revelations, in december 2014, the Uk’s Investigatory powers tribu-
nal found that the gchQ had not contravened Articles 6 and 8 of the European
convention on human rights by collecting data on Uk citizens in secret. In
2015, though, the tribunal declared that any collection of data done before that
190 | A p p Ly I n g p o L I t I c A L t h E o r y
ruling had been illegal (Liberty and Others v. the Security Service, SIS, GCHQ,
2015). In June 2015, the US congress passed the USA Freedom Act, which
ended the nSA’s ability to collect the phone data of Americans unless there is
reason to suspect them of involvement in terrorism.

Whistleblowing
Both Manning and Snowden and others disclosing classified information are
commonly referred to as whistleblowers, although as we shall see, it is doubtful
that the material they disclosed and the methods they employed qualify them
to be recognized as such under most legal definitions. Whistleblowing occurs
when those with insider knowledge of the misconduct or illegal or unethical
behaviour of an organization, usually the state or a large corporation, make
their knowledge public, outside the procedures for disclosure authorized by
the organization. The kind of behaviour that whistleblowers reveal normally
involves breach of laws, or threats to the public interest, or corruption. Legisla-
tive protection of whistleblowing is not absolute – when it relates to private
organizations, the right of disclosure must be balanced with corporate interest.
When it relates to the state, rights must be balanced with national security, and
intelligence-related employees are nearly always exempted from protection.
Moreover, in almost all legislation, specific procedures are set out which whistle-
blowers must follow.
Very few countries had legislation dealing with whistleblowing before 1990,
with the exception of the United States. In 1778, two sailors alleged misconduct
on the part of the continental navy. In the furore following the arrest of the two
whistleblowers, the continental congress passed a resolution providing that it
was citizens’ duties to report ‘misconduct, frauds or misdemeanours’ committed
by state officials (we might note that in an interesting parallel, the misconduct
in this case was inhumane treatment of British prisoners of war). The congress
went on to authorize payment of the legal expenses of the sailors who had led
the petition (continental congress, 1908, 72). Later on, the 1863 False claims
Act or Lincoln Law imposed liabilities on people who attempted to defraud the
government. It was strengthened by amendment in 1986 and given whistleblow-
ing provisions, after which it was used primarily against overcharging defence
contractors, and then against health-care fraud. The Act paid rewards to those
who blew the whistle on fraud, and provided employment protection to them.
The 1978 civil Service reform Act invokes the constitution to protect public
disclosures by public employees. As robert Vaughn has commented, this statute,
passed in the aftermath of the Watergate scandal, marked a key transition in the
legal recognition of whistleblower protection in the United States (2012, 239).
The US Whistleblower protection Act of 1989 protects federal employees who
report government agency misconduct. This legislation was strengthened by the
 I S L E A k I n g c L A S S I F I E d M At E r I A L J U S t I F I E d ? | 191
Whistleblower protection Enhancement Act of 2012, which explicitly referred
to the need to protect intelligence employees who ‘disclose wrongdoing that
directly affects national security’. president obama issued presidential policy
directive 19 later that year to apply the legislation particularly to intelligence
agency employees with access to classified information, although there is some
dispute over whether Snowden, a contractor, would have been covered even had
he followed the prescribed procedures.
Legislative protection for whistleblowers in other countries is uneven. France
passed a law in 2013 protecting those making disclosures of practices includ-
ing those which pose grave risks to public health or the environment, or reveal
conflicts of interest among public officials. however, under the 2015 Intelligence
Law, which authorizes substantially increased government surveillance, there
is only minimal protection for intelligence employees who leak information to
reveal abuses of power. In the Uk, the public Interest disclosures Act of 1998
was passed to protect whistleblowers in both the private and public sectors. dis-
closures made in good faith and on the basis of a reasonable belief in veracity
are protected (Vandekerckhove, 2010, 28). however, military and intelligence
personnel are specifically excluded from protection under the Act (Wolfe
et al., 2014). According to legislation passed in germany in 2009, public sec-
tor employees can report suspicions of criminal offences, including corruption,
directly to law enforcement. They are protected only when their actions are in
good faith, and not considered disproportionate. There are no specific whistle-
blowing protection laws in place. In canada, the 2007 public Servants disclosure
protection Act protects public employees against reprisals for whistleblowing.
canadian intelligence, communications security and military employees are
exempted, but are required to set up their own procedures to deal with unau-
thorized disclosures. however there are many complaints that the legislation is
not being properly enforced (Wolfe et al., 2014). Australia’s 2013 public Interest
disclosures Act affords reasonable protections to whistleblowers employed by
public agencies. however, the protections of this Act do not apply to material
which is related to intelligence, and which is disclosed externally (such as to the
media). In new Zealand, the protected disclosures Act of 2001 offers protec-
tions to private and public sector employees. It includes disclosures made by
defence and intelligence organization employees, but specifies particular proce-
dures that must be followed in these cases.
As this survey makes clear, there are very few protections globally for public
employees disclosing classified or security-related information, and where there
are, strict procedures must be followed. neither Manning nor Snowden followed
these procedures: though both claimed that they tried to alert their superiors
to the abuses they detected, but were rebuffed, and for that reason decided to
make their information public, this cannot be determined for certain. Both of
them have presented their actions as forms of deliberate breach of the law, done
in order to inform the public about the security practices of their governments,
192 | A p p Ly I n g p o L I t I c A L t h E o r y
prompt debate about these practices and bring abuses of power to an end. These
purposes, as well as the fact that their practices are not protected by law, suggest
that we might best understand their unprotected whistleblowing as civil disobe-
dience. This covers forms of protest action which go beyond legally authorized
procedures, in order to reveal and end state practices and policies the protester
feels to be illegal or immoral. We should note that in these cases, civil disobedi-
ence would be indirect – the laws and practices protested (government surveil-
lance and illegal and immoral activities in warfare) are not the same as the laws
broken: most importantly, the provisions of the Espionage Act.

Civil disobedience
civil disobedience is the deliberate, public and peaceful violation of the law on
the grounds that it is unjust. It is based on the assumption that citizens have a
general duty to obey the law, and argues for exemptions, under certain speci-
fied conditions. John rawls defines it as ‘a public, non-violent, conscientious yet
political act contrary to law usually done with the aim of bringing about a change
in the law or policies of the government’ (1971, 364). The principles of civil diso-
bedience, as practised by the nineteenth-century American philosopher henry
david Thoreau, Indian independence leader Mahatma ghandi and American
civil rights activist Martin Luther king are based upon the belief that the laws of
the state can be wrong, and that when they are, people have a duty to follow their
conscience as individuals or citizens. Thoreau, who was most sceptical of any
general duty of obedience, set out his reasons for refusing to cooperate with his
home state of Massachusetts by not paying taxes in 1849, impelled by his opposi-
tion to slavery and to the Mexican American War. For Thoreau, state laws reflect
the interests of majorities rather than a common good, and in order to retain his
or her moral autonomy, the individual should never ‘resign his conscience to a
legislator’ ([1849] 1993). gandhi, whose doctrine of Satyagraha (devotion to the
truth) was influenced by Thoreau, practiced civil disobedience as a collective
practice through his strategy of non-violent refusal to cooperate with injustice,
in the form of British imperial rule in India. Martin Luther king in turn was
influenced by gandhi in his development of the doctrine and strategy of non-
violent resistance to racial injustice in the campaign for civil rights for African
Americans. gandhi and king advocated non-violent disobedience: Thoreau,
however, supported John Brown’s violent insurrection against slavery in 1859,
arguing that arms had been deployed in a righteous cause, against the everyday
petty violence of slavery ([1860] 1993). All were prepared to go to prison (and
did so, albeit briefly in Thoreau’s case) for their principled action.
The doctrine of civil disobedience provides principled grounds for refusing
to obey laws that we find to be immoral. As legislatively protected whistleblow-
ing sets out procedures of disclosure that must be followed, civil disobedience
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Box 10.1 The occupy movemenT
In the wake of the Global Financial Crisis which erupted in 2008 with revelations of
corruption and mismanagement by large financial corporations supported by western
governments, the Occupy Movement emerged. The first major protest was Occupy Wall
Street, which began in September 2011, in the privately owned Zuccotti Park in New
York City’s financial district. Thousands of people, many of whom were recruited and
organized online, moved in and occupied the park, proclaiming ‘We are the 99%’, which
referred to high levels of income inequality in the United States – a major target of their
protests, along with the end of corporate influence over politics. The movement adopted
methods of direct, participatory, consensus-based decision making, and attracted
widespread support.
The corporate owners of the park and the police initially tolerated the overnight
encampment. After two months, however, the owners declared that overnight
occupation of the park would no longer be allowed, and police forcibly removed
protesters. Later attempts were made to reoccupy the park, but were resisted forcibly
by the police. The Occupy movement spread to other locations in New York City and
the United States, and then overseas. Protests broke out in 900 cities around the world
in later 2011, and both public and private sites were occupied. Protests were almost
entirely non-violent, although there were regular clashes with police who tried to
evict them. In mid-2014, the Occupy Movement reported almost 8000 arrests of its
protesters across the United States since the movement began.

• In addition to the general goals of the Movement – an end to inequality and to the
power and corruption of financial institutions – protesters also demanded forgiving
student loans, the alleviation of the effects of foreclosures and the reform of banking
industry regulations. But there was considerable disagreement amongst protesters
over whether the movement should focus on specific goals, or should demand rather
an end to power structures and imagining new ways of conducting politics.
• Some of the more radical and anarchist groups in the movement demanded the
abolition of capitalism and a fundamental change to the political system. However,
many of the movement’s goals centred on making the capitalist system fairer and
more accountable, rather than smashing it.

• Like the classified material leakers, the Occupy protesters broke different laws from
those they were protesting.

• The Occupy protests are commonly understood as civil disobedience. The protests
were principled, conducted collectively and called for democratic accountability for
government policies and decisions. Protesters were arrested and a small number
were charged, and eventually sentenced for their actions.

specifies requirements: recognition of a general duty to obey the law, and readi-
ness to accept punishment for one’s actions. We tend to associate civil disobedi-
ence with mass action – the protests led by ghandi against the British in India,
and the demonstrations and marches against segregation led by king. There are
194 | A p p Ly I n g p o L I t I c A L t h E o r y
many contemporary examples, including the protests against the World trade
organization held in Seattle in 1999. More recently, the occupy Movement has
invoked civil disobedience justifying its global political actions (see Box 10.1).
But it also extends to individual action, such as Thoreau’s, and the refusal of
military service by conscientious objectors. The cases discussed in this chapter
involve individual actions, performed in private. here we ask: do individual
citizens have a right – or more strongly, a duty – to disclose information, even
when it is classified as being essential to security, in order to reveal govern-
ment behaviour which contravenes legal requirements or publicly announced
ethical positions? We shall also ask: does this right or duty stem from the moral
autonomy of the individual, or from our duties as citizens? Some of the issues
relevant to assessing Manning, Snowden and others from this perspective can be
answered by investigating the facts: were there avenues of protest and complaint
which they could have pursued before going public? does Snowden’s asylum in
russia indicate unwillingness to accept punishment? We will focus instead here
on the ethical and political issues involved in the tension between accepting the
rule of law, and acting against the law on principled grounds.
We begin here by considering arguments for our duties to obey governments
– called in political theory the problem of political obligation. Why should we
obey the state in the first place, and what are the limits of that requirement of
obedience? We trace the key arguments for obligation, in historical and con-
temporary political thought. We then examine in detail arguments for civil
disobedience, as exceptions to obligation. We shall divide the grounds for civil
disobedience into duties of the individual, and duties of the citizen. We then
consider whether or not civil disobedience might be interpreted to apply to the
leaking of classified materials.

The rule of law and political obligation

The case against citizens revealing information relating to state security is based
upon the obligation – of citizens and all those within its borders – to observe the
law and the authority of the state. This is so fundamental a duty that it is recog-
nized across philosophical and ideological traditions; only philosophical anar-
chists argue that there is no philosophical (as distinct from pragmatic) reason to
recognize the legitimacy of state authority and law (Wolff, 1970). The idea that
we owe a duty to obey the state even when we disagree with its laws is an ancient
one: Socrates invoked it in plato’s dialogue Crito, in his refusal to escape Athens
after the city sentenced him to death. Socrates’ reasons continue to be discussed
as grounds for political obligation. First, if we live in a state for a long time, we
are signifying our acceptance of its laws. Second, having lived in and enjoyed the
benefits provided by a state, we are reciprocally obliged to obey its laws; third,
 I S L E A k I n g c L A S S I F I E d M At E r I A L J U S t I F I E d ? | 195
refusing to obey the law is a form of mistreatment of our fellow citizens. Finally,
a city (or state) cannot continue to exist if the laws it makes are disregarded by
its citizens (plato, 1961).
our modern conception of political obligation incorporates these principles,
but grounds them in the later idea that government derives its legitimacy from
popular consent (hirschmann, 2015). The early modern social contract theorists
of the seventeenth and eighteenth centuries argued that individuals could be
assumed to have consented to the formation of civil society under government,
while (at least theoretically) in a pre-political ‘state of nature’. The most funda-
mental reason why people consent to state authority is to preserve their security.
Thomas hobbes argued famously in Leviathan that life without government
would be unbearable, as people would be constantly at war with each other,
unable to secure their own safety without threatening that of others ([1651]
1962). consent to the absolute authority of the state is the only rational course
to take, and consent must be assumed even in those who submit to a conquering
ruler. Moreover, they are then bound to obey all directions of the state, as long
as it continues to provide security. hobbes recognizes very few cases in which
citizens are not obliged to obey – this only occurs when the state obliges compli-
ance with one’s own destruction, through, for example, capital punishment. For
John Locke and Jean-Jacques rousseau, the state of nature is not so comfortless,
but its deficiencies are nevertheless plain and lead people to agree to transfer
their power to the state. For hobbes and Locke, the legitimacy of government
comes from popular consent, but also from the fact that only it can provide secu-
rity, and the other goods that civil society provides. While the social contract
theorists tell stories of agreement, the moment of making the contract is clearly
a fiction: express consent is not necessary – rather, our agreement to abide by
the law can be implied (as it was for Socrates) from our behaviour in continu-
ing to live under it, and accepting the benefits that it provides. Locke makes this
clear: ‘…every Man, that hath any possession, or Enjoyment, of any part of the
dominions of any government, doth thereby give his tacit Consent, and is as far
forth obliged to obedience to the Laws of that government, during such Enjoy-
ment, as anyone under it; whether this his possession be of Land… or a Lodging
only for a Week; or whether it be barely travelling freely on the highway; and
in Effect, it reaches as far as the very being of any one within the territories of
that government’ (1988, 348). Locke also argues that in consenting to govern-
ment we are submitting to the determination of the majority – and thus are
duty-bound to obey laws agreed by a majority, with which we might happen to
disagree (1988). Locke does not suggest grounds for disobeying individual laws,
although citizens may withdraw their consent from government if it commits ‘a
long train of abuses’ ([1690] 1988, 415).
Some political philosophers have argued, like rousseau, that we are only
obliged to obey laws when the system of law-making allows for full democratic
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participation (1973[1762]). Where we have been fully involved in the making
of laws for the common good, we are obliged to obey them, whether or not we
agree with them. rousseau’s argument assumes, however, a level of direct demo-
cratic participation in government which does not operate in contemporary
mass democracies. contemporary political philosopher carole pateman makes
this point in her argument for a more participatory democratic system (1985).
Following rousseau, Immanuel kant argued similarly that we have a duty to
obey the law in general because by doing so we exercise our freedom by putting
the common good ahead of our selfish whims and passions. Like many political
theorists he associates liberty without law with chaos and slavery to selfish inter-
ests. If the ruler disobeys the law, subjects’ rights of protest and disobedience
are limited: ‘… if the organ of the sovereign, the ruler, does anything against the
laws…. the subject may lodge complaints about his injustice, but he may not offer
resistance’ (kant, [1785] 1991, 143).
Some philosophers have pointed out that there is no real reason to assume our
consent, actual or tacit, to most of the laws under which we live, as we have no
real choice in the matter. In his critique of social contract theory, the eighteenth-
century Scottish philosopher david hume famously wrote of tacit consent:
‘We may as well assume that a man, by remaining in a vessel, freely consents to
the dominion of the master; though he was carried on board while asleep, and
must leap into the ocean and perish, the moment he leaves her’ ([1748] 1960,
156). hume offers instead a defence of political obligation based on the conse-
quences – our inability to pursue our interests peacefully – that would follow if
the law was not observed. Utilitarian arguments for obeying the law in general
are notoriously difficult to make, because the consequences of obeying different
laws vary so much. We might argue, following Socrates’ warning in the Crito
about the possible breakdown of the city, that law provides the background scaf-
folding for peaceful human cooperation in society. The philosopher r.M. hare
points to several utilitarian benefits that follow from obeying the law (1976).
But this doesn’t necessarily require that we obey every individual law. A utilitar-
ian argument for obligation might be easier to make if we look at the utility of
obedience as a general rule, rather than treating utility as a standard applying to
each action. rule utilitarianism (see the Introduction to this book) does not help
decide questions of obedience to particular laws, and we might conclude, like
utilitarian philosopher peter Singer, that it is a matter of individual prudence,
rather than philosophy, whether or not we must obey a particular law (1974).
contemporary liberals like rawls assume that we voluntarily accede to state
authority, as long as it is democratically elected, preserves individual liberties
and observes principles of justice (1971). When laws and state practices fail to
satisfy these tests, as we shall see, scope for civil disobedience opens up. other
arguments for obligation, such as Socrates’ that we enjoy the benefits of gov-
ernment and so are obliged to obey it, are more difficult to sustain. Those who
choose a hermit-like existence, and refuse the benefits and services of the state
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and civil society (in contemporary terms, those who live ‘off the grid’), are nor-
mally still expected to obey the law. however, Socrates’ argument that we should
obey the law because this is a reciprocal duty we owe to our fellow citizens is
reflected in the modern concept of associative obligation (tamir, 1993; horton,
2010). This approach, influenced by communitarianism (see the Introduction to
this book) emphasizes our duties as members of communities – to the political
community and our fellow citizens, rather than to the state and its laws. It does
not depend upon the assumption of consent, but rather recognizes that our lives
and identities are embedded in relationships and contexts. We owe obligation
to the political community because it is our own, and its fate and stability into
the future is tied to our own. As this suggests, our political community imposes
duties on us which may or may not align with our duties to observe the positive
laws of the state. political obligation in this sense is between citizens, not subjects
of the law.

Civil disobedience on the grounds of

conscience
These accounts of political obligation suggest that we have a well-founded duty
to obey laws democratically made, whether or not we agree with them. As presi-
dent obama put it, we cannot decide as individuals whether or not each law is
just. civil disobedience is the doctrine of exceptions to obligation, and as we
shall see, the arguments that support it draw on the reasons for obligation in the
first place.
While most theories of civil disobedience share principles in common such as
the insistence upon non-violent resistance, we can distinguish between two basic
types of grounds for justifying civil disobedience:
1. Individual conscience, or the duty to disobey a law that the protester is
convinced is contrary to higher principles of justice;
2. duty to one’s fellow citizens, as members of a shared community.
The first argument is made most strongly by Thoreau, who argues, as we have
seen, that the individual should bring to bear his or her conscience upon every
rule and act of government. In Thoreau’s libertarian view, government is not the
embodiment of the people’s will (as rousseau argued), but merely an expedi-
ent. As he points out, laws are made not by states as unitary actors, but rather
by majorities, and thus reflect not the common good, but rather the will of the
majority or its representatives: ‘But a government in which the majority rule in
all cases cannot be based on justice….’ (Thoreau, [1849] 1993, 2). Unlike Locke,
Thoreau assumes no implied consent to the majority’s determinations: ‘The
only obligation which I have a right to assume is to do at any time what I think
right’ (Thoreau, [1849] 1993, 2). he sets personal conscience above government
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and the law, on two grounds. First, conscience, when exercised outside of the
corrupting context of politics, has access to universal principles of justice. And
secondly, social conformity is dehumanizing. Thoreau argues that the state treats
human beings merely as bodies, or machines. The act of civil disobedience is an
assertion of human dignity.
Martin Luther king also asserted the rights of individuals to assess the jus-
tice of law by appealing to their conscience. here he draws on natural law – the
concept that there exists a set of moral principles based on laws made by god
for the universe, and known to human beings through their rationality (see the
discussion in chapter 5). Even in a secular world, it has been recognized that
the obligation to obey the law does not override all other moral obligations – the
nuremberg trials after the Second World War demonstrated just this argument.
king quotes the medieval theologian St Augustine on this in his ‘Letter from
a Birmingham Jail’, ‘an unjust law is no law at all’ (1963). In one sense, this is
the most accommodating approach to civil disobedience, as it assumes that
each individual can evaluate the moral status of the law. however, its defenders
assume that only serious moral assessments of the law as unjust will count. gan-
dhi expressed this through his rigorous doctrine of Satyagraha, which required
the spiritual purification of protesters. rawls argues that civil disobedience must
protest government action that infringes on basic liberties, or fair equality of
opportunity (1971, 372). rawls also suggests that civil disobedience may only
be justified when ‘the normal appeals to the political majority have already been
made in good faith’ (1971, 373), and have failed. Thoreau, however, is sceptical
of the efficacy of legal political strategies such as voting, or what we would now
call organizing and lobbying. he advocates rather individual action: ‘Action from
principle – the perception and performance of right – changes things and rela-
tions; it is essentially revolutionary...’ (Thoreau, [1849] 1993, 7).

Civic and democratic defences of civil

disobedience
While Thoreau’s is the most individualistic of defences of civil disobedience, he
also writes that he is ‘as desirous of being a good neighbour as I am of being a
bad subject’ ([1849] 1993, 14). his reference to ‘neighbour’ suggests a way of
thinking about people as citizens in community, rather than as individual sub-
jects of the state and the law. This leads us to the second set of grounds for con-
sidering whether or not we can disobey laws we think are wrong – namely, our
duties to, and actions with, other citizens. here the ‘civil’ dimension of disobedi-
ence is understood not to refer to the fact that action is non-violent, but rather
that it is taken by citizens, in civic space (Sabl, 2001). This is easier to see in the
case of a mass movement, such as occupy (see Box 10.1). As Andrew Sabl puts
 I S L E A k I n g c L A S S I F I E d M At E r I A L J U S t I F I E d ? | 199
it, those who practise civil disobedience on these civic grounds regard the laws
and practices being contested as ‘direct and open assaults on the human dignity
and equal citizenship of those whom the laws and practices oppress’ (2001, 308).
rawls expresses this as the necessary ‘political’ dimension to acts of civil diso-
bedience. This civic approach to legitimizing civil disobedience draws on the
arguments for obligation: that we agree to obey laws that we make ourselves, in
a democratic process. There are two related but distinct forms of this approach:
the communitarian or civic republican argument focuses on the communal and
relational contexts of our identities. The deliberative argument focuses on the
public sphere of discussion and debate we construct and occupy as citizens,
which underpins law-making.
As we have seen, associative obligation explains our obligations to the laws of
the political community on the grounds that it shapes and constructs who we
are. As part of this, we might argue that as citizens we have a collective duty to
disobey laws which are opposed to the collective moral consciousness or values
of a particular community. disobedience in this sense is necessarily collective,
rather than an individual act of conscience. As Michael Walzer argues: ‘disobedi-
ence, when it is not criminally but morally, religiously, or politically motivated,
is almost always a collective act, and it is justified by the values of the collectivity
and the mutual engagements of its members’ (Walzer, 1967, 163). According
to this communitarian view, commitments to principle are also necessarily
commitments to other people, to the moral community. Bhikhu parekh argues
similarly that the civil disobedience is in fact a civic duty, which follows from
our associative obligations. We should think of political obligation more broadly
than just obeying the laws of the state; a citizens owes her polity more than just
obedience to its laws: ‘no civil authority is free from the temptation to misuse
its power and cut legal corners, or immune to the pressures of sectional inter-
ests and the influence of the self-interest and ideological dogmatism of those in
power. citizens therefore have an obligation to keep an eye on it and to ensure
that it does not become arrogant, ignore the public interest, stifle dissent, or
acquire a degree of authority and power likely to threaten their rights and liber-
ties or undermine free and rational public debate’ (parekh, 1993, 241). States act
with the authorization of citizens, who are thus obliged to ‘keep a critical eye’
on state action.
Thus far we have considered civil disobedience as a response to our com-
munal and civic duties generally. But we might also emphasize the particular
civic duty of maintaining a democratic public sphere. This more rousseaunian
argument recognizes that obligation follows from full democratic participation
in law making, and thus that the purpose of any act of disobedience must be
to promote and foster democratic debate. here it is not the moral community
of citizens that must be preserved, but rather their civic relations to each other
in a public, deliberative sphere in which legislation and policy is discussed
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and decided. Legal philosopher daniel Markovits begins by assuming that the
process of democratic law making means that citizens are the authors of, and
democratically accountable for, the laws. As long as a sufficiently democratic
process operates, we are accountable even to laws we voted against. The role
of civil disobedience is to ‘correct democratic deficits that inevitably threaten
every democracy’ (Markovits, 2005, 1902). In this sense, it performs a similar
role to judicial review – the process that operates in liberal democracies by
which judges assess the legality or constitutionality of laws passed by the legis-
lature. When there exists what Markovits calls a ‘democratic deficit’ in political
authority – that is, where authority is claimed for a law or policy that hasn’t been
subject to full democratic deliberation – a citizen ‘may wish to reintroduce into
the political agenda preferences and ideals that have been excluded by the col-
lective decision whose ongoing democratic authority and current democratic
appeal she doubts’ (Markovits, [1934] 2005). civil disobedience is only justified
where there has been a failure of democratic engagement in the process that
produced the legislation or practice. This may be, for instance, because of the
‘inertial institutions’ of democratic discussion, which keep some issues off the
public agenda.
William Smith also makes the case for civil disobedience on the basis of the
importance of deliberation to democratic sovereignty (2011). public deliberation
and discussion leads to opinion formation, and, as german philosopher Jürgen
habermas has argued, organizations and associations in civil society play a
crucial role in this, raising new issues, promoting discussion about them and
pushing them up the agenda of the public sphere: ‘Sometimes the support of
sensational actions, mass protests and incessant campaigning is required before
an issue can make its way… into the core of the political system and there receive
formal consideration’ (cited in Smith, 2011, 152). When this does not happen,
and new discursive frameworks cannot emerge to deal with important issues,
‘deliberative inertia’ results. In these conditions, hegemonic discourses or sets
of ideas determine how we see and talk about problems – Smith uses the exam-
ple of ‘explanatory nationalism’ when it comes to issues of global distribution
and justice (2011, 155). We might argue that ‘national security’ as a discourse
operates similarly, determining how we see issues of government secrecy and
surveillance.
From this perspective, democratic inclusion itself is not sufficiently reliable
a ground for civil disobedience – the point is not to include more participants,
but rather to include different ideas. The point of civil disobedience is not
just to foster democratic debate, but also to change policies and laws. Smith
suggests that an act of civil disobedience should aim at doing more than just
promoting democratic debate; it should raise and promote in public debate
substantive alternatives to the current policy or law. given this, civil disobedi-
ence may be justified if it is carried out not ‘with the aim of self-promotion, but
with the intention to publicize discourses that identify and address problems of
 I S L E A k I n g c L A S S I F I E d M At E r I A L J U S t I F I E d ? | 201
demonstrable and urgent import to the democratic community’ (Smith, 2011,
156). This may be the case if the discourse is based upon human rights, or on
the prospect of dire and irreparable consequences, such as global warming. once
civil disobedience has forced such a discourse (or argument) to the centre of
public debate, it follows that protest action should stop for the present. Smith
argues that civil disobedience against the global economic order is legitimate in
the face of ‘deliberative inertia’ – here, the fact that neoliberalism has become the
dominant discourse in public discussion, leaving no space for others. But civil
disobedience should not force a particular result.
The democratic participation argument for civil disobedience proceeds from
the argument for political obligation on the grounds that we owe duties to a
law we have participated in making ourselves. As we shall see, arguments for
and against categorizing the leaking of classified material as civil disobedience
depend to a large extent on whether the practices revealed can be understood as
democratically authorized.

The case for regarding the leaking of

classified materials as civil disobedience
As the criticism of Manning, Snowden and other leakers focuses on the par-
ticular importance of respecting the security of classified materials, we will
begin with this. We might argue that the classified and intelligence status of the
materials disclosed by Manning and Snowden does not in itself disqualify their
actions from counting as civil disobedience. As we have seen, only the strongest,
hobbesian approach to political obligation emphasizes the importance of main-
taining state security at all costs, and it is manifestly clear that the disclosures in
the leaked material have not led to the destruction of any states. There is consid-
erable debate about how much real damage the leaks have done. Most experts
on security have largely dismissed the consequences of the disclosures made by
Manning, suggesting that they were mainly embarrassing to the US government
(Bumiller, 2010). critics of Snowden, by contrast, have more consistently argued
that his disclosure of US government surveillance made the detection and
prosecution of terrorism more difficult (hayden, 2013). Supporters of Snowden
and Manning argue, however, that their actions in bringing to public light gov-
ernment activities and surveillance outweigh any damage they may have done.
Alan rusbridger, editor of the Guardian newspaper, which has published much
of the disclosed materials, refers to the balance that must be struck between the
harms and benefits caused by the leaks, but argues that almost no harm has been
shown to have been done by the WikiLeaks releases (rusbridger, 2011). The
embarrassment of governments is no argument against understanding protest
action as civil disobedience: in the case of king’s civil rights movement, protests
were deliberately designed to achieve maximum media coverage that would
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embarrass the United States internationally and prompt the federal government
to intervene on behalf of the protesters.
We might begin a case for these disclosures as civil disobedience with rawls’
definition: a public, non-violent, conscientious yet political act contrary to law
usually done with the aim of bringing about a change in the law or policies of
the government. The actions of leaking are clearly public and non-violent. The
requirement that action be ‘conscientious’ alludes to Thoreau’s emphasis upon
individual conscience and judgement, and is designed to exclude selfish motives.
In an interview with The Guardian newspaper in June 2013, shortly after his
name had been made public, Snowden pointed out that he had received no
money for the classified documents, and had as a result of his disclosures been
forced to flee his home in the United States. he declared: ‘I’m willing to sacri-
fice all of that because I can’t in good conscience allow the US government to
destroy privacy, internet freedom and basic liberties for people around the world
with this massive surveillance machine they’re secretly building’ (greenwald,
MacAskill and poitras, 2013). Manning explained his motives in his pre-trial
statement in 2013, as we have seen, declaring that he wanted to spark public
debate and ‘make the world a better place’. While Manning and Snowden have
been declared to be heroes by those opposed to the government programmes
and activities they have revealed, and have received some public acclaim, they
have also been extensively vilified. one is now serving a long prison term, and
one remains overseas to avoid prison; under these circumstances, it would be
difficult to argue that they were motivated by personal gain or fame in making
their disclosures.
Thus far we have considered these disclosures as acts of moral conscience. A
stronger case for classing them as civil disobedience might be made by seeing
them in civic terms, as set out in the previous section. This poses something of
a challenge, as civic protest, as we have noted, suggests a mobilized group of
citizens. Both Manning and Snowden acted alone and seem not to have been
involved in groups organizing against government secrecy. of course, both have
explicitly said that they acted as they did because these government programmes
and activities were secret and had to be revealed before they could become the
subject of public examination and protest. Their actions were individual, but we
might argue, following parekh above, that they acted in accordance with asso-
ciative obligation and loyalty to the fellow members of their civic community
by demonstrating that the state had failed to act in accordance with community
values. This is consistent with much of what Snowden and Manning, and their
supporters in the press, have said. As rawls recommends, they have addressed
‘the sense of justice of the majority of the community’ (1971, 364).
Snowden and Manning have also justified their actions in terms of prompt-
ing public debate; the democratic deliberation approaches to civil disobedience
are particularly apt for cases where the lawbreaking takes the form of speech,
or disclosure. We might here build a case on Markovits’ argument that where a
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democratic deficit exists in legitimacy – that is, where there has not been a full
process of democratic discussion around government law or practice, civil diso-
bedience is justified in forcing this policy or practice onto the public agenda. The
very nature of intelligence and security practices and programmes has been that
they are not subject to democratic deliberation, or to any public scrutiny, and it
is clear that a public debate has occurred in the United States, Britain and other
affected countries as a result of the leaks. We might conclude with Markovits
that policy over surveillance is well-separated from any democratic process, so
that citizens are no longer its democratic authors ([1927] 2005). Moreover, the
leaking might be justified as not only forcing a public debate on government
practices, but also arguing that these are wrong, and suggesting alternatives. As
we have seen, Smith suggests that the test for this should be that acts of disobedi-
ence ‘identify and address problems of demonstrable and urgent import to the
democratic community’ (2011, 156). While we may not be able to argue this for
all of the many mundane diplomatic cables that were revealed as a result of the
leaks, it would apply to the kind of military practices that Manning disclosed,
and to the actions of government in conducting surveillance of citizens and for-
eign leaders revealed by Snowden.
Several philosophers have concluded that Snowden’s actions, at least, should
be classified as civil disobedience. kimberley Brownlee points out that Snowden
put himself at personal risk when he disclosed the information; he openly iden-
tified himself as the source of the leaks and he openly described his purpose
as being to initiate a debate about nSA and gchQ practices (2013). William
Scheuerman argues that Snowden’s actions and his statement at Moscow airport
‘demonstrate that Snowden has thought long and hard about the fundamental
question of when and how citizens of a liberal democratic state are morally and
politically obliged to violate the law’ (2014, 610). The key thing is that Snowden
aimed to change the law by his actions. While Brownlee argues that Snowden
should now return to face the criminal charges against him, Scheuerman insists
that Snowden’s refusal to return to the United States to face the criminal charges
against him does not disqualify him from civil disobedient status (see the follow-
ing section). he points out that Snowden has consistently acknowledged that the
United States is right to argue that he breached its security, and concludes that
Snowden was not obliged as a civil disobedient to accept the punishment of US
law, because he would not have been granted a fair trial.

Against recognizing the leaking of classified

materials as civil disobedience
As we have seen, there are some strong and detailed arguments for categorizing
these cases as civil disobedience. nevertheless, there are some aspects of the facts
of each case which might be seen to outweigh these. The most often cited with
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respect to Snowden is his refusal to return to the United States to face criminal
charges against him. While supporters argue that his forced exile overseas is
punishment enough, this is the result of his refusal to return home. A key aspect
of most theories of civil disobedience, with the exception of Thoreau, is that it
is justified only in the context of a general commitment to obeying the law. In
rawlsian terms, civil disobedience must only focus on specifically unjust laws;
according to the communitarian and deliberative arguments, a commitment to
the moral community and the democratic process continues despite the unjust
law or practice being protested. Those who voluntarily exile themselves from
their national jurisdiction cannot continue to participate in a civic or democratic
process to deliberate on or change the law. Supporters of Snowden might coun-
ter, of course, that internet technology does in fact enable those outside national
borders to participate remotely in public debate.
A more difficult problem is posed by the scale of the disclosures, which con-
tinue to be published, and their bulk and indiscriminate nature. There are two
issues here: first, some of the disclosures concerning government practices have
undoubtedly prompted widespread public debate over US conduct of the wars
in Afghanistan and Iraq and government surveillance of their own citizens.
however, many deal with lower-level and routine government diplomatic prac-
tices and views, and have not excited a great deal of public interest, or sparked
demands to fundamentally change diplomatic practices. This is particularly the
case for Manning’s leaked documents, but it also applies to Snowden’s revelations
of US, British, Australian, canadian and new Zealand spying on foreign gov-
ernments. We might question whether these disclosures appeal to the common
moral identity, or sense of justice, of a community. part of the problem here is
that if Manning’s and Snowden’s disclosures constitute civil disobedience, they
are indirect – that is, they broke one law (mainly, the Espionage Act) to protest
a very wide range of government policies and practices, of varying degrees of
public interest. could we argue that there is a ‘democratic deficit’ in terms of
democratically authorizing these practices? Again, our intuitions might vary.
While we might agree that there should be open public debate on whether or not
governments are gathering meta-data on their citizens, or on the ways in which
they treat enemy civilians in warfare, this might not be the case when it comes
to day-to-day diplomatic practices, reports and observations.
The huge number of documents illegally disclosed also presents problems to
an understanding of civil disobedience as a strategic intervention in the public
sphere, designed to prompt democratic review. As we have seen, Smith argues
that once the acts of civil disobedience have forced an argument to the centre
of public debate, they should stop; this is consistent with viewing civil disobedi-
ence as a strategy to bring about change. Although of course neither Manning
nor Snowden continues to reveal information, the enormous quantities of mate-
rial that they disclosed mean that they continue to be published by the press to
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Box 10.2 Leaking cLassified maTeriaLs
as civiL disoBedience: compeT-
ing norms and vaLues
The debate over whether or not leaking classified materials counts as civil disobedience
centres on disagreements about the limits of political obligation, and the criteria which
protest must satisfy in order to constitute civil disobedience.

• Those who argue that this action is civil disobedience assert that political obligation
extends only to laws and practices which observe the basic requirements of justice,
and are democratically decided. Those who deny it emphasize the fundamental
importance of protecting the security of the state, for the purpose of protecting the
security of citizens.
• Some supporters of the leakers argue that the security practices and laws they are
breaking were made and practised in secret and, moreover, that concerns about
safety from terrorism have made it impossible for these laws and practices to be
openly debated. The leaks, it followed, have forced these practices and laws into
the public, where they have been extensively discussed. Critics of them argue that
those who oppose these laws and practices should have followed other avenues of
complaint and protest, organizing with other like-minded citizens, in order to bring
about political change.
• Supporters of the leakers argue that their actions were consistent with a more
general and ongoing respect for the law and this is consistent even with Snowden’s
decision not to return to the United States to face the charges against him. Critics
counter that a willingness to face conviction and penalty for actions of civil
disobedience is essential to demonstrating that the actions were motivated by a
permanent respect for the political community and its laws.

whom they were leaked. We might interpret this as a weakening of the necessary
connection between the act of disobedience, and its moral and or democratic
purpose. We might also, however, consider that the way we think about political
acts here has been changed by technology. Is the act of disobedience download-
ing? downloading each individual document? or publishing each document?

Conclusion
While protest actions more easily classifiable in terms of civil disobedience con-
tinue to take place (see Box 10.1), the availability of mass electronic data sug-
gests that we need to adapt our understanding of civil disobedience, as indeed
of political action generally in the internet age. The collection and scrutiny of
206 | A p p Ly I n g p o L I t I c A L t h E o r y
private information about citizens is an exercise of power by the state in keeping
with a long history of surveillance. It is now so extensive, however, that it chal-
lenges the boundary between the state and private life that is fundamental to lib-
eral democracy. We might argue that this is an abuse of state power as important
as those which were the subject of African American civil rights protests in the
1960s. however not all data revealed in these leaks suggests the same abuses. of
course, specific cases are always difficult to fit exactly to a set of moral criteria.
As rawls remarked, long before these cases: ‘We should not expect too much of a
theory of civil disobedience, even one framed for special circumstances. precise
principles that straightway decide actual cases are clearly out of the question’
(rawls, 1971, 364). The approach rawls suggests, and which we have followed
in this chapter, is to identify relevant considerations, and suggest the weight they
should be assigned.
nothing legal hinges on whether or not we classify Manning, Snowden and
others who commit similar breaches of the law as civil disobedients. The very
definition of disobedience is that it is against the law, and continuing recogni-
tion of legal and political obligation are, as we have seen, essential aspects of
civil disobedience. nevertheless civil disobedience confers moral status. Even
amongst those who do not outright condemn the leaking of classified materials,
it signifies the difference between a utilitarian judgement that a protester acted
illegally, but nevertheless produced some worthwhile results, and a judgement
that the protester acted in a way that morally autonomous individuals, or good
citizens, should take as their model.
11

Should Rich Countries

Give More Foreign Aid?

● Ethical argumEnts for rEdistribution to thE world’s poor

● social coopEration and thE limits of justicE
● nationality and particular obligations
● argumEnts against intErnational aid
● justicE and obligation bEtwEEn nations
● conclusion

There are all too many ways of measuring the enormous inequalities between
rich and poor on a global scale. World Bank figures show that in 2011, 2.2 bil-
lion people lived on less than $2 a day, while 1.2 billion lived on less than $1.25
(World Bank, 2011). In 2014, Oxfam reported that the combined wealth of the
85 richest individuals in the world was equal to that of the bottom 50% of the
world’s population, or approximately 3.5 billion people (Oxfam, 2014). Oxfam
estimates that by 2016, half of the world’s total wealth will be owned by the
wealthiest 1% of the world’s population (Oxfam, 2014). While child mortality
rates globally have been reduced by almost half between 1990 and 2015 (see
Box 11.1), UN figures show that the rate is currently 5 deaths in every 1000
children in developed countries, and 47 deaths in every 1000 children in the
developing world. In sub-Saharan Africa, one in 12 children dies before his or
her fifth birthday. The overwhelming majority of these deaths are from prevent-
able causes (UN Inter-agency Group, 2015). The life expectancy of children born
in 2012 overall in the world is 71; in West and Central Africa it is 54 (UNICEF,
2014). As Nelson Mandela said in 2005: ‘Massive poverty and obscene inequality
are such scourges of our times – times in which the world boasts such breathtak-
ing advances in science, technology, industry and wealth accumulation – that
they have to rank alongside slavery and apartheid as social evils’ (UNDP, 2005).
The Oxfam figures cited above focus on relative inequalities across the global
population, rather than between countries. But if we look at overall national
wealth and wealth per capita, we see that the world’s wealthy and developed

207
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Table 11.1 The Distribution of Global Gross National Income
Per Capita, 2014 (measured in US dollars, including top- and
bottom-ranked countries)

Norway $103,050
Qatar $90,420
Australia $64,680
United States $55,200
Canada $51,690
Germany $47,640
UK $42,690
China $7,380
India $1,610
Bangladesh $1,080
tanzania $930
Uganda $660
Ethiopia $550
liberia $400
Malawi $250

Data from The World Bank, 2014

countries enjoy considerably higher levels of income and wealth than poorer
nations. The table above, based on figures from the World Bank, shows coun-
tries’ gross national income (GNI) per capita in 2014.
Of course, poverty is not confined to underdeveloped countries. Some of the
world’s most developed countries, with high levels of overall wealth and GDP per
capita, have sectors of the population living, if not in absolute poverty by global
standards, then with insufficient material means to function fully in society. A
2013 study by the US Census Bureau found that 13.6% of Americans aged 18–64
and 19.9% of American children lived in poverty (US Census Bureau, 2013).
In the UK, where poverty is defined as falling below 60% of median income,
the government’s households Below Average Income data shows that 16.2% of
the population were at risk of poverty in 2011, and 5.1% of people experienced
severe material deprivation, compared with 8.8% of people in the EU as a whole.
Amongst developed countries, the income gap between richest and poorest is
highest in the United States, but 75% of the world’s population lives in countries
where income inequality is higher than it was in the 1990s.
redistributing existing resources in the world could dramatically reduce
extreme poverty, and in fact substantial progress has been made since 2000 in
lifting people out of the most extreme deprivation (see Box 11.1). however high
numbers living in relative poverty persist, and inequalities are increasing, both
within and between countries. As we see in Box 11.1, poverty in the developing
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 209
Box 11.1 The MillenniuM DevelopMenT
Goals
The UN General Assembly Millennium Declaration of 2000 committed member states
to eight development goals to be achieved by 2015, including halving the 1990 rate
of extreme poverty (an income of $1.25 per day or less), achieving universal primary
education and reducing child mortality by two thirds of 1990 figures (i.e., to fewer than
5 million child deaths a year). In 2005, the G8 countries, along with the World Bank and
the International Monetary Fund (IMF), agreed to a package of multilateral debt relief.
This was designed to help achieve the Millennium Goals by freeing up debtor country
resources to be used in reducing poverty and improving health and education for their
citizens. Development assistance from the developed world increased by 66% from
2000 to 2014.

• The goals focused not only on transferring wealth, but also on changing the rules of
the international economy to remove structural inequalities. One of the goals was
to develop a ‘global partnership for development’, including an open trading and
financial system that is rule-based, predictable and non-discriminatory.
• Donor governments also reinforced the importance of economic and political
reform within recipient countries. The High Level Panel for Financing for
Development, which was charged with exploring financing for the Millennium
Goals, recommended in its 2002 report that every developing country ‘needs to set
its economic fundamentals in order’, by building sound economic institutions, as
well as political institutions based on popular participation in government and the
rule of law. Developing nations were required to commit to combating corruption
and protecting education, health, the status of women and the rural sector (Zedillo,
2001).
• At the end of the targeted period in 2015, many of Millennium Development Goals
had been met. Extreme poverty was halved: in 1990, nearly half the population in
the developing world lived on $1.25 or less a day; in 2015, only 14% did. Globally,
the number of people living in extreme poverty dropped by more than half. The
enrolment rate of children in primary school in the developing world rose from 83%
in 2000 to 91% in 2015. The rate of enrolment in primary school rose the most in
the world’s poorest region – sub-Saharan Africa, where it increased from 60% in
2000 to 80% in 2015. The disparity between men and women enrolled in primary
through tertiary education has been eliminated in the developing world. Child
mortality has dropped precipitously (see below). Maternal mortality has declined by
45% globally since 1990 (UN, 2015).
• Despite these impressive achievements, the Report into the Goals concluded that
‘the poorest and most vulnerable people are being left behind’, and inequalities
between rich and poor, both between nations and within them, continue to increase
(UN, 2015). In 2007, for examle, the disparity between countries in terms of GNI
per capita was US$76,450: 110 (Norway: Burundi). As table 11.1 shows, in 2014, it
had widened to US$103,050: 250 (Norway: Malawi).
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world has in fact declined since 2000, but the decline has been uneven. There has
been an enormous drop in the number of people living on less than US$1.25 per
day in China – from 61% of the population to 4%. But in sub-Saharan Africa,
while the number has declined, the drop has been from 57% to 41%. As the UN
reports, the world’s most populous countries, China and India, have played a
central role in the global reduction of poverty.
International institutions and non-governmental organizations (NGOs) have
called for increased aid to reduce inequalities for over four decades. In a 1970
United Nations General Assembly resolution, developed nations committed to
spending 0.7% of gross national product (GNP) on overseas aid by the middle
of the decade. The General Assembly resolved that aid was to be untied – which
means not linked to requirements imposed by the donor country about how it
was to be spent – continuous, and long term. It should take the form of financial
and technical assistance aimed at improving the economic progress of the recipi-
ent country, and should not be designed to benefit the donor countries.
Even though these targets and agendas have been set year after year since
1970, and the 2000 Millennium Development Goals committed developed
countries to reducing extreme poverty (see Box 11.1), in 2014 only five countries
met the agreed target of giving 0.7% of GNI in aid (see table 11.2). Moreover, as
many critics have pointed out, what aid has been delivered has not been given
on the terms required by the UNGA resolution. A good deal of assistance is
designed to serve the strategic and economic objectives of the donor country, or
powerful interest groups within that country. Much aid is in the form of techni-
cal assistance, which is exempt from the requirement that it not be tied. Further-
more, aid tends to be targeted not necessarily to areas of most need, but areas of
the world where the donor country has a strategic or historical interest. World
Bank figures show that Afghanistan received the most US development aid of
any country in 2014, followed by Israel, although the latter is classified as a high-
income economy. Since the terrorist attacks of 2001, much of the increase in US
aid has gone to countries which have assisted the United States in anti-terrorist
operations. In fact, a 2002 Senate resolution directed that US aid should play an
increased role in supporting American foreign policy objectives, particularly in
the ‘War on terror’ (hirvonen, 2005).
Figures show that while aid levels have increased in the first part of this
century, they remain low. While some rich nations do give quite high dollar
amounts of aid, their percentages of GNI are still small – the United States and
Japan, the world’s two largest donor countries, fall into this category. The per-
centage of GNI in aid given by the OECD Development Assistance Committee,
the largest donor countries, rose to 0.29% of GNI in 2013, and remained at that
level in 2014. This represents an increase in total sum of 66% from 2000. how-
ever much of the increase is due to debt relief (particularly to Myanmar in 2013),
and aid to the least developed countries fell by 16% in the same period (OECD,
2014). table 11.2 shows overseas development aid (as a percentage of GNI) in
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 211
2014. (These figures include debt and emergency relief, but not the charitable
contributions made by individuals.) Only the first five countries meet or exceed
the target of 0.7% of GNI in aid.

Table 11.2 Aid as a Percentage of Gross National Income (2014)

Sweden 1.10%
luxembourg 1.07%
Norway 0.99%
Denmark 0.85%
UK 0.71%
The Netherlands 0.64%
Germany 0.41%
France 0.36%
Australia 0.27%
Canada 0.24%
Japan 0.19%
United States 0.19%

Source: Data from the OECD Development Co-operation Directorate, 2014

Of course, aid given directly by nations is not the only factor influencing the
relative wealth and poverty between them. International institutions also play
an often controversial role. The World Bank and the IMF were created in 1944
by Western nations as part of the Bretton Woods system, which was designed
to stabilize the global economy, promote foreign trade and investment, and
provide loans to countries for development. In the period until the 1980s, the
World Bank provided many loans to developing countries, in order to fund their
infrastructure development and the provision of basic services to their citizens.
This changed in the 1980s, when the Bank began to fund the servicing of debt
for developing countries, and imposed ‘structural adjustment’ programmes on
borrowing nations. These imposed free-market economic policies that generally
meant strict anti-inflationary ‘austerity’ policies and less funding for social ser-
vices for impoverished citizens. These programmes and policies, also imposed
by the IMF in its loans, have been widely criticized for taking autonomous
decision-making away from governments, and exacerbating relative poverty in
the developing world.
Philosophers have addressed the problem of global poverty in two ways. Some
have approached the issue in terms of need, asking whether or not we as individ-
uals have moral duties to relieve the acute suffering of people in other countries
with whom we do not share citizenship in common. As we shall see, ethicists
generally agree that if we can save someone’s life, or relieve their serious suffering
without suffering any important loss ourselves, we ought to do so. For some, this
means that as individuals we have a moral duty to contribute wealth to the needy
212 | A P P ly I N G P O l I t I C A l t h E O r y
– whether at home or abroad – through private charity. Philosophers who take
this approach generally (though not always) agree that governments should also
provide assistance to the needy through foreign aid. The second way of framing
the issue is by concentrating on the relative inequalities between nations, and on
the duties of governments to reduce these by transferring wealth. We will begin
by considering some of the ethical arguments based on need, and will then turn
to those which also consider questions of relative inequality.
Of course, philosophical arguments alone cannot fully answer the ques-
tion whether wealthy states should provide more aid. Practical issues are also
involved: while everyone agrees that global poverty should be relieved, there
is considerable debate not only among political philosophers but also among
economists and development workers about the most effective way of going
about it. Much of this has been reflected in policy debates about aid and the role
of institutions like the IMF and the World Bank. Some economists argue that
the best way to relieve poverty in developing nations is not to transfer resources
through direct assistance, but to eliminate barriers to trade (Bauer, 2001). This
would address the problem of trade subsidies in the developed world, and the
costs they impose on poorer nations. Others argue that the key strategy should
be to establish and maintain political institutions that protect private property
rights. Some emphasize the need for developing countries to rectify intra-
country inequalities, arguing that unequal distribution within countries is a
major contributing factor for extreme poverty (Sen, 1981). The importance of
both internal and external factors is reflected in donor countries’ exhortations to
recipients in the report on the Millennium Goals (see Box 11.1).

Ethical arguments for redistribution to the

world’s poor
Perhaps the most influential ethical argument in favour of transferring wealth to
the poor and needy has been made by the utilitarian philosopher Peter Singer.
In his essay ‘Famine, Affluence and Morality’, written during the famine in East
Bengal of 1971, Singer examines the assumption that we don’t have moral duties
to help people in need with whom we are not in any particular relationship. he
does so by drawing an analogy: if we are walking past a shallow pond and see
a drowning child, whom we can save without risk to ourselves, are we morally
obliged to jump in and save the child even if we have no prior connection to or
responsibility for her? The answer is clearly yes: the basic humanitarian duty of
mutual aid means that we have a moral duty to help the child. It makes no dif-
ference to our moral obligation whether she lives next door or is a visitor from
thousands of miles away. Nor does it matter from a moral point of view if there
are other passers-by who could also have jumped in to save her – we still have
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 213
a duty to do so. The global poor may be physically further away from us than
the drowning child, but this is irrelevant from an ethical perspective as long as
we are actually capable of helping them without great sacrifice ourselves (Singer,
1972). Singer concludes that we should be giving much more aid on both an
individual and a governmental basis. Peter Unger argues similarly that we are
morally obliged to help those in need, and we only fail to recognize our obliga-
tions when the needy are physically removed because of psychological intuitions
that are irrelevant to the moral views that we hold (1996).
There has been considerable debate among moral philosophers about these
claims – which apply also, of course, to our duties to transfer wealth to poor
citizens in our own countries. David Miller points to some problems with the
analogy Singer draws between the drowning child and the global poor: it pre-
supposes that there is only one child drowning, and only one potential rescuer.
What if there are many children, and many possible rescuers? Whom do we
rescue first, and how should we decide who is responsible, or most responsible
for doing the rescuing? Also, when a child is rescued, we might assume that he is
returned to his parents and goes back to a safe and secure life, without needing
further assistance from his rescuer. Global poverty is not like this – it is chronic
and continuing, and cannot be solved by one humanitarian intervention. Finally,
casting the victim as a child reinforces this idea that the global poor are helpless
victims rather than autonomous actors (Miller, 2007). Singer is not primarily
concerned with attributing blame for global poverty; this means that he does
not factor in the way political corruption and mismanagement in poor countries
might contribute to it, but he also does not insist (as we shall see later, some phi-
losophers do) that wealthy nations are responsible for the situation of the poor.
Singer’s approach is utilitarian, but parallel arguments for the duty to assist
the needy can also be made on the deontological grounds of basic rights. As we
saw in Chapter 2, Martha Nussbaum and Amartya Sen argue that human beings
have basic, essential capabilities which are entitled to protection in all socie-
ties (Nussbaum, 1999; Sen, 1992). This means requiring that human rights be
respected, but also transferring the resources necessary to ensure that the poor
can exercise their basic capabilities. henry Shue argues similarly that everyone
is entitled to basic rights – the generic conditions for living a decent life, and
for being able to exercise other rights (1980). These include the right to bodily
integrity and personal freedom, and to a minimum level of resources required
for subsistence. Shue’s argument provides more scope for considering the role of
governments in poor countries in contributing to the plight of their citizens. As
these different definitions demonstrate, the concept of basic rights can be elastic:
Simon Caney argues that universal basic rights of individuals include equality of
opportunity – no one should miss any opportunities because of their national-
ity (Caney, 2005). In any case, commitment to basic rights imposes a duty on
wealthy countries to transfer aid to the neediest, but also to cease supporting
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governments in poor countries which deprive citizens of their basic rights. As we
shall see below, several philosophers accept the argument that wealthy nations
have a duty to provide basic subsistence to the very poor, but go on to reject
more extensive duties of justice.
Needs-based arguments make an ethical claim to individuals and govern-
ments. Their focus is on meeting the absolute needs of the poor, rather than
altering the relative positions of rich and poor nations. The philosophers we
consider next see the problem of global poverty in more explicitly political terms
– grappling with the relationship between the duties we owe the global poor as
fellow human beings versus the duties we owe to fellow citizens. Following John
rawls in the tradition of social-contract thinking, they approach the problem
by asking what people would or should agree to with respect to global inequal-
ity. From this perspective, the question is whether the same principles of social
justice that apply within the state should also apply across national borders. As
we shall see, those who argue that domestic principles should apply globally
have come up with different concrete proposals. Some suggest redistributive
payments based on resources, some different types of taxes and some simple
transfers. We’ll take as our chief argument against redistribution that advanced
by rawls, which distinguishes between principles of justice to be applied within
states, and those humanitarian principles that operate between states. We shall
also explore other philosophical defences of the position that our duties to redis-
tribute wealth to fellow citizens are stronger than our duties to send aid abroad.
We’ll then consider various arguments against these positions and in favour of
international redistribution. lastly, we will look briefly at arguments against all
governmental aid.

Social cooperation and the limits of justice

In Chapter 2 we examined rawls’ argument that society, as a system of fair
cooperation, should be regulated by principles of justice that may be agreed by
all citizens. As we saw, rawls argued that two fundamental principles of justice,
designed to regulate the basic structure of society, would be selected if parties
were choosing under fair conditions (the ‘original position’). These are, firstly,
that basic liberties be equally available to all citizens, and secondly, that inequali-
ties in resources should be acceptable only insofar as they are attached to posi-
tions open to all under conditions of fair equality of opportunity, and only if they
result in the position of the worst-off group in society being as high as it can be
(rawls, 1971, 1993).
There are three important points to emphasize here before we discuss whether
or not rawls’ principles are applicable at the global level. Firstly, this is not a
purely egalitarian approach to justice: inequalities are justified if they maximize
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 215
the position of the worst-off group. Secondly, the purpose of maximizing
resources to the least well-off is to enable them to live free and autonomous
lives, governed by their own choices and values. Thirdly, these principles must be
acceptable to all reasonable citizens. As we saw in Chapter 2, rawls argues that
his principles would be chosen in a situation (the original position) constructed
so that people would not know anything about their particular situations in
life, and so could not choose principles that would particularly benefit them-
selves. All people should know when they decide on principles of justice is that
they are members of a shared scheme of social cooperation, which has a basic
institutional structure which exercises determining influence over the shape of
everyone’s lives. Even when he moved away in his later work from justifying
his principles as they would be chosen in the original position, rawls retained
the idea that those agreeing to the principles should regard themselves as hav-
ing shared fates – as being bound together by some degree of interdependence.
Society is a ‘fair system of cooperation’ (rawls, 1993), or a cooperative venture
for mutual advantage.
These three points are key to understanding why rawls makes a fundamental
distinction between the principles of justice that apply in the domestic sphere,
and those that regulate relations between countries. But he also distinguishes
between societies which are poor and those which are ‘burdened’ by unfavour-
able conditions. Burdened societies are not necessarily, or only, poor; they have
weak political and cultural traditions, insufficient human capital and know-
how and often, insufficient material and technological resources to be well-
ordered (rawls, 1999). A society will only be burdened by poverty if it lacks
the resources – material, political and cultural – which it needs to order itself.
If a poor society can nevertheless order itself according to its own political and
cultural goals and traditions, it is not burdened. As rawls puts it, ‘a society
with few natural resources and little wealth can be well-ordered if its political
traditions, law and property and class structure with their underlying religious
and moral beliefs and culture are such as to sustain a liberal or decent society’
(1999, 106).
rawls argues that the goal of justice between peoples (or global justice) is
not to achieve equality between peoples or nations, or to justify and regulate
inequalities between them. rather it is to establish and maintain a world society
of well-ordered nations. Such nations need not be liberal democracies, although
they must be peaceful and non-aggressive. Societies that are not liberal, and are,
for example, hierarchical are considered ‘decent’, as long as they respect basic
human rights – the right to life, to liberty and to property – and as long as they
ensure that justice takes into account the interests of everyone in society (rawls,
1999). Given this goal, the two principles of justice, which regulate social and
economic inequalities, are not appropriate between nations. rawls suggests that
a second original position be introduced, in which the representatives of liberal
216 | A P P ly I N G P O l I t I C A l t h E O r y
and decent peoples choose principles of justice. here they are not deciding how
to regulate a basic structure because, rawls argues, none exists in global society.
The principles they would choose are those of ‘the law of peoples’: respecting
the freedom and independence of peoples, observing treaties, non-intervention,
self-defence, human rights, respecting the laws concerning warfare and, finally,
assisting burdened peoples who live in conditions that make it impossible for
them to have a liberal or decent social system.
Well-ordered peoples thus have a duty to assist burdened societies, but not
necessarily to relieve their poverty, unless their poverty makes it impossible for
them to function as decent or liberal societies. After all, just as the purpose of
the domestic principles of justice is to provide for the worst-off the resources
they need in order to shape and carry out their own plans in life, the purpose
of the global principles is to allow nations to build institutions and structures
that reflect their own culture and values. rawls argues that a major problem
with applying egalitarian redistribution at the global level is that there is no
cut-off point at which the principles will cease to apply. If a well-ordered and
unburdened society decides that the accumulation of wealth is not that impor-
tant, continual transfers of wealth from richer nations cannot be justified. rawls
identifies three basic guidelines for assisting burdened societies: first: the goal is
not necessarily to make them wealthy, second: they must change their social and
political culture to respect basic human rights and third: the aim of assistance
must be to help societies become well-ordered.
respect for the particular political culture of each burdened society is key to
these principles. What most clearly distinguishes rawls from most of his critics
is his assumption that it is the political culture, as well as the religious, moral and
philosophical grounds which underpin it, which most fundamentally determines
whether or not a state is wealthy. In practical terms, it is each country’s political
virtues, its structures of civil society, its population policy (grounded often in
religious ideas) which determine how much each society values the accumula-
tion of material wealth, or other activities, such as religious piety or environmen-
tal sustainability. rawls reminds us of Sen’s findings that famine is caused not
by lack of food, but by the failures of governments to distribute to those in need
(Sen, 1981). We might also cite here statistics about relative inequalities within
wealthy nations. respect for human rights, freedom of expression and the rights
of women are essential to solving the problem of extreme poverty, and these can
be solved not by transferring resources, but by reforms within recipient coun-
tries. This does not mean, however, that rawls advocates imposing free-market
economic policies upon poor countries. The aim of aid should be to allow a
nation to be self-determining within its own social and political culture. rawls’
approach focuses clearly on the claims of national societies, and this marks it
out from the cosmopolitan views of Singer, as well as from the global egalitarian
thinkers we consider here later.
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 217
Nationality and particular obligations
like rawls, Thomas Nagel distinguishes between our duty to provide assistance
to relieve those radical inequalities which make it impossible for the world’s
poorest to subsist, and a more general duty to correct inequalities. Nagel argues
that wealthy nations are morally required to relieve extreme poverty through
aid, whether or not they have contributed to causing it. But these humanitarian
duties do not amount to the requirements of justice. They apply because of abso-
lute need, while justice is concerned with relative need (Nagel, 2005).
Justice, Nagel suggests, is inextricably tied to sovereignty. As the seventeenth-
century English political philosopher hobbes argued, it is only in the context
of civil society, guaranteed by the sovereign state, that moral principles can be
developed at all ([1651] 1962). The concepts of justice and obligation depend
upon the existence of a state, with shared political institutions. According to this
view, there can be no global justice without world government to ensure that
states meet their obligations and act reciprocally. While hobbes is well-known
for emphasizing ultimate state power, it’s important to note here that the purpose
of such power is to enable coordinated action by large numbers of people, act-
ing in mutual self-interest. rawls’ theory, Nagel contends, is consistent with this
political approach to justice; it springs from our association as citizens together
in society (2005).
This helps us to flesh out the objection to cosmopolitanism: we owe special
duties to our fellow countrymen, but the reason we owe such duties is because
of our political association in the state, and the obligations this imposes upon
us. Nagel argues that society is more than a scheme for mutual advantage – it is
a political association with a strong non-voluntary component. Citizens are joint
authors of the system, and they are subject to its norms, and it’s this, Nagel sug-
gests, which creates a presumption against arbitrary domestic inequalities. Citi-
zens are responsible for the acts of the society made in their name, and therefore
they take responsibility for the institutions which create and distribute benefits
and disadvantages. As Nagel points out, this political conception of justice is
consistent with that defended by ronald Dworkin: the law must express equal
concern for all citizens, and treat them all objectively and impartially. All citizens
must participate in making the law with this in mind (Dworkin, 2000). In short,
justice is what Nagel refers to as an associative obligation: we owe it to each other
because we are citizens living and deliberating together. International society has
not yet reached the level of generating associative obligations. There undoubt-
edly exists considerable economic interdependence and institutional coopera-
tion across the globe, but this does not mean that there is political cooperation.
Michael Blake argues similarly that principles about the fair distribution of
resources apply differently to people who are all subject to the same network of
coercive governance by the state, which protects and ensures their autonomy
218 | A P P ly I N G P O l I t I C A l t h E O r y
(2001). These principles impose particular duties upon co-citizens. Impartiality
is thus consistent with trying to eliminate relative inequalities at home, while
being satisfied with just preventing absolute deprivation for people beyond
national borders. For Blake, it is the fact that co-citizens are subject to the state
and the law, and the absence of world government which justifies different
obligations. Other liberal philosophers have reached similar conclusions based
upon the way in which people make political decisions. Samuel Freeman argues
that while a kind of society exists at the global level, it is not a political society
in which people deliberate about a common good (2006). Nations retain their
sovereign rights in a way that citizens do not in civil society, and thus there can
be no guarantee of reciprocity. Any political power granted to the global level
can be withdrawn. Freeman points out that rawls’ difference principle was not
intended to stand alone, but rather was part of a particular social and economic
structure (the basic structure). As such, it’s part of the larger question of how to
structure relations between individuals who have mutual social, economic and
property relations. Citizens caught up in this network of relations must be able
to deliberate democratically about how to share social goods – and no structures
exist to ensure such deliberation across national borders (with some exceptions,
such as the European Union).
Miller makes perhaps the most comprehensive defence of the claim that
national borders are relevant to thinking about justice, and that there can be no
principle of economic equality among nations (2000; 2007). like Nagel, he cau-
tions that this does not mean that wealthy nations don’t have a duty to provide
the global poor with the minimum that they need for subsistence. Nor does it
mean that inequalities in power and influence between rich and poor countries
in their interactions are acceptable. A wealthy country should not be able to
dictate terms of trade to a poorer one. But these concerns, Miller argues, are
with the effects of economic inequality, rather than inequality itself. The aim of
assistance should not be to achieve distributive equality, or even equal oppor-
tunity. In fact, global justice should be restricted to three duties: 1) respecting
basic human rights world-wide, 2) refraining from exploiting vulnerable human
beings and communities and 3) the obligation to provide all communities with
the opportunity to achieve self-determination and social justice.
Miller’s reason for limiting global justice is that despite globalization, national
membership is still morally significant (2000; 2007). The great majority of people
still identify with their national community; most significant decisions are still
made at the national level; and nations constitute themselves as mutual benefit
schemes. As such, nation-states and their citizens must bear responsibility for
the gains and losses which they create and from which they benefit. Moreover,
even if we were to start from equality, the decisions which national governments
make reflecting particular cultural and political differences would not maintain
it. This argument recalls rawls’ focus on the role played by a country’s political,
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 219
cultural and social values in determining whether it becomes wealthy. But it also
resembles robert Nozick’s argument against egalitarianism in domestic justice,
which we discussed in Chapter 2 (Nozick, 1974).
Some philosophers have recently attempted to tread a middle path, which
makes a case for cosmopolitan justice while still acknowledging some particular
obligations to co-nationals. Gillian Brock argues that treating people impartially
means that we must first establish a just basic structure on a global level. This
means a structure that protects equally the basic needs and liberties of all, and
guarantees fair terms of cooperation to all, across national borders. Once the
basic framework is in place, we may focus on improving the situation of our co-
nationals (Brock, 2009).

Arguments against international aid

We turn briefly here to arguments against all international aid provided by
states. This position has relatively few defenders among political philosophers,
although it raises arguments similar to those we have already considered for lim-
iting international transfers. The strongest position against global redistribution
follows from the libertarian defence of a limited state. In Chapter 2 we consid-
ered arguments for and against redistributing wealth domestically, through tax
and welfare and, as we saw, Nozick argued that such redistribution is beyond
the role of the state (1974). Individuals are entitled to their earnings, and should
only be required to return them to the state to pay for its protection of our rights.
Nozick opposes all patterned theories of justice like egalitarian theories, on the
grounds that they interfered with the freedom of individuals to hold or transfer
their own property as they wished. Moreover, it is impossible to maintain pat-
terns, because people’s freedoms will interfere with them. Nozick was referring
to justice within states, but as we have seen, his objections are echoed by rawls
and other theorists who oppose applying principles of justice globally. Of course,
Nozick’s entitlement theory rests on the assumption that the original acquisi-
tion of resources was legitimate, in that it left enough for others. As we shall see
later, the rejection of this assumption underpins Thomas Pogge’s proposals for
redistribution.
Chandran Kukathas contends that justice should not be pursued as a goal in
international affairs, because there is no consensus upon what it involves (2006).
Our understandings of justice and of what is valuable in society are diverse and
contentious. It follows that institutions designed to pursue and establish justice
will ultimately impose the meanings held by powerful states and coalitions.
Moreover, distributing resources has negative consequences for poor peoples:
it encourages recipient states to become dependent upon aid, rather than to
achieve their own economic development. It also reinforces the power of corrupt
220 | A P P ly I N G P O l I t I C A l t h E O r y
elites in recipient states, and contributes to widening inequality within the recip-
ient state. Kukathas suggests that the better course of action is for individuals
to contribute more to international relief – particularly through collective and
voluntary action with NGOs. In addition, poor countries should be encouraged
to institute economic and political reforms that will free up resources internally
(Kukathas, 2006). This brings us back to the research we discussed early in the
chapter, which found that poverty and hunger are produced by government
policies, rather than insufficient resources. But we must also note that attempts
to change government policies in a particular economic direction, as happened
with structural adjustment programmes imposed by the World Bank and the
IMF, have often had the result of increasing inequality within loan recipient
nations.

Justice and obligation between nations

While the arguments we considered in the previous section reject all redistribu-
tion in the name of justice, defenders of aid tend to position themselves against
those who defend egalitarian redistribution in the domestic sphere, but deny
that it applies globally. As we’ve seen, rawls argues that there is a fundamental
difference between our obligation to redistribute resources at the domestic level,
where our lives are regulated by the basic structure of the social scheme in which
we cooperate, and our lesser obligations across national borders. Nagel and
Miller agree, arguing that the nationality imposes particular duties on citizens
which cannot be transferred across national borders. Several political philoso-
phers who share rawls’ basic commitment to redistribution at the domestic level
reject this distinction. They argue that the impact of the international system
upon poor nations means that we should regulate the inequalities it produces
in the same way as the basic structure is regulated. Or to put it in terms of the
duties of nations: as members in a global system, wealthy nations have obliga-
tions based upon reciprocity. In an early and influential argument along these
lines Charles Beitz applies rawls’ arguments for his domestic principles of justice
to the global level, concluding that justice and not just mutual aid requires us to
transfer wealth across national borders to the needy (1979). In order to make
this case, he contends first that nations are joined together in a network of inter-
dependence that has the same effect as a shared scheme of social cooperation,
and secondly, that natural resources, which are undeserved like natural talents,
generate benefits in this shared scheme that should be shared by all.
Beitz argues that people are linked together meaningfully across national bor-
ders, whether or not they are actively cooperating together in a shared scheme
of social cooperation. We should not interpret rawls’ requirement that such
a scheme exists too literally; the fact is that states are no longer self-sufficient
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 221
cooperative systems. They are linked together in a complex pattern of social
interactions: trade, travel, foreign investment, aid and communications. The
appropriate definition of social cooperation that attracts the requirements of
justice occurs when ‘social activity produces relative or absolute benefits or bur-
dens that would not exist if the social activity did not take place’ (Beitz, 1979,
131). This definition of social cooperation doesn’t restrict it to national borders
– even rawls imagines a certain degree of interdependence, so that parties rep-
resenting nations would choose the familiar principles of international law to
regulate their interactions. The most important feature of this interdependence
with respect to questions of justice, Beitz argues, is the volume of international
investment and trade. Corporate investment is increasingly international, and a
global market. This has seen the rise of the multinational corporation. We might
also note that Beitz was writing in 1979 – there has since been even more growth
in international economic interdependence.
Moreover, the economic interactions between countries produce substantial
economic benefits which are unevenly distributed (see table 11.1). Beitz points
out that interdependence widens the gap between rich and poor nations, even
though it produces absolute benefits for all nations. Nations have different
resources and levels of technology and multinational corporations can shift
investment around to the most productive and lowest cost nations, thus exacer-
bating economic inequality. Countries are unequal in their ability to secure the
gains of international trade, as this depends upon the ability of domestic govern-
ments to maintain control over domestic but largely multinational corporations.
Some nations are asymmetrically vulnerable if they rely on concentrated exports
in a few products. Also, governments find it hard to control domestic economies
as they are so dependent upon economic developments elsewhere.
Globalization has only exacerbated this loss of national control, and it is
uncontroversial now to claim that nations are not self-sufficient, and that social
cooperation is not contained by national borders. There is a complex pattern of
social interactions that produces benefits and burdens that would not otherwise
exist. This is what rawls identifies as crucial in his discussion of the application
of principles of justice to domestic societies. Allen Buchanan defines the global
basic structure as a set of economic and political institutions that have ‘profound
and enduring effects’ on the distribution of goods and burdens among people
throughout the world (2000).
But there is also another feature of the global situation which strengthens
the analogy to the domestic, and this is the role played by natural resources in
generating wealth. Beitz argues that natural resources make a crucial contribu-
tion to the material advancement of societies. Parties in the original position
would view the distribution of resources much the same way as they view the
distribution of natural talents – namely, as unearned. In fact, Beitz argues that
we can make an even stronger argument for natural resources than we can for
222 | A P P ly I N G P O l I t I C A l t h E O r y
natural talents – they are not an inextricable part of a human self and human
personality. Given that there is social cooperation at the global level, the unequal
benefits that come from appropriating natural resources should be regulated by
principles of justice.
Beitz concludes that if rawls’ two principles can be justified at the domestic
level, they must also be justified at the global level. There is no reason to think
that parties in the original position should know what nation they belong to –
the ‘veil of ignorance’ that prevents parties from knowing facts about their own
identities and places in the world must also apply to citizenship. Parties in the
original position will choose to maximize the position of the worst-off group of
people in the world. As he points out, this will not necessarily consist of people
within one particular state – what matters here is interpersonal inequalities,
rather than international. Beitz’s position is cosmopolitan in that he thinks the
principles of justice must apply to everyone, irrespective of national member-
ship, but we should note that this does not mean that he sees states as irrelevant.
State borders are not morally significant, but they are practically important, as
states are in the best position to carry out redistributive responsibilities.
In response to Beitz, rawls insists that we cannot draw an analogy between
natural talents and natural resources, because the latter can be distinguished
from the country’s political and civic culture, which determines how resources
shall be used. Moreover, while people are engaged in social cooperation at the
global level, this cooperation doesn’t require regulation by principles of justice,
because it doesn’t take place within a basic structure (rawls, 1999). Beitz has
maintained, however, that global society has a basic structure – the economic,
political and legal institutions and practices within which people and states
interact. In his later work, he has moved away from arguing that aid payments –
large scale transfers of resources between countries – are the most effective
means of achieving global justice (Beitz, 2005). he argues now that reorganizing
the basic structure of global society to make sure that its institutions and prac-
tices do not reproduce and exacerbate inequality is the most important task. This
encompasses regulating private capital flows, trade, and international property
rights.
like Beitz, Thomas Pogge takes a cosmopolitan view, arguing that principles
of justice apply to global society (2002). But where Beitz asserts a positive duty
to redistribute wealth, Pogge bases his argument upon the negative duty states
have not to contribute to the life-threatening poverty of others. Given that global
poverty and need, and radical inequality, are facts, what are the duties of wealthy
nations? Pogge accepts that we have a positive duty to aid those in distress. But
as we saw in Miller’s critique of Singer, acknowledging this does not tell us who
to help. rather than providing foreign aid, we could argue for redistributing
resources within the country. Pogge argues that the duty to redistribute wealth
abroad depends upon a negative duty not to profit from or contribute to the
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 223
impoverishment of others. This negative duty depends upon establishing three
factors relating to the situation of the worst-off: first: shared social institutions
must contribute to global inequality, and must be imposed upon the worst off.
Second: the worst-off must be excluded from the benefits of natural resources,
without compensation. Third: the relative positions of the worst off must be
caused by a historical process involving violence and repression.
Pogge argues that each of these conditions is satisfied. In the case of the first,
global institutions around trade and foreign investment at least contribute to
global inequality, although Pogge leaves open the idea that corruption and poor
policy decisions in impoverished countries also play a role. Investments, loans,
trade, bribes, military aid and sex tourism (and this is not an exhaustive list) all
maintain and exacerbate the condition of the global poor. local decisions and
cultural factors in poor countries also have an influence, but Pogge points out
that these are not independent factors – they are influenced by the existing global
order. We might look at the relationship, for instance, between the international
arms trade and violence and civil war in developing countries, or between the
exploitation and oppression of women and girls, and international sex tourism.
Affluent countries and their citizens have used their power to shape the rules of
the world economy, and this affects the fate of all who participate in it.
The second condition is easy to establish – countries that happen to have no
natural resources in their territory are not compensated for the fact that they
derive no benefit from them. like Beitz, Pogge assumes that natural resources
are not morally deserved by nations. This strand of his argument appeals to
the argument of seventeenth-century British philosopher John locke, that the
appropriation of property and its benefits is legitimate as long as enough and as
good is left for others ([1690] 1988). (We discussed this with respect to domestic
justice in Chapter 2.) Enough and as good has clearly not been left for countries
without natural resources. In the case of the third condition, colonialism and
foreign intervention by developed states incorporated violence and repression.
Wealthy and poor countries have a common and violent history, which has led to
current inequalities. In sum: people in wealthy countries, by shaping and enforc-
ing the global conditions that cause the suffering of global poverty, are actively
harming the global poor – in a way comparable to the mass sufferings inflicted
by despots like hitler and Stalin (Pogge, 2005).
Pogge’s proposed solution focuses on the second condition – the exclusion
of poor countries from the benefits of resources. he begins from the premises
that the world’s resources are held in common, and that if they were properly
distributed, would be enough to meet everyone’s basic needs. he argues that
states should not have full property rights over the resources in their territories,
but should be required to share a small part of the resources they decide to use
or sell (Pogge, 1998, 2004). The proceeds from this should be used to make a
payment – the global resources dividend (GrD), which will be redistributed
224 | A P P ly I N G P O l I t I C A l t h E O r y
to poor countries. The point of the GrD is to ensure that all human beings can
meet their basic needs with dignity – to make it possible for them to defend
their basic interests. Pogge estimates that it could comfortably raise 1% of global
social product, which could be redistributed for poverty eradication. These
funds could also be spent so as to encourage less corrupt government in recipi-
ent countries. The GrD would raise about US$320 billion annually – or about 86
times what all wealthy countries are currently spending on basic social services
in the developing world (Pogge, 2005).

Box 11.2 GloBal reDisTriBuTion:

CoMpeTinG norMs anD values
The debate over redistributing resources globally turns on competing interpretations
of justice and rights, and their relationship to the nation-state, as well as property
rights.

• Justice: Supporters of global redistribution argue that justice requires that all
human beings have at least a basic level of resources necessary to live a decent
life. Principles of justice are not limited by national borders: human beings are
all morally equal, and we owe duties to each other, at least to provide for basic
needs, on the basis of shared humanity, rather than fellow-citizenship. Opponents
counter that justice depends upon the existence of a shared social contract, or
shared participation in a political process, or overarching state sovereignty. In any
case, the principles of justice cannot apply at the global level in the absence of
these. Some supporters of redistribution counter this by pointing out that there
is substantial interdependence between nations, and that states participate in
international social and economic institutions (see private property, below).
• Rights: Supporters of redistribution argue that all human beings have at least
basic rights – defined usually as the right to freedom from violence and material
want. These rights are independent of nationality. Those with sufficient resources
have a duty to ensure that others can exercise their basic rights. Many critics
accept a right to basic subsistence, but criticize more extensive redistribution,
on the grounds that all but the most basic rights are dependent upon common
membership in a shared project like the nation-state.
• Private property: Supporters of redistribution argue here, as in the domestic
case (see Chapter 2), that property rights are subordinate to the requirements
of justice. Even in the absence of a world state, there is sufficient cooperation
and interdependence between nations to conclude that property is produced as
a result of social interaction, and should be distributed socially. According to the
strongest argument against this, made by libertarians, states are not entitled to
demand the property of some in order to redistribute it to others. Some critics
argue that even if redistribution can be defended at the domestic level, social
cooperation and interdependence at the international level doesn’t constitute
participation in a shared social and economic project analogous to the state.
 ShOUlD rICh COUNtrIES GIvE MOrE FOrEIGN AID? | 225
It’s important to note Pogge’s claim that the GrD is not aid, nor is it the
transfer of what rightfully belongs to wealthy countries (Pogge, 2005). rather
it reflects locke’s view that everyone should be entitled to a proportional share
of the world’s natural resources – that those who appropriate and benefit from
them must ensure that enough and as good are left for others. Wealthy nations
never in fact had the right to all the profits they made from using or selling their
nature resources. The GrD is designed to undo an unfair historical process, and
to provide a share (not necessarily an equal one) of those resources to which
all countries were originally entitled. Pogge means this to be consistent with
historical entitlement arguments for private property, like that made by robert
Nozick. But like the basic income proposals we discussed in Chapter 2, the GrD
also incorporates a libertarian concern that the poor (in this case poor nations)
be provided with the resources they were originally entitled to, in order to make
their own free and autonomous decisions about development. In this way, the
GrD is an alternative to conventional development assistance – it cannot be tied,
and it empowers poor countries to make their own decisions about develop-
ment. We might note that this is consistent with rawls’ concern that countries be
able to determine their own levels of material wealth, in line with their political,
social and cultural values.

Conclusion
It would be easy to see arguments that justice requires increased international
distribution via foreign aid as an unqualified endorsement of transferring more
wealth to poor nations. The reality is much more complex. As we noted at the
beginning of this chapter, wealthy countries have been attacked not only for the
shortfall in the amount of resources that they give, especially compared with
internationally agreed goals, but also for the type of aid that is given, and to
whom it’s directed. A disproportionate amount of assistance is given to strategic
allies of the donor countries, rather than to the world’s neediest, and much of it
is tied. All this means that aid tends to be designed to benefit the donor country
as well as the recipient – and if we accept the conventional realist understand-
ing of international relations as being driven by national interest, this is no
surprise. But given these constraints on aid, it is also not surprising that global
poverty continues to exist. This is sometimes forgotten in the public debate in
wealthy countries about whether or not aid works. Opponents point to continu-
ing extreme poverty in parts of the world like sub-Saharan Africa, and argue,
as Kukathas does, that aid has reinforced corruption in recipient countries, and
dissuaded them from assuming responsibility for their own development. As
supporters of aid point out, however, there have been important successes in
the areas of child health and mortality, and increased agricultural production in
China, India and South East Asia (Sachs, 2005).
226 | A P P ly I N G P O l I t I C A l t h E O r y
Almost all of the philosophical arguments we have considered offer some
grounds to criticize the way aid is given, and to suggest ways that it could be
improved. Arguments for humanitarian assistance to relieve extreme poverty
are made by philosophers across the spectrum on this issue, from Singer’s
utilitarian case, to rawls’ more cautious contractarian approach. All agree that
the world’s wealthy states are morally obliged at least to provide the resources
needed by the world’s poor for subsistence. Above and beyond this, philosophers
who defend applying egalitarian principles to international distribution (such
as Beitz) emphasize the importance of improving the position of the worst-off
group. While rawls argues against global egalitarianism, his focus on the impor-
tance of preserving the political culture, and the social, cultural and religious
values of well-ordered societies, reminds us of the dangers of imposing social
and economic policies upon recipient countries. This does not mean, of course,
that mismanagement and corruption in recipient countries can be excused on
the grounds of cultural difference. rawls emphasizes that societies must be
well-ordered, whether liberal or decent, and this is reflected in the findings of
the World Bank, that aid is most likely to be effective when recipient countries
recognize the rule of law and human rights, and are free of corruption (Dollar
and Pritchett, 1998).
Poggee’s GrD embodies a different approach to transferring resources, in that
it understands the resources transferred to be the legitimate property of recipient
countries. As we have seen, the dividend is compensation for their share of prop-
erty that that was appropriated by other states in the form of natural resources.
As such, it allows recipient countries maximum freedom in deciding what to do
with their resources, according to their own political, cultural and moral lights.
This is in line with recommendations by aid NGOs that recipient countries must
be involved in deciding how aid is used. But as in the case of rawls, cultural val-
ues and national autonomy must not be allowed to cloak corruption and exploi-
tation. In the case of corrupt governments that prefer to spend the GrD on elites
rather than on their poor and needy, Pogge suggests that the funds could be paid
directly to the needy through the United Nations or NGOs. If it were impossible
for the GrD to go to the people in a particular nation who needed it most, the
dividend should not be paid to that nation at all (Pogge, 2004). The challenge
that aid raises for both philosophers and practitioners is to balance universalist
concern with human needs on the one hand, with respect for national autonomy
and self-determination of developing countries on the other.
12

Can Military Intervention

into Other Countries
Be Justified on
Humanitarian Grounds?

● ShiftS in international political attitudeS towardS humanitarian

intervention
● intervention and international law
● State Sovereignty
● community memberShip and external aSSiStance
● community memberShip and the caSe for intervention
● JuSt war
● JuStifying intervention: the coSmopolitan argument
● concluSion

The question whether states have the right to intervene by force to prevent the
tyrannical abuse of people in other countries has been debated since nation-
states and the law of nations emerged in the seventeenth century. The dilemma
intervention poses can be considered in legal, political and moral terms: as we
shall see, international law recognizes intervention as a very limited exception
to state sovereignty. But the political and moral dimensions of intervention are
more complex and difficult to evaluate. As both historical and contemporary
cases demonstrate, intervention has often been justified on moral grounds, but
carried out in large part to advance the self-interest of the intervening power.
Western imperial expansion in Asia and Africa in the nineteenth century was
justified in moral terms by the claim that indigenous people required protection
from local tyrants (an argument supported, as we shall see, by the one of the
founders of modern liberalism, John Stuart Mill). In 1938, Adolf Hitler tried to
justify his invasion of Czechoslovakia on the grounds of protecting the German
minority in the Sudetenland from human rights abuses. The 2003 invasion of

227
228 | A p p ly I n G p o l I t I C A l t H e o r y
Iraq by the United States and its allies was publicly justified, at least in part, on
the grounds that it would liberate the Iraqi people from the tyrannical rule of
Saddam Hussein. of course, humanitarian intervention has also been opposed
on the grounds of political interest: in the early twentieth century, turkish massa-
cres of Armenians prompted international calls for humanitarian intervention –
which United States president Woodrow Wilson ignored, out of concern not to
jeopardize diplomatic relations with turkey.
Humanitarian intervention has become a particularly pressing issue since
the 1990s; in fact many commentators argue that whether to intervene to help
victims of human-engineered catastrophes was the most important and dif-
ficult issue facing the world from the end of the Cold War until September
2001 (ICISS, 2001). Conflicts in this period in europe and Africa have involved
serious violations of human rights, and international media coverage has made
these more immediate and visible to the public in Western nations, resulting in
increased pressure on governments to act. In the extreme political instability in
the Middle east following the US-led invasion of Iraq in 2003, political interven-
tion attempting to protect persecuted minorities, and systematic human rights
abuses, has been deeply controversial in Western countries. In 2014, military
intervention in the form of air strikes began by several states, from the United
States to Iran, against the group calling itself Islamic State, which has seized
control of parts of Syria, Iraq and libya. Critics of these and other interventions
often allege that they are a form of neo-imperialism on the part of Western states
wishing to protect their strategic and economic interests.
A closer look at recent cases in which humanitarian intervention was under-
taken illustrates the complexities involved in determining whether intervention
in other countries is a just course of action, and under which circumstances. on
March 24, 1999, nAto launched operation Allied Force, a program of aerial
bombing in the yugoslav province of Kosovo, with the aim of preventing the
practice of ethnic cleansing – forced expulsion of the ethnic Albanian popula-
tion of the province. A civil war was then in progress between the Serb-led yugo-
slav forces and the ethnic Albania Kosovo liberation Army over independence
for Kosovo. The displacement of thousands of people in the conflict prompted
relief organizations like oxfam to support intervention. nAto’s action, led by
the United States, was not authorized by the United nations Security Council; in
fact, the Security Council had not even considered a resolution authorizing the
use of force, as russia, a permanent member and a long-time ally of Serbia, had
vowed to veto any such resolution. The US government claimed that nAto was
acting to save lives – that yugoslav forces had ‘crossed a line’ with ethnic cleans-
ing, and were contravening the core norms of human rights. They declared their
intentions to minimize civilian casualties, but nevertheless, most of the bombs
and missiles struck Serbia proper and its infrastructure, rather than the Serbian
military, paramilitary and police in Kosovo (Shue, 2003). Many observers com-
mented that the bombing targets suggested that punishment was the real aim,
 M I l I tA r y I n t e r v e n t I o n I n t o o t H e r C o U n t r I e S | 229
rather than ending ethnic cleansing. Moreover, there were several mistaken tar-
gets. In May, for example, the Chinese embassy in Belgrade was hit in error, and
three Chinese journalists were killed.
Irrespective of justification, the immediate results of the action were challeng-
ing for its defenders. Before it took place, 230,000 people had been displaced in
Kosovo, and 2500 killed. Afterwards, 1.4 million had been forced to flee their
homes, and 10,000 people were killed during the bombardment (although these
were mainly ethnic Albanians killed by Serbs in retaliation) (Mandelbaum,
1999). The bombing ended when yugoslav president Slobodan Milosevic agreed
to accept Un Security Council resolution 1244, which authorized an interna-
tional civilian and military force in Kosovo to administer the province and con-
duct peacekeeping operations. In terms of ending ethnic cleansing, the operation
may be judged a success. But in terms of reducing suffering in the short term, it
clearly was not successful. nor did it create a society in which members of war-
ring groups could live together and respect each other’s human rights (Booth,
2001). Moreover, Western critics also claimed that it alienated russia and China
from Western nations on the Security Council, with long-term consequences for
the ability of the Council to work together on other issues (Mandelbaum, 1999).
Much of the global debate about the intervention in Kosovo concerned not the
importance of alleviating human rights abuses there, but rather the way in which
ends and means should be balanced. Intervention had to be weighed in terms of
both its immediate and long-term effects for those suffering, as well as its effects
upon others, and the importance of moral versus other motives in justifying
military action. not surprisingly given the complexities of this issue, the decision
not to intervene has also been controversial. In the 1990s, conflict escalated in
the central African state of rwanda between ethnic Hutu and tutsi groups who
had competed for power in the country since independence in 1959. Un peace-
keepers arrived in 1993, but in April 1994, Hutu militias, with the support of the
Hutu-led rwandan government, launched a campaign of genocide against the
tutsi. The attacks were ruthless, bloody and effective – over 250,000 tutsi were
murdered in two weeks, half a million by the end of the genocide in July 1994.
The scale of the genocide became known only gradually to international
observers in rwanda. Belgian peacekeepers installed in 1993 withdrew after ten
were killed by Hutu extremists, and the Security Council cut the peacekeeping
forces to a skeleton staff. As international outcry mounted from late April, the
Un reversed its decision, announcing that it would increase the numbers of
peacekeepers there. But the Un was unable to persuade members to commit
substantial extra troops or equipment. The United States was reluctant to act in
the wake of the disastrous intervention in Somalia in 1993 (see below). eventu-
ally the Un authorized the French to carry out its own intervention in late June,
by which time most tutsi victims were long dead (Kuperman, 2000). There was
evidence that the Hutu held back from mass killings in sites where there were
Western observers, but it’s impossible to tell whether intervention would have
230 | A p p ly I n G p o l I t I C A l t H e o r y
prevented the genocide, or accelerated it. Some critics have argued that 5000
well-armed interveners could have prevented the genocide if deployed immedi-
ately at the outbreak of violence. of course in reality, immediate deployment of
large numbers of personnel is hardly ever possible. As critics point out, if foreign
intervention is seen as likely, the danger is that the weaker force militarily will
be bolstered. This can lead them to escalate fighting in the expectation of helpful
foreign intervention (Kuperman, 2000).
other high-profile cases in which intervention has occurred on the grounds
of preventing human rights abuses include the Bosnian conflict during the early
1990s, and libya in 2011. In another product of the breakup of yugoslavia, civil
war broke out in Bosnia in 1992, after Bosnian Serbs resisted a move towards
independence. Serb-led forces shelled Muslim Bosnians, and thousands of
Muslim Bosnians were driven from their homes. In addition, torture, rape and
ethnic cleansing were carried out by Serb forces, in actions determined later
by the International Court of Justice to be crimes against humanity. Western
governments imposed sanctions on Serb-dominated yugoslavia, and the Un
deployed peacekeepers, who were required to remain neutral in the conflict.
In 1995, Bosnian Serbs massacred nearly 8000 Bosnian Muslims in the town of
Srebrenica, a Un-declared safe haven, while Un peacekeepers stood by. Shortly
after this, the United States led a massive nAto bombing campaign against the
Serbs, and sent 20,000 American troops as part of the contingent of nAto-led
peacekeepers. president Clinton’s decision was opposed by the foreign policy
elite and much of Congress, and supported by only 36% of the American popu-
lation. richard Holbrooke, who was Clinton’s envoy in the Balkans through the
conflict, claimed later that if the intervention had not taken place, Bosnia would
not have survived; there would have been 2 million Bosnian refugees displaced
in europe, and militant Islamic terrorist cells would have become established in
the region (Holbrooke, 2005).
In 2011, a coalition of Western nations intervened in the civil war in libya, in
which opponents of the Qadhafi regime were attempting to overthrow it. In Feb-
ruary 2011, the Un Security Council passed a resolution condemning the use
of lethal force by the Qadhafi regime against the rebels, and imposing an arms
embargo. A second Un resolution in March demanded an immediate ceasefire,
and authorized Un members to establish a no-fly zone, to prevent air attacks
by government forces against the rebels, and to use all means short of occupa-
tion to protect civilians. US, British, French and Canadian forces launched air
strikes, supported by a coalition of 19 states. Fighting continued until the death
of Qadhafi in october 2011, and despite a request by the new libyan govern-
ment for continued assistance, nAto’s mandate for military action was ended
by the Un. libyan authorities alleged that many hundreds of civilians were
killed by the nAto action; the Un, however, put the number at 60 deaths, and
55 people wounded. Supporters of the intervention described it as a clear case
 M I l I tA r y I n t e r v e n t I o n I n t o o t H e r C o U n t r I e S | 231
Box 12.1 Human rigHts aBuses in sudan
Perhaps the most widely supported – and unsuccessful – recent demand for
humanitarian intervention relates to the Darfur region in Sudan. The Sudanese
government and the militias it supports launched a brutal campaign of mass killings
and ethnic cleansing after an uprising in Darfur in 2003. An estimated 500,000 people
have died as a result of violence, starvation or disease due to the conflict. In 2005, a
Commission of Inquiry created by the UN Security Council concluded that while the
Sudanese government did not have a policy of genocide, it was involved in numerous
war crimes and crimes against humanity. Despite numerous condemnations by Western
states and the Security Council, UN member states have refused to intervene. There was
much debate over who was responsible for protecting the citizens of Darfur (see the
discussion of the ‘responsibility to protect’ on pp. 231–232).

• Opponents of intervention argue that the Sudanese government must be made to

fulfil its responsibility to protect its citizens. UN Security Council members China,
Russia and Pakistan have invoked arguments about state sovereignty to oppose
intervention.
• Some have suggested that the African Union, as the regional organization, has prime
responsibility for dealing with the situation in Sudan. African Union peacekeepers
were sent to the region in 2004, but the force was small and ineffective in preventing
human rights abuses. AU peacekeepers were incorporated into a larger UN/African
Union mission in 2000.
• Even some of the strongest academic critics of the Sudanese regime have argued
that a large-scale UN intervention is unlikely to be effective, as the struggle is
grounded in long-standing historical and ethnic conflicts in the region. These can be
addressed and resolved only the Sudanese people themselves (Prunier, 2005).

of ‘responsibility to protect’ (see below), while critics alleged that nAto and
Western nations were motivated by the fact that libya is one of the world’s larg-
est oil producers.

Shifts in international political attitudes

towards humanitarian intervention
The attitudes of national governments and international institutions towards
intervention have shifted and evolved in response to these humanitarian crises.
In April 1992, in the midst of the war in Kosovo, British prime Minister tony
Blair formulated a new ‘doctrine of the international community’, or what came
to be called the Blair Doctrine: nations should go to war not for reasons of ter-
ritorial interest, but to protect people threatened by humanitarian disasters.
232 | A p p ly I n G p o l I t I C A l t H e o r y
Humanitarian considerations have been invoked by the British government
in every international intervention since then, including Afghanistan in 2001
and Iraq. The Blair doctrine is based on the long-standing tradition of Just War
theory, which we examine in detail below. It lists five questions which must be
answered before humanitarian intervention is undertaken: are we sure of our
case? Have we exhausted all diplomatic options? Are there military operations
than can prudently be undertaken? Are we prepared for the long term? Finally:
are national interests at stake? The doctrine addresses both moral and pragmatic
considerations; the final question sets clear national interest limits on humanitar-
ian considerations, and perhaps explains why no action has been taken in Darfur.
The Un Secretary General Kofi Annan raised the issue of humanitarian inter-
vention in speeches to the General Assembly in 1999 and 2000, asking member
nations to come to consensus on how to approach this issue, and agree to basic
principles. In response, the Canadian government established the International
Commission on Intervention and State Sovereignty in 2000. The ICISS published
its findings in 2001, in a report entitled The Responsibility to Protect (ICISS,
2001). The report redefines state sovereignty, asserting that it carries with it two
fundamental responsibilities: to the citizens of the state concerned, and also to
the international community. States become accountable to the global commu-
nity for the ways in which they treat their citizens, and where a population is
suffering serious harm, and a government is unwilling or unable to prevent this,
then sovereignty must be yielded, and the international community should take
over the responsibility to protect citizens. The ICISS listed four requirements
for legitimate intervention, again reflecting Just War criteria: the intention must
be to protect, intervention must be a last resort, it must be proportional and it
must have reasonable prospects of success. The report concluded that the Un
Security Council was the appropriate body to authorize interventions, and that
it should adopt a set of guidelines for such cases, based on the principles above
(ICISS, 2001). The doctrine of responsibility to protect (‘r2p’) was unanimously
adopted by states at the 2005 World Summit, and has been invoked by Un mem-
bers on several cases since. In 2011 it was used to justify an airstrike campaign
in libya (see above).

Intervention and international law

These changes in the way international institutions and some governments
perceive humanitarian intervention must be viewed in the context of prevailing
international law. The Un Charter makes it clear that the sovereignty of states
and their rights to freedom from outside interference are paramount. The Char-
ter authorizes the use of force against another nation in very limited circum-
stances: self-defence under Article 51 of the Charter, or ‘to maintain or restore
international peace and order’ under Chapter vII of the Charter. The principle
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of the sovereign equality of states is enshrined in Article 2.1 of the Un Charter.
Article 2.4 requires member states to ‘refrain in their international relations
from the threat or use of force against the territorial integrity or political inde-
pendence of any state’. Article 2.7 specifies that nothing in the Charter author-
izes the Un ‘to intervene in matters which are essentially within the domestic
jurisdiction of any state…’.
The assumption that sovereignty could be challenged only when a state posed
a threat to the international order reflects the origins of the Un in the after-
math of the Second World War. State sovereignty in this conventional sense is
still dominant in international legal argument. But the sources of violence and
threat in the world have changed in the past 60 years: most conflicts are now
intra, rather than interstate. In addition, the proportion of civilians to military
personnel killed in these conflicts has risen from 1 in 10 at the beginning of
the twentieth century, to 9 in 10 at the end (evans, 2004). As we shall see, state
sovereignty continues to be a crucial value in political and moral debates about
intervention. But the way in which sovereignty is defined, and the moral chal-
lenges to it, reflect these post-war changes in global conflict and threat.
The controversy in political philosophy over intervention reflects two funda-
mental conflicts: firstly, between absolute state sovereignty and cosmopolitan
arguments for the moral primacy of individual human rights – arguments we
discussed with respect to redistribution of resources in the previous chapter.
This is sometimes expressed as a conflict between state and human security
(Kaldor, 2007). Do the human rights of individuals trump the rights of states to
exercise control within their territorial borders? If they do, who should act to
protect them? The second conflict is between traditional absolute conceptions
of sovereignty, and conceptions that see it as dependent upon states fulfilling
their responsibilities to citizens. As we’ve seen, this second view has gained some
international support, and is expressed in the recent ICISS report.
These questions are usually addressed by political philosophers in the deon-
tological terms in which they are framed here – that is, as questions of moral
principle. But as we can see from the Blair doctrine and the ICISS report consid-
erations of cost and consequence are never absent from political debate around
intervention. There is more concern about the consequences of principled action
with respect to this issue than any others we have considered in this book.
Utilitarians, of course, assess humanitarian interventions – either each in itself,
or allowing them as a rule – in terms of their consequences. But all theorists
agree that even grave human rights abuses cannot justify military intervention
that isn’t likely to be successful, and that will itself cost human lives. And even
if action is judged likely to prevent human rights abuses, the costs of it in terms
of lives and damage, including to the intervening forces, must be weighed up
against the good it may do.
We begin here by examining ideas about state sovereignty, and the case against
intervention. We then turn to related arguments against intervention which
234 | A p p ly I n G p o l I t I C A l t H e o r y
emphasize not the sovereign rights of the state as an absolute good, but rather the
value of the intact political community as the context in which political values
and actions have meaning. These are often described as communitarian argu-
ments against intervention, but as we shall see, they also rely on the fundamental
value liberals attach to free and autonomous human action. From this perspec-
tive, intervention is wrong not because it undermines sovereignty but because
it prevents people from acting freely to make their own political decisions con-
structing their own political institutions. It’s important to note that most argu-
ments along any of these lines against intervention make exceptions for cases
where the human rights abuses are particularly egregious – such as genocide and
enslavement. This also reflects international law – the 1948 Genocide Conven-
tion requires states to prevent genocide.
turning to arguments in favour of humanitarian intervention, we examine
first those theorists who accept the value of community membership, but reject
the identification of the nation-state with that community. We then turn to Just
War theory. This framework draws on a natural law tradition to argue for values
that override the security of the state – and from which state security arguments
derive their own legitimation. Just War has traditionally been used to evaluate
warfare in moral terms, but its principles have recently been influential in the
special case of humanitarian intervention. From there we move to cosmopolitan
arguments for universal human rights. Cosmopolitanism, which here takes the
form of universalist liberalism, has developed on a separate historical trajectory
from Just War theory, but as we shall see, both rely on the concept of natural
rights. Finally, we explore a contractarian cosmopolitan case for regulating
intervention. In all of these perspectives, consequentialist concerns constrain
arguments from moral principle.

State sovereignty
The argument from state sovereignty asserts that by their very definition, states
have exclusive control over all their own affairs, and that they co-exist in an
international society in which all recognize this right in each other. We should
note at the beginning that although this ‘statist’ position is well-grounded in
the history of Western political thought, it is not widely supported among con-
temporary political philosophers. even those who invoke it tend to argue that
sovereignty should have some limits in terms of how states treat their citizens, as
we discuss in more detail below (Cohen, 2005).
The idea that states have exclusive responsibility for their internal affairs,
and the exclusive right to territorial integrity against other states is a relatively
recent development. The system of sovereign states emerged with the peace of
Westphalia in 1648, which ended the Thirty years’ War in europe, and allowed
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princes the right to determine Christian worship in their own states, free from
the control of the Holy roman empire. Sovereignty was established as supreme
authority – legitimate power – within the territory of the state. The earlier ante-
cedents of the concept may be found in renaissance political philosophy: in the
early sixteenth century, the Italian diplomat and political philosopher niccolo
Machiavelli advised the prince on how to maintain supreme control over terri-
tory, independent of the authority of the Church and natural law ([1532] 1988).
At around the same time, protestant reformer Martin luther insisted that the
‘realm of spirit’ and the realm of secular society were distinct, and the Church
must not compete with temporal and secular authority (Figgis, 1931).
The early modern political philosophers Jean Bodin and Thomas Hobbes
further developed the concept of sovereignty, establishing its central importance
in Western political thinking. Bodin’s Six Books of the Commonwealth was writ-
ten in 1576, when France was beset by religious civil war. He argued that social
unity could be achieved only under the aegis of a single and unitary political
body, which was above human law and was the source of such law (Bodin, [1576]
1992). Sovereignty must be absolute and perpetual, and the sovereign state was
not subject to any civil law in either its domestic or its foreign actions. But it was
subject to divine law and natural law – God’s direct law, and his law as revealed
in nature. It follows then that the state could not act tyrannically against its own
citizens, in contravention of natural law.
The most absolute defence of state sovereignty was made by Thomas Hobbes,
writing also in the context of civil and religious war, this time in england. Hob-
bes’ is a contractarian argument – he defends state sovereignty on the grounds
that it is part of a basic contract between citizens. In his Leviathan, Hobbes
argued that human beings existed originally in a state of nature, in which there
was no civil authority ([1651] 1962). Human life was characterized by constant
and unavoidable insecurity, and as a result, individuals had no choice but to
agree to form a contract to establish an overarching authority – the state. They
transferred to the state all of the powers they had by nature, so that it could
ensure them protection. The social contract formed was not between people and
the state, but rather between people to set up the state. The purpose of the state
was to provide security, and this took precedence over all else. Consequently, it
had absolute authority over citizens, who were obliged to obey all of its com-
mands except those which would result in self-destruction. Sovereignty was to
be absolute and indivisible, as for Bodin; but unlike Bodin, Hobbes did not see
it as subordinate to natural law. once the state was in existence, neither citizens
nor foreigners could justify their disobedience or interference by invoking natu-
ral or God’s law. There could be no substantive law or justice outside the state,
because the state was the source of all law and morality.
We might see Hobbes and Bodin as the points of origin of two currents of
thinking about sovereignty. on the one hand, sovereignty is absolute, and cannot
236 | A p p ly I n G p o l I t I C A l t H e o r y
be challenged by moral arguments; on the other, it is absolute against all civil law,
both domestic and foreign, but is subject to the fundamental principles of natu-
ral law. It’s important to remember, though, that even Hobbesian absolute sover-
eignty is not an excuse for tyrannical rule – Hobbes claims that justice can only
prevail when state sovereignty is respected in a system of sovereign states. nev-
ertheless, the distinction between these currents of thinking becomes important
when we consider whether exceptions to a principle of non-intervention should
be made when states act tyrannically, for example, practicing genocide upon
their own citizens. We might argue that even Bodin’s definition of sovereignty
would have legitimized intervention in rwanda.
Among modern political philosophers, terry nardin argues that we should
respect the sovereignty and political independence of states, because an inter-
national system which practices non-intervention would exhibit the virtues of
mutual restraint and toleration of diversity (1983). The stability of the society of
states is key here, and it is only when that is under threat due to human rights
abuses that intervention may be justified. Armed intervention to protect human
rights may take place under four conditions: 1) It must be a last resort, after other
less drastic remedies have failed; 2) it must be likely to end the abuse of human
rights; 3) the human rights abuses must be sufficiently serious to merit the loss
of human life that will inevitably occur as a result of armed intervention; and 4)
the disruptive effects of armed intervention upon international stability must be
minimal (nardin and Slater, 1986).
John rawls also allows limited exceptions for intervention. As we saw in the
previous chapter, rawls argues that justice requires a society of well-ordered
nations (1999). people’s primary duties in terms of sharing wealth are owed to
their fellow citizens, rather than to others in the global community. However,
the ‘law of peoples’ that governs states’ relations entails that liberal and decent
societies do not tolerate outlaw states which systematically abuse the rights of
their citizens. Sanctions and non-violent means of persuasion must be applied
first, but if all else fails, forcible intervention may be justifiable.
As critics have pointed out, these arguments on the basis of state sovereignty
and the stability of the international order assume that order is the primary
social value, both within the state and between states. They assume, like Hobbes,
that justice cannot flourish without order. As we shall see, cosmopolitan critics
assert that order, whether within or between states, only has value if it is just.

Community membership and external

assistance
Hobbes’ contractarian argument for state sovereignty assumes not that it is an
automatic good in itself, but rather that it is a good because it has been agreed
and established by citizens themselves. As we have seen, Hobbes argues that the
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sovereign power of the state is essential to ensure security, civil society, justice
and morality. An important strand of thinking critical of intervention is based
upon the view that in challenging state sovereignty, even well-meaning interven-
tion challenges people’s right to establish their own political institutions. This
position depends upon the fundamental liberal principle that all people have
the right to determine and consent to the political system under which they live.
As liberal philosopher John Stuart Mill argues in his 1859 essay A Few Words
on Non-intervention, foreign military intervention alone cannot bring about
the liberation of an oppressed people. Mill’s argument relies less on the value of
sovereignty in itself, and more on the importance of political participation: ‘The
only test possessing any real value, of a people’s having become fit for popular
institutions, is that they, or a sufficient portion of them to prevail in the contest,
are willing to brave labour and danger for their liberation….’ (Mill, [1859] 1984,
122). liberation has a participatory dimension, and a people cannot benefit from
outside help unless they are willing to take up their own cause.
This suggests that there is an important difference between intervening from
the outside out of moral concern, and intervening at the request or plea of the
subordinated, who are already doing what they can to resist, or who are pre-
vented from resisting. It’s only in the latter case that intervention can actually
bring about its moral goals, because those moral goals must include not only
the elimination of tyranny, but also restoring freedom and autonomy. Mill con-
tinues: ‘I know it may be urged that the virtues of freemen cannot be learnt in
the school of slavery, and that if a people are not fit for freedom, to have any
chance of becoming so, they must first be free. And this would be conclusive, if
the intervention recommended would really give them freedom. But the evil is,
that if they have not sufficient love of liberty to be able to wrest it from merely
domestic oppressors, the liberty which is bestowed on them by other hands than
their own, will have nothing real, nothing permanent’ ([1859] 1984, 122).
A more recent argument along these lines is made by American philosopher
Michael Walzer. Walzer appeals not to the issue of whether people can be lib-
erated or must liberate themselves, but rather to the value of the state as ‘the
arena in which self-determination is to be worked out’ (1980). The national
community – if not the state, and this is an important distinction – is the con-
text in which social meaning and value are embedded. If we compare this to
Mill, Walzer may seem to be more dedicated to preserving the community than
individual freedom. But in fact this is because Walzer understands individual
freedom not as abstract and unchangeable across cultures, but rather as located
within a particular communal context. Walzer contends that the relationship
between a community and a state emerges in a specific historical context, and
that community and state are mutually intertwined, in a way that outsiders can-
not judge or even truly know (2004).
like most theorists who defend the rights of states, however, Walzer is not
absolutely opposed to intervention in all circumstances. He suggests rather that
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a presumption be accepted that intervention is wrong, because it interferes with
self-determination. This is a particularly telling argument when the conflict is
occurring in a country that was formerly colonized by Western powers. That
presumption could be overridden, however, when the threat to human rights
is sufficiently serious. This might include cases in which the social instability
caused by persecution or genocide can spread and cause wider political instabil-
ity, threatening the self-determination of people in neighbouring countries. (We
might note that this echoes nardin’s final criterion for legitimate intervention.)
Intervention could not be justified in the name of principles like democracy, or
property rights, or freedom of association. But it would be legitimate if it aimed
to put a stop to actions which ‘shock the conscience of mankind’. And it should
be carried out by neighbouring countries, who have a stake in regional security,
and who have a better understanding of the political culture of the offending state
(Walzer, 2004). This covers, in Walzer’s view, India’s military intervention in east
pakistan (present-day Bangladesh) in 1971 to stop the mass murder of Hindus,
tanzania’s action in Uganda in 1979 (which was justified in terms of self-defence,
rather than humanitarian intervention) and vietnam’s military intervention into
Cambodia in 1972 to stop the genocidal killings of the Khmer rouge. In terms
of the cases we discussed at the beginning of this chapter, Walzer’s approach
supports the adequate funding of African Union troops in Darfur, and european
humanitarian intervention in the Balkans. He has argued explicitly that it did not
support the 2011 nAto air strikes against libya (Walzer, 2011).
like most philosophers who support the rights of states against interven-
tion in all but exceptional circumstances, Walzer insists that such interventions
should be endorsed by multilateral or unilateral institutions. This provides a
means of controlling the self-aggrandizing tendencies of states to use the pre-
text of humanitarian concerns to advance their own national interests. Here the
country intervening must be acting as the ‘agent of last resort’. Finally, one test of
a genuinely humanitarian intervention is that the intervening forces are quickly
in and out – so that intervention does not become occupation. This clearly ruled
out intervention in the case of Iraq. The ‘politics of rescue’, Walzer concludes, are
certain to be complex and messy (2004). In practice it is often difficult to identify
a single human-rights abuser, and to distinguish the victimizers and the victims.
In the case of Bosnia for example, both Serbs and Bosnian Muslims committed
atrocities. Moreover, in some cases the policies or actions objected to are sup-
ported by local cultural and social structures. This was particularly relevant in
Kosovo, where the Serbs argued that the ethnic cleansing of Kosovo Albanians
was justified because the area was historically, culturally and religiously Serbian.
like other critics who allow for exceptions to a general presumption in favour
of non-intervention – rawls, for example – Walzer does not offer any clear
criteria for determining whether human rights abuses are serious enough for
armed intervention. Human sacrifice, slavery and genocide are often mentioned
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as the kind of state actions which would qualify, and indeed, the logic of Walzer’s
argument is that only behaviour which was widely agreed across cultural and
national borders to be abhorrent could justify intervention. In cases where
there is widespread international condemnation of human rights abuses, it is
least likely that the intervention will entail imposing alien ideas and values. The
requirement that intervention be multilateral or authorized by the Un reflects
the same concern: international bodies are assumed to represent general inter-
ests, or what eighteenth-century philosopher rousseau referred to as the Gen-
eral Will – uncontaminated by particularity ([1762] 1973). In practice, Walzer’s
opposition to intervention has so many qualifiers that it is difficult to distinguish
his position from that of supporters who base their case on quite different cos-
mopolitan arguments.

Community membership and the case for

intervention
Many critics have accused Walzer of romanticizing the nation-state – assuming
mistakenly that it embodies communal values and meanings to citizens (luban,
1980). It is one thing to protect the independence and self-determination of
communities in which people are embedded, and which give their lives mean-
ing, and quite another to assume that those communities are the same as nation-
states. Charles Beitz argues that the ‘fit’ Walzer assumes between nation-states
and communities frequently does not exist (1980). The fact that a government
exists and manages the institutions of state power does not necessarily mean that
it constitutes the cultural and historical representative of a people. Beitz points
out that if a government is not democratically grounded, we can’t assume that it
represents its people.
In a related argument, Bhikhu parekh suggests that Walzer and other com-
munitarians are right to see individuals as embedded in their social and cultural
communities, but wrong to see those communities in unitary terms (1997). In
fact, individuals are members of a range of communities within their nation-
state. They are shaped by all of these affiliations, but not determined by any
single one. The identities of human beings are socially constructed from a range
of affiliations and memberships, and individuals can use this complex range to
reflect upon different aspects of their social membership from their different
communal viewpoints. States are thus characterized by irreducible diversity. We
might note that intervention is frequently demanded in order to protect this
diversity, as human rights abuses often target minority groups (Caney, 1997).
neta Crawford argues further that the multiplicity of identities within nation-
states makes it possible for leaders to invoke, create and manipulate different
identities in order to legitimize intervention (Crawford, 2002).
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As parekh argues, membership in the nation-state is thus important, but it
does not transcend the obligations that people owe to each other as human
beings. The autonomy of states is conditional upon them meeting basic moral
standards, and other states are obliged to help non-citizens in need. However,
they are not the only organizations with a responsibility to act. other groups,
religious associations and non-governmental organizations, representative of the
diverse groups that express human social identity, also have a moral and social
responsibility to reduce and prevent conflict (parekh, 1997).

Just War
running through Walzer’s defence of intervention in limited circumstances, as
well as the ICISS principles we discussed above, are the principles of the Just War
tradition – a set of norms and conventions institutionalized in Western thought
in the medieval period, which established principles governing the waging of
war. Just War depends on the concept of natural law: the idea that there exist
principles of justice, originally established by divine authority, and accessible to
people through nature and reason, which take ultimate precedence over human
law. (We discussed the concept of natural law in relation to moral issues such as
abortion and euthanasia in Chapter 7.) The roman politician and philosopher
Cicero argued in the first century BCe that there must be legal and ethical con-
straints on states’ decisions to wage war, and how to conduct those wars ([44
BCe] 1991). The fourth-century Christian philosopher St Augustine argued
that some wars could be waged with justice if there was a just cause, such as the
conversion of infidels, or the protection of Christians ([426 Ce] 1931). later
medieval Christian philosopher Aquinas codified Just War into three principles
governing both the grounds for going to war, and the way in which it could be
waged. With respect to the first of these, three requirements must be satisfied
in order for war to be just: it must be waged by a sovereign authority, it must
be waged for just cause, and it must be waged with rightful intention (Aquinas,
[written 1265–1274] 1952). Just War was incorporated into international law in
the seventeenth century by Dutch jurist Hugo Grotius, who argued that inter-
vention by force was justified against states which had contravened natural law
([1625] 2004).
The rules of Just War continue to be the official teaching of the roman Catho-
lic Church, and have enjoyed a resurgence of interest since the 1970s, when
Walzer published an influential book on the subject shortly after the vietnam
War ([1977] 2006). As we have already seen, these principles form the basis of
current political arguments defending military intervention to protect human
rights. Some political philosophers, however, have relied more on the broader
traditions of cosmopolitanism and universal human rights, and it’s to these that
we now turn.
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Justifying intervention: the cosmopolitan
argument
Cosmopolitanism is based on the principle that all human beings have universal
rights and interests, irrespective of national membership, and that states must
respect those rights and interests of citizens and non-citizens alike. As Simon
Caney points out, intervention cannot be considered separately from the ques-
tion of whether universal human rights exist (2005). There would be no reason
to intervene in the internal affairs of another state if its citizens did not possess
rights above and beyond those they acquired through citizenship. The idea of a
universal human community dates to the ancient world, and in the early modern
period, when Hobbes and Bodin were justifying state sovereignty, Spanish phi-
losophers vitoria and Suarez argued that both states themselves and the society
of states were grounded in, and derived their moral value from, that broader
universal community (parekh, 1997). As a political issue, however, this is rela-
tively recent; it’s only in the post-Second World War period that we’ve seen states
agree to put limits on their sovereignty, beginning with the Un Declaration of
Human rights (1948), which guarantees respect for the fundamental rights of
individuals.
Cosmopolitan defenders of intervention start from Immanuel Kant’s premise
fundamental to modern liberalism: that all individuals have inherent moral
value and are deserving of equal respect ([1785] 1993). The moral value of indi-
viduals does not depend upon their national membership, so our duties to each
other are also not dependent on nationality. We discussed this with respect to
redistribution in the previous chapter. The universal moral status of individuals
gives rise to universal human rights which are entitled to protection (the ques-
tion of who is obliged to protect them is a further issue). While people may
disagree over the extent of these, it is clear that some basic rights are recognized
across cultures – for example, the right to subsistence, and not to be killed or
tortured. These apply across cultures. Those who take this position argue that
any rights that states have to sovereignty derive from the fact that they protect
and preserve the human rights of citizens. This means that state sovereignty has
an instrumental, rather than an absolute, value. We have seen this view reflected
in the ICISS report on the responsibility to protect.
This does not mean that cosmopolitans advocate humanitarian intervention
in all circumstances where human rights are under threat. like philosophers
who make a more limited defence of intervention, they argue for a balancing of
factors and consequences, along the familiar lines of the Just War tradition. legal
philosopher Fernando teson has set out the moral basis of humanitarian inter-
vention in an influential argument that draws on cosmopolitan principles and
natural law (2006). Firstly, sovereignty has instrumental value – as we’ve seen,
governments derive their legitimacy from the fact that they protect the human
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rights and basic interests of their citizens. tyrannical governments who threaten
or fail to protect those rights forfeit their right to non-interference – they forfeit
the protection of international law. Further, the fact that all people have basic
rights means that governments have duties to protect those human rights at
home, and to protect the human rights of other people if they can do so with
minimum cost to themselves. This is part of a wider moral duty to assist others
in need. But the costs of assisting always need to be weighed up in the decision.
We might interpret this as the unavoidability of consequentialist factors in moral
decision-making on this issue. teson follows the natural law tradition in arguing
that as long as any bad consequences are unintended, and as long as the good
consequences for intervention outweigh the bad, intervention is justified. But
as he points out, we could also think of weighing the costs of intervening as a
Kantian objection. Kant argues that we must see people as ends in themselves,
not means to the ends of others – and if we are willing to sacrifice people to assist
others, there is always the possibility that we are using them as a means to others’
ends (teson, 2006).
Also following natural law theory, teson argues that a justifiable intervention
must be intended to end the human rights abuses. It does not matter on cosmo-
politan grounds if the intervening state also has other motives, as long as these
were not the real intent of the intervention. of course in practice, these are often
not easy to disentangle. The United States claimed that its intent in invading Iraq
was to rid the Iraqi people of a tyrannical regime, but it clearly also had other
motives (roth, 2004). In order to test this, teson suggests that we examine the
consequences of the action. If it results in occupation – clearly not part of end-
ing human rights abuses – then we might conclude that other and less selfless
motives were the real intent of the action. In addition, and in accordance with
Mill’s concerns, the intervention must be approved and requested by the people
suffering themselves. The final cosmopolitan criterion teson lists is that the
intervention must be supported by the community of democratic states. This
reminds us that what appear to be moral reasons for intervention on the part of
Western states can look like neo-imperialism to states in the developing world
(Caney, 1997). Universal principles are vulnerable to criticism that they are the
reflection of particular interests, masquerading as universal (a point made in a
more general context by Marx) (Marx and engels, [1848] 1978). In response to
criticism, cosmopolitans point out that there is global agreement on some politi-
cal and moral values – as we see from the widespread agreement to international
conventions on human rights. Moreover, as Caney reminds us, cosmopolitan-
ism does not require that there be general agreement on all questions of human
rights, but only that certain basic rights be accepted (1997).
like sovereignty arguments which allow intervention in exceptional cases,
cosmopolitanism offers no clear and single test for determining when interven-
tion is justified. no matter what the theoretical justification for the action is,
 M I l I tA r y I n t e r v e n t I o n I n t o o t H e r C o U n t r I e S | 243
practical considerations concerning its likely effectiveness, how it will be inter-
preted, and the costs for those intervening are always relevant – and often deter-
mining factors. And as Beitz concludes, when there is no moral reason against
intervention in cases of human rights abuses, the only reason not to intervene
might be that the effects of intervention are unknown, and there is a possibility
that the costs in terms of bloodshed might be greater than the benefits of ending
human rights abuses (1980).
The final cosmopolitan argument we consider justifies humanitarian inter-
vention on the basis of contractual agreement. So far, the contractarian theories
we have considered have supported state sovereignty. As we have seen in this
chapter and the last, John rawls maintains that his version of the social contract
argument, in which parties come together in an ‘original position’ to agree to the
principles of justice that will bind them, applies only at the domestic, rather than
the global, level. However, philosopher Gillian Brock develops an original posi-
tion argument like that used by rawls to justify redistribution on the domestic
front, to legitimize international intervention in specific circumstances (2006).
Brock asks us to imagine a thought experiment like the one rawls describes in
A Theory of Justice (1971). A global conference has been set up, the aim of which
is to choose the rules by which the world’s people will live and interact. none of
the delegates present know the information about demographics that would help
them estimate the chances of them belonging to any particular group or nation.
However, they do know about global collective problems. This includes the exist-
ence of threats to peace and security, information about history and how brutal
dictators have sometimes oppressed people, and about how states have caused
damage by intervening with good intentions.
What basic guidelines would delegates to the conference agree on? Brock
argues that people would choose institutions that would protect their basic
freedoms and fulfil their basic needs, because they would realize that this is
essential to ensuring that they can enjoy the prospects of a decent life. Delegates
would wish to allow intervention to help those suffering from tyranny and cru-
elty on the same grounds, but would want to ensure that it could not be abused
by the powerful. The principles of Just War might serve as a useful guide to the
delegates deciding on the rules for intervention. First, there must be just cause:
severe suffering which the domestic government causes or cannot prevent. Then,
delegates would wish to make sure that the intentions of the intervening state
were good – that they were not acting in pursuit of ulterior motives. one way of
ensuring this would be to require that the intervention be authorized or justified
by an international organization in which a range of nations were represented.
Delegates might also plausibly insist that intervention only take place when
other peaceful and less costly alternatives have been ruled out. And finally, del-
egates would require proportionality, so that only the amount of force necessary
to relieve suffering would be used (Brock, 2006).
244 | A p p ly I n G p o l I t I C A l t H e o r y
Box 12.2 Humanitarian intervention:
Competing norms and values
The philosophical debate over humanitarian intervention centres on different
interpretations of state sovereignty, national community, justice, the social contract,
and rights.

• State sovereignty: Those opposing intervention rely on the definition of state

sovereignty enshrined in international law: states have full control over all affairs
within their own territory. Those supporting intervention argue that sovereignty
implies a duty or responsibility to protect citizens, and when states fail to do this,
it’s legitimate for others in the international community to step in.
• Community: Those opposing intervention argue that the national community is
the forum and context in which citizens express their cultural and social values,
and participate in establishing their political institutions. Outsiders can never
really understand those values from the inside. Democratic institutions will not be
legitimate if they are imposed from the outside. Supporters argue that the state
as a set of institutions to regulate and control life is not the same as a meaningful
community. In fact, intervention may sometimes be required to protect minority
communities. Cosmopolitans maintain that the only morally important community
is the universal community of humanity.
• Justice and rights: Opponents of intervention claim that it’s not legitimate to
cite principles of justice or human rights against a state, because justice and rights
cannot exist outside the context of state-established order. Supporters argue that
justice requires the recognition of universal human rights, independent of national
membership.
• The social contract: Opponents of intervention argue that the state sovereignty
(see above) is established by an implied social contract between the members of a
nation-state. There is no global social contract in which people agree to intervene
to protect non-citizens. Supporters counter that we can imply a social contract
between all human beings, in which they determine the principles that govern life
both within the state and between states.

Conclusion
What is striking about the various positions we’ve considered on the issue of
humanitarian intervention is how similar their conclusions are in practice. Most
theorists agree that interventions must be judged on a case-by-case basis. The
same abuses of human rights may justify intervening in one case, where, say, the
costs are relatively low and the prospects of success great, and not justify inter-
vening in another, where the costs of doing so would be high and the chances
of success slim. And most agree on the criteria by which interventions should
be judged: the seriousness of the suffering, the motives of those intervening, the
 M I l I tA r y I n t e r v e n t I o n I n t o o t H e r C o U n t r I e S | 245
likely costs and the prospects of success. These are of course the principles of the
Just War tradition.
In some ways it might seem there is little difference between allowing inter-
vention as an exception to state sovereignty arguments on the one hand, and
allowing it for cosmopolitan reasons, though in circumstances limited by practi-
cal considerations, on the other. But as defenders of cosmopolitanism argue, it
provides a more morally consistent position, by giving primary value to justice
and morality, rather than the preservation of the state (Caney, 1997). even for
those who insist upon the value of state sovereignty, the debate over interven-
tion has forced us to reconsider and re-evaluate the purpose of sovereignty. The
responsibility to protect argument reminds us that states are not inherently valu-
able in the same way as human beings, and that any value they have must come
from their value to their citizens. These debates play out the historical logic that
led to the formation of the Un: the Un Charter was agreed in the aftermath of
a war marked not only by attempts at foreign conquest, but also by systematic
genocide on the part of Germany against its own Jewish citizens.
Most of the theoretical arguments we have surveyed here agree that interven-
tion is justified in cases where the local government is promoting or failing to
prevent systematic and extreme abuses of human rights. Why is it then that the
international community did not intervene in a case like Darfur, given univer-
sal condemnation of human rights abuses and the global publicity afforded to
human suffering there? The Un and individual states condemned the failure of
the Sudanese government to protect its citizens, and yet no effective interven-
tion has occurred. We might conclude that the weighing up of consequences has
been crucial here. States appear to have decided that intervention may not be
successful, and that too many intervening soldiers may die in the course of it. In
practice, every decision to intervene is made in political contexts that are both
global and domestic, and nations which have sustained high losses in previous
interventions find it more difficult to justify further risk to the lives of their sol-
diers and citizens. Walzer has criticized this focus on the costs of intervention,
arguing that it should be subordinate to acting effectively on the international
stage (2004). But it remains a powerful consideration, not only politically for
governments, but also morally, given that humanitarian intervention means
sacrificing the lives of some in order to save others.
13

Should the Natural

Environment Be
Protected for Future
Generations?

● Nature as aN iNtriNsic good

● ecofemiNism
● the utilitariaN case for coNserviNg resources
● egalitariaN argumeNts for coNservatioN
● future geNeratioNs aNd rights
● Natural eNviroNmeNts aNd commuNities
● Private ProPerty aNd leaviNg ‘eNough’ for others
● egalitariaNism aNd the limits of justice
● coNclusioN

Western political theory is based on the assumption that political communities

extend backward into the past and forward into the future. It is a fundamental
characteristic of post-Enlightenment thinking, shared by political philosophers
and social scientists, that those communities and their economies would con-
tinue to grow and develop, sustained by natural resources and the increasing
stores of wealth that the exploitation of these produces. Philosophers and politi-
cians have of course recognized that resources were scarce and the subject of
constant competition. That is why principles of justice must be developed to
regulate their distribution. But most have believed that there existed and would
continue to exist enough to sustain economic growth and development into the
foreseeable future. This assumption that economies must and would expand,
constantly searching out new resources (and markets), is an essential aspect of
capitalism. However, Marxists have also assumed the potential for unlimited
economic growth.

246
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 247
This is not to say that there have not been critics of economic and industrial
development and its relentless exploitation of natural resources. The romantic
thinkers of the early nineteenth century condemned the destructive impact of
industry (William Blake’s ‘dark satanic mills’) upon both the natural landscape
and human community. John Stuart Mill argued that economic growth should
pause, so that natural resources could be conserved, and social and moral progress
could catch up ([1848] 1965). Nineteenth-century american conservationists like
Henry David Thoreau argued for the preservation of natural landscapes; indeed,
legislation was passed in the United States to establish national parks in the late
nineteenth century, and other Western countries soon followed suit. But it is only
since the 1970s that scientists have warned that natural resources are not unlim-
ited, and are being depleted and destroyed – with potentially disastrous conse-
quences for human civilization. There were, in the words of an influential report
at the time, ‘limits to growth’ (Meadows, Meadows, randers and Behrens, 1972).
The damaging effects of industrial development upon air, water and the natural
environment were reported by scientists like rachel carson, who warned in 1962
that pesticides were destroying bird species (1962). carson’s influential book Silent
Spring mobilized popular opinion and the environmentalist movement was born.
Environmentalism’s concern with protecting and preserving the natural world
has many aspects, ranging from protecting individual species of animals, to pre-
venting damage to natural resources such as air and waterways, to conserving
natural and non-renewable resources used by humans. Perhaps its most pressing
current concern is to preserve the atmosphere and climate: fundamental natural
resources that make human life not only meaningful and enriching, but actually
possible. These goods are related for environmentalists, but they raise some dif-
ferent issues. Our focus in this chapter will be on the protection for the future
of non-renewable natural resources, and of the earth’s atmosphere and climate.
The global nature of threats to the environment and the necessity of interna-
tional cooperation were first recognized in the UN’s conference on the Human
Environment held in Stockholm in 1972. The Stockholm Declaration issued by
the conference recognized the right to a healthy environment, on the part of
both present and future generations, and called for countries to preserve non-
renewable resources and to prevent damage to ecosystems and to the earth’s
atmosphere. Following the conference, the UN Environment Program was set
up, and many national governments established ministries for the environment.
In 1982, the World charter for Nature, agreed by all UN members except the
United States, recognized that people must use natural resources in such a way
as to ensure the preservation of species and ecosystems for the benefit of present
and future generations. The chief objection made by the United States was the
costs that would be imposed upon the agricultural and mining sectors – the
same grounds on which congress has refused to ratify the convention on Bio-
logical Diversity adopted in 1992 at the Earth Summit.
248 | a P P Ly I N g P O L I T I c a L T H E O r y
Since the 1980s, the concept of sustainability has been adopted to describe
a compromise between the need for economic development and the protec-
tion of resources for future generations. The energy crisis of the 1970s forcibly
reminded developed countries of their heavy dependence upon non-renewable
sources of energy. at the same time, public concern grew over global population
growth, increased consumption and the impact of industrial production upon
the atmosphere. In 1987, the Brundtland report ‘Our common Future’ was
published by the UN’s World commission on Environment and Development.
The commission argued that in a world of limited resources, countries should
be able to develop their resources only to the extent that the world’s total stock
of resources is not diminished. In practice, this meant cooperation between
developed and developing nations, so that the needs of the world’s poor were
met, both currently and in the future. Sustainable development was defined as
that which ‘meets the needs of the present, without compromising the ability of
future generations to meet their own needs’. as we shall see, questions of current
distribution and saving for the future are closely related in much contemporary
political theory concerning the environment. In accordance with sustainability,
many nations introduced policies for the conservation of resources, such as
recycling, and began to explore renewable energy sources as alternatives to fossil
fuels. However, some radical environmentalists have expressed scepticism about
the concept, arguing that it cannot clearly be defined, and that the structures of
the world economy and cultural attitudes towards the use of nature mean that
further development will inevitably compromise the needs of future generations
(redclift, 1987).
a global campaign to ban cFcs was launched in the 1980s, intensifying in
1985, when scientists discovered a large hole in the ozone layer over antarctica.
The vienna convention for the Protection of the Ozone Layer was agreed in
1985, and legally binding reduction goals for the use of cFcs were established
in the accompanying Montreal Protocol of 1987. as a result of the Protocol,
there has been a 95% drop in the presence of ozone-depleting substances in the
atmosphere, and by the year 2010, cFcs were to be banned from all countries
(as of 2015, they have been almost completely phased out). UN Secretary gen-
eral Kofi annan called this the most successful international agreement ever. It’s
important to note that the Montreal Protocol treated developed and developing
nations differently: under article 5, developing nations were permitted to post-
pone their commitments under the agreement for up to ten years, during which
time they could increase their production of ozone depleting substances (which
were comparatively very low). This was agreed so that developing countries
could reap some of the economic advantages of development.
The issue of cFcs was distinctive in that it dealt with a global problem that
could be resolved only by countries acting together. anthropogenic warming
(that caused by human activity) is similarly international in scope, and has
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 249
become increasingly urgent since the 1990s. Increases in the earth’s temperature
have been recorded over the twentieth century, with most of the rise dating from
the mid-century and post-Second World War increases in industrial develop-
ment. There is still some disagreement from individual scientists about global
warming, but a consensus now exists among the world’s major scientific estab-
lishments that human activity is causing accelerated increases in temperature.
climate model projections predict that the temperature of the earth will increase
about 4 degrees celsius over the twenty-first century. as a result, the earth’s
oceans will rise, and there will be an increase in warm spells, heat waves and
heavy rainfall. In 1988, the international Intergovernmental Panel on climate
change (IPcc) was established to evaluate the risk of climate change caused by
human activity. It has published a series of assessment reports, which confirm
that climate change is a fact and that it is likely to have devastating consequences
for human societies.
The poorest people in the world, in africa, asia and the Pacific, will be dis-
proportionately affected by global warming because of the impact of droughts
and floods caused by rising sea levels. The Stern review on the Economics of
climate change, commissioned in 2006 by the British government, reported
that climate change was already a grave threat to the developing world, and an
obstacle to poverty reduction. Developing countries already have warm climates
and variable rainfalls. Moreover, they are often highly dependent on agriculture,
which will be affected by global warming. agricultural yields will decline by an
estimated 15–35% in africa, and Zambia, Niger and chad are predicted to lose
their entire farming sectors by 2100. Up to 80 million people more are likely to
become at risk for malaria in africa. More than one fifth of Bangladesh could
be under water with a 1m rise in sea levels, possibly by the end of this century.
rising sea levels in the Pacific threaten the infrastructure, agriculture, fisheries,
forestries and very survival of Pacific Island nations such as Kiribati and the
Marshall Islands. In addition to all this, because land and resources will become
scarcer, ethnic and national conflicts are likely to become worse, and refugee
flows from affected nations will grow (Stern, 2006).
The UN Framework convention on climate change, signed at the Earth
Summit of 1992, was designed to stabilize greenhouse gas emissions in the
atmosphere in an attempt to arrest global warming. It provides that countries
party to it ‘should protect the climate system for the benefit of present and future
generations of humankind, on the basis of equity and in accordance with their
common but differentiated responsibilities and respective capabilities’ (article
3.1). The claim that, because of uneven rates of development, states have differ-
ent responsibilities for climate change and varying capacities to pay for remedies
has played a crucial and controversial role in the international negotiations
about how to deal with the problem. Some developed countries, particularly
the United States, have complained that they are being asked to shoulder all
250 | a P P Ly I N g P O L I T I c a L T H E O r y
the responsibility for reducing emissions, while developing countries are not
required to cut their own. Developing countries respond that wealthy nations
have the resources necessary to make changes, and in addition that they have
benefited from unrestricted emissions in the past, in the process of development
and modernization. It would be unfair, developing countries claim, to prevent
them from reaching comparable levels of affluence and modernization. In the
final Declaration, it was agreed that poorer nations could be rewarded for pro-
tecting their forests. But richer nations could earn carbon credits by supporting
forest development in poorer countries.
The Kyoto Protocol to the convention, signed in 1997, set legally binding
targets for the reduction of specified greenhouse gases produced by developed
countries, and provided for emissions trading. Levels in these 36 countries were
to drop to 5% below 1990 levels by 2008–12. Developing countries were encour-
aged to reduce greenhouse gas emissions, but no targets were set. In addition, a
multilateral fund was set up to assist developing countries in offsetting the costs
involved in phasing out ozone-depleting substances. as of 2015, 192 countries
have ratified the Protocol. The United States refused to ratify it, claiming that
because the Protocol did not require developing countries to reduce their emis-
sions, it was not only unfair, but also likely to be ineffectual.
While some countries (including the UK) have decreased their greenhouse
gas emissions, it is clear that not enough progress has been made. When devel-
oped nations met in 2007 to consider successor strategies to the Kyoto Protocol,
the UN reported that the negative effects of climate change were already being
felt. The rate of warming of the arctic was accelerating, and there were adverse
effects upon human activities and the sources of human food. UN Secretary
general Ban Ki Moon said: ‘We cannot go on this way for long. We cannot
continue with business as usual. The time has come for decisive action on a
global scale.’ One group of nations, led by the European Union, urged coun-
tries to commit to reducing greenhouse gases by 40%. an opposing camp, led
by the United States and supported by Japan, canada and australia, wanted a
two-year timetable for a successor to the Kyoto agreement, but no set numbers.
In 2009, countries attending the copenhagen Summit agreed to the copenha-
gen accord, which called for action to keep temperature increases to less than
2 degrees. However, the accord was not legally binding, and did not include
any particular commitments to reducing carbon dioxide emissions. countries
did pledge financial assistance, rising to $100 billion a year by 2020, to help
developing countries adapt to climate change. The Kyoto Protocol has now been
extended to 2020, but several high-emitting countries have not signed up to a
second round of targets for emission cuts. Table 13.1 lists the most recent figures
available for carbon dioxide emissions per capita in a range of countries. (It does
not include some small economies which score very high in per capita figures,
but low in terms of their overall contribution, such as the oil-producing states
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 251
Table 13.1 carbon Dioxide Emissions per capita in Metric Tons
(2011), and whether they rose (<) or fell (>) from the previous year

chad 0.0 (<)

rwanda 0.1 (<)
Kenya 0.3 (<)
Bangladesh 0.4 (<)
Kiribati 0.6 (>)
India 1.7 (<)
Brazil 2.2 (<)
Sweden 5.5 (>)
china 6.7 (<)
UK 7.1 (>)
Japan 9.3 (<)
russia 12.6 (<)
australia 16.5 (>)
canada 14.1 (>)
United States 17.0 (>)

Source: The World Bank

of the gulf region.) We should note that the levels of greenhouse gas emissions
in rapidly developing countries, particularly India and china, have substantially
increased since 2004.
as we can see from the debates over treaties, the question whether the natural
environment should be protected for the future has complex political implica-
tions. It is not simply a matter of deciding whether it is morally right to protect
nature; we must also ask who should be responsible for paying for measures, and
how this responsibility must be balanced with the moral and political responsi-
bility to supply the basic needs of the global population currently existing (issues
that we considered in chapters 2 and 11). as we shall see, there is considerable
debate among political philosophers about our duties to future generations;
much of this initially concerned our duties to save and pass on wealth, but the
debate increasingly focuses on protecting non-renewable resources. We must
also ask: for how many future generations should resources be protected? What
we should do for the benefit of our children and grandchildren may well be dif-
ferent from any duties we owe to our descendants a thousand years from now.
In addition, should we assume that science and technology will advance so that
they will be able to solve future environmental problems?
Most of the international debate we have surveyed above – and indeed the
title of this chapter – assumes that the natural environment should be saved for
the benefit of future generations of human beings. radical environmentalists,
252 | a P P Ly I N g P O L I T I c a L T H E O r y
however, argue that the natural world is morally worthwhile in itself, and should
be protected for itself rather than for human use or enjoyment. We discuss this
argument briefly below, as well as the related ecofeminist case for valuing nature.
We conclude our examination of the rights and value of the non-human world
with Box 13.1 on animal rights. We turn then to arguments that we are obliged to
protect resources, first from a utilitarian perspective based on the consequences
for individuals and then from the perspective of equality. We also consider here
the specific question of whether future persons have rights. We then examine the
communitarian case for protecting resources, and finally, a libertarian argument
for conservation. We then consider arguments from an egalitarian perspective
which are sceptical of the claim that justice requires saving natural resources for
the future. We conclude with the libertarian case against mandated conserva-
tion, on the grounds of property rights.
as we shall see, most political theorists accept the need for some protection
of the natural environment for future generations. The key point on which they
differ is how to balance this need with the requirement of just distribution to
people presently existing. Several philosophers argue that while justice does not
oblige us to protect resources for people who don’t yet exist, we should acknowl-
edge moral obligations – as peoples as well as individuals – to ensure that human
societies can continue. The issue of environmental protection tests the bounda-
ries and limits of justice and rights, by raising the issue of who counts in mak-
ing claims for justice. In this it is similar to the case of abortion (see chapter 7)
and to the debate over whether we owe justice to people in other countries (see
chapter 11).

Nature as an intrinsic good

according to ‘deep ecologists’, nature and the natural environment are goods in
themselves, with inherent value and worth. They should not be seen as valuable
and deserving of protection because of their usefulness to human beings. Deep
ecologists criticize the ‘anthropocentric’ view of the world that puts humans at
the centre and considers all other living things from the point of the view of
their worth to humans. The ecological philosopher val Plumwood, for example,
argues that anthropocentrism leads us not only to exploit nature, but also to lose
touch with ourselves as natural beings, deeply embedded in our natural environ-
ment and ecosystem. It justifies a rationalizing and instrumental approach to
the world, which encourages the domination of nature in the name of capital-
ist development (Plumwood, 2002). To speak of protecting ‘natural resources’
already sees nature in terms of potential uses to humans. From the deep ecology
perspective, ecosystems – and the whole ecosphere – must be preserved because
they are inherently worthwhile, and human beings have no right to affect them
to any extent more than what is required to protect their vital needs.
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 253
‘Ecocentric’ philosophers also argue that the anthropocentric approach estab-
lishes the model for relations of dominance and subordination within human
societies. They reject the ‘human chauvinism’ of anthropocentrism, which they
compare to other forms of prejudice. Treating human beings as the standard of
value in relation to which all else is measured is thus comparable to racism, sex-
ism or heterosexism (Eckersley, 1993).

Ecofeminism
The nature-centric approach of deep ecology underlies ecofeminism, a form of
radical feminism that sees the domination of nature, and its instrumental status
as a resource to be used and exploited, as deeply linked to the male exploita-
tion of women (Plumwood, 1993). It is not accidental, ecofeminists argue, that
nature is often referred to as female. Women have been understood throughout
the recorded history of Western societies as being closer to nature and natural
processes and rhythms than men, because of their involvement in reproductive
processes. This has been construed by a long tradition of patriarchal (male-
dominated) political philosophy to exclude women from public life and politics,
on the grounds that they are irrational, unpredictable and potentially uncontrol-
lable, like a ‘force of nature’. Ecofeminists argue, however, that both men and
women are embedded in the natural world. Like other forms of deep ecologism,
ecofeminism advocates a radically new way of seeing the relationship between
human beings and nature, denying the opposition between them and rejecting
relationships of domination, control and exploitation between men and nature.
There is no doubt that the natural environment should be preserved – not
for the use of future generations, but in acknowledgement of the relationship
between those future generations and the natural world of which they are a
part. Many ecofeminists are influenced by the feminist ethics-of-care approach,
which asserts that we should replace the concept of justice as a relationship
between separate and self-interested individuals, with an ethic that recognizes
people’s connectedness with and dependence upon others for care (Mies and
Shiva, 1993).
Most political theorists writing on the environment accept the anthropo-
centric view – like all social sciences, politics deals fundamentally with human
beings and human societies. But understanding the value of nature in terms of
people’s relationship to it to it doesn’t mean focusing only on its material and
economic uses. We can also see nature as valuable to people because it is beauti-
ful, awe-inspiring and enriching, something greater and older than ourselves,
a focus for appreciation and a source of belonging and self-respect. This way
of valuing nature is particularly important to communitarian environmentalist
theories, as we shall see below. Moreover, some critics claim that the problem of
exploitation of nature is caused not by the human exercise of rationality over it
254 | a P P Ly I N g P O L I T I c a L T H E O r y
Box 13.1 AnimAl rights
Most Western philosophers have proceeded on the assumption that human beings are
inherently more morally worthy than animals. Aristotle argued in the fourth century
BCE that animals were created in order to be used by man, and this view was generally
shared in the Judeo-Christian tradition. For Enlightenment philosophers, it was the
human ability to reason that guaranteed their superiority to animals. Those like John
Locke and Immanuel Kant who opposed cruelty to animals did so because they believed
that mistreating animals taught habits of brutality that were damaging to human social
relations (Locke, [1693] 1996; Kant, [1785] 1993). In the eighteenth century, however,
Jeremy Bentham first made the case for animal rights that is still influential today.
Bentham argued that we have moral obligations to all creatures who can feel pleasure
and pain, including animals. In deciding whether something should be the subject of
moral consideration, we should ask not ‘can they reason? nor can they talk? But can
they suffer?’ ([1781] 1988). Bentham compared mistreatment of animals to racial
discrimination and slavery.
There was a flurry of popular concern over animal welfare in Western countries during
the nineteenth century – associations to protect animals were formed and legislation
was passed against cruelty. But the animal rights movement only emerged in the 1960s,
with a critique of ‘speciesism’ – the assumption that the human species is superior.
Radical animal liberation groups were formed in the 1970s, and some have engaged
in direct action to damage research facilities that use animals. In the early twenty-first
century Western countries have passed a raft of animal welfare measures, and Germany
was the first to enshrine protection of animal rights in its constitution in 2002.

• The most influential case for the equal moral value of animals is made by philosopher
Peter Singer (1975). As a utilitarian, Singer relies on welfare rather than rights, and
argues that we should give equal consideration to the interests of all sentient beings
– those who have the capacity to feel enjoyment and to suffer.
• An alternative rights-based approach is taken by Tom Regan. He argues that we
cannot restrict rights to rational creatures, as neither infant nor senile human beings
are rational, and yet we recognize that they have moral rights. Any creature that
experiences its life, or is the ‘subject-of-a-life’, and for whom life can go better or
worse, is inherently valuable. They thus possess moral rights, including the right to
be treated with respect, and not to be harmed (Regan, 1983).
• Many philosophers have insisted that animals cannot be said to have rights or to
be the subjects of justice. This does not mean, however, that we have no moral
obligations or duties in how we treat them. They remind us that justice does not
cover all of our moral obligations (although it does embrace our political obligations).
John Rawls and Brian Barry both argue that justice applies only between creatures
who are moral equals (Rawls, 1993; Barry, 2005). Animals are not the moral equals
of humans, and therefore we are not bound by principles of justice to them. We do
have moral duties to treat them well – however this may be defined – but these are
duties we owe to our fellow citizens, rather than to animals themselves.
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 255

• We might also argue that animals cannot be the subject of justice because justice
applies only to creatures that are in a reciprocal relationship with each other. The
imbalance in power between animals and humans means that they cannot affect us
as we can affect them (see the discussion of David Hume on p. 351).
• Will Kymlicka and Sue Donaldson have recently challenged the idea that animals and
people cannot be in a reciprocal relationship with each other. They argue that animal
rights are based on a political citizenship framework. Domestic animals should be
considered co-citizens because they live in a mixed human and animal democratic
community, which, despite having limited capacities for agency (as indeed do some
humans), they help to shape. They are ‘co-creators of a shared political and moral
world’ (Donaldson and Kymlicka, 2011). Wild animals are not co-citizens, but have
rights to their own territories.
• Arguments for animal rights are vulnerable to some of the critiques of
anthropocentrism made by deep ecologists. But some ecocentric philosophers
have been critical of Singer and Regan for assuming that non-sentient beings do
not have morally relevant interests. They have also criticized the animal rights
movement for focusing on individual animals, rather than the entire ecological
context (Plumwood, 2006).

but rather by a failure of rationality. recent critics of Marx argue, for example,
that he believed that people must learn to conform to the rational laws of nature,
rather than attempting to exert dominance and control over it (Burkett, 1999;
Foster, 2000). Overcoming alienation meant reconciling people to their natural
environments, as well as to their true nature as humans.

The utilitarian case for conserving resources

The most straightforward argument for saving resources for the future is utili-
tarian: that we should maximize the welfare of people. But this only holds, of
course, as long as we accept that the welfare of future generations must be
counted with that of people now alive. If we accept this premise, then there
is no doubt that natural resources should be saved: future generations are so
numerous (in fact, potentially limitless) that their welfare will always exceed that
which is reduced now as a result of having to conserve resources – say to pay
for expensive clean technology, or to forgo a higher material standard of living.
In fact, the sheer numbers of future people pose a potential concern: as rawls
suggests, utilitarianism may call for heavy sacrifices from current poor genera-
tions for the sake of advantages to those in the future (1971). Economists deal
with this by applying a discount rate to future goods, so that they are not worth
the same as present goods. But as Singer points out, this is only relevant if we
are considering relative rates of the value of money (1993). Some environmental
256 | a P P Ly I N g P O L I T I c a L T H E O r y
goods cannot be replaced by any money, such as virgin forest. We might include
here non-renewable resources, and the earth’s atmosphere which is, at least now,
essential to life, and the wide range of natural features which will be affected by
global warming. are these still vulnerable to rawls’ criticism? Some might argue
that future generations will be wealthier, and better able to deal with the chal-
lenges posed by global warming, but the consensus among scientists now is that
the damage being done is irreversible. It seems clear that current generations can
afford environmental protection for the benefit of those in the future. Perhaps
human welfare might be satisfied in the future by an entirely artificial environ-
ment, created by advanced science. robert goodin addresses this problem in his
utilitarian case for environmental protection. goodin argues that it is valuable
to human beings to be connected to the natural world because it is natural, and
that cannot be replicated by artificial means (1992).
On the controversial question of who should pay now for environmental
protection, a utilitarian approach suggests that we look to the distribution of
costs that would maximize welfare among the world’s people. Who has his-
torical responsibility for polluting is not a relevant factor here, but we could
assume that wealthy countries now should bear the burden, as the cost in
welfare to those in poorer countries would be considerable. This is reflected in
the fund established by the Kyoto Protocol to meet the costs of offsetting global
warming.

Egalitarian arguments for conservation

The utilitarian case for conservation appeals to the concerns about the conse-
quences of environmental damage on the welfare of future people. But we can
also make an argument based on the principle of equality, and following the
same lines as egalitarian theories that deal with current generations. Brian Barry
suggests that we see environmental protection in distributive terms, and that
we should think about justice between generations as being guided by the same
principles as justice within a generation (1999). Barry identifies four premises
implied in equality, and as we shall see, these are consistent with other egalitar-
ian arguments. First, all individuals have equal moral worth, and deserve equal
rights. Second, as long as we have fair equality of opportunity, we should take
responsibility for our free choices, but not for the negative things that happen
to us beyond our control. (This is the same key distinction as Dworkin made
between option and brute bad luck, which we discussed in chapter 2.) Third, we
have vital interests or basic needs, and we have equal entitlement to have these
satisfied. (We discussed the basic needs argument in chapter 2, and in chapter
11 on foreign aid.) Fourth, any departures from equality must be agreed to on
the basis that they are to the mutual advantage of those involved. (This is consist-
ent with rawls’ difference principle, discussed in chapter 2.)
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 257
We can of course apply these principles to assess equality within our own time
framework. But do they justify protecting natural resources for future genera-
tions? as Barry argues, we cannot ensure that people have equal rights across
generations – for one thing, we have more rights now than did people in the
past. But we might agree that we have an obligation to ensure that members of a
subsequent generation can have equal rights with respect to each other. (as we
shall see later in this chapter, rawls concedes that those in the original position
would want to pass on a just society with just institutions to later generations.)
On the issue of responsibility: it is clear that members of future generations who
have to live with a substantially damaged environment and depleted resources
did not choose this situation, and should not have to bear its costs. They are,
however, responsible for the size of their population, and for the impact that this
has upon their ability to survive given the resources they have inherited. On the
criterion of equally satisfying vital interests: global warming is clearly likely to
have an impact on the outlook of future generations. and finally, those in future
generations obviously cannot have agreed that it is to their mutual advantage to
be unequal.
The role that environmental protection plays in ensuring the equality of future
generations is recognized, as we have seen in the Brundtland report, in the
concept of sustainability. Barry suggests that sustainability requires that people
across generations should have equal opportunities, which they may use as they
wish. There must be available a range of possible ways of living a good life, and
at the minimum, people’s basic and vital needs must be satisfied. People both in
the present and in the future must have sufficient resources to lead a basically
decent life, in which they exercise their innately human characteristic. But those
in the future retain some responsibility for their own fates: if future generations
continue to expand their populations at the current rate, they must take respon-
sibility for the impact of this upon their need for natural resources.
Equality arguments remind us that intra-generational and inter-generational
inequalities are closely related, and that the latter cannot be achieved without
the former. as we have seen, the Stern review emphasized the disproportional
burdens that global warming imposed on developing societies. Kristin Shrader-
Frechette has shown that many other cases of environmental degradation have a
heavy impact on poor communities. In the United States, for example, minority
communities ‘have been forced to trade unemployment for environmental pol-
lution, to exchange a shrinking local tax base for toxic dumps, to trade no bread
for a bloody half loaf ’ (2002). She argues, as do other leftist critics like de-Shalit,
that current and future inequalities must be dealt with together by measures to
prevent environmental degradation and arrest global warming. as we shall see
in a later section, however, some egalitarian critics think that the focus must be
on present, rather than future inequalities.
How are we to ensure that the interests of people not yet alive are taken into
account in decision making about natural resources? It seems we must just rely
258 | a P P Ly I N g P O L I T I c a L T H E O r y
on people now alive to recognize their obligations of justice, but of course we
cannot see the effects of our decisions on future generations, as we can see them
on the poor in our own society and, thanks to electronic media, in the remotest
corners of the world. andrew Dobson has made the controversial argument that
we must nominate people today to represent the interests of future generations
(1997). In order to ensure that they really do care about subsequent generations,
Dobson suggests choosing environmentalists to be these representatives, as
they avowedly do care for the future. But as many critics have pointed out, this
assumes that environmentalist will represent the interests of others rather than
their own, and it opens the door to demands for representation to many other
groups who claim to be concerned about the future.

Future generations and rights

a recurring question in considering arguments in favour of saving resources
for future generations is whether future generations (and here we mean genera-
tions not yet born) actually have rights. If they do, it is commonly agreed that
someone has an obligation to satisfy that right, and in the case of the right of
future generations to necessary natural and non-renewable resources, the onus
would clearly fall on present generations. Some philosophers insist that no mat-
ter how we define rights, those who do not exist cannot possibly be said to have
them (Beckerman and Pasek, 2001). It is not as if, after all, future people do in
some way exist, and are merely waiting to be born. ‘They’ are indeterminate –
we have no way of knowing who and how numerous ‘they’ will be. as Hillel
Steiner says, ‘… it seems mistaken to think of future persons as being already out
there, anxiously awaiting either victimization by our self-indulgent prodigality
or salvation through present self-denial’ (1983, 159). Non-existent people can-
not exercise choices, which is one definition of what is required for someone
to have rights. Nor, according to critics, can they be said to have interests. This
commonly agreed interpretation of rights has been famously described by Joel
Feinberg: in order to possess a right, one must have an interest which can be
represented (1974).
We might argue further here that the problem is not even that we cannot know
the identities of future generations, but rather that their identities depend upon
our choices. Derek Parfit formulates this as the ‘non-identity problem’ (Parfit,
1984): the case for preserving natural resources for future generations is that if
we do not do so, we will make life worse for members of a subsequent genera-
tion. However, the identity of members of the subsequent generation – who they
are, as individuals – is dependent on the choices that we make now, including
our choice to save or to deplete resources. So we cannot compare the situation of
future generations based on which policy we adopt, because their very identity
will change, depending on which one we adopt (Parfit, 1984).
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 259
But does it matter that ‘future persons’ have no determinate identities? Even
though we cannot identify the specific people who will be in future generations,
we can identify that there will be people. as Feinberg puts it: ‘any given one of
them will have an interest in living space, fertile soil, fresh air and the like, but
that arbitrarily selected one has no other qualities we can presently envision very
clearly’ (1974). We know that there will be human beings, and that they will
have interests that we can affect right now – so it does not matter that we do not
know who they will be. Similarly, the non-identity problem assumes that moral
duties relate to the particular – in this case, relative – identity of people in the
future. We might respond that we have duties not because we can compare the
fate of indeterminate people in the future if we do not act to conserve resources,
to those who might exist if we did, but rather because some people in the future
will suffer if we do not act. This response may, however, be easier to defend from
the position that we have moral obligations to people in the future, but not duties
of justice towards them (see the discussion of rawls, below).

Natural environments and communities

Egalitarian arguments consider nature as a resource to be used by human beings,
to be possessed and enjoyed. But we might instead see it as part of the context,
the environment, both social and natural, that shapes our identities, our sense of
who we are. as we have seen with respect to other social issues, communitarians
see individuals not as separate and atomistic, but rather as embedded in context
(see chapter 2). We have focused on social context, but some philosophers have
asserted that our connection to particular natural landscapes and places is also
a deep and constitutive part of our sense of who we are. a similar argument is
often made by nationalists, who emphasize the importance of particular terri-
tory and land to national identity.
goodin argues along these lines that people want to see some sense or
pattern to their lives, and that this requires that their lives be set in a larger
context. Natural processes, unaffected by human intervention, provide that
larger context (goodin, 1992). It’s also important that context, both natural
and social, extend both back and forward in time. communitarians see human
communities as larger than their present members – they are shaped by their
histories and their plans and hopes for the future (Walzer, 1983). We might
note that this view of human community across time was explicitly set out by
the eighteenth-century conservative thinker and politician Edmund Burke.
He described society as: ‘…a partnership in all science, a partnership in all
art; a partnership in every virtue and in all perfection… as the ends of such a
partnership cannot be obtained in many generations, it becomes a partnership
between... those who are living, those who are dead and those who are yet to be
born’ (Burke, [1790] 1955).
260 | a P P Ly I N g P O L I T I c a L T H E O r y
communitarianism, with its focus on context and historical continuity, does
appear to be, as robyn Eckersley claims, amenable to ecological concerns;
moreover, it explains why we might be motivated to protect the environment
for future people we cannot know (2006). But it has limits: if there is a conflict
between the needs of a social community that subsists on the exploitation of
natural resources and preservation of a natural environment, there is no reason
why the latter will take precedence. This has been particularly evident in contro-
versies in many countries over logging, where a local community with a history
of working in the timber industry resists the attempts of environmentalist to
stop logging and preserve trees. as cecile Fabre points out, the concepts of a
transgenerational community tells us only that we have communal obligations
to future generations – not what the specific obligations are that we owe (2007).
Those must be worked out as part of democratic debate. a communitarian
approach to environmental conservation emphasizes the importance of includ-
ing ethical questions, such as our obligations to future generations, in political
debates and deliberation (de-Shalit, 2004). This is more consistent with Michael
Sandel’s communitarian argument for the place of ethical commitments in poli-
tics (1982). It also allows us to avoid the problem of reciprocity between current
generations and those not yet existing (see below).
Finally, we might also argue that our commitments to future community
members will be much stronger for close or overlapping generations. communi-
ties change very much over time, and we might not think of ourselves as particu-
larly close to those a long way in the future. Nor might we feel our identities to be
closely bound to future generations in other countries. Environmental problems
like global warming and the exhaustion of non-renewable resources are not
local, and require international solutions that require us to recognize commit-
ments to people beyond our communities. a more cosmopolitan approach helps
us to see the relationship between those who create ecological risks, and those
who experience them (Eckersley, 2006). This is certainly apparent in the current
debates over whether developed nations should bear more of a cost for dealing
with climate change, given that they have polluted in the past. andrew Dobson
has argued for a ‘thick cosmopolitanism’ that grounds norms of environmental
justice recognizing the unequal burdens of environmental degradation (2004).

Private property and leaving ‘enough’ for

others
We conclude our discussion of arguments in political theory in favour of sav-
ing natural resources for the future by considering a libertarian defence. This
might seem an unlikely argument: libertarian theories like robert Nozick’s are
strongly in favour of private property rights, and opposed to state-mandated
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 261
redistributions. We might expect that they would be even more sceptical of
demands that we redistribute resources to future generations. as we saw in
chapter 2, Nozick argues that individuals who hold property to which they are
entitled are not obliged to transfer or spend it in any way other than how they
please. Those in the future would appear to have no right to require the present
owners of resources to save them, or to pay for their protection. It’s important
to remember, though, that the initial appropriation of property, upon which all
subsequent transfers depend for legitimacy, must leave, as Locke puts it, ‘enough
and as good for others’ ([1690] 1988). Unlimited appropriation which leaves
nothing for others is not legitimate. Nozick takes this to mean that appropria-
tion must leave enough for others to be able to improve their situation, as they
would have been able in a state of nature. robert Elliot suggests that we can
conclude from this that people have rights of some kind to resources that were
available to them in the state of nature (1986). This covers at least resources like
clean air, water and an atmosphere, and as a result, we might argue that present
generations are required to conserve these for the future. But there is no reason
according to the libertarian perspective why rich nations should pay more for
environmental clean-up.

Egalitarianism and the limits of justice

as we have seen, we can make an egalitarian case for conserving resources for
future generations. But there is no consensus among liberal egalitarians on this
issue; many argue that while we are morally obliged to consider the needs of peo-
ple in the future, and should make some effort to protect natural resources, we
have no obligations of justice towards them. One important reason often cited
for this is that people in the future cannot be in a reciprocal relationship with
those existing now. Justice is often seen as depending upon the social fact that
we can affect and be affected by the actions of others. The eighteenth-century
philosopher David Hume expressed this fundamental idea when he argued that
justice (the ‘jealous virtue’) is a matter of convention – it is not natural, but arises
because it is useful, given the common interest that individuals have in ensuring
the stability of their possessions, and their ability to interfere with each other’s
interests ([1751] 1983). as we saw in Box 13.1, the lack of a reciprocal relation-
ship between humans and animals is cited by some philosophers as a reason why
animals are not entitled to justice.
according to this approach, justice and principles such as equality cannot
apply between people of different generations. rawls expresses this in the terms
of contractual agreement, by which he establishes his principles of justice: people
of different generations cannot be parties to the same agreement in the original
position (see chapter 2 for a detailed discussion of rawls’ principles of justice).
We owe no duties of justice to subsequent generations, because ‘we can do
262 | a P P Ly I N g P O L I T I c a L T H E O r y
something for posterity but it can do nothing for us’ (rawls, 1971, 271). con-
sequently, the difference principle, which regulates inequalities to ensure that
they are only allowed if they maximize the position of the worst-off in society,
does not apply across generational lines. The parties in the original position do
not know which generation they belong to, but they do know they all belong
to the same one. This does not mean, however, that those in the original posi-
tion will be unconcerned about the fate and prosperity of future generations.
By definition, human societies will be recognized as schemes of understanding
that extend over historical time. Thus there must be an understanding between
generations that each must carry their fair share of the burdens of ‘realizing and
preserving a just society’ (rawls, 1971, 289). rawls stipulates in Theory of Justice
that the parties in the original position will care at least about their own close
descendants, and so should be regarded as representing family lines, with ties of
sentiment between succeeding generations (1971).
Under these circumstances, rawls argues, the parties would recognize their
obligation to save for the future, and would agree to a principle of ‘just savings’
as a constraint on distributive justice. The purpose of saving would not be to
equalize wealth between generations, but rather to provide the resources neces-
sary for a just society to maintain itself into the future: ‘Each generation must
not only preserve the gains of culture and civilization, and maintain intact those
institutions that have been established, but it must also put aside in each period
of time a suitable amount of real capital accumulation’ (rawls, 1971, 285). Writ-
ing in the early 1970s, rawls envisaged saving as taking the form of investing in
technology and education. But although he did not envisage the natural environ-
ment as a primary good, we could easily extend his argument to saving natural
resources. rawls does not explore this himself, and comments that the question
of human duties to nature and animals is ethical, rather than political (1993).
Nevertheless, the purpose of saving is to preserve just institutions, and this obvi-
ously includes at a minimum the preservation of natural resources essential to
human life.
The just savings principle clearly limits the amount of sacrifice required of
people for those in the future. How much would be required? rawls suggests
in his later Political Liberalism that because the parties in the original posi-
tion would not know which generation they belonged to, they would have to
ask themselves how much they’d be prepared to save, on the basis that the
previous generation will have saved at the same rate (1993). This removes
the need for contracting parties to identify with the interests of subsequent
generations.
Looking at liberalism more broadly, we might conclude that its conception of
justice as the distribution of primary goods means that it has limited applicabil-
ity to environmental conservation. as David Miller points out, we can define
environmental goods as primary goods in only the few (although crucial) cases
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 263
of basic resources essential to human life. In these cases, the protection of natural
resources such as the earth’s atmosphere and climate will be prior to any social
cooperation being possible. Ensuring them is not a matter of justice, but rather a
pre-condition for it (Miller, 1999). This is similar to the way that security is often
viewed as the essential basis for justice, as we saw in chapter 9. Some radical sur-
vivalists in the green movement have argued that the need for human survival
outweighs all other moral and justice-related considerations. In 1972, economist
robert Heilbroner asserted that human beings are fundamentally motivated to
act selfishly, and thus would be unable to come together and cooperate to save
the natural resources necessary for continued human life. He concluded that the
only solution to the unsustainability of growth was to expand the authority of
the state to force people to change their behaviour. This meant state regulation of
consumption patterns, family size and the nature and composition of industrial
production (Heilbroner, 1972).
From a liberal perspective, however, we might argue that environmental
degradation must be controlled because of the impact it has on the distribu-
tion of other goods. This is particularly clear in the case of global warming,
which has already had a substantial impact upon the world’s poor. Saving
non-renewable resources for future generations is often spoken of as if it were
indistinguishable from mitigating inequalities among people alive now (see
the section on equality and conservation, above). In practice, however, the
relationship between the two is not always so clear. consider the case of bio-
fuels, for example. as corn-based ethanol became popular as an alternative
(and renewable) fuel in the United States and Europe, the price of corn surged.
This affected not only corn-based cereals, but also other grains, stock feed and
the price of meat. In just one of many world-wide consequences, Mexican corn
was diverted into the United States to take advantage of the high prices, and
as a result, the price of corn products like tortillas, a staple food of Mexico’s
poor, sky-rocketed.
In the light of such cases, a few critics argue that we should focus on address-
ing inequalities now. Wilfred Beckerman and Joanna Pasek assert, as we have
seen, that members of future generations cannot be said to have rights. Our
priority should be to ensure that people across the world now have access to just
institutions that ensure basic liberties, and a decent society that protects people
who are not members (Beckerman and Pasek, 2001). as we saw in chapter 11,
we are very far from meeting the basic needs, let alone providing the conditions
for equality and autonomy among the world’s poor. It’s an added advantage that
these policies are likely to reduce future inequality. For example, exploitative
industries often treat marginalized people badly, as well as destroying the envi-
ronment. Ensuring women’s equality is necessary to limit population growth –
one of the ways in which, we remember, Barry argued that future generations
must take responsibility for their own situation.
264 | a P P Ly I N g P O L I T I c a L T H E O r y
Box 13.2 Protecting the nAturAl
environment for the future:
comPeting norms And vAlues
The philosophical debate over saving the environment for the future turns on different
(although not always opposing) interpretations of justice, rights and community:

• Justice: Some who support protecting the environment argue that we have
obligations of justice to people in future generations. They have rights (see below)
to be treated equally, according to much the same criteria as we would apply to
justice between people alive today. Others argue that justice applies only to those
in a reciprocal relationship, which cannot include people who do not yet exist. While
we have moral obligations to save some resources for the future, these are not the
same as the duties of justice we owe to those alive now.
• Rights: Some philosophers argue that people not yet alive can be said to have
rights – in this case to the natural resources necessary to a good life, or at least to
what is essential for life. It doesn’t matter that we don’t know the identities of those
in the future, as long as we are satisfied that there will be people with interests that
will suffer if we do not act to preserve resources now. Others maintain that future
generations do not exist, and thus cannot be said to have rights.
• Community: Some philosophers argue that the natural environment in which a
social community lives forms part of the context that shapes individual identity and
moral obligation. We should – and will be motivated to – protect our environment
for future community members, because it is deeply linked to who we are. Some
critics point out, however, that while this may reinforce environmentalism at a local
level, there may be conflicts between the economic needs of a social community
and environmental conservation. Moreover, it cannot deal with the crucial issues
that are global in scope, and that require us to identify with people – both present
and future – in different communities to our own.

Conclusion
The issue of protecting the environment for the future, more than any of the oth-
ers we have considered in this book, requires us to explore the extent and limits
of justice. In chapters 3 and 4, we considered the claims of members of ethnic
and racial minorities within countries to equal treatment, and in chapter 7, the
claims of foetuses yet to be born. In chapters 11 and 12, we explored duties to
people in other countries. Environmental protection requires us to examine our
obligations not only to people in other communities and nations, but also to
those in future generations. In posing the question: to whom do we owe duties
of justice, we also ask: what is the extent of politics? Where do our political obli-
gations end, leaving us with moral duties as the only checks on our behaviour?
 S H O U L D T H E N aT U r a L E N v I r O N M E N T B E P r O T E c T E D ? | 265
This is of course increasingly the case given the effects of climate change, but
it applies more broadly because of the fact that natural resources extend beyond
national boundaries. Some environmental issues are predominantly local, such
as the preservation of local animal species, or woodlands or waterways, and may
be dealt with at the local or national level, but even these relate to the broader
concern of preserving the earth’s biodiversity. Threats to the earth’s atmosphere
and climate, however, require coordinated global action. But because of dif-
ferences in industrial and technological development, the impact of climate
change on national populations varies. as the Stern report recognizes, advanced
industrial development offers a temporary cushion against the worst effects of
climate change, while its consequences are more urgently felt in many develop-
ing countries. at the same time, industrial development offers immediate and
medium-term economic benefits to poorer countries. achieving coordinated
international action under these circumstances has proved to be very difficult.
Protecting the environment is a collective action problem: it requires all to act
together for a common benefit, although it may be in the short-term interest of
each individual party to act selfishly.
From the perspective of normative political theory, however, the problem of
achieving joint action to protect the environment is not strategic, but one of jus-
tice. The need to conserve resources for the benefit of all the world’s people in the
future must be balanced with the existing needs of poor populations. resources
are scarce, and if we are going to argue that justice requires us to provide at least
the basic requirements for a decent life for future generations, it seems essential
that this be tied in to efforts to supply the basic requirements of a decent life to
those existing in the world now. We may understand this, as we have seen in
chapters 2 and 11, in terms of the satisfaction of basic needs, or the provision
of equality – however that is defined. The relationship between future needs
and current poverty was first recognized in the Brundtland report in 1982, and
reiterated in the UN Development Program’s Human Development report for
2007/8, entitled Fighting Climate Change: Human Solidarity in a Divided World.
as a result of climate change, the boundaries of justice are extended not only
to all people (and, some argue, to nature itself) but to the protection of people,
societies and the conditions of political life in the future.
Bibliography

Ackerman, B. (2006) Before the Next Attack: Preserving Civil Liberties in an Age of
Terrorism (New Haven: Yale University Press).
Ackerman, B. & Alstott, A. (1999) The Stakeholder Society (New Haven: Yale University
Press).
Altman, A. (2005) ‘The Right to Get Turned On: Pornography, Autonomy, Equality’ in
Cohen, A. I. & Wellman, C. H. (eds) Contemporary Debates in Applied Ethics (Oxford:
Blackwell Publishing).
Anderson, E. (1993) Values in Ethics and Economics (Cambridge, MA: Harvard
University Press).
Anderson, E. (1999) ‘What is the Point of Equality’? Ethics, 99, 287–337.
Anderson, E. (2002) ‘Integration, Affirmative Action and Strict Scrutiny’, New York
University Law Review, 77, 1195–1271.
Associated Press (2006) ‘Blair Toughens Stance on Religious Tolerance and Cultural
Assimilation’, International Herald Tribune.
Appiah, K. A. (1996) ‘Race, Culture, Identity: Misunderstood Connections’ in Appiah,
K. A. & Gutmann, A. (eds) Color Conscious: The Political Morality of Race (Princeton:
Princeton University Press).
Aquinas, T. S. (1952, written 1265–1274) Summa Theologica (Chicago: Encyclopaedia
Britannica).
Aristotle (1976, written third century BCE) The Ethics (Harmondsworth: Penguin).
Aristotle (1981, written third century BCE) The Politics (Harmondsworth: Penguin).
Augustine, S. (1931, orig. pub. 426 CE) The City of God (London).
Ball, C. A. (2003) The Morality of Gay Rights (New York: Routledge).
Barber, B. (2003) Fear’s Empire: War, Terrorism and Democracy (New York: Norton).
Barry, B. (1999) ‘Sustainability and Intergenerational Justice’ in Dobson, A. Fairness and
Futurity (Oxford: Oxford University Press).
Barry, B. (2001) Culture and Equality: An Egalitarian Critique of Multiculturalism
(Cambridge: Polity Press).
Barry, K. (1984) Female Sexual Slavery (New York: New York University Press).
Barry, K. (1996) The Prostitution of Sexuality (New York: New York University Press).
Bauer, P. T. (2001) From Subsistence to Exchange and Other Essays (Princeton: Princeton
University Press).
Beauchamp, T. (1996) ‘The Justification of Physician-Assisted Suicide’, Indiana Law
Review, 29, 1173–1200.
Beckerman, W. (1999) ‘Sustainability and Our Obligations to Future Generations’ in
Dobson, A. (ed.) Fairness and Futurity (Oxford: Oxford University Press).

266
 BIBLIOGRAPHY | 267
Beckerman, W. & Pasek, J. (2001) Justice, Posterity and the Environment (Oxford:
Oxford University Press).
Beckwith, F. J. (1998) ‘Arguments from Bodily Rights: A Critical Analysis’ in Pojman,
L. P. & Beckwith, F. J. (eds) The Abortion Controversy: 25 Years After Roe v. Wade, A
Reader. 2nd ed. (Belmont, CA: Wadsworth).
Beckwith, F. J. (1999) ‘The “No One Deserves His or Her Talents” Argument for
Affirmative Action: A Critical Analysis’, Social Theory and Practice, 25, 53–60.
Beitz, C. (1979) Political Theory and International Relations (Princeton: Princeton
University Press).
Beitz, C. R. (1980) ‘Nonintervention and Communal Integrity’, Philosophy and Public
Affairs, 9, 385–391.
Bellah, R., Madsen, R., Sullivan, W., Swidler, A. & Tipton, S. (1985) Habits of the Heart
(Berkeley, CA: University of California Press).
Bentham, J. (1825) The Rationale of Reward (London: John and H.L. Hunt).
Bentham, J. (1931, orig. pub., 1802) Theory of Legislation (Buffalo, NY: Hein).
Bentham, J. (1988, orig. pub. 1756) A Fragment on Government (Cambridge: Cambridge
University Press).
Bentham, J. (1988), orig. pub. 1781) An Introduction to the Principles of Morals and
Legislation (Amherst, NY: Prometheus).
Berlin, I. (1969) ‘Two Concepts of Liberty’ in Four Essays on Liberty. (Oxford: Oxford
University Press).
Bhabha, H. K. (1996) ‘Culture’s In-Between’ in Hall, S. & du Gay, P. Questions of
Cultural Identity (London: Sage), 53–60.
Blake, M. (2001) ‘Distributive Justice, State Coercion and Autonomy’, Philosophy and
Public Affairs 30: 3, 257–296.
Blumstein, P. & Schwartz, P. (1983) American Couples: Money, Work, Sex (New York:
Morrow).
Bodin, J. (1992, orig. pub. 1576) On Sovereignty: Four Chapters from the Six Books of the
Commonwealth (Cambridge: Cambridge University Press).
Booth, K. (ed.) (2001) The Kosovo Tragedy: The Human Rights Dimensions (London:
Routledge).
Bowen, W. G. & Bok, D. (1998) The Shape of the River: Long Term Consequences of Considering
Race in College and University Admissions (Princeton: Princeton University Press).
Brinkley, A. (2007) ‘Past as Prologue?’ in Leone, R. C. & Anrig, G. (eds) Liberty under
Attack: Reclaiming our Freedoms in an Age of Terror (New York: The Century
Foundation).
Brock, G. (2006) ‘Humanitarian Intervention: Closing the Gap between Theory and
Practice’, Journal of Applied Philosophy, 23, 277–291.
Brock, G. (2009) Global Justice: A Cosmopolitan Account (Oxford: Oxford University
Press).
Brownlee, K. (2013) ‘Is Edward Snowden a Civil Disobedient?’ Oxford University Press
blog, 23 August 23. Available at: http://blog.oup.com/2013/08/is-edward-snowden-
a-civil-disobedient/. Accessed July 31, 2015.
Buchanan, A. (2000) ‘Rawls’ Law of Peoples: Rules for a Vanished Westphalian World’,
Ethics, 110, 697–721.
268 | BIBLIOGRAPHY
Bumiller, E. (2010) ‘Gates on Leaks, Wiki and Otherwise’, The New York Times, 30
November. Available at: http://thecaucus.blogs.nytimes.com/2010/11/30/gates-on-
leaks-wiki-and-otherwise/?_r=1 Accessed, 1 August, 2015.
Burke, E. (1955, orig. 1790) Reflections on the Revolution in France (New York:
Macmillan).
Burkett, P. (1999) Marx and Nature (New York: St. Martin’s Press).
Butler, J. (1997) Excitable Speech (New York: Routledge).
Calhoun, C. (2000) Feminism, the Family and the Politics of the Closet: Lesbian and Gay
Displacement (New York: Oxford University Press).
Caney, S. (1997) ‘Human Rights and the Rights of States: Terry Nardin on
Nonintervention’, International Political Science Review, 18, 2–37.
Caney, S. (2005) Justice Beyond Borders: A Global Political Theory (Oxford: Oxford
University Press).
Capotorti, F. (1979) ‘Study on the Rights of Persons Belonging to Ethnic, Religious and
Linguistic Minorities’, U.N. Doc.E/CN.4/Sub.2/384/Rev.1. U.N.
Card, C. (1996) ‘Against Marriage and Motherhood’, Hypatia, 11, 1–23.
Carens, J. H. (2003) ‘An Interpretation and Defense of the Socialist Principle of
Redistribution’, Social Philosophy and Policy, 20, 145–177.
Carson, R. (1962) Silent Spring (Boston: Houghton Mifflin).
Carter, J. (2007) ‘Subsidies: Harvest of Misery’, The Washington Post, 10 December, A19.
Chambers, S. (2003) ‘Deliberative Democratic Theory’, Annual Review of Political
Science, 6, 307–26.
Cicero (1991, orig. 44 BCE) On Duties (Cambridge: Cambridge University Press).
Clinton, H. (2010) Quoted in Sheridan, M. B. (2010) ‘Hillary Clinton: “WikiLeaks
Release an Attack on International Community”’, The Washington Post Monday,
29 November. Available at: http://www.washingtonpost.com/wp-dyn/content/
article/2010/11/29/AR2010112903231.html Accessed 31 July, 2015.
Clinton, H. (2011) Quoted in Sheridan, M. B. (2011) ‘Clinton Warns Governments
that Limiting Internet will Backfire’, The Washington Post Tuesday, 15 February.
Available at: http://www.washingtonpost.com/wp-dyn/content/article/2011/02/15/
AR2011021505815.html Accessed 31 July, 2015.
Cohen, C. & Sterba, J. P. (2003) Affirmative Action and Racial Preference: a Debate
(Oxford: Oxford University Press).
Cohen, G. A. (1989) ‘On the Currency of Egalitarian Justice’, Ethics, 99, 906–944.
Cohen, G. A. (2004) ‘Expensive Taste Rides Again’ in Burley, J. (ed.) Dworkin and his
Critics, With Replies by Dworkin (Oxford: Blackwell).
Cohen, J. (1989) ‘Deliberation and Democratic Legitimacy’ in Goodin, R. & Pettit, P.
(eds) Contemporary Political Philosophy: An Anthology (Oxford: Blackwell).
Cohen, J. (1996) ‘Freedom, Equality, Pornography’ in Sarat, A. & Kearns, T. R. (eds)
Justice and Injustice in Law and Legal Theory (Ann Arbor: University of Michigan
Press).
Cohen, J. L. (2005) ‘Whose Sovereignty? Empire v. International Law’ in Barry, C.
& Pogge, T. (eds) Global Institutions and Responsibilities: Achieving Global Justice
(Oxford: Blackwell).
Conrad, R. (ed.) (2010) Against Equality: Queer Critiques of Gay Marriage (New York:
Against Equality Press).
 BIBLIOGRAPHY | 269
Continental Congress. (1908) Journals of the Continental Congress, 1774–1789.
(Washington, D.C: Government Printing Office).
Cornell, D. (1995) The Imaginary Domain: Abortion, Pornography and Sexual Harassment
(New York: Routledge).
Crawford, N. (2002) Argument and Change in World Politics: Ethics, Decolonization and
Humanitarian Intervention (Cambridge: Cambridge University Press).
Credit Suisse, Global Wealth Report, 2014. Available at: https://publications.credit-
suisse.com/tasks/render/file/?fileID=60931FDE-A2D2-F568-B041B58C5EA591A4
Accessed August 27, 2015.
Davis, D. S. (1998) ‘Why Suicide Is Like Contraception’ in Battin, M. P., Rhodes, R. &
Silvers, A. (eds) Physician Assisted Suicide (New York: Routledge).
D’emilio, J. (1998) Sexual Politics, Sexual Communities: The Making of a Homosexual
Minority in the United States, 1940–1970 (Chicago: University of Chicago Press).
Dershowitz, A. M. (2002) Shouting Fire: Civil Liberties in a Turbulent Age (New York:
Little Brown).
De-Shalit A. (2004) The Environment Between Theory and Practice (Oxford: Oxford
University Press).
De-Shalit, A. (2006) ‘Nationalism’ in Dobson, A. and Eckersley, R. (eds) Political Theory
and the Ecological Challenge (Cambridge: Cambridge University Press).
Deveaux, M. (2006) Gender and Justice in Multicultural Liberal Societies (Oxford:
Oxford University Press).
Devlin, P. (1959) The Enforcement of Morals (London: Oxford University Press).
Dobson, A. (1997) ‘Representative Democracy and the Environment’ in Meadowcraft, J.
(ed.) Democracy and the Environment (Cheltenham: Edward Elgar,) 121–141.
Dobson, A. (2003) Citizenship and the Environment (Oxford: Oxford University Press).
Dollar, D. & Pritchett, L. (1998) ‘Assessing Aid: What Works, What Doesn’t, and Why’,
World Bank.
Donaldson, S. and Kymlicka, W. (2011) Zoopolis: A Political Theory of Animal Rights
(Oxford: Oxford University Press).
Donceel, J. F., S.J. (1970) ‘A Liberal Catholic’s View’, in Hall, R. E. (ed.) (New York:
Columbia University Press).
Downs, D. A. (2005) Restoring Free Speech and Liberty on Campus (Cambridge:
Cambridge University Press).
Dryzek, J. (2000) Deliberative Democracy and Beyond: Liberals, Critics, Contestations
(Oxford: Oxford University Press).
Dworkin, A. (1981) Pornography: Men Possessing Women (London: The Women’s Press).
Dworkin, A. (1985) ‘Against the Male Flood: Censorship, Pornography and Equality’,
Harvard Women’s Law Journal, 8.
Dworkin, R. (1978) Taking Rights Seriously (London: Duckworth).
Dworkin, R. (1984) ‘Rights as Trumps’ in Waldron, J. (ed.) Theories of Rights (Oxford:
Oxford University Press).
Dworkin, R. (1986) A Matter of Principle (Oxford: Clarendon Press).
Dworkin, R. (1991) ‘Liberty and Pornography’, New York Review of Books, 38.
Dworkin, R. (1993) Life’s Dominion (New York: Knopf).
Dworkin, R. (1996) Freedom’s Law: The Moral Reading of the American Constitution
(Cambridge, MA: Harvard University Press).
270 | BIBLIOGRAPHY
Dworkin, R. (2000) Sovereign Virtue: The Theory and Practice of Equality (Cambridge,
MA: Harvard University Press).
Dworkin, R. (2002) ‘The Threat to Patriotism’, The New York Review of Books.
Dworkin, R. (2003) ‘Terror and the Attack on Civil Liberties’, The New York Review of
Books.
Dworkin, R. (2006) ‘The Right to Ridicule’, The New York Review of Books, 53.
Dworkin, R., Nagel, T., Nozick, R., Rawls, J., Scanlon, T. M. & Thomson, J. J. (1997)
‘Assisted Suicide: The Philosophers’ Brief’, The New York Review of Books.
Dyzenhaus, D. (1992) ‘John Stuart Mill and the Harm of Pornography’, Ethics, 102,
534–551.
Eagleton, T. (1991) Ideology (London: Verso).
Eckersley, R. (1993) Environmentalism and Political Theory: Towards an Ecocentric
Approach (Albany: State University of New York Press).
Eckersley, R. (2006) ‘Communitarianism’ in Dobson, A. and Eckersley, R. (ed.) Political
Theory and the Ecological Challenge (Cambridge: Cambridge University Press).
Elliot, R. (1986) ‘Future Generations, Locke’s Proviso and Libertarian Justice’, Journal of
Applied Philosophy, 3,2, 217–227.
Elshtain, J. B. (1981) Public Man, Private Woman: Women in Social and Political
Thought (Princeton: Princeton University Press).
Elshtain, J. B. (1995) Democracy on Trial (New York: Basic Books).
Elshtain, J. B. (2003) Just War Against Terror: The Burden of American Power in a Violent
World (New York: Basic Books).
Engels, F. (1948, orig. pub. 1884) The Origin of the Family, Private Property and the State
(Moscow: Foreign Languages Publishing House).
English, J. (1974) ‘Abortion and the Concept of a Person’, Canadian Journal of
Philosophy, 5, 233–243.
Ericsson, L. O. (1980) ‘Charges Against Prostitution: An Attempt at a Philosophical
Assessment’, Ethics, 90, 335–366.
Eskridge, W. N. (2002) Equality Practice: Civil Unions and the Future of Gay Rights (New
York: Routledge).
Evans, G. (2004) ‘The Responsibility to Protect: Rethinking Humanitarian Intervention’,
The American Society of International Law, 98th Meeting. Washington, DC.
Fabre, C. (2007) Justice in a Changing World (Cambridge: Polity).
Feinberg, J. (1974) ‘The Rights of Animals and Unborn Generations’ in Blackstone, W.
(ed.) Philosophy and Environmental Crisis (Atlanta: University of Georgia Press).
Feinberg, J. (1985) Offense to Others: The Moral Limits of the Criminal Law (New York:
Oxford University Press).
Figgis, J. N. (1931) Studies of Political Thought from Gerson to Grotius, 1414–1625
(Cambridge: Cambridge University Press).
Finnis, J. (1980) Natural Law and Natural Rights (Oxford: Clarendon Press).
Finnis, J. (1995) ‘A Philosophical Case Against Euthanasia’ in Keown, J. (ed.) Euthanasia
Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University
Press).
Finnis, J. (1997) ‘The Good of Marriage and the Morality of Sexual Relations: Some
Philosophical and Historical Observations’, American Journal of Jurisprudence, 42,
97–134.
 BIBLIOGRAPHY | 271
Fischer, C. (1996) Inequality by Design: Cracking the Bell Curve Myth (Princeton:
Princeton University Press).
Fish, S. (1994) There’s No Such Thing As Free Speech, And It’s a Good Thing, Too (New
York: Oxford University Press).
Fiss, O. M. (1996) Liberalism Divided: Freedom of Speech and the Many Uses of State
Power (Boulder, CO: Westview Press).
Foster, J. B. (2000) Marx’s Ecology (New York: Monthly Review Press).
Foucault, M. (2007) Security, Territory, Population: lectures at the Collège de France,
1977–78 (Basingstoke: Palgrave Macmillan).
Foucault, M. (2008) The Birth of Biopolitics: Lectures at the Collège de France, 1978–79
(Basingstoke: Palgrave Macmillan).
France, A. (1910) The Red Lily (London: The Bodley Head).
Fraser, N. (1995) ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-
Socialist” Age’, The New Left Review, 212, 68–93.
Freeman, S. (2006) ‘The Law of Peoples, Social Cooperation, Human Rights and
Distributive Justice’ in Paul, E. F., Miller Jnr, F. D. & Paul, J. (eds) Justice and Global
Politics (Cambridge: Cambridge University Press).
Gates Jr, H. L., Griffin, A. P., Lively, D. E., Post, R. C., Rubenstein, W. B. & Strossen, N.
(1994) Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties
(New York: New York University Press).
George, R. P. (2003) ‘Neutrality, Equality and “Same-Sex Marriage”’ in Wardle, L. D.,
Strasser, M., Duncan, W. C. & Coolidge, D. O. (eds) Marriage and Same-Sex Unions:
A Debate (Westport, CT: Praeger).
Gilligan, C. (1982) In a Different Voice: Psychological Theory and Women’s Development
(Cambridge, MA: Harvard University Press).
Gitlin, T. (1995) The Twilight of Common Dreams: Why American is Wracked by Culture
Wars (New York: Henry Holt and Co).
Glendon, M. A. (1987) Abortion and Divorce in Western Law (Cambridge, MA; Harvard
University Press).
Godfrey, C. (2002) ‘Oxfam Briefing Paper no. 31: Stop the Dumping! How EU agricul-
tural subsidies are damaging livelihoods in the developing world’, OXFAM.
Goldman, A. (1976) ‘Affirmative Action’, Philosophy and Public Affairs, 5, 178–195.
Goldman, A. (1979) Justice and Reverse Discrimination (Princeton: Princeton University
Press).
Goodin, R. (1992) Green Political Theory (Cambridge: Polity).
Goodin, R. (1995) Utilitarianism as a Public Philosophy (Cambridge: Cambridge
University Press).
Goodin, R. E. (2006) What’s Wrong With Terrorism? (Cambridge: Polity).
Greenawalt, K. (1995) Fighting Words: Individuals, Communities, and Liberties of Speech
(Princeton: Princeton University Press).
Greenwald, G., MacAskill, E. & Poitras, L. (2013) ‘Edward Snowden: The Whistleblower
Behind the NSA Surveillance Revelations,’ The Guardian 11 June. Available at: http://
www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-
surveillance. Accessed July 24, 2015.
Grisez, G. G. (1970) Abortion: The Myths, the Realities and the Arguments (New York:
Corpus Books).
272 | BIBLIOGRAPHY
Grotius, H. (2004, orig. pub. 1625) On the Law of War and Peace (London: Kessinger).
Gutmann, A. & Thompson, D. (1996) Democracy and Disagreement (Cambridge, MA:
Belknap Press).
Habermas, J. (1975) Legitimation Crisis (Boston: Beacon Press).
Hare, R. M., 1976. ‘Political Obligation’, in Honderich, T. (ed.) Social Ends and Political
Means, (London: Routledge & Kegan Paul).
Harris, J. (1995) ‘Euthanasia and the Value of Life’ in Keown, J. (ed.) Euthanasia
Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University
Press).
Hart, H. (1963) Law, Liberty and Morality (Stanford: Stanford University Press).
Haubrich, D. (2003) ‘September 11, Anti-Terror Laws and Civil Liberties: Britain, France
and Germany Compared’, Government and Opposition: An International Journal of
Comparative Politics, 38, 3–28.
Hayden, M. (2013) ‘Ex CIA-Chief: What Edward Snowden did,’ CNN, 19 July. Available
at: http://edition.cnn.com/2013/07/19/opinion/hayden-snowden-impact Accessed 1
August, 2015.
Hayek (1962) The Road to Serfdom (London: Routledge).
Heilbroner, R. L. (1972) ‘Growth and Survival,’ Foreign Affairs, 51, 1, 139–53.
Herrnstein, R. J. & Murray, C. (1994) The Bell Curve (New York: Free Press).
Heywood, A. (2015) Political Theory: An Introduction (Basingstoke: Palgrave Macmillan).
Hirschmann, N. J. (2015) ‘Political Obligation’, in Gibbons, M. T. (ed.) The Encyclopedia
of Political Thought (Malden, MA: Wiley Blackwell).
Hirst, P. (1994) Associative Democracy: New Forms of Economic and Social Governance
(Amherst, MA: University of Massachusetts Press).
Hirvonen, P. (2005) ‘Stingy Samaritans: Why Recent Increases in Development Aid Fail
to Help the Poor’, New York, Global Policy Forum.
Hobbes, T. (1962, orig. pub. 1651) Leviathan (London: Collier Macmillan).
Holbrooke, R. (2005) ‘Was Bosnia Worth It?’ The Washington Post.
Holzer, H. J. & Neumark, D. (2000) ‘What Does Affirmative Action Do?’ Industrial and
Labor Relations Review, 53, 240–271.
Horton, J. (2010) Political Obligation, 2nd ed. (Basingstoke: Palgrave Macmillan).
Hume, D. (1960[1748]) ‘Of the Original Contract’, in Locke, J., Hume, D. and Rousseau,
J-J. Social Contract: Essays by Locke, Hume and Rousseau (New York: Oxford
University Press).
Hume, D. (1983, orig. pub. 1751) An Enquiry Concerning the Principles of Morals
(Indianapolis, IN: Hackett).
ICISS (2001) ‘The Responsibility to Protect’, Ottawa, The International Commission on
Intervention and State Sovereignty.
Ignatieff, M. (2004) The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh:
Edinburgh University Press).
Itzin, C. & Sweet, C. (1993) ‘Women’s Experience of Pornography: UK Magazine Survey
Evidence’ in Itzin, C. (ed.) Pornography: Women, Violence and Civil Liberties (Oxford:
Oxford University Press).
Jeffreys, S. (1997) The Idea of Prostitution (North Melbourne, Vic: Spinifex).
 BIBLIOGRAPHY | 273
Johnson, L. B. J. (1965) ‘To Fulfil These Rights’, Commencement Address to Howard
University.
Kaldor, M. (2007) Human Security: Reflections on Globalization and Intervention
(Cambridge: Polity).
Kant, I. (1991 [1785]) Kant’s Political Writings, 2nd edition, Reiss H. (ed.) (Cambridge:
Cambridge University Press).
Kant, I. (1993, orig. pub. 1785) Grounding for the Metaphysics of Morals (Indianapolis,
IN: Hackett).
Karst, K. (1990) ‘Boundaries and Reasons: Freedom of Expression and the Subordination
of Groups’, University of Illinois Law Review, 95–149.
Kateb, G. (1989) ‘The Freedom of Worthless and Harmful Speech’ in Yack, B. (ed.)
Liberalism Without Illusions: Essays on Liberal Theory and the Political Vision of
Judith N. Sklar. (Chicago: University of Chicago Press).
Kennedy, R. (2013) For Discrimination: Race, Affirmative Action and the Law (New
York: Vintage).
Keown, J. (1995) ‘Euthanasia in the Netherlands: Sliding Down the Slippery Slope?’
in Keown, J. (ed.) Euthanasia Examined: Ethical, Clinical and Legal Perspectives
(Cambridge: Cambridge University Press).
King, M. L. (1963) ‘Letter from a Birmingham Jail’, Available at: http://www.africa.
upenn.edu/Articles_Gen/Letter_Birmingham.html Accessed 1 August, 2015.
Krause, S. (2011) ‘Contested Questions, Current Trajectories: Feminism in Political
Theory Today’, Politics and Gender 7, 1, 105–111.
Kristol, I. (2004) ‘Pornography, Obscenity and the Case for Censorship’ in Stelzer, I.
(ed.) Neoconservatism (London: Atlantic Books).
Kukathas, C. (1992) ‘Are There Any Cultural Rights?’ Political Theory, 20, 105–139.
Kukathas, C. (2006) ‘The Mirage of Global Justice’ in Paul, E. F., Miller Jnr, F. D. & Paul,
J. (eds) Justice and Global Politics (Cambridge: Cambridge University Press).
Kuperman, A. J. (2000) ‘Rwanda in Retrospect’, Foreign Affairs, 79.
Kymlicka, W. (1995) Multicultural Citizenship (Oxford: Oxford University Press).
Kymlicka, W. (1999) ‘Liberal Complacencies’ in Cohen, J., Howard, M. & Nussbaum, M. C.
(eds) Is Multiculturalism Bad for Women? (Princeton: Princeton University Press).
Kymlicka, W. (2001) Politics in the Vernacular: Nationalism, Multiculturalism and
Citizenship (Oxford: Oxford University Press0.
Lee, P. & George, R. P. (2005) ‘The Wrong of Abortion’ in Cohen, A. I. & Wellman, C. H.
(eds) Contemporary Debates in Applied Ethics (Oxford: Blackwell).
Leone, R. C. (2003) ‘The Quiet Republic: The Missing Debate About Civil Liberties After
9/11’ in Leone, R. C. & Anrig, G. (eds) The War on our Freedoms: Civil Liberties in an
Age of Terrorism (New York: The Century Foundation).
Lijphart, A. (1977) Democracy in Plural Societies: A Comparative Exploration (New
Haven: Yale University Press).
Little, M. O. (2005) ‘The Moral Permissibility of Abortion’ in Cohen, A. I. & Wellman,
C. H. (eds) Contemporary Debates in Applied Ethics (Oxford: Blackwell).
Locke, J. (1983, orig. pub. 1689) A Letter Concerning Toleration (Indianapolis, IN:
Hackett).
Locke, J. (1988, orig. pub. 1690) Two Treatises of Government (Cambridge: Cambridge
University Press).
274 | BIBLIOGRAPHY
Locke, J (1996, orig. pub. 1693) Some Thoughts Concerning Education, Grant, R. W. &
Tarcov, N. (eds) (Indianapolis, IN: Hackett).
Luban, D. (1980) ‘The Romance of the Nation State’, Philosophy and Public Affairs, 9,
392–397.
Luban, D. (2005) ‘Eight Fallacies about Liberty and Security’ in Wilson, R. A. (ed.)
Human Rights in the War on Terror (Cambridge: Cambridge University Press).
Macedo, S. (2003) ‘Homosexuality and the Conservative Mind’ in Wardle, L. D.,
Strasser, M., Duncan, W. C. & Coolidge, D. O. (eds) Marriage and Same-Sex Unions:
A Debate (Westport, CT: Praeger).
Machiavelli, N. (1988, orig. pub. 1532) The Prince (Cambridge: Cambridge University
Press).
Macintyre, A. (1981) After Virtue (London: Duckworth).
Mackinnon, C. A. (1983) ‘The Male Ideology of Privacy: A Feminist Perspective on the
Right to Abortion’, Radical America, 17, 23–35.
Mackinnon, C. A. (1985) ‘Pornography, Civil Rights and Speech’, Harvard Civil Rights -
Civil Liberties Law Review, 20.
Mackinnon, C. A. (1995) Only Words (London: Harper Collins).
Mackinnon, C. A. (2005) Women’s Lives, Men’s Laws (Cambridge, MA: Belknap Press).
Madison, J., Hamilton, A. & Jay, J. (1987, orig. pub. 1788) The Federalist Papers (London:
Penguin).
Maine, H. S. (1901) Ancient law: Its Connection with the Early History of Society and Its
Relation to Modern Ideas (London: John Murray).
Mandelbaum, M. (1999) ‘A Perfect Failure: NATO’s War Against Yugoslavia’, Foreign
Affairs.
Manning, B. (2013) Pre-trial statement, 1 March. Recorded by journalists and available
at: http://www.theguardian.com/world/2013/mar/01/bradley-manning-wikileaks-
statement-full-text. Accessed 16 July, 2015.
Margalit, A. & Halbertal, M. (1994) ‘Liberalism and the Right to Culture’, Social
Research, 61, 491–510.
Margalit, A. & Raz, J. (1990) ‘National Self-Determination’, Journal of Philosophy, 87,
439–61.
Markovits, D. (2005) ‘Democratic Disobedience’, The Yale Law Journal 114, 8, 1897–1952.
Marquis, D. (1989) ‘Why Abortion Is Immoral’, Journal of Philosophy, 86, 183–202.
Marshall, T. H. & Bottomore, T. (1992) Citizenship and Social Class (London: Pluto
Press).
Marx, K. (1852, 1978) ‘The Eighteenth Brumaire of Louis Bonaparte’ in Tucker, R. C.
(ed.) The Marx-Engels Reader, 2nd ed. (New York: Norton).
Marx, K. (1875, 1978) ‘Critique of the Gotha Program’ in Tucker, R. C. (ed.) The Marx–
Engels Reader, 2nd ed. (New York: Norton).
Marx, K. (1978, orig. pub. 1843) ‘On the Jewish Question’ in Tucker, R. C. (ed.) The
Marx-Engels Reader. 2nd ed. (New York: Norton).
Marx, K. & Engels, F. (1978, orig. pub, 1848) ‘Manifesto of the Communist Party’ in
Tucker, R. C. (ed.) The Marx-Engels Reader, 2nd ed. (New York: Norton).
Matsuda, M. J., Lawrence Iii, C. R., Delgado, R. & Crenshaw, K. W. (1993) Words That
Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder,
CO: Westview Press).
 BIBLIOGRAPHY | 275
Mcconvell, P. & Thieberger, N. (2001) ‘State of Indigenous Languages in Australia’,
Australian State of the Environment Technical Paper Series (Canberra: Department of
the Environment and Heritage, Australia).
Mcelroy, W. (1996) Sexual Correctness: The Gender Feminist Attack on Women
(Jefferson, NC: McFarland and Co).
Meadows, D., Meadows, D., Randers, J. & Behrens III W. (1972) The Limits to Growth
(New York: Universe Books).
Meer, N. and Modood, T. (2012) ‘How Does Interculturalism Contrast with
Multiculturalism?’ Journal of Intercultural Studies 33, 2, 175–196.
Meier, D. E., Emmons, C., Wallenstein, S., Quill, T., Morrison, R. S. & Cassel, C. K.
(1998) ‘A National Survey of Physician-Assisted Suicide and Euthanasia in the United
States’, The New England Journal of Medicine, 338, 1193–1201.
Meiklejohn, A. (1965) Political Freedom: The Constitutional Powers of the People (New
York: Oxford University Press).
Meisels, T. (2005) ‘How Terrorism Upsets Liberty’, Political Studies, 53, 162–181.
Mies, M and Shiva, V. (1993) Ecofeminism (London: Zed Books).
Mill, J.S. (1965, orig. pub. 1848) ‘Principles of Political Economy’ in Robson, J. M. (ed.)
The Collected Works of John Stuart Mill, Vol. II (Toronto: University of Toronto
Press).
Mill, J. S. (1984, orig. pub. 1859) ‘A Few Words on Non-Intervention’ in Robson, J. M.
(ed.) The Collected Works of John Stuart Mill, Vol. XXI (Toronto: University of
Toronto Press)
Mill, J. S. (1989, orig. pub. 1869) ‘On Liberty’ in Collini, S. (ed.) On Liberty and Other
Writings (Cambridge: Cambridge University Press).
Mill, J. S. (1989, orig. pub. 1869) ‘The Subjection of Women’ in Collini, S. (ed.) On
Liberty and Other Writings (Cambridge: Cambridge University Press).
Miller, D. (1997) On Nationality (Oxford: Oxford University Press).
Miller, D. (1999) ‘Social Justice and Environmental Goods’ in Dobson, A. (ed.) Fairness
and Futurity (Oxford: Oxford University Press).
Miller, D. (2000) ‘National Self-Determination and Global Justice’ in Miller, D. (ed.)
Citizenship and National Identity (Cambridge: Polity Press).
Miller, D. (2006) ‘Multiculturalism and the Welfare State: Theoretical Reflections’ in
Banting, K. & Kymlicka, W. (eds) Multiculturalism and the Welfare State: Recognition
and Redistribution in Contemporary Democracies (Oxford: Oxford University Press).
Miller, D. (2007) National Responsibility and Global Justice (Oxford: Oxford University
Press).
Moeckli, D. (2008) Human Rights and Non-discrimination in the ‘War Against Terror’
(Oxford: Oxford University Press).
Morrow, J. (2005) History of Western Political Thought: A Thematic Introduction
(Basingstoke: Palgrave Macmillan).
Mulvey, L. (1975) ‘Visual Pleasure and Narrative Cinema’, Screen, 16, 6–18.
Nagel, T. (1973) ‘Equal Treatment and Compensatory Discrimination’, Philosophy and
Public Affairs, 2, 348–63.
Nagel, T. (2005) ‘The Problem of Global Justice’, Philosophy and Public Affairs, 33,
113–47.
Nagle, J. (1997) Whores and Other Feminists (New York: Routledge).
276 | BIBLIOGRAPHY
Nardin, T. (1983) Law, Morality and the Relations of States (Princeton: Princeton
University Press).
Nardin, T. & Slater, J. (1986) ‘Nonintervention and Human Rights’, The Journal of
Politics 48, 86–96.
Narveson, J. (1988) The Libertarian Idea (Philadelphia, PA: Temple University Press).
Neal, A. W. (2010) Exceptionalism and the Politics of Counter-Terrorism: Liberty, security
and the War on Terror (New York: Routledge).
Neal, A. W. (2012) ‘Normalization and Legislative Exceptionalism: Counter-Terrorist
Lawmaking and the Changing Times of Security Emergencies’, International Political
Sociology 6, 260–276.
Neier, A. (1979) Defending My Enemy: American Nazis, the Skokie Case, and the Risks of
Freedom (New York: Dutton).
Neocleous, M. (2007) ‘Security, Liberty and the Myth of Balance’, Contemporary Political
Theory, 6, 131–149.
Noonan, J. T. (ed.) (1970) The Morality of Abortion: Legal and Historical Perspectives
(Cambridge, MA: Harvard University Press).
Nozick, R. (1974) Anarchy, State and Utopia (New York: Basic Books).
Nussbaum, M. C. (1997) Cultivating Humanity: A Classical Defense of Reform in Liberal
Education (Cambridge, MA: Harvard University Press).
Nussbaum, M. C. (1999) Sex and Social Justice (New York: Oxford University Press).
Nussbaum, M. C. (2008) ‘”Whether from Reason or Prejudice:” Taking Money for
Bodily Services’ in Soble, A. & Power, N. (eds) The Philosophy of Sex: Contemporary
Readings (Lanham, MD: Rowman and Littlefield).
Obama, B. (President). (2011) Quoted in Condon, S., ‘Obama Says “Bradley Manning
Broke the Law”’, CBS News, 22 April. Available at: http://www.cbsnews.com/news/
obama-says-bradley-manning-broke-the-law/. Accessed 17 July, 2015.
OECD (2007) ‘OECD Journal on Development: Development Cooperation Report’.
OECD.
OECD (2008) ‘Debt Relief Is Down, Other ODA Rises Slightly’, OECD Development
Cooperation Directorate.
Okin, S. (1989) Justice, Gender and the Family (New York: Basic Books).
Okin, S. (1999) ‘Is Multiculturalism Bad for Women?’ in Cohen, J., Howard, M. &
Nussbaum, M. C. (eds) Is Multiculturalism Bad for Women? (Princeton: Princeton
University Press).
Oxfam, (2014) Working for the Few: political capture and economic inequality. Available
at: https://www.oxfam.org/sites/www.oxfam.org/files/bp-working-for-few-political-
capture-economic-inequality-200114-summ-en.pdf. Accessed August 23, 2015.
Parekh, B. (1990) ‘The Rushdie Affair: Research Agenda for Political Philosophy’,
Political Studies 38, 695–709.
Parekh, B. (1993) ‘A Misconceived Discourse on Political Obligation’, Political Studies
LXI, 236–251.
Parekh, B. (1997) ‘Rethinking Humanitarian Intervention’, International Political
Science Review, 18, 49–69.
Parekh, B. (2006) Rethinking Multiculturalism: Cultural Diversity and Political Theory
(Basingstoke: Palgrave Macmillan).
Parfit, D. (1984) Reasons and Persons (Oxford: Oxford University Press).
 BIBLIOGRAPHY | 277
Pateman, C. (1985) The Problem of Political Obligation: A Critical Analysis of Liberal
Theory (Berkeley, CA: University of California Press).
Pateman, C. (1988) The Sexual Contract (Stanford: Stanford University Press).
Pettit, P. (1997) Republicanism: A Theory of Freedom and Government (Oxford:
Clarendon Press).
Phillips, A. (2003) ‘When Culture Means Gender: Issues of Cultural Defence in the
English Courts’, Modern Law Review, 66, 510–531.
Piketty, T. (2014) Capital in the Twenty-First Century, trans, A. Goldhammer (Cambridge:
Belknap Press).
Plato. (1961 [4th Century, BCE]) ‘Crito’, Tredennick, H. (trans.), in Hamilton, E. &
Cairns, H. (eds) Plato: The Collected Dialogues (Princeton: Princeton University
Press).
Plato (1981 [Third century BCE]) The Republic (London: Pan Macmillan).
Plumwood, V. (1993) Feminism and the Mastery of Nature (London: Routledge).
Plumwood, V. (2002) Environmental Culture: the ecological crisis of reason (London:
Routledge).
Pogge, T. (1994) ‘An Egalitarian Law of Peoples’, Philosophy and Public Affairs, 23,
195–224.
Pogge, T. (1998) ‘A Global Resources Dividend’ in Crocker, D. A. & Linden, T. (eds)
Ethics of Consumption: the good life, justice and global stewardship (Lanham, MD:
Rowman and Littlefield).
Pogge, T. (2002) World Poverty and Human Rights: Cosmopolitan Responsibilities and
Reforms (Cambridge: Polity Press).
Pogge, T. (2004) ‘Justice Across Borders: Brief for a Global Resources Dividend’ in
Clayton, M. & Williams, A. (eds) Social Justice (Oxford: Blackwell).
Pogge, T. (2005) ‘Real World Justice’, The Journal of Ethics, 9, 29–53.
Pojman, L. P. (1992) ‘The Moral Status of Affirmative Action’, Public Affairs Quarterly,
6, 181–206.
Posner, R. (1997) ‘The Economic Approach to Homosexuality’ in Estlund, D. M. &
Nussbaum, M. C. (eds) Sex, Preference and Family: Essays on Law and Nature (New
York: Oxford University Press).
Posner, R. A. (2003) ‘The Truth About Our Liberties’ in Etzioni, A. & Marsh, J. H. (eds)
Rights vs. Public Safety After 9/11: America in the Age of Terrorism (Lanham, MD:
Rowman and Littlefield).
Posner, R. A. (2006) Not a Suicide Pact: The Constitution in a Time of National
Emergency (Oxford: Oxford University Press).
Post, R. C. (1991) ‘Racist Speech, Democracy and the First Amendment’, Wm and Mary
Law Review, 32, 267.
Prunier, G. (2005) Darfur: The Ambiguous Genocide (Ithaca, NY: Cornell University
Press).
Rachels, J. (1986) The End of Life: The Morality of Euthanasia (Oxford: Oxford University
Press).
Rauch, J. (2004) Gay Marriage: Why it is Good for Gays, Good for Straights and Good for
America (New York: Henry Holt).
Rawls, J. (1971) A Theory of Justice (Cambridge, MA: Belknap Press).
Rawls, J. (1993) Political Liberalism (New York: Columbia University Press).
278 | BIBLIOGRAPHY
Rawls, J. (1997) ‘The Idea of Public Reason Revisited’, The University of Chicago Law
Review, 64, 765–807.
Rawls, J. (1999) The Law of Peoples (Cambridge, MA: Harvard University Press).
Raz, J. (1986) The Morality of Freedom (Oxford: Clarendon Press).
Raz, J. (1994) ‘Multiculturalism: A Liberal Perspective’, Dissent, Winter, 67–79.
Redclift, M. (1987) Sustainable Development: Exploring the Contradictions (London:
Methuen).
Regan T. (1983) The Case for Animal Rights (Berkeley, CA: University of California
Press).
Rehnquist, W. H. (1998) All the Laws but One: Civil Liberties in Wartime (New York:
Alfred A. Knopf).
Renteln, A. D. (2004) The Cultural Defense (Oxford: Oxford University Press).
Renzetti, C. M., Edleson, J. L. & Bergen, R. K. (eds) (2001) Sourcebook on Violence
against Women (Thousand Oaks, CA: Sage).
Rich, A. (1986) Of Woman Born: Motherhood as Experience and Institution (New York:
Norton).
Rodriguez, R. (1982) Hunger of Memory: The Education of Richard Rodriguez (New
York: Bantam).
Rosenblum, N. L. (1998) Membership and Morals: The Personal Uses of Pluralism in
America (Princeton: Princeton University Press).
Roth, K. (2004) ‘War in Iraq: Not a Humanitarian Intervention’, Human Rights
Watch World Report: Human Rights and Armed Conflict (New York: Human Rights
Watch).
Rothbard, M. N. (1998) The Ethics of Liberty (New York: New York University Press).
Rousseau, J.-J. (1762, 1973) ‘The Social Contract’, The Social Contract and Discourses.
(London: Everyman).
Rubenstein, W. B. (1994) ‘Since When Is the Fourteenth Amendment Our Route to
Equality? Some Reflections on the Construction of the ‘Hate-Speech’ Debate from a
Lesbian/Gay Perspective’ in Gates (Et Al) Jr, H. L., Griffin, A. P., Lively, D. E., Post,
R. C., Rubenstein, W. B. & Strossen, N. (eds) Speaking of Race, Speaking of Sex: Hate
Speech, Civil Rights and Civil Liberties (New York: New York University Press).
Rusbridger, A. (2011) Introduction to Leigh, D. and Harding, L., WikiLeaks: Inside
Julian Assange’s War on Secrecy (New York: Public Affairs).
Russell, D. E. H. (1993) ‘Pornography and Rape: A Causal Model’ in Itzin, C. (ed.)
Pornography: Women, Violence and Civil Liberties (Oxford: Oxford University Press).
Sabl, A. (2001) ‘Looking Forward to Justice: Rawlsian Civil Disobedience and Its
Non-Rawlsian Lessons’, The Journal of Political Philosophy 9, 3, 307–330.
Sachs, J. (2005) Why Aid Does Work. BBC News, Sunday, 11 September.
Sandel, M. (1982) Liberalism and the Limits of Justice (Cambridge: Cambridge University
Press).
Sandel, M. (1996) Democracy’s Discontent: America in Search of a Public Philosophy
(Cambridge, MA: Harvard University Press).
Sandel, M. J. (ed.) (1984) Liberalism and its Critics (New York: New York University
Press).
Sandel, M. J. (2005) Public Philosophy: Essays on Morality in Politics (Cambridge, MA:
Harvard University Press).
 BIBLIOGRAPHY | 279
Scanlon, T. M. (1972) ‘A Theory of Free Expression’, Philosophy and Public Affairs, 1, 204–26.
Scheuerman, W. E. (2014) ‘Whistleblowing as Civil Disobedience: The Case of Edward
Snowden,’ Philosophy and Social Criticism 40, 7, 609–628.
Scruton, R. (1986) Sexual Desire: A Moral Philosophy of the Erotic (New York: Free
Press).
Sen, A. (1981) Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford:
Clarendon Press).
Sen, A. (1992) Inequality Reexamined (Cambridge, MA: Harvard University Press).
Sher, G. (1975) ‘Justifying Reverse Discrimination in Employment’, Philosophy and
Public Affairs, 4, 159–70.
Sher, G. (1979) ‘Reverse Discrimination, the Future and the Past’, Ethics, 90, 81–87.
Shklar, J. N. (1989) ‘The Liberalism of Fear’ in Rosenblum, N. L. (ed.) Liberalism and the
Moral Life (Cambridge, MA: Harvard University Press).
Shorten, A. (2016) Contemporary Political Theory (Basingstoke: Palgrave Macmillan).
Shrader-Frechette, K. Environmental Justice: Creating Equality, Reclaiming Democracy
(Oxford: Oxford University Press).
Shrage, L. (1994) Moral Dilemmas of Feminism: Prostitution, Adultery and Abortion
(New York: Routledge).
Shue, H. (1980) Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton:
Princeton University Press).
Shue, H. (2003) ‘Bombing to Rescue? NATO’s 1999 Bombing of Serbia’ in Chatterjee,
D. K. & Scheid, D. E. (eds) Ethics and Foreign Intervention (Cambridge: Cambridge
University Press).
Singer, P. (1972) ‘Famine, Affluence and Morality’, Philosophy and Public Affairs, 1,
229–243.
Singer, P. (1974) Democracy and Disobedience (Oxford: Oxford University Press).
Singer, P. (1975) Animal Liberation (New York: Avon).
Singer, P. (1993) Practical Ethics (Cambridge: Cambridge University Press).
Smith, A. M. (2001) ‘Missing Poststructuralism, Missing Foucault: Butler and Fraser on
Capitalism and the Regulation of Sexuality’, Social Text, 19, 2, 103–125.
Smith, W. (2011) ‘Civil Disobedience and the Public Sphere,’ The Journal of Political
Philosophy 19, 2, 145–166.
Snyder, R. C. (2006) Gay Marriage and Democracy: Equality for All (Lanham, MD:
Rowman and Littlefield).
Song, S. (2007) Justice, Gender and the Politics of Multiculturalism (Cambridge:
Cambridge University Press).
Steele, S. (1990) The Content of Our Character: A New Vision of Race in America (New
York: St. Martin’s Press).
Steiner, H. (1983) ‘The Rights of Future Generations’ in MacLean, D. & Brown, P. (eds)
Energy and the Future (Totowa, NJ: Rowman and Littlefield).
Stern, N. (2006) The Economics of Climate Change: The Stern Review (H.M. Treasury:
London.)
Strossen, N. (1994) ‘Regulating Racist Speech on Campus: A Modest Proposal?’ in Gates
Jr, H. L. (ed.) Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights and Civil
Liberties (New York: New York University Press).
Strossen, N. (1995) Defending Pornography: Free Speech, Sex and the Fight for Women’s
280 | BIBLIOGRAPHY
Rights (New York: Scribner).
Sullivan, A. (1995) Virtually Normal: An Argument about Homosexuality (New York:
Alfred A. Knopf).
Sunstein, C. R. (1995) Democracy and the Problem of Free Speech (New York: The Free
Press).
Sunstein, C. R. (2003) Why Democracies Need Dissent (Cambridge, MA: Harvard
University Press).
Sunstein, C. R. (2005) Laws of Fear: Beyond the Precautionary Principle (Cambridge:
Cambridge University Press).
Tabarrok, A. (2002) ‘Abortion and Liberty’ in Mcelroy, W. (ed.) Liberty for Women:
Freedom and Feminism in the Twenty-First Century (Chicago: Ivan R Dee and the
Independent Institute).
Tamir, Y. (1993) Liberal Nationalism (Princeton: Princeton University Press).
Tamir, Y. (1999) ‘Siding with the Underdogs’ in Cohen, J., Howard, M. & Nussbaum,
M. C. (eds) Is Multiculturalism Bad for Women? (Princeton: Princeton University
Press).
Taylor, C. (1984) ‘Foucault on Freedom and Truth’, Political Theory, 12, 2 152–183.
Taylor, C. (1994) ‘The Politics of Recognition’ in Gutmann, A. (ed.) Multiculturalism:
Examining the Politics of Recognition (Princeton: Princeton University Press).
Taylor, M. C. (1994) ‘Impact of Affirmative Action on Beneficiary Groups: Evidence
from the 1990 General Social Survey’, Basic and Applied Social Psychology 15, 143–178.
Teson, F. R. (2006) ‘The Moral Basis of Humanitarian Intervention’ in Tinnevelt, R. &
Verschraegen, G. (eds) Between Cosmopolitan Ideals and State Sovereignty: Studies in
Global Justice (Basingstoke: Palgrave).
Thomson, J. J. (1971) ‘A Defense of Abortion’, Philosophy and Public Affairs, 1, 47–66.
Thomson, J. J. (1973) ‘Preferential Hiring’, Philosophy and Public Affairs, 2, 364–84.
Thoreau, H. D. (1993[1849]) ‘Civil Disobedience’, in Civil Disobedience and Other Essays
(New York: Dover).
Thoreau, H. D. (1993[1860]) ‘A Plea for Captain John Brown’ in Civil Disobedience and
Other Essays (New York: Dover).
Tomasi, J. (1995) ‘Kymlicka, Liberalism, and Respect for Cultural Minorities’, Ethics,
105, 580–603.
Tooley, M. (1972) ‘Abortion and Infanticide’, Philosophy and Public Affairs, 2, 37–65.
Tronto, J. (1993) Moral Boundaries: A Political Argument for an Ethic of Care (New
York: Routledge).
Tully, J. (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press).
Tully, J. (2000) ‘The Struggles of Indigenous Peoples for and of Freedom’ in Ivison, D.,
Patton, P. & Sanders, W. (eds) Political Theory and the Rights of Indigenous Peoples
(Cambridge: Cambridge University Press).
UN (adopted December 19, 1966; entered into force March 23, 1976) International
Covenant on Civil and Political Rights. UNTS.
Unger, P. (1996) Living High and Letting Die: Our Illusion of Innocence (Oxford: Oxford
University Press).
UNICEF (2007) ‘The State of the World’s Children’, New York, UNICEF.
 BIBLIOGRAPHY | 281
UNICEF (2014) Every Child Counts: Revealing Disparities, Advancing Children’s
Rights Available at: http://www.unicef.org/sowc2014/numbers/documents/english/
SOWC2014_In%20Numbers_28%20Jan.pdf. Accessed August 23, 2015.
UN Inter-agency Group for Child Mortality Estimation (2015) Levels and Trends in
Child Mortality Available at: http://childmortality.org/files_v20/download/IGME%20
Report%209_8%20LR%20Web.pdf Accessed September 9, 2015.
Valls, A. (1999) ‘The Libertarian Case for Affirmative Action’, Social Theory and Practice,
25, 299–323.
Vandekerckhove, W. (2010) ‘European Whistleblower Protection: Tiers or Tears?’
in Lewis, D.B. (ed.) A Global Approach to Public Interest Disclosure (Cheltenham:
Edward Elgar).
Van Parijs, P. (1991) ‘Why Surfers Should Be Fed: The Liberal Case for an Unconditional
Basic Income’, Philosophy and Public Affairs, 20, 101–131.
Van Parijs, P. (1995) Real Freedom for All (Oxford: Oxford University Press).
Vaughn, R. G. (2012) The Successes and Failures of Whistleblower Laws (Cheltenham:
Edward Elgar).
Velleman, J. D. (1992) ‘Against the Right to Die’, Journal of Medicine and Philosophy,
17, 665–681.
Von Hayek, F. A. (1960) The Constitution of Liberty (Chicago: University of Chicago
Press).
Waldron, J. (1992) ‘Minority Cultures and the Cosmopolitan Alternative’, University of
Michigan Journal of Law Reform, 25, 751–93.
Waldron, J. (2000) ‘What is Cosmopolitan?’ The Journal of Political Philosophy, 8,
227–243.
Waldron, J. (2003) ‘Security and Liberty: The Image of Balance’, The Journal of Political
Philosophy, 11, 191–210.
Walker, R. (1993/4) ‘New Zealand Immigration and the Political Economy’, The Social
Contract, 4, 86–95.
Walzer, M. (1967) ‘The Obligation to Disobey’, Ethics: an International Journal of Social,
Political and Legal Philosophy 77, 3, 163–175.
Walzer, M. (1980) ‘The Moral Standing of States: A Response to Four Critics’, Philosophy
and Public Affairs, 9, 209–229.
Walzer, M. (1983) Spheres of Justice: A Defense of Pluralism and Equality (New York:
Basic Books).
Walzer, M. (2004) Arguing About War (New Haven: Yale University Press).
Walzer, M. (2006, orig. pub. 1977) Just and Unjust Wars (New York: Basic Books).
Walzer, M (2011) ‘The Case against Our Attack on Libya’, The New Republic, March 20.
Available at: http://www.newrepublic.com/article/world/85509/the-case-against-our-
attack-libya. Accessed: September 13, 2015.
Warner, M. (1999) The Trouble with Normal: Sex, Politics and the Ethics of Queer Life
(New York: Free Press).
Warren, M. A. (1997) Moral Status: Obligations to Persons and Other Living Things
(Oxford: Clarendon).
Wasserstrom, R. (1997) ‘A Defense of Programs of Preferential Treatment’ in Beckwith,
F. J. & Jones, T. E. (eds) Affirmative Action: Social Justice or Reverse Discrimination?
(Amherst, MA: Prometheus Books).
282 | BIBLIOGRAPHY
Weaver, J. (1993) ‘The Social Science and Psychological Research Evidence: Perceptual
and Behavioural Consequences of Exposure to Pornography’ in Itzin, C. (ed.)
Pornography: Women, Violence and Civil Liberties (Oxford: Oxford University Press).
Weber, M. (1946) From Max Weber: Essays in Sociology (New York: Oxford University
Press).
West, R. (1998) ‘Gay Marriage and Liberal Constitutionalism: Two Mistakes’ in Allen,
A. L. & Regan, M. C. (eds) Debating Democracy’s Discontent: Essays on American
Politics, Law and Public Philosophy (Oxford: Oxford University Press).
Wilkinson, R. and Pickett, K. (2009) The Spirit Level: Why Greater Equality Makes
Societies Stronger (London: Bloomsbury Press).
Witte, J. J. (2003) ‘Reply to Professor Mark Strasser’ in Wardle, L. D., Strasser, M.,
Duncan, W. C. & Coolidge, D. O. (eds) Marriage and Same-Sex Unions: A Debate
(Newport, CT: Praeger).
Wolf, S. M. (1996) ‘Gender, Feminism and Death: Physician-Assisted Suicide and
Euthanasia’ in Wolf, S. M. (ed.) Feminism and Bioethics: Beyond Reproduction
(Oxford: Oxford University Press).
Wolfe, S., Worth, M., Dreyfus, S. and Brown, A.J. (2014) ‘Whistleblower Protection
Laws in G20 Countries: Priorities for Action’, Blueprint for Free Speech. Available
at: https://blueprintforfreespeech.net/wp-content/uploads/2014/09/Whistleblower-
Protection-Laws-in-G20-Countries-Priorities-for-Action.pdf Accessed 6 July, 2015
Wolff, R. P. (1970) In Defense of Anarchism (New York: Harper and Row).
Wollstonecraft, M. (1995, orig. pub. 1792) A Vindication of the Rights of Man and a
Vindication of the Rights of Woman (Cambridge: Cambridge University Press).
World Bank (2007) Key Development Data and Statistics, World Bank.
World Bank poverty overview, 2011, available at: http://www.worldbank.org/en/topic/
poverty/overview Accessed August 23, 2015
Young, I. M. (2000) Inclusion and Democracy (Oxford: Oxford University Press).
Yuval-Davis, N. (2006) ‘Intersectionality and Feminist Politics’, European Journal of
Women’s Studies 13, 3, 193–209.
Zedillo, E. (2001) ‘Financing for Development’, New York, UN High Level Panel on
Financing for Development.
Index

A Brinkley, Alan, 186

Aboriginal rights, 58 Brock, Gillian, 219, 243
Abortion, 2, 6, 126–41, 143, 144, 148–9 Brownlee, Kimberley, 203
and sex-selection, 129 Brundtland Report, 248, 257, 265
Abortion Act, The (U.K.), 128 Buchannan, Alan, 221
Ackerman, Bruce, 180 Burke, Edmund, 25, 122, 259
Affirmative action, 67–86 Butler, Judith, 106, 158
Afghanistan, 79, 188. 189, 204, 210, 232
AIDS, 114 C
Airedale NHS Trust v. Bland, House of Lords, 142 Carens, Joseph, 27
American Civil Liberties Union, 171 Caney, Simon, 213, 241, 242
Amish, the, 48, 59, 60 Carson, Rachael, 230–1
Anderson, Elizabeth, 38, 78, 79, 95 Carter v. Canada, Supreme Court of Canada,
Anthropocentricism, 252, 253, 255 2015, 142
Anti-Terrorism Act (Australia), 174 Censorship, 92, 100, 104, 106, 107, 157, 167
Anti-Terrorist Act (Canada), 174 Chaplinsky v. New Hampshire, U.S. Supreme
Appiah, Anthony, 53 Court, 156
Aquinas, Thomas, 92, 127, 240 Charlie Hebdo shootings, 150, 151, 174
Aristotle, 7, 10–11, 12, 115, 127, 254 Charter of Rights and Freedoms (CAN), 70, 153,
Assange, Julian, 187, 188 154, 174
Augustine of Hippo, St., 198, 240 Christianity, 54, 141, 151, 153, 164
Autonomy, see also Liberty 4, 6, 9, 10, 12, 13, 25, and natural law, 18, 92, 94
26, 27, 29, 30, 35, 39, 41, 42, 48, 49, 54, 55, Cicero, 240
56, 59, 60, 63, 65, 66, 80, 102, 104, 105, 118, Citizenship, 65, 160, 173, 199, 211, 222, 224, 241,
119, 129, 136, 139, 143–9, 157–61, 167, 182, 255
192, 194, 217, 226, 237, 240, 263 Civic republicanism, 61, 62, 66, 120, 199
Civil disobedience, 6, 20, 178, 187–206
B Civil Liberties, 1, 6, 20, 151, 156, 164, 165, 169–86
Baehr v. Lewin, Supreme Court of Hawaii, 111 Civil Rights Act (U.S.), 68
Bakke, Regents of California v., U.S. Supreme Civil Rights Movement (U.S.), 67, 159, 201
Court, 68 Civil society, 4, 7, 15, 24, 26, 41, 78, 79, 109, 115,
Ball, Carlos, 118, 120 195, 197, 200, 216, 217, 218, 237
Barber, Benjamin, 177, 186 Civil unions, 109–12, 119, 124, 125
Barry, Brian, 62, 254, 256, 257, 263 Climate change, 249, 250, 260, 265
Barry, Kathleen, 100 Cohen, Carl, 83
Basic Income, 29, 39, 225 Cohen, Gerald, 37
Beauchamp, Tom, 147 Cohen, Joshua, 104
Beauharnais v. Illinois, U.S. Supreme Court, 155 Colonialism, 54, 56, 81, 223
Beckerman, Wilfred, 263 Common good, the, 6, 12–13, 25, 40–2, 50, 55, 61,
Beckwith, Francis, 138 65–6, 85, 92, 102, 107, 119, 124, 127, 156,
Beitz, Charles, 220–3, 226, 239, 243 162, 167, 178, 192, 196, 197, 218
Bentham, Jeremy, 61, 178, 254 Communitarianism, 15
Berlin, Isaiah, 8, 113 and abortion, 132, 138–9, 146
Biculturalism, 49 and affirmative action, 75, 83–4
Biopower, 13 and cultural rights, 66
‘Blair Doctrine’, the, 231–3 and environmental conservation, 252–3, 259, 260
Bodin, Jean, 235–6, 241 and euthanasia, 147
Bosnia, 230, 238 and freedom of speech, 162–6, 178
Boumediene v. Bush, U.S. Supreme Court, 171 and humanitarian intervention, 234, 239
Brandenburg v. Ohio, U.S. Supreme Court, 155 and liberty, 39

283
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Communitarianism (continued) E
and obligation, 197, 199, 204 Earth Summit, 247, 249
and same-sex marriage, 118–20, 123 Eckersley, Robyn, 260
and the sex industry, 91–4, 108 Ecofeminism, see Feminism and environmental
and welfare, 25, 40–2 conservation
‘Communities of fate’ and ‘communities of choice’, Egalitarianism, see also Equality, 35, 38, 102, 219,
45 226, 261–3
Consequentialist arguments, 73, 75–9, 86, 92, 114, Elliot, Robert, 261
119, 156, 176, 178, 186, 234 Elshtain, Jean Bethke, 61, 178, 186
Conservatism, also conservative political Engels, Friedrich, see also Marx, Karl, Marxism,
ideology, 17–18 15, 62, 94, 96, 115, 123–4
and abortion, 132, 134, 138 Equality, 5, 6, 7, 9, 10, 14, 16, 17, 25, 27–43, 56,
and affirmative action, 78 59, 62, 63, 64, 68, 70, 73, 80–86, 99, 100,
and same-sex marriage, 112–14, 118, 121–2 101, 104, 107, 108, 109, 110, 116, 123, 124,
and the sex industry, 91–94, 103–4, 107 130, 139, 148, 154, 156, 159, 168, 185, 198,
and welfare, 25, 35 213, 214, 218, 252, 256, 257, 261, 263, 265
Contract, freedom of, 80–1, 85, 91, 103, 113–14, 118 Erdrich, Louise 57
Convention on Climate Change, U.N. Framework, Ericsson, Lars, 103–4
249 Espionage Act, The United States (1917), 188–9,
Convention on the Elimination of all forms 192, 204
of Racial Discrimination (CERD), Ethics of care, see Feminism
International, 152 Empirical theory, see descriptive theory
Convention on Human Rights, European Euthanasia, 126–7, 141–9
(ECHR), 110, 172, 189
Convention on the Prevention of Terrorism, F
Council of Europe, 174 Fabre, Cecile, 260
Convention for the Protection of Human Rights ‘false consciousness’, 62, 96–7, 99
and Fundamental Freedoms, European, Feinberg, Joel, 258–9
152, 161 Feminism, 4–7, 9, 10, 16–17
Convention for the Protection of the Ozone Layer, and abortion, 128–39
Vienna, 248 and affirmative action, 77
Copenhagen Accord, 250 and ecofeminism, 253
Cosmopolitanism, 19, 234, 240–2, 245, 260 and the ‘ethics of care’, 40, 253
Crawford, Neta, 239 and euthanasia, 146–7
Critical theory, 3 and marriage, 117
Cruzan v. Director Missouri Department of Health, and minority cultural rights, 54, 63–5
U.S. Supreme Court, 142, 145–6 and welfare/redistribution, 39–40
Cultural imperialism, 64 and same-sex marriage, 117–18, 123
Cyberbullying, 154 and the sex industry, 91–108
and sex-selection, 129
D FGM (female genital mutilation), 47
Death with Dignity Act (State of Oregon), 143 Finnis, John, 121, 146
Declaration on Human Rights, U.N., 152, 173 First Amendment to the U.S. Constitution, 90,
Declaration on the Rights of Indigenous Peoples, 102, 155, 161, 166, 171
U.N., 49 First Nations, 48, 57
Defense of Marriage Act (U.S.), 111 Fish, Stanley, 163–4
Democracy, 11, 48, 55, 152, 162, 170, 175, 187, Fisher v. University of Texas at Austin, US
200, 206, 238 Supreme Court, 2012, 68
Deontological arguments, 73, 80, 86, 92, 97, 114, Fiss, Owen, 161
156, 157, 213, 233 Foreign aid, 207–26
Dershowitz, Alan, 181 Fourteenth Amendment to the U.S. Constitution,
Descriptive theory, also empirical theory, 3 68, 120, 130, 145
De-Shalit, Avner, 257 Fraser, Nancy, 63
Disabilities, 37, 70 Freedom, see Liberty
Diversity, 2, 45, 54, 61, 63, 69, 71, 75, 77–9, 84–5, Freedom Act, the USA (2011), 171–2
106, 153, 161, 236, 239 Freeman, Samuel, 218
Dobson, Andrew, 258, 260
Dworkin, Andrea, 97 G
Dworkin, Ronald , 8, 35–7, 74–5, 86, 100, 102, Genocide Convention (1948), 216
104, 116, 118, 126, 134–5, 140, 144, 145, Gilligan, Carol, 135
149, 160, 181–6, 217, 256 Gitlin, Todd, 62
 INDEx | 285
Glendon, Mary Ann, 134, 139 Intergovernmental Panel on Climate Change
Global Financial Crisis, 2, 23 (IPCC), 249
Global Resources Dividend (GRD), 223 ‘Internal colonization’, 60
Global warming, 36, 201, 249, 256–7, 260, 263 International Covenant on Civil and Political
Globalization, 108, 218, 221 rights, United Nations’, 49
Goldman, Alan, 81–2 International Convention on Intervention and
Gonzales v. Carhart, U.S. Supreme Court, 130, State Sovereignty (ICISS), 228, 232–3,
143 240–1
Goodin, Robert, 179–81, 256, 259 ‘Interpersonal comparisons’, the problem of, 36
Goodridge v. Department of Public Health, Intersectionality, 17
Supreme Court of Massachusetts, 111 Intervention, humanitarian, 213, 228, 231–34,
Greenawalt, Ken, 159 238–45
Grisez, Germain, 132 Islam, also Muslims, 1, 45–8, 54, 77, 92, 110,
Grotius, Hugo, 240 150–3, 164–5, 168, 173, 183, 228, 230, 238

H J
Habeas corpus, 171–2 Just War theory, 232, 234, 240–1, 243, 245
Habermas, Jurgen, 25, 200 Justice, 7, 24, 27–8, 31–3, 38–42, 50, 63, 73–6,
Hamdi v. Rumsfeld, U.S. Supreme Court, 171 80–3, 85–6, 102, 110, 115–19, 122, 124, 140,
Hare, R.M., 196 145, 158, 162, 176–7, 183, 196–205, 214–25,
Harris, John, 144 236–7, 240, 243–5, 253–65
Hart, H.L.A, 121
Hayek, Friedrich August von, 27, 184 K
Headscarf, 46–8, 58, 61 Kant, Immanuel, 80, 133, 145, 149, 157, 159, 182,
Heilbroner, Robert, 263 184, 196, 241–2, 254
Herder, Johann Gottfried, 55 Kennedy, Randall, 77
Hirst, Paul, 45 King, Martin Luther, 192, 198
Hobbes, Thomas, 26, 103, 113, 118, 133, 177–80, Korematsu v. United States, Supreme Court, 181
195, 201, 217, 235–6, 241 Kosovo, 228–9, 238
Holocaust denial, 152, 163 Kristol, Irving, 93
Homosexuality, 90, 93–4, 101, 104, 109–25 Kukathas, Chandran, 51, 219–20, 225
Human capabilities, 37–42, 52, 105, 118–20, 213, Kymlicka, Will, 55–60, 65, 255
249 Kyoto Protocol, 250, 256
Human rights, 8, 19, 142, 152, 167, 174, 176, 178,
182–3, 189, 201, 213, 215–18, 227–45 L
Human Rights Act (NZ), 71 Lawrence v. Texas, U.S. Supreme Court, 120
Humanitarian intervention, 227–45 Liberalism, 4–19
Humanitarian Law Project, et al. v. Gonzalez, U.S. and abortion, 129–33, 136, 139–40
Court of Appeals, 171 and affirmative action, 74–7, 80–3
Hume, David, 177, 196, 261 and cosmopolitanism, 241
and environmental conservation, 261–3
I and euthanasia, 143–5, 148, 149
Identity, 10, 15, 17, 45, 49–57, 61–2, 65, 75, and foreign aid, 218, 227, 234, 237
78–82, 104–5, 117, 123, 132, 137, 149, 172, and individual freedom, 6, 8, 16, 25, 26, 51, 63,
204, 240, 258–9, 264 66, 80, 96, 102, 129, 160–1, 237
Identity politics, 45, 53, 62 and military intervention, 227, 234, 237
Ignatieff, Michael, 180 and multiculturalism, 50–66
IMF (International Monetary Fund), 209, 211, and same-sex marriage, 113–23
212, 220 and the sex industry, 91–108
Immigration, and immigrant, 44–52, 56–9, 64, and sex-selection, 129
77, 89, 150–3, 165, 171 and speech, 157–64, 167
Indigenous groups, self –determination of, also, and terrorism, 176, 179, 182, 184–6
self-government, 44–5, 48–51, 56–61, 71, and welfare, 25–35, 39–41
277 Libertarianism, 9, 14, 18, 26
see also ‘societal cultures’ and immigrant and abortion, 133, 136, 148
groups and affirmative action, 76, 81–4
Inheritance tax/death duties, 24 and civil disobedience, 197
Integration, versus assimilation, 47, 56, 58–9, 62, and environmental conservation, 252, 260–1
69–70 and foreign aid, 219, –225
Intelligence Reform Act (U.S.), 172 and multiculturalism, 51, 65
Interculturalism, 62 and same-sex marriage, 113–15, 121
286 | INDEx
Libertarianism (continued) Montesquieu, Charles de Secondat, Baron de, 55
and the sex industry, 101–6 Montreal Protocol, see Convention for the
and speech, 150, 156–9 Protection of the Ozone Layer, Vienna
and terrorism, 181–2 Momaday, N. Scott, 57
and welfare, 29, 39, 41–2 Multiculturalism, 2, 7, 25, 45, 50–5, 61–3, 82, 154,
Liberty, also freedom, 6, 8–14, 16, 25, 26–32, 163, 168
35–41, 46–70, 76, 80–81, 85, 90, 130, Mulvey, Laura, 101
141–76, 185–6, 190, 196, 202, 215–19, 225,
226, 237–8, 260. N
Liberty and Others v. the Security Service, SIS, Nagel, Thomas, 81, 83–4, 145, 217–18, 220
GCHQ, 2015, 190 Nardin, Terry, 236, 238
Little, Margaret, 13 National identity, 61, 259
Locke, John, 26, 28, 50, 145, 149, 179, 184, 195, Nationalism, 14, 18–19, 55
197, 223–24, 254 National Socialist Party of America v. Skokie, U.S.
London Bombings, 7 July 2005, 172 Supreme Court, 155, 159, 166
Luban, David, 175, 183, 239 Nation-state, the, 218, 224–5, 227, 234, 239–40,
Luck egalitarianism 35, 38 244
Luther, Martin, 235 Native Americans, 48, 57
see also Indigenous groups, and First Nations
M NATO, 228, 230–31, 238
Mabo v. Queensland, Australian High Court, 48 Natural law, 18, 92, 121–2, 132, 146, 148, 198,
Machiavelli, Niccolo, 235 234–6, 240–2
MacKinnon, Catharine, 97–100, 104–7, 139, see also Christianity
164–6 Neal, Andrew, 185
Maine, Henry, 115 Neocleous, Mark, 184–5
Mandela, Nelson, 207 Neoliberals, neoliberalism, 22–5, 201
Manning, Bradley, 187–91, 194, 201–6 Normative theory, 2–6, 17, 102
Maori, 49, 60–1, 66, 71 Nozick, Robert, 27–9, 31, 33, 39, 41–2, 76, 81,
Marquis, Don, 132 103, 133, 145, 182, 219, 225, 260–1
Marschall Marriage, 2, 6, 18, 40, 64, 92, 95, 99, and the ‘Lockean proviso’, 28
104 Nussbaum, Martha, 39, 52, 62, 95, 103, 105, 118,
forced, 47, 64 213
and prostitution, 95–6 and ‘core capabilities’, 39
and same sex, also homosexuality, 109–25 Nuremberg Trials, 198
European Court of Justice, 70
Margalit, Avishai, 55–7 O
Markovits, Daniel, 200, 202–3 Obergefell v. Hodges, US Supreme Court, 2015, 112
Marriage, 2, 6, 18, 40, 64, 92, 95, 104 Occupy movement, 193–4, 198
forced, 47, 64 Okin, Susan Moller, 39, 63–5, 117
and prostitution, 95–6 Ontology, and ontological questions, 15, 18,
and same sex, 109–25 132–, 162
Marxism, also Marxist, and Marx, Karl, 4, 13,
15–17, 19, 25, 242, 255 P
and marriage, 6, 94–9, 105, 115, 120, 124 Parekh, Bhikhu Chotalal, Baron, 59, 60, 66,
and multiculturalism, 62 164–5, 199, 202, 239–41
and redistribution, 10, 12, 30, 37–8, 41, 62, Partial Birth Abortion Ban Act (U.S.), 130
124, 246 Pasek, Joanna, 263
and speech, 159, 164, 242 Patemen, Carole, 100, 196
McElroy, Wendy, 105 Patriot Act, The USA, 169–72, 180–1
Meese, Edwin, 93 Peace of Westphalia, 234
Meiklejohn, Alexander, 161 Perfectionist theory, 4, 9, 49, 114
Meisels, Tamar, 179, 180, 184 Personal Responsibility and Work opportunity
Metis, see First Nations Reconciliation Act, 22
Mill, John Stuart, 77, 99, 101, 102, 113, 116, 140, Personhood, 133–6, 148
157–61, 165, 168, 179, 227, 237, 242 Phillips, Anne, 64
Millennium Development Goals, 209 Piketty, Thomas, 24
Miller, David, 61, 213, 218, 220, 222, 263 Piscataway Board of Education v. Taxman, U.S.
Miller v. California, U.S. Supreme Court, 90 Court of Appeals, 72
Milton, John, 153 Plato, 7, 11, 127, 194
Minorities, 2, 11, 44–86, 129, 151, 159, 161, Planned Parenthood v. Casey, U.S. Supreme
163–8, 178, 183–5, 228, 264 Court, 130
 INDEx | 287
Plumbwood, Val, 252, 256 and military intervention, 227–45
Pogge, Thomas, 219, 222–4, 226 and private property, 26–9, 41, 212–9, 222–3,
Political philosophy and political theory, 5 260
Posner, Richard, 114, 119, 178 and sexual orientation, 109–24
Post, Robert, 160 and the sex industry, 88–90, 96–7, 101–6
Pornography, 6, 17, 87–108 see also Civil Rights Act and Civil Rights
Postmodernism/postructuralism, 3, 9, 10, 14, 17, Movement
53, 106, 123, 158 Rodriguez, Richard, 83
Prevention of Terrorism Act (U.K.), 172 Roe v. Wade, U.S. Supreme Court, 130–1, 135, 139
Private property, 12, 18, 26, 28–9, 41, 81, 96, Rosenblum, Nancy, 52–3
123–4, 212, 224–5, 260 Rousseau, Jean-Jacques, 12, 61, 195–9, 239
Private sphere, 17, 39, 51, 56, 63, 65, 101–2, Rusbridger, Alan, 201
113, 139 Rushdie, Salmon, 47, 151, 153, 164–5
Prostitution, 6, 87–108 Rwandan genocide, 229
Public sphere, 5, 17, 56, 61, 80, 102, 113,
199–200, 204 S
Public Order Act (U.K.), 153 Sabl, Andrew, 198
Sandel, Michael, 75, 94, 120, 140, 145–6, 260
Q Scanlon, Thomas, 145, 159
Queer theory, 123 Schenck v. United States, US Supreme Court, 155
Scheuerman, William, 203
R Schiavo, Terri, 142–3
R. v. Butler, Canadian Supreme Court, 91, 99 Schuette v. Coalition to Defend Affirmative Action,
R. v. Keegstra, Canadian Supreme Court, 154, US Supreme Court, 2014, 69
163, 165 Scruton, Roger, 122
Race Relations Act (U.K.), 153 Secularism, 140
Racial and Religious Hatred Act (U.K.), 153 Segregation, 10, 62, 67, 78–81, 110, 193
Rachels, James, 144 Sen, Amartya, 213
Rawls, John, 4, 31–7, 40, 51, 74, 78, 84, 102–4, ‘Separate but equal’, 10, 110
116–21, 140, 145, 162, 175–6, 183, 192, 196, September 11, 2001, terrorist attack of, 1, 169,
198–9, 202, 204, 206, 214–26, 236, 243, 172, 179–80
254–7, 261–2 Sex-selection, 129–30
and difference principle, 31–3 Shklar, Judith, 179
and the ‘original position’, 31–2, 117, 214–15, Shrader-Frechette, Kristin, 257
221–2, 243, 257, 261–2 Shrage, Laurie, 105
and political liberalism, 51, 140 Shue, Henry, 213
Raz, Joseph, 55–6 Silko, Leslie Marmon, 57
Redistribution, 16, 21–43, 63, 76, 212–14, 216, Singer, Peter, 77, 134, 146–7, 196, 212–13, 216,
219–20, 224–5, 243, 261, - 222, 226, 254–5
and equality, 30–4 ‘Slippery slope’ arguments, 144, 147, 157, 165
and private property, 26–30 Smith, William, 200–4
Regan, Tom, 254–5 Snowden, Edward, 187–91, 201–6
Rehnquist, William, 177 Snyder v. Phelps, US Supreme Court, 2011, 156
Religious dress, 46–8, 58 Social contract, 26, 103, 177, 195–6, 214, 224, 235,
burqa, 48, 58 243–4
hijab, 46–7 Social democrats, 26
niqab, 47 ‘Societal cultures,’ 55–9
Responsibility to protect, 231–2, 241, 244–5 Somalia, 229
Rich, Adrienne, 139 Sovereignty, 13, 48–9, 60–1, 161, 181, 200, 217,
‘right, the’, and ‘the good’, 102 224, 227, 231–7, 241–5
Rights, 8, 10–13, 15, 17, 19, 40 Speech, freedom of, 6, 90, 99–102, 150–68, 171
and abortion, 126–40 hate speech, also offensive speech, 150–68
and affirmative action, 68–70, 74–5, 80–1 Steiner, Hillel, 258
and animals, 254–5 Stern Report on the Economics of Climate
and civil liberties, 169–71, 174–86, 190, 192, Change, 265
196, 198–9, 201 Stockholm Declaration, 247
and cultural rights, 44–66 Sudan, also Darfur, 231, 245
and euthanasia, 142–9 Suicide, see euthanasia
and foreign aid, 213, 225–6 Sullivan, Andrew, 115
and free speech, 150–6, 161–4, 167 Summers, Lawrence, 84
and future persons, 252, 257–8, 261, 263–4 Sunstein, Cass, 161–2, 183–4
288 | INDEx
T V
Tamir, Yael, 53, 55 Vacco v. Quill, U.S. Supreme Court, 143, 145
Taxation, 22–43 Valls, Andrew, 76
inheritance tax, 24, 110 Voluntary associations, 51–2
Taylor, Charles, 55, 60, 84
Temporary Assistance for Needy Families W
(U.S.), 22 Waldron, Jeremy, 52–4, 183
Terrorism, 13, 45, 66, 169–86, 190, 201 Walzer Michael, 95, 199, 237–40, 245
Teson, Fernando, 241–2 Warren, Mary Ann, 134
‘Third way, the’, 26 Washington v. Glucksberg, U.S. Supreme Court,
Thirty Years War, 234 143, 145
Thomson, Judith Jarvis, 75–6, 137–8, 145 Wasserstrom, Richard, 74
Thoreau, Henry David, 192, 197–8, 204, 247 Weber, Max, 3
Tooley, Michael, 134 Welfare, 21–43
Treaty of Amsterdam, 70 Welfare state, the, 21, 23, 25, 34, 39, 40, 56
Treaty of Waitangi, 49, 61 West, Robyn, 117–18
Tully, James, 60 Whistleblowing, 187–92
WikiLeaks, 187, 188, 201
U Wisconsin v. Yoder, U.S. Supreme Court, 48,
UK Marriage (Same Sex Couples) Act, 2013, 52, 59
110–11 Witte, Jr., John, 122
Unger, Peter, 213 Wolf, Susan, 146
United Nations Development Program, 265 Wolfenden Committee Report , 90, 94,
US v. Windsor, US Supreme Court, 2013, 111 101, 120
Utilitarianism, 5, 14, 19, 25, 36, 54, 61 Wollstonecraft, Mary, 128
and abortion, 134 World Bank, The, 207–12, 220, 226
and affirmative action, 73, 75–8, 83, 86 World Charter for Nature, 247
and environmental conservation, 252, World Commission on Environment and
254–6 Development, U.N., 248
and euthanasia, 143, 146–7 World Health Organization, The, 112
and foreign aid, 212–13
and humanitarian intervention, 233 Y
and political obligation, 196, 206 Yoder, see Wisconsin v. Yoder, U.S. Supreme Court
and terrorism, 178, 183 Young, Iris Marion, 42, 63, 79