Waging War Against Iraq: Jus Ad Bellum Considerations

POLITICS AND ETHICSREVIEW

Volume 1 Number 2

Published by Edinburgh University Press

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CONTENTS

Notes on Contributors v

ArticlesForced to be Free: Rethinking J. S. Mill and Intervention 119

J. Joseph Miller

Re-Visiting Berlin: Why Two Liberties are Better than One 138Avery Plaw

Waging War against Iraq: Jus Ad Bellum Considerations 158Chris J. Dolan

Symposium: Health Care and Global EthicsFrameworks for Understanding Dilemmas of Health Care in a GlobalizedWorld: A Case Study of Reproductive Health Policies in Peru 177

J. Jaime Miranda and Alicia Ely Yamin

International Bioethics and Human Rights: Reflections on a ProposedUniversal Declaration on Bioethics and Human Rights 188

Robert Baker

HIV/AIDS Epidemic, Human Rights and Global Justice 197Sirkku K. Hellsten

Review EssayA Rights-Based Approach to Development: Prospects and Problems 207

Sukanya Mohan Das, with Ray Goldstein and Sue Elliott

Book ReviewsNancy Fraser and Axel Honneth, Redistribution or Recognition?A Political-Philosophical Exchange 215

Paul Voice

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Colin Crouch, Post-Democracy 217Chamsy el-Ojeili

Harry Frankfurt, On Bullshit 219Mark Evans

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NOTES ON CONTRIBUTORS

Robert Baker is Chair of the Alden March Bioethics Institute, Professor ofBioethics at the Graduate College of Union University, Professor of Philosophyat Union College and a Visiting Fellow at the Center for Bioethics at theUniversity of Pennsylvania. He has authored, co-authored, edited or co-editedseveral books and government reports, most recently the award-winningAmerican Medical Ethics Revolution (1999), and has published over seventyarticles in such journals as the American Journal of Bioethics, CambridgeHealthcare Quarterly, The Hastings Center Report, JAMA, The Journal ofMedicine and Philosophy, The Kennedy Institute of Ethics Journal and MedicalHistory.

Sukanya (Su) Mohan Das recently completed her PhD (Public Policy) atVictoria University of Wellington on the social dimensions of peace building inTimor-Leste. She has previously worked with a number of United Nationsagencies in East and Southeast Asia, and has ‘post conflict’ experience in Timor-Leste (1999-2001) and Croatia (1994).

Chris J. Dolan is an Assistant Professor of Political Science at the Universityof Central Florida. His research focuses on US foreign policy, national security,and the American presidency. He is the author of In War We Trust (2005) andco-editor of Striking First (2005). His research appears in International Politics,Policy Studies Journal, Congress and the Presidency, White House Studies,Politics and Policy, and in numerous edited volumes. Chris has also served asa guest lecturer at the Fulbright American Studies Institute hosted by the USDepartment of State.

Sue Elliott has a MSc (distinction) in Development Practice from OxfordBrookes University, UK. Her particular interests are in NGO and civil society

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development and human rights, particularly the rights of refugees, women andchildren. She currently works as a consultant, facilitator and trainer for a numberof development organisations, NGOs, bilateral and multilateral agencies, and isa Board Trustee of the Development Resource Centre (New Zealand).

Ray Goldstein is a Senior Lecturer in Political Science and Developmentat Victoria University of Wellington. He is a past Chair of The New ZealandCouncil for International Development, the Development Resource Centre(DRC), and the NGO Disaster Relief Forum, and is a foundation Board Trusteeof the DRC.

Sirkku K. Hellsten is Reader in Development Ethics and the Director of theCentre for the Study of Global Ethics, University of Birmingham. Before comingto Birmingham she spent four years as Coordinator of the PhilosophyProgramme for the Philosophy Unit/Department of Political Science at theUniversity of Dar es Salaam, whilst also conducting research as Senior ResearchFellow in a development ethics project funded by the Academy of Finland. Shealso holds the title of Docent of Social and Moral Philosophy at the Universityof Helsinki, Finland.

J. Joseph Miller is Assistant Professor of Philosophy at the University ofNorth Carolina at Pembroke. He has interests in Mill, just war theory, andutilitarianism. Recent publications include ‘Jus ad bellum and an Officer’s MoralObligations: Invincible Ignorance, the Constitution, and Iraq’, Social Theory andPractice 30:4 (October 2004). He is currently working on a paper on Madisonand Mill on the tyranny of the majority.

J. Jaime Miranda is a Wellcome Trust Research Training Fellow inEpidemiology at the London School of Hygiene and Tropical Medicine, andHonorary Lecturer in International Health at the International Health andMedical Education Centre, University College London. He is also a foundermember of EDHUCASalud, Civil Association for Health and Human RightsEducation, Lima, Peru. His interests include clinical and epidemiologicalresearch, global health, ethics in healthcare and the ethics of research indeveloping countries, and health and human rights issues.

Avery Plaw received his doctorate in Political Theory from McGill Universityin 2002 and then taught for three years at Concordia University in Montreal.He is currently a Visiting Scholar at New York University, completing a bookon the ethics and legality of targeted killing. In September 2005 he is joiningthe Political Science Department at the University of Massachusetts inDartmouth.

Notes on Contributors

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Alicia Ely Yamin is the Research Director at Physicians for Human Rights andan Instructor at the Harvard School of Public Health. For years, she resided inLatin America, working with NGOs on documentation, advocacy, analysisand education relating to the intersections of health, development policies andhuman rights and, in particular, on the defense and promotion of the right tohealth. In the US, she is on the Boards of the Center for Economic and SocialRights and Mental Disability Rights International, as well as on the advisoryboard of the Center for Policy Analysis on Trade and Health. Her research hasappeared in several journals, including Human Rights Quarterly, Health andHuman Rights, Journal of Developing Societies, and Boston UniversityInternational Law Journal.

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FORCED TO BE FREE:RETHINKING J. S. MILL AND INTERVENTION

J. JOSEPH MILLER

In the run-up to and aftermath of the US invasion of Iraq in 2003, it becamesomething of a commonplace for many on the American left to label US policyas a return to an imperial colonialism. The critique was far from unanimous,though, as the editorial boards at the New York Times and the New Republictogether with a number of prominent leftists coalesced into a supposedly newentity, the ‘liberal hawk’ who envisions using American military might to securehuman rights and to spread democracy.1

Of course, the liberal hawk is not really new; many eighteenth and nineteenthcentury liberal intellectuals defended the same sorts of claims. John Stuart Mill,for instance, argues in Considerations on Representative Government that whilesome nations are already candidates for representative government, ‘there areothers which have not attained that state, and which, if held at all, must begoverned by the dominant country, or by persons delegated for that purpose byit’ (Mill, 1861: 345). In an essay explicitly addressing the topic, ‘A Few Wordson Non-Intervention’, Mill outlines a set of criteria for just interventions in othernations. Not coincidentally, liberal hawks often take ‘A Few Words’ as theirstarting point for intervention. This return to Mill is not without its problems, asa number of commentators note.2 After (in)famously labeling all non-Westernnations ‘barbarians’, Mill argues that those nations ‘have not got beyond theperiod during which it is likely to be for their benefit that they should beconquered and held in subjection by foreigners’, and claiming further that theymust be held in this fashion until such time as the inhabitants can be made readyfor civilization (Mill, 1859a: 406).

So the question, then, is whether the humanitarian intervention advocated byliberal hawks is really just colonialism in another form. Are such missions reallyhumanitarian or are they imperialist adventures thinly veiled by disingenuousmoral language? Certainly it is true that there are those who speak in boldlycolonialist language, characterizing American soldiers in Iraq as occupation

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forces whose goal is to keep order while Americans ‘prepare’ Iraqis, who are ‘notyet ready’ for democracy, for eventual self-rule. By the same token there aresome who seem prepared to overlook brutal oppression and even genocide in thename of rejecting empire.

While I hardly wish to endorse Mill’s own understanding of his colonialism,I do think that his position can be usefully resurrected. Mill argues that manyof the peoples of the world are not prepared for liberal democracy; in fact, forMill, basically all non-white, non-Europeans fall into that category. What Milloverlooks is that some cultures might prefer not to be democratic and somedemocracies might well reject liberalism. Vietnam in the 1960s might be anexample of the former; Iran today could be said to be the latter. Mill’s Euro-centric biases are clearly worthy of rejection as many nations are fully self-determining even if they are emphatically not liberal democracies. But I willargue here that Mill’s description of ‘barbarous’ nations does have merit evenif Mill’s application of that description is deeply problematic. Sensitivity todifferent cultures is admirable, but I think that one need not be a Eurocentrist tohold that the wholesale slaughter of entire populations is a bad thing. The pointhere is that once we correct for Mill’s bad anthropology, there is much to likein his arguments for colonialism properly applied. I think that it is possible toconstruct a plausible, philosophical justification for very restricted and relativelyshort-term colonialism. My task here will be a limited one, a justification of jusad interventionum as it were, while bearing in mind that far more would needto be said about jus in interventiono, or the practical ‘on the ground’ details ofadministering such a program. My argument justifying colonialism rests not onany assumptions of Western superiority, but rather on a pragmatic utilitarianargument, one that holds that Western-style liberalism is instrumentally valuablebecause, so far, it has proven to be the most effective system for creating statesthat are minimally tolerable. In other words, my argument rests not upon theclaim that freedom and equality, which are often taken to be the cornerstones ofliberalism, are intrinsically good, but rather that they are valuable insofar as theytend to lead to a society whose its citizens are reasonably willing to endorse it astolerable. Certainly other systems of government can and do produce minimallytolerable states, and it is entirely conceivable that there may yet be other politicalarrangements that are more effective at securing a minimum tolerability. To date,however, no other system has been as reliably effective.

My argument, then, is that a state that fails to provide conditions that are atleast minimally tolerable to its citizens – that is, a state that treats its citizens inways that, in Michael Walzer’s words, ‘shock the moral conscience of mankind’– is a state that is a candidate for intervention (Walzer, 1977: 107). UnlikeWalzer, who defends armed humanitarian intervention only against wickedstates, I will offer a broader justification, one that trades upon the language offailed states, states whose sovereignty can be temporarily set aside in order tosecure the basic well-being of their inhabitants. Where that securing requires the

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establishment of a new government, liberal democracy is, at present, the mostlikely mechanism for guaranteeing the continuance of a minimally tolerablesociety. Thus, in certain very limited cases, nations are justified in imposingWestern liberalism on other nations. Taking Mill’s arguments about civilizedstates seriously implies that intervention is justified in places like Kosovo,Rwanda, the Sudan and probably Afghanistan; on the other hand, states likeNorth Korea and Iraq, however bad they seem to Western eyes, do not reallymeet the standard for armed humanitarian intervention.

Mill on Non-Intervention

Mill’s position on non-intervention is dominated by an empirically false set ofassumptions about non-European peoples, assumptions which by twenty-firstcentury standards are clearly racist, albeit racism of a far milder sort than that ofmany of his contemporaries. While those assumptions color much of Mill’swritings on colonialism and international ethics, Mill nonetheless does offer anumber of plausible suggestions which serve as the basis for some contemporaryaccounts of intervention.3 Anticipating Walzer’s account, Mill argues that acts ofaggression are always wrong, regardless of the reason. In Mill’s words, ‘To go towar for an idea, if the war is aggressive, not defensive, is as criminal as to go towar for territory or revenue; for it is as little justifiable to force our ideas on otherpeople, as to compel them to submit to our will in any other respect’ (Mill,1859a: 405). Also like Walzer, Mill carves out a category of exceptions to thedoctrine of aggression, namely, that of intervention. Mill characterizes threedifferent types of intervention: intervention to aid a government in oppressing itscitizens, intervention to aid citizens attempting to overthrow a foreign oppressor,and intervention to aid citizens in attempting to overthrow native oppressors.The first type Mill rejects unequivocally, arguing that a government which reliesfor its very existence upon the assistance of another is one that ought not exist.The second type of intervention, intervention to enforce non-intervention, is onethat Mill thinks is always morally permitted (though not always prudent).Intervention to overthrow native oppression, Mill thinks, falls somewhere inbetween, rarely justified, but not absolutely prohibited.

In considering the third type, Mill thinks it important to distinguish betweenself-determining states and free states. A state is self-determining to the extentthat its institutions have been established by citizens of that state, even if thoseinstitutions are not free, and even if the citizenry has tried but failed to establishfree institutions. For Mill, self-determination is about the process by whichinstitutions come to be established, not about the nature of the institutionsthemselves. Mill maintains that the citizens of a nation cannot be forced to befree, and that liberty can flourish only where people ‘are willing to brave labourand danger for their liberation’ (Mill, 1859a: 410). Applying what Walzer (1977:87) calls ‘the stern doctrine of self-help’, Mill argues that only those who are

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capable of seizing liberty for themselves are ready for free institutions; historyhas shown that those who are given freedom by outsiders rarely keep thatfreedom for long. Thus, for Mill, intervention in the internal affairs of despoticnations is almost always prohibited.

But Mill does not apply his arguments on non-intervention to everyone. Forwhile he explicitly grants ‘civilized peoples, members of an equal community ofnations, like Christian Europe’, full protection from aggression, he denies thatsame protection to those he terms ‘barbarians’ (Mill, 1859a: 408-9). Tellingly,Mill makes a similar move in On Liberty, claiming there that the harm principle‘is meant to apply only to human beings in the maturity of their faculties’ (Mill,1859b: 13). Those not in the maturity of their faculties include children, thementally incompetent (i.e., the insane), and ‘those backward states of societyin which the race itself may be considered as in its nonage’ (Mill, 1859b: 13).Mill characterizes backward states as those whose citizens are incapable ofbeing improved by reason and arguments. For such societies, ‘Despotism is alegitimate mode of government in dealing with barbarians, provided the end betheir improvement, and the means justified by actually effecting that end’ (Mill,1859b: 13-14). For Mill, nations have sovereignty by virtue of the fact thatnations are collections of individuals. Since individual liberty is to be protected,for better or for worse, state sovereignty should likewise be protected. But Millholds that some individuals, because of their particular circumstances, are notproperly governed by the harm principle. Given this commitment, it is hardlysurprising that Mill would also deny sovereignty to a state composed ofindividuals to whom the harm principle does not apply.

Mill is thus willing to accept a double standard, one in which Europeansand those of European descent are to be governed by the harm principle whilemembers of ‘barbarian’ races are to be governed by benevolent despotism thatis aimed at developing a populace capable of self-determination. Since onlycitizens of ‘civilized’ European nations are entitled to be governed by the harmprinciple, those same ‘civilized’ nations receive the benefits of the international-ized version of the harm principle, the principle of non-intervention, whichguarantees nations the right to be autonomous within their own borders.

While On Liberty is rather vague about who, exactly, counts as ‘uncivilized’,Mill does provide more detail elsewhere. In an early essay, ‘Civilization’, Millemploys the term to mean ‘that kind of improvement only, which distinguishesa wealthy and powerful nation from savages or barbarians’ (Mill, 1836: 51). Millgoes on to argue that having dense populations living in cities or towns andcitizens who carry on commerce, manufacture, and agriculture, jointly defendthemselves in war, and who regulate and administer their daily lives by law arenecessary conditions for civilization. From ‘A Few Words’, we can discern someadditional characteristics: civilized nations cooperate, acting reciprocally inquestions of international morality. ‘Barbarians’, on the other hand, ‘cannot bedepended on for observing any rules. Their minds are not capable of so great an

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effort, nor their will sufficiently under the influence of distant motives’ (Mill,1859a: 406).

Mill thinks that ‘elements [of civilization] exist in modern Europe, andespecially in Great Britain’ but does not specifically mention any other part ofthe world that qualifies as civilized (Mill, 1836: 53). He echoes this refrainthroughout his writings, arguing consistently that those British colonies that arepopulated mainly by people of European descent (e.g., Canada, Australia, NewZealand, South Africa) are different from those whose inhabitants are mainlynon-European (e.g., India, and central Africa). Colonies of ‘European race’should ‘possess the fullest measure of internal self-government’ and foreignnations ought to refrain from interfering with that internal governance (Mill,1861: 563).4

Barbarians, on the other hand, ‘have no rights as a nation, except a right tosuch treatment as may, at the earliest possible period’, fit them for becoming one(Mill, 1859a: 406). The racist assumptions at work in Mill’s arguments are soobvious as to be hardly worth pointing out. It is simply empirically false that allnon-European nations failed to meet Mill’s criteria for civilization. I have arguedin his (partial) defence that Mill’s version of colonialism is not wholly a productof the racism that so deeply penetrated the Victorian middle class, but is rathera logical offshoot of Mill’s own theories of government.5 Nevertheless, Mill’scolonialism is rightly lambasted by modern readers, for Mill’s blithe assumptionin the inherent superiority of European values is indicative of a fundamentallyflawed worldview. In casually assuming that his values are universally andobjectively true, Mill takes on the role of a humanist, sympathetic to the viewthat ‘underlying the diversity of human experience it is possible, first, to discerna universal and given human nature, and secondly to find it revealed in thecommon language of rationality’ (Gandhi, 1998: 27). Many contemporarythinkers reject such an approach, countering that ‘any universal or normativepostulation of rational unanimity is totalitarian and hostile to the challenges ofotherness and difference’ (Gandhi, 1998: 27). This sort of objection is commonto a number of different thinkers, whom I will here label generically as critics. Inusing the term ‘critics’ in this section, I have in mind not Mill commentatorsgenerally, but rather those readers of Mill who draw upon three different butrelated schools of thought: the postmodernist, the poststructuralist and thepostcolonialist. I realize that there are numerous differences between theseschools (and between different practitioners within each field), but all seem toshare two important assumptions, namely, that differences between cultures are,in some important way, incommensurable, and that there are no universal cross-cultural agreements.

Mill, of course, does not accept either of these claims, and his refusal hasimportant real-world consequences, particularly in the realm of ethics andpolitics. Although he rejects Benthamite utilitarianism as overly simplistic, Millstill finds it not unreasonable to agree with Bentham that ‘Nature has placed


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mankind under the governance of two sovereign masters, pain and pleasure’(Bentham, 1781: 1). Mill’s (richer and more complex) utilitarianism in turndrives his political theory, as evidenced by his claim in On Liberty that he regards‘utility as the ultimate appeal on all ethical questions’ (Mill, 1859b: 14). Criticsreject the claim that morality, and ultimately politics, can be boiled down toa single, universal human characteristic. But if we are to reject ‘rationalunanimity’ as inherently hostile to the idea of difference, then, at the risk ofsounding like a neoconservative apologist, I have difficulty seeing how we areleft with anything other than moral relativism.

Of course the critic will reject the charge of relativism, and strictly speakingthat defence is accurate; by and large, critics neither maintain that culturalpractices are constitutive of morality, nor define morality relative to someparticular ethos. Stanley Fish, for example, argues that critics are not committedto moral relativism, claiming that those who make the charge only display theirown ignorance(!). Indeed, Fish argues, it is not at all contradictory to assert at thesame time ‘(1) I believe X to be true and (2) I believe that there is no mechanism,procedure, calculus, test by which the truth of X can be necessarily demonstratedto any sane person who has come to a different conclusion’ (Fish, 2002: 34). Fishclaims that universals might well exist, but holds that asserting the universaltruth of some claim is conceptually distinct from asserting that one can prove thatuniversal truth.

Now it is true that (1) and (2) are not contradictory, and one need not acceptany ‘post-isms’ to accept that point; consider that, for instance, many theistscharacterize their faith in the existence of God in just this way. But I worry thatthis sort of move might be rather disingenuous. Fish’s claim is that he believesin the existence of universal truths, but also believes that none of those universaltruths can be proven. Why is that position any more rational than my belief infairies whose existence cannot be detected by empirical means or inferred fromany available set of premises? It is unclear, in other words, just what it is thatcould possibly justify Fish’s belief in unproven and unprovable universals. Evenleaving aside the irrationality that appears to be built into the very essence ofFish’s defence of postmodernism, it is still the case that his view suffers from allof the same sorts of problems of relativism. As Fish himself admits, in disputesbetween different worldviews ‘there is no public space, complete withdefinitions, standards, norms, criteria, etc., to which one can have recourse inorder to separate out the true from the false’ (Fish, 2002: 35). Richard Rortymakes a similar point, claiming

no description of how things are from a God’s-eye point of view, no skyhookprovided by some contemporary or yet-to-be-developed science, is going tofree us from the contingency of having been acculturated as we were. Ouracculturation is what makes certain options live, or momentous, or forced,while leaving others dead, or trivial, or optional. (Rorty, 1990: 13)

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So while these views are not strictly relativism, they do share the ethnocentrismthat is at the heart of relativism’s problems. For if there are no possible means ofadjudicating conflicts between different worldviews, then we are still bereft of amoral framework for judging those outside our particular culture.

But to reject any universal moral framework is to invite absurdity into theinternational arena, particularly in the realm of foreign intervention. One the onehand, one could argue that any attempt to intervene is an act of imperialism.Given that ‘humanitarian’ intervention often comes with certain strings attached,and that those strings often benefit those providing the intervention, sometimesat some cost to the nation being ‘rescued’, one might well argue that ‘humani-tarian intervention’ is just a new name for colonialism and as such ought alwaysto be rejected. But to adopt such a position is to refuse to draw distinctionsbetween, say, Belgian intervention in the Congo, Indian intervention in EastPakistan, and French intervention in Rwanda; it is to hold, in short, that there isno distinction between intervention that causes genocide and intervention thatprevents it. A view that leaves no room for universal condemnation of genocideand enslavement and that offers no justification for one nation halting thosepractices in another nation, is morally suspect at best.

On the other hand, the total rejection of access to universal truth could simplyopen the door to intervention for any reason. After all, the claim that there are nouniversally accessible moral truths does not entail that one ought not intervenein other cultures. Tolerance may be consistent with ethnocentrism, but so isnihilism. Indeed, it we take Fish or Rorty at his word, then it is perfectly con-sistent for me to believe that my ideas are universal even while acknowledgingthat I cannot prove the truth of those claims. It is not at all clear why it is thatholding both of these beliefs rules out cultural imperialism; if I really do believethat I am correct, in whatever non-objective way I come to that conclusion, thenI need not be committed to universal tolerance.

So Mill’s own account of intervention, burdened as it is with his distastefulcommitment to colonialism, clearly stands in need of revision. But the moderncritics’ response, while rightly rejecting Mill’s Eurocentrism, seems not to faremuch better. One third option, Walzer’s, is to simply ignore the issue. Walzersays of Mill’s colonialist attitudes that ‘Whatever plausibility such argumentshad in the nineteenth century, they have none today. International society canno longer be divided into civilized and barbarian halves; any line drawn ondevelopmental principles leaves barbarians on both sides’ (Walzer, 1977: 89-90n). Walzer therefore discards Mill’s set of exceptions, arguing that the self-help test (i.e., the standard for ‘civilized’ Europeans) applies to everyone. WhileWalzer’s solution has the virtue of discarding Mill’s colonial baggage, I worrythat his account sets the bar too high. Not all oppressed people are capable ofsuccessfully resisting intolerable governments, particularly in modern settingsagainst modern weaponry. So what are we to say about a government that usesthe apparatus of the state to systematically slaughter its own people?


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To be fair, Walzer recognizes that there are cases in which the self-helpstandard ought not be applied strictly, arguing that ‘Against the enslavement ormassacre of political opponents, national minorities, and religious sects, theremay well be no help unless help comes from outside’ (Walzer, 1977: 101).Walzer justifies intervention in such cases by questioning the sovereignty ofnations that engage in such acts. As Walzer explains, ‘when a government turnssavagely upon its own people, we must doubt the very existence of a politicalcommunity to which the idea of self-determination might apply’ (Walzer, 1977:101).

For Walzer, of course, the political community lies at the heart of his theoryof justice and of international ethics. Although he does not directly define the‘political community’, Walzer does describe it in several places, characterizingit as a ‘collective consciousness’ brought about by shared language, history andculture (Walzer, 1983: 28). It is a ‘shared sensibility’ that ‘derives its moral andpolitical force from the rights of contemporary men and women to live asmembers of a historic community and to express their inherited culture throughpolitical forms worked out among themselves’ (Walzer, 1985: 219). A politicalcommunity, then, is one that consists of people who share an historical regionand a common worldview. Thus, Walzer might be right that in many cases,governments that turn on their own citizens exemplify a lack of politicalcommunity, as when, say, a majority religious or ethnic group slaughters asizeable minority group.

But surely not all horrific acts imply a lack of true political community, unlessof course one argues that any time two groups of people attempt the wholesalekilling of one another, there is by definition no political community present. ButI think that argument would be one that Walzer would reject. After all, such adefinition would imply that almost every civil war would involve a breakdownof the political community. Since a lack of political community implies a lack ofsovereignty and thus lifts the restriction on foreign intervention, it would seemto follow that intervention would be justified in nearly any civil war. Walzer,however, explicitly rejects intervention in almost all internal wars, so it followsthat his definition of political community must be broad enough to allow thatcitizens of a community can kill one another while remaining citizens of thesame political community. It is unclear why, then, certain forms of massslaughter – perhaps the Shining Path in Peru or Stalin in Russia – could notstill count as taking place within a single political community. Worse, we canimagine some society in which a persecuted minority has somehow becomeconvinced that it deserves persecution. Perhaps in such a society members ofsaid minority agree that, as a class, they are bad and should be persecuted eventhough each individual member of that minority feels that he or she is notpersonally such a bad sort and should not be persecuted. If that persecution is badenough (say, for instance, it turns into systematic torture and mass murder),surely it is not unreasonable to think that nations might intervene to stop such

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practices even if the practices do form part of a ‘shared sensibility’ that has beenbrought about by shared language, history and culture.

Walzer’s account is further limited by his focus on what we might call evil orwicked states. That is, Walzer’s discussions of intervention typically involvestates that aggress against their own people in various horrifying ways. There aredistressingly many instances of states that meet this sort of description: Kosovo,Taliban-led Afghanistan, Stalinist Russia, East Pakistan, and Cambodia allspring to mind. Arguments for intervention in such states are relatively straight-forward. But not all states that seem like good candidates for intervention arethose in which the state aggresses against its own people. Whereas wicked statesusually have specific wrongdoers and thus specific military targets, some stateshave humanitarian crises that are the result of more systematic and endemicproblems. These failed states often devolve into genocide and widespread horrornot because of government-sanctioned violence but because of governmentcollapse. By focusing on a state’s acts of aggression against its own people,Walzer is not positioned to capture the important distinction between civil warand a collapse into something closer to a Hobbesian state of nature. In whatfollows, then, I will sketch an argument for intervention in failed and not justwicked states.

The Language of Failed States

To this point, we have not established a satisfactory answer to the question ofwhen nations are justified in intervening in the affairs of other nations. Mill’scolonialism justifies too much intervention, Walzer’s account allows too little,and the various post-isms of the critics justify, alternately, too much and too little.I would like to suggest that a middle ground approach to the question ofintervention can be found underneath Mill’s colonialism; properly interpreted,Mill’s arguments on intervention justify interventions far more modest thanMill’s own colonialism but at the same time provide a more explicit justificationfor intervention in failed states than Walzer’s more restrictive ‘stern doctrine ofself-help’. What I propose is that we consider anew Mill’s distinction between‘barbarian’ and ‘civilized’ nations. Although we are right to be wary of thecolonialist implications of Mill’s choice of terms, the distinction that those termsrepresent is one that does have some plausibility. Mill’s error lies in his con-flating ‘civilized’ with Europeans and ‘barbarians’ with pretty much everyoneelse. But Mill’s misuse of his labels is not in itself reason for rejecting them.

Let us consider once more Mill’s definition of barbarian societies, this from‘Civilization’. There Mill describes ‘barbarian’ nations as consisting ‘of a hand-ful of individuals, wandering or thinly scattered over a vast tract of country’, whohave ‘no commerce, no manufactures, no agriculture, or next to none’. Eachcitizen ‘shifts for himself; except in war (end even there very imperfectly) weseldom see any joint operations carried on by the union of many; nor do savages


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find much pleasure in each other’s company’ (Mill, 1836: 52). So far, Mill seemsto be describing hunter-gatherers, and it seems likely that we would want toreject his contention that all such societies are barbaric or savage. But later in thatsame paragraph, Mill gives what is, I think, a far more significant character-ization, one that is worth quoting at length:

In savage life there is little or no law, or administration of justice; nosystematic employment of the collective strength of society, to protectindividuals against injury from one another; every one trusts to his ownstrength or cunning, and where that fails, he is without resource. Weaccordingly call a people civilized, where the arrangements of society, forprotecting the persons and property of its members, are sufficiently perfect tomaintain peace among them; i.e. to induce the bulk of the community to relyfor their security mainly upon the social arrangements, and renounce for themost part, and in ordinary circumstances, the vindication of their interests(whether in the way of aggression or of defense) by their individual strengthor courage. (Mill, 1836: 52-3)

What is remarkable here is the extent to which Mill’s language resonates withmore modern talk of ‘failed states’. Robert Rotberg, for example, describesfailed states as ‘incapable of projecting power and asserting authority withintheir own borders, leaving their territories governmentally empty’ (Rotberg,2002: 128). Rotberg goes on to offer an extended account of failed states.Economically, such states suffer severe shortages leading to governmentcutbacks in basic human services. Politically, leaders ‘subvert prevailingdemocratic norms, coerce legislatures and bureaucracies into subservience,strangle judicial independence, block civil society, and gain control over securityand defense forces’, leading to systematic disenfranchisement and the advan-taging of certain privileged tribes, religions or ethnic groups (Rotberg, 2002:130). As these strands converge, states offer fewer services, the people becomepoorer, and even basic security breaks down. Finally,

Lacking meaningful or realistic democratic means of redress, protesters taketo the streets or mobilize along ethnic, religious, or linguistic lines. Becausesmall arms and even more formidable weapons are cheap and easy to find,because historical grievances are readily remembered or manufactured, andbecause the spoils of separation, autonomy, or a total takeover are attractive,the potential for violent conflict grows exponentially as the state’s power andlegitimacy recede. (Rotberg, 2002: 130)

George Lucas argues in a similar fashion, explaining failed states as those inwhich the ‘ability to guarantee basic rights and liberties, provide fundamentalessential services that constitute a civil society (such as basic medical care,

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education, banking, commerce, agriculture and a dependable food supply), andenforce the rule of law completely evaporates’ (Lucas, 2001: 31). Likewise,Barbara Harff and Ted Gurr describe what they call humanitarian emergencies as‘open conflicts within states that result in the victimization of substantialnumbers of ethnic or other identity groups’ (Harff and Gurr, 1998: 552). Whilesuch emergencies might be exacerbated by other natural disasters (i.e., famine,earthquake, drought), ‘their principle and immediate cause is open conflictamong groups within the state’ (Harff and Gurr, 1998: 552).

Contemporary accounts of humanitarian intervention trade heavily on thefailed state rhetoric.6 Typically such arguments proceed by framing the casefor sovereignty in decidedly Westphalian terms. According to the Westphalianmodel, states ‘are conceived of (1) as more or less economically self-sufficientunits that are more or less distributionally autonomous and (2) as politicallyhomogenous, unified actors, without internal political differentiation’ (Buchanan,2000: 701). In a strict sense, few states today are actually economically self-sufficient, and probably very few could claim even to be more or less so. But alooser understanding of self-sufficiency is perhaps more appropriate. In thisloose sense, a state is economically self-sufficient in the sense that the state itselfprovides some sort of apparatus for negotiating with other states for whateverneeds the state itself cannot provide. States, in other words, establish traderelations with other states. Actual trades might be carried out by the state itselfor by private individuals within the state, but putting in place the basic structureneeded to secure the economic necessities of a state is itself a function of thestate.

Because Westphalian states are politically homogenous, the world communitymust, for all practical purposes, ignore internal dissention; internal politicaldifferences are simply invisible in the international realm. So while eliminatingthe suffering of minorities within a community might be a prima facie reasonfor intervention, the duty to respect the sovereignty of nations will trump thatreason. In general, then, outside intervention on behalf of some subset of themembers of a state, however big that subset may be, is prohibited.

But even strict adherence to a Westphalian model need not rule out all casesof intervention. Consider again what it means for a state to fail: a governmentmust entirely lose its ability to provide basic rights and services and to enforcethe law. A failed state, in other words, fails to be economically self-sufficient,even in the broad sense of providing institutional structures for trade. Moreover,a state that has entirely lost its ability to project its power over its citizenry cannotplausibly be said even to maintain the polite fiction of a single unified actor.Considered on Westphalian terms, a failed state is not really a state at all. Failedstates moreover are typically accompanied by the sort of widespread sufferingthat triggers our prima facie reason for intervening, and since a failed state lackssovereignty, then the major obstacle to acting on that prima facie reasondisappears. This is not to say that any particular nation has a duty to intervene in


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failed states. Since the goal of intervention is to reduce suffering, interventionsmust leave their intended targets better off than they would be withoutintervention. There may also be prudential considerations that count againstintervening. An act of intervention that leaves the intervening nation vulnerableor unable to defend itself might be justified but unwise. Failed states arecandidates for intervention, but particular states may or may not have anobligation to do the intervening.

Of course the judgment that intervention is justified is often less tricky thanthe decision about what form an intervention ought to take. The easiest cases(morally at least) are Walzer’s wicked states, that is, those that follow a clearvictim/villain pattern (e.g., Pakistan’s brutal treatment of Bengalis in EastPakistan). There intervention has a clear goal: stop the slaughter of innocentsand then leave. But many instances of failed states do not fit the victim/villainpattern. There may be clear evildoers (as was the case in Somalia), but often thevillains are widespread, their actions the result of a complete collapse of all statestructure. Intervention in such cases might temporarily halt atrocities, but unlessthe occupying power either engages in substantial reconstruction or establishesa permanent presence, the underlying structural problems in the failed state arelikely to result in a new set of atrocities once the interveners leave. What, then,should be the goal of intervention in failed states?

Increasingly, political theorists are calling for something that looks very muchlike a return to a limited form of colonialism. Walzer, for example, argues fortrusteeships, ‘where the intervening power actually rules the country it has“rescued,” acting in trust for the inhabitants, seeking to establish a stable andmore or less consensual politics’ and for protectorates, ‘where the interventionbrings some local group or coalition of groups to power and is then sustainedonly defensively, to ensure that there is no return of the defeated regime or theold lawlessness’ (Walzer, 2004: 76). Gerald Helman and Steven Ratner defendUnited Nations-recognized guardianships or trusteeships for failed states.Arguing from analogy, Helman and Ratner argue that just as helpless individuals(orphaned children or the severely mentally handicapped) are ‘placed under theresponsibility of a trustee or guardian, who is charged to look out for the bestinterests of that person’, so too should failed states be seen as helpless states inneed of a guardian (Helman and Ratner, 1992/3: 10). These kinds of claims looksuspiciously like colonialism in fancy clothes, and most theorists who advocatesomething like a trusteeship worry openly about the similarities. I submit,however, that such worries are misplaced, and that colonialism properly appliedneed not be problematic. I do not think that the long slope from trusteeships toKipling’s ‘White Man’s Burden’ is so slippery that we cannot find adequatefooting.

This is not to say that I endorse Mill’s ambitious plan for colonizing all non-European nations. Mill adopts the utilitarian argument that people are the bestjudge of their own interests and thus, in principle, should rule themselves. But

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unlike Bentham, who takes that utilitarian argument to be sufficient reason toabandon colonialism entirely, Mill rather famously worries that the unenlight-ened and uneducated, not understanding the intricacies of economics and publicpolicy, will act shortsightedly, bringing eventual harm to everyone. This par-ticular worry is not restricted to colonial subjects: Mill voices the same concernsabout working-class Englishmen and women, though his remedy for ‘civilized’states is less intrusive than the cure for ‘barbarian’ ones.7 In ‘barbarian’ nations,Mill advocates benevolent despotism, ‘provided the end be their improvement,and the means justified by actually affecting that end’ (Mill, 1859b: 13-14).8 ForMill, the goal of colonialism is to bring all colonial subjects to the point at whichthey ‘have attained the capacity of being guided to their own improvement byconviction or persuasion’ at which point the colonies should then be bound bythe harm principle (Mill, 1859b: 14). Moreover, Mill suggests, colonies thatmeet this standard should cease to be thought of as colonies at all but should‘possess the fullest measure of internal self-governance’ and should remainaffiliated with Great Britain only as long as they wish to do so (Mill, 1861: 338).

Mill’s reasons for endorsing the harm principle and the liberal state thatfollows from its application are a matter of considerable debate. Mill himselfargues that his support for the principle is grounded in utilitarian considerations,but then adds, frustratingly, that ‘it must be utility in the largest sense, groundedon the permanent interests of man as a progressive being’ (Mill, 1859b: 14).What that caveat means and to what extent Mill’s claims about the nature ofliberty can be squared with utilitarianism are questions over which much ink hasbeen spilled, and I do not propose to add to that debate here. Suffice it to say thatthe most influential readings of Mill’s political thought (namely, that liberty is anintrinsic value or that utility is the final measure of value in the world) all assumethe existence of some particular universal value, and that such assumptionsmight well be the product of a particularly European (or at least Western)worldview. I think, however, that it is possible to make out a case for establishinga liberal colonialism that applies only to failed states (‘barbarians’ narrowlyinterpreted) and that does not rest upon attributing an intrinsic and fundamentalvalue to liberty or utility.

The most influential philosophical arguments for liberalism are grounded inroughly Kantian terms. So understood, liberal states are those whose laws aregenerated by something approximating Mill’s harm principle (i.e., that a stateis justified in exercising its power over individuals only for the purpose ofregulating other-regarding action.) A state that takes seriously the harm principlewill be neutral with respect to conceptions of the good and will, at a minimum,not restrict its citizens’ freedom. In other words, at a minimum, a liberal statemust provide negative freedom for its citizens.9 A liberal state will thus bepluralist, welcoming multiple conceptions of the good and will not seek toelevate any particular conception at the expense of some subset of its citizens.These arguments for neutrality, freedom and pluralism are grounded in a respect


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for the fundamental dignity of beings who are rational law-givers.10 Suchdefences, however, are subject to a serious objection, namely, they defend stateneutrality between competing conceptions of the good only at the cost of havingalready assumed the truth of one particular conception of the good. Alternativeconceptions of the good must be compatible with, and in an important sense,subsumed under a Kantian theory of value. As the argument for liberalism istraditionally conceived, a rejection of a Kantian conception of human natureentails a rejection of the argument for liberalism.

But there is still another argument open to the defender of liberalism, apragmatic argument that grounds the value of liberalism in its usefulness as anorganizing principle for societies. That usefulness rests on the fact that that, ofthe various political systems available to us, liberalism is the most promisingsystem for constructing a society that is at least minimally tolerable for itsmembers, particularly in situations in which that membership is diverse.Liberalism, in other words, provides the best hope that diverse communities willsettle upon some governing system that every member of the society will find tobe minimally tolerable. By ‘minimally tolerable’ I mean to describe a state inwhich citizens can live their lives as they see fit, subject to a non-arbitrary set oflaws that is public enough to provide all citizens with a framework for formingreasonable expectations about the future behaviour of their fellows.

One might well object here that my definition of ‘minimally tolerable’ simplybegs the question against non-liberal societies. Alan Goldman, for example,suggests drawing lines in a different manner. Goldman argues that the sorts ofrights violations that can trigger intervention, what Goldman calls ‘oppressiveviolations of rights’, are those violations that the citizens of the state itself findto be oppressive. When a state violates its own citizens’ ordering of values, whenit is regarded as ‘systematically oppressive … by its own citizens or inhabitants’,then it is a candidate for intervention (Goldman, 1982: 445). My worry about anaccount like Goldman’s, which lacks specific criteria for legitimate interven-tions, is that it does not map onto our intuitions very well. On Goldman’sreading, a sufficiently deluded population (e.g., the persecuted minority Idiscussed in relation to Walzer) might not view even acts of slavery or genocideas systematically oppressive. That is, each citizen could conceivably argue thatthe policies themselves are fine, while still believing the policy to have beenapplied inappropriately in his own case. By the same token, a mostly just statemight systematically violate some minor right of its citizens. A state might, forinstance, arbitrarily restrict the sale of all Bordeaux wines. Such a state might beconsidered by its wine-loving citizenry to be oppressive, but surely Frenchintervention on behalf of oppressed oenophiles is impermissible.

The weakness in Goldman’s account, I think, is the vagueness of hisdescription of oppressive rights violations. By leaving it up to a particular societyto decide what constitutes an oppressive violation of rights for that society,Goldman underdescribes the criteria for just intervention. My definition of

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‘minimally tolerable’, on the other hand, provides two criteria that areindividually necessary and jointly sufficient for describing the conditions underwhich intervention is permissible. The tolerance clause is necessary to guardrights of minorities. After all, a set of laws could be non-arbitrary and public butstill oppressive. For example, a state might legalize the open persecution of aminority, justified on the grounds that members of that minority are far morelikely to engage in treasonous acts. Such a law is arguably both public and non-arbitrary, but it would be odd to say that a society with that particular set of lawsmeets the requirement of being minimally tolerable. Indeed, the tolerance clauseseems to be entailed by the requirement that a society be minimally tolerable foreach citizen.

Similarly, the tolerance clause alone is an insufficient condition for aminimally tolerable society. A principle of tolerance says only that people shouldbe free to live their lives as they see fit; by itself, such a principle does not tellme whether I must tolerate my neighbor’s new club, The Hemlock Club, whichprides itself on killing philosophers. While consistency might imply that Itolerate only those who are themselves tolerant, I do not think that the principleof tolerance itself entails that position. It is not at all clear to me, for example,that The Hemlock Club would be problematic in a society in which no one wantsto be a philosopher. My point here is that a citizen must know in advance justwhat sort of behaviour actually is tolerated; thus, a public and non-arbitrary setof laws is also a necessary condition for a minimally tolerable society.

Clearly a failed state will not be minimally tolerable, and failed states, I haveargued, are candidates for limited colonialism (or intervention, to use the lessloaded term). Obviously failed states do not, by definition, have a workingindigenous government already in place; indeed, had the form of governmentpreviously in use in a failed state been truly viable for that state, it seems unlikelythat the state would have failed in the first place. The very fact of state failure isgood evidence that a different system of government is required. Since the onlyjustification for colonialism is that the previous state completely failed, thefunction of colonialism should be the restoration of a state to self-determinationas quickly as is consistent with insuring minimally tolerable conditions.Colonialists are then faced with the necessity of deciding what sort of basicstructure to establish. Liberalism is hardly the only possibility at this point, butit is, I submit, the best of the available options.

In arguing that liberalism is the most effective way to achieve a minimallytolerable society, I hardly mean to imply that all (or even any) liberal societiesare utopias; indeed, the world has seen its fair share of deeply flawed liberalsocieties. Nor am I claiming that a liberal state cannot fail; clearly it is apossibility, although I cannot think of an example that would count as a liberalfailed state. Some failed states have been liberal states at some point, but mostdevolve into another system entirely before failing (often considerably before).Should liberal states begin to fail regularly, then obviously the rationale for


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imposing liberalism would fail with them. Moreover, liberal states should not beconfused with democratic states. Pure democracy need not be even remotelyliberal. A liberal state, as I have characterized liberalism, is one whose laws aregenerated by something approximating Mill’s harm principle. But as Millhimself notes, democracy is often in tension with liberalism, hence Mill’sconcerns in On Liberty with the tyranny of the majority. A majority that issufficiently large and sufficiently homogenous may very well engage in practicesthat brutally repress minorities. Constitutional democracies attempt to limit thisfeature by installing limits on democratic behaviour, but insofar as constitutionscan be amended, there is still no in principle reason to think that democraciesmust also be liberal states. It is likely true that all liberal states must bedemocracies; the converse does not hold. Recent elections in Iraq may wellprove to bear this claim out; it is entirely conceivable that democratic electionsmay serve only to produce theocratic rule.

I am not claiming that liberalism is inherently superior to other sorts ofpolitical arrangements, nor am I claiming that liberalism follows inevitably fromuniversal truths about human nature and the intrinsic importance of freedom.Indeed, I am not even arguing that only liberalism is capable of producing statesthat are minimally tolerable. My claim is only that liberalism is much more likelyto produce such a state of affairs than is any other currently available system ofgovernment. History shows that liberal states are far less likely than non-liberalstates to engage in policies that result in living conditions that are not at leastminimally tolerable for all citizens. My defence of liberalism rests purely onpragmatic empirical grounds. A colonial power (call it a trusteeship or a pro-tectorate, the effect is the same) searching for some system of government toreplace the previous failed system should choose liberalism based purely uponits track record of success in producing minimally tolerable conditions moreoften than any of its competitors.

In sum, then, Mill’s arguments for British colonialism still offer somepractical guidance for us today. We are right to reject many of Mill’s assumptionsabout the status of non-European cultures and we may well be right in rejecting,along with Mill’s critics, the assumption of a fixed human nature. Nonetheless,Mill’s ‘barbarians’ do actually have some real-world cognates; what we nowcall ‘failed states’ match Mill’s description closely. Similarly, we find in Milla justification for intervention in such states; provided that our aim be theestablishment of a society that is minimally tolerable for its citizens as quicklyas is feasible, ‘civilized’ (i.e., successful) states may intervene in the affairs of‘uncivilized’ (or failed) states. For all its bad press, Mill’s colonialism, strippedof its assumptions about culture and human nature, might well serve a usefulfunction still. Perhaps Mill is right that in certain limited circumstances, there isjustification for forcing people to be free.

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Acknowledgments

I am grateful to a number of people whose conversations and comments onearlier drafts of the paper have aided and clarified my thinking considerably. Inparticular, I am indebted to Steven Ramey, Jeffrey Geller, Jimi Wilson, RyanJenkins, Jason Bentley, Mitch Ullman, Jenny Bruns, Eddy Souffrant, SherylRoss, and Brian W. Doss, as well as a number of participants at the Fifth WorldCongress of the International Society for Universal Dialogue and two anony-mous reviewers at Politics and Ethics Review.

Notes1 See, for example, ‘The Liberal Quandry over Iraq’ in The New York Times Magazine

(8 December 2002), which chronicles the transformation of several prominent leftists fromanti-war activists into hawks.

2 Walzer (1977). Said (1979: esp. p. 14ff) provides a more detailed critique of the problematicassumptions in colonialist thinking, including Mill’s.

3 See Walzer (1977: 87ff) and Goldman (1982: 437-54).4 Mill championed this idea consistently during his time as a Philosophical Radical. Particularly

noteworthy are Mill’s Westminster Review articles ‘Lord Durham’s Return’, (1838a) and‘Radical Party and Canada’, (1838b), which argue for the return of full self-rule to Canada.Mill in fact spends considerable time praising Durham’s decisions as the only way ofpreserving a government that is not dependent upon brute force.

5 See Miller (2005).6 See, for example, Walzer (2004: esp. chs 5 and 7), Teson (1988), Luban (1985), and Slater and

Nardin (1986).7 I discuss Mill’s solution to the ‘problem’ of enfranchising the uneducated in Great Britain in

Miller 2003.8 See also Mill 1861, pp. 336ff.9 In arguing that negative freedom is a minimal condition for a liberal state, I do not mean to

imply that I think Mill’s harm principle justifies only negative freedom. There are good reasonsfor thinking that Mill really is defending positive freedom. As he argues in On Liberty, ‘Theonly freedom deserving the name, is that of pursuing our own good in our own way, so long aswe do not attempt to deprive others of theirs, or impede their efforts to obtain it’ (16). Thatconception of freedom sounds very much like a description of autonomy, or positive freedom.I think, in fact, that Mill is rightly read as advocating positive freedom, but I do not think thata state must endorse positive freedom to count as liberal. The weaker negative reading issufficient for my argument here.

10 See, for example, Rawls (1971), Dworkin (1985), Ackerman (1980), and Waldron (1993).

References

Ackerman, B. 1980. Social Justice in the Liberal State. New Haven, CT: YaleUniversity Press.

Bentham, J. 1781 [1988]. An Introduction to the Principles of Morals andLegislation. Buffalo, NY: Prometheus Books.

Buchanan, A. 2000. ‘Rawls’s Law of Peoples: Rules for a Vanished WestphalianWorld’, Ethics 110(4): 697-721.


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Dworkin, R. 1985. ‘Liberalism’ in his A Matter of Principle. Cambridge, MA:Harvard University Press.

Fish, S. 2002. ‘Postmodern Warfare: The Ignorance of Our Warrior Intel-lectuals’, Harpers (July): 33-40.

Gandhi, L. 1998. Postcolonial Theory: A Critical Introduction. Edinburgh:Edinburgh University Press.

Goldman, A. H. 1982. ‘The Moral Significance of National Boundaries’, in P. A.French et al. (eds.), Midwest Studies in Philosophy VII: Social and PoliticalPhilosophy. Minneapolis: University of Minnesota Press.

Gross, L. 1948. ‘The Peace of Westphalia, 1648-1948’, The American Journal ofInternational Law 42(1): 20-41.

Harff, B. and Gurr, T. R. 1998. ‘Systematic Warnings of HumanitarianEmergencies’, Journal of Peace Research 35(5): 551-79.

Helman, G. B. and Ratner, S. R. 1992/3. ‘Saving Failed States’, Foreign Policy89 (Winter): 3-21.

Luban, D. 1985. ‘Just War and Human Rights’ in Charles Beitz et al. (eds.),International Ethics. Princeton: Princeton University Press.

Lucas, Jr, G. R. 2001. Perspectives on Humanitarian Intervention. Berkeley,CA: Berkeley Public Policy Press.

Mill, J. S. 1836 [1962]. ‘Civilization’, in G. Himmelfarb (ed.), Essays on Politicsand Culture. New York: Doubleday & Company.

Mill, J. S. 1838a [1982]. ‘Lord Durham’s Return’, in J. M. Robson (ed.),Collected Works of John Stuart Mill, vol. 6. Toronto: University of TorontoPress.

Mill, J. S. 1838b [1982]. ‘Radical Party in Canada’, in J. M. Robson (ed.),Collected Works of John Stuart Mill, vol. 6. Toronto: University of TorontoPress.

Mill, J. S. 1859a [1962]. ‘A Few Words on Non-Intervention’, in G. Himmelfarb(ed.), Essays on Politics and Culture. New York: Doubleday & Company.

Mill, J. S. 1859b [1989]. On Liberty. Cambridge: Cambridge University Press.Mill, J. S. 1861 [1991]. Considerations on Representative Government. Buffalo,

NY: Prometheus Books.Mill, J. S. 1868 [1982]. ‘England and Ireland’, in J. M. Robson (ed.), Collected

Works of John Stuart Mill, vol. 6. Toronto: University of Toronto Press.Miller, J. J. 2003. ‘John Stuart Mill on Plural Voting, Competence, and

Participation’, History of Political Thought 24:4 (Winter 2003): 647-67.Miller, J. J. 2005. ‘Chairing the Jamaica Committee: J. S. Mill and the Limits of

Colonial Authority’, in B. Schultz and G. Variouxakis (eds.), Utilitarianismand Empire. Lexington Books.

Packer, G. 2002. ‘The Liberal Quandary over Iraq’, The New York TimesMagazine 8 December: 104-107/156.

Rawls, J. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press.Rorty, R. 1990. ‘Solidarity or Objectivity’, in his Objectivity, Relativism and

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Truth. Cambridge: Cambridge University Press.Rotberg, R. 2002. ‘Failed States in a World of Terror’, Foreign Affairs 81(4):

127-40.Said, E. 1979. Orientalism. New York: Vintage Press.Slater, J. and Nardin, N. 1986. ‘Nonintervention and Human Rights’, The

Journal of Politics 48(1): 86-96Teson, F. R. 1988. Humanitarian Intervention. Dobbs Ferry, NY: Transnational

Publishers.Waldron, J. 1993. Liberal Rights. Cambridge: Cambridge University Press.Walzer, M. 1977 [2000]. Just and Unjust Wars, 3rd edn. New York: Basic Books.Walzer, M. 1983. Spheres of Justice. New York: Basic Books.Walzer, M. 1985. ‘The Moral Standing of States’, in Charles R. Beitz et al. (eds.),

International Ethics. Princeton: Princeton University Press.Walzer, M. 2004. Arguing about War. New Haven, CT: Yale University Press.


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RE-VISITING BERLIN:WHY TWO LIBERTIES ARE BETTER THAN ONE

AVERY PLAW

Isaiah Berlin delivered his inaugural lecture as Chichele Professor of PoliticalPhilosophy at Oxford, ‘Two Concepts of Liberty’, in 1958. In the almost fiftyyears since, it has attained a canonical status, particularly as an introduction tothe idea of political liberty. Michael Sandel, for example, calls it ‘perhaps themost influential essay of post-war political theory’ (Sandel, 1984: 7). RonaldDworkin describes the essay provoking the current ‘renaissance’ of politicaltheory (Dworkin, 1991: 100). It has also, however, found more than its share ofcritics, including both Sandel and Dworkin.

Indeed, the essay’s enduring popularity stands in an odd contrast with theconsistently negative reception commentators have given the general politicalposition Berlin attempted to defend. Three readings have predominated inloosely successive waves: in the first, Berlin is presented as a classical Englishliberal defending the overriding importance of negative liberty; on the second,Berlin was a highly original and subversive strong pluralist demonstratingthe irresolvability of ultimate value conflicts; and, on a third, synthetic reading,Berlin defended a modern variant of liberalism as entailed by pluralism.

These readings evidently interpret Berlin’s purposes quite differently, but inthe end come to similarly skeptical conclusions concerning his success. Readersof Berlin as a classical liberal, such as Dworkin, Charles Taylor, Leo Strauss,Quentin Skinner, C. J. Galipeau and Michael Ignatieff, raise concerns that Berlinwas unable to satisfactorily justify the special status he claimed for negativeliberty or to define its limits. His liberalism was therefore ungrounded andundefined. Pluralists readers like John Gray and John Kekes argue that Berlin’scompelling pluralism actually undermined his liberalism. His position wastherefore inconsistent. Finally, liberal pluralist readers like William Galston and(the recent) George Crowder argue that although pluralism can be shown toentail liberalism, Berlin himself failed to establish this linkage. His theory wastherefore inchoate.

Each of these established readings of Berlin contrast strikingly with Berlin’s

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own comments on his essay. He rejected not only the suggestion that the essaywas meant primarily as a defense of negative liberty and the contrary suggestionthat the essay advanced a strong form of pluralism incompatible with hisliberalism, but also the assertion that pluralism entailed the general superiorityof liberal politics. Nonetheless, he doggedly maintained that his pluralism andliberalism were both coherent and defensible. The problem, he maintained, wasthat he had not made himself sufficiently clear.1

In this essay, I re-examine Berlin’s political thought as exemplified by ‘TwoConcepts’. I argue that while each of the established interpretations drawattention to key components of Berlin’s thought, each is ultimately unsatis-factory in failing to take adequate account of the others, and consequently inneglecting to draw out the underlying coherence of his thought.

The real achievements of ‘Two Concepts’ are its illustrations of how ourcommon understanding of liberty reveals the complex pluralism of our moraland political worlds, and how a forceful (but not logically conclusive) case for adeliberative liberal democracy can still be advanced within such a pluralistically-configured moral universe. Its critical message, properly understood, is notsimply that we neglect negative liberty (or Galston’s ‘expressive’ liberty) atour peril; nor is it simply that positive liberty (in the form, say, of Crowder’s‘personal autonomy’) makes an ultimate claim on us. Berlin’s point is rather thatwe would be best off recognizing both concepts of liberty, positive and negative,as ultimate human values (among a range of others), and working out theirsometimes competing claims in particular cases as best we can. Each conceptof liberty is dangerously vulnerable to perversion, but each is also an equallyindispensable ingredient to a decent human life, and each moderates theweaknesses of the other. In short, two liberties are better than one. Finally, thispluralist account is not only (contrary to Gray and Kekes) compatible withliberalism, but at least mildly complementary with it. Indeed, it points to whatBerlin saw as liberalism in its best, pluralist form.

I

Before delving into the three predominant readings of ‘Two Concepts’, it willbe helpful to briefly review the text. What exactly did Berlin mean by positiveand negative liberty? He presented them as answers to two questions: negativeliberty answers the question ‘how much am I governed?’ and positive freedomthe question ‘by whom am I governed?’ (Berlin, 2002: 168-9, 178-9, 35-9).

Negative liberty is concerned with ‘the area within which a man can actunobstructed by others’. It implies not being subject to ‘the deliberate inter-ference of other human beings within the area in which I could otherwise act’(Berlin 2002: 169). It encompasses ‘basic human rights … including that of freeexpression and association’, ‘freedom of contract [and] of the press’ (Berlin,2002: 34-8). These rights establish a protected realm of private choice.

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Positive freedom, by contrast, is concerned with ‘the wish on the part of theindividual to be his own master’. It asks ‘Who is to say what I am, and what I amnot, to be or do?’ It says ‘I wish my life and decisions to depend on myself, noton external forces of whatever kind’ (Berlin, 2002: 168-9, 177-80). My govern-ment must reflect my will and/or identity. It is thus positive freedom thatunderpins, for example, demands for liberty in the senses both of democracy andof national self-determination.

II

Often portraying Berlin as a staunch ‘cold warrior’ delivering an intellectualbroadside to Soviet communism, the classical English liberal readings of ‘TwoConcepts’ insist that Berlin defended a general priority of negative liberty inpublic life and roundly rejected the claims of positive liberty.2 Galipeaudescribes ‘Two Concepts’as ‘a defense of political liberalism’ in which ‘freedomfrom interference … is prior to other goods’ (Galipeau, 1994: 83, 111). Ignatieffcalls it a ‘defense of [negative] liberty’ and a ‘polemic against positive liberty’.Berlin’s core argument, in his view, was that ‘negative liberty should havepriority over other political values’; indeed, its ‘priority was procedural. Aregime of negative freedom was the best guarantee of the public discussion ofchoices that a free social life required’ (Ignatieff, 1998: 229, 257). Strauss evensuggests that Berlin demanded ‘a maximum degree of non-interference com-patible with the minimum degree of social life’ (Strauss, 1989: 14). Althoughthey suffer from some serious inadequacies, the classical liberal readings docertainly capture some important dimensions of Berlin’s argument in ‘TwoConcepts’.

Berlin advanced several reasons for acknowledging negative liberty as an‘ultimate’ political value. These arguments are intimately intertwined throughBerlin’s text, but can be disentangled and organized into the following fourtypes: (1) prudential, (2) historical, (3) conceptual, and (4) derivative.

In the first place, Berlin argued that respect for negative liberty offersprudent protection against certain forms of ‘inhuman’ treatment – such as, when‘a man is declared guilty without trial, or punished under retroactive law … orminorities are massacred because they irritate a majority or a tyrant’ (Berlin,2002: 211). The Nazis, for example, had to formulate the 1935 Nuremburg Lawsabridging negative liberty for whole groups before they could proceed with their‘final solution’. In Ignatieff’s summary, ‘Berlin argued that in the post-Holocaustera awareness of the necessity of a moral law is sustained no longer by belief inreason but by the memory of horror’ (Ignatieff, 2001: 80).

Berlin’s second argument for negative liberty is an argument in the history ofideas. He argues, in essence, that the idea of negative liberty, although relativelynew, has become integral to individual identity in the West, and perhaps wellbeyond: negative liberty is

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a conception of freedom which, for all its religious roots, is scarcely older, inits developed state, than the Renaissance or the Reformation. Yet its declinewould mark the death of a civilization, of an entire moral outlook. (Berlin,2002: 176)

It is ‘by now, an essential part of what we mean by being a normal human being’(Berlin, 2002: 210). Of course, our basic sense of liberty could change over time,but ‘principles are not less sacred because their duration cannot be guaranteed’(Berlin, 2002: 217). In the meantime, Berlin’s argument for negative libertylooks forceful, certainly for the West, and with the spread of human, andespecially civil, rights today, increasingly for the rest of the world as well.

Berlin’s third argument for negative liberty is conceptual. It focuses on whythe negative variant is particularly valuable as a concept of liberty. Here Berlinemploys his characteristic strategy of seeking the common ‘kernel of meaning’implied in all uses of a concept. This he sees as the ‘central meaning of theterm’.(Berlin, 1998: 113). In the case of liberty, Berlin argues that ‘everyinterpretation of the word “liberty”, however unusual, must include a minimumof what I have called “negative” liberty. There must be an area within which I amnot frustrated’ (Berlin, 2002: 207). In the ‘Introduction’ to Liberty, he repeats‘the fundamental sense of freedom is freedom from chains, from imprisonment,from enslavement by others. The rest is extension of this sense, or else metaphor’(Berlin, 2002: 48). The ‘central meaning’ of liberty then is minimal negativeliberty.

Berlin’s conceptual argument is that negative liberty is important because italways provides a direct protection to the ‘central meaning’ of liberty – asfreedom from enslavement or imprisonment. By contrast, positive liberty, as hegoes on to argue, is sometimes susceptible to perversions which justify, forexample, political imprisonment and torture. Again, this argument looks forcefulas long as one accepts Berlin’s plausible account of the common kernel ofliberty.

Berlin finally contended that negative liberty derives some of its importancefrom the pluralist character of our moral world. In the conclusion of ‘TwoConcepts’, for example, Berlin writes of ‘pluralism, with the measure of“negative” liberty that it entails’ (Berlin, 2002: 216). Berlin’s basic idea ofpluralism is well-summarized in this earlier passage: ‘The world that weencounter in ordinary experience is one in which we are faced with choicesbetween ends equally ultimate, and claims equally absolute, the realization ofsome of which must inevitably involve the sacrifice of others’ (Berlin, 2002:213-4). Such conflicts of equally ultimate ends are not only characteristic ofindividual moral experience, but also of that of groups, societies and evencivilizations (Berlin, 1998: 10). In light of this forceful, if not uncontroversial,claim about the real character of our moral world, Berlin asserted that it is absurdto ‘assume that all values can be graded on a scale’ (Berlin, 2002: 216).


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Especially in politics, reason affords us ‘no … general determinate procedure forsolving conflicts, such as a lexical priority rule’, ‘no single overarching standardor criterion’.3 The best hope of resolving such conflicts is rather through open,constructive deliberation attentive to the specifics of the ‘concrete situation’ inwhich they arise, and with an eye to what ‘least obstructs the general pattern oflife in which we believe’ (Berlin, 2002: 47; 1998: 14-15; Berlin and Williams,1994: 307). It is on the strength of this value pluralism that, in the final sectionof ‘Two Concepts’, Berlin repudiates monistic politics based on the dominanceof any single value – especially in utopian form. He also, however, draws frompluralism a positive argument that runs as follows:

… it is because of their [pluralistic] situation that men place such immensevalue upon the freedom to choose; for if they had assurance that in someperfect state, realizable by men on earth, no ends pursued by them would everbe in conflict, the necessity and agony of choice would disappear, and with itthe central importance of the freedom to choose. (Berlin, 2002: 214)

Berlin’s point then is that value pluralism provides a basis for arguing for theimportance of a ‘measure of “negative” liberty’ (because dilemmas often haveno right answer, and the consequences of any decision can be both devastatingand irremediable) that monism, with its insistence on a single right answer, doesnot. Although Berlin limits himself to suggesting potential connecting argumentsby contrast with monism, nevertheless the idea that value pluralism providessome support for a minimum of negative liberty, and may even entail somemeasure of it, seems plausible.

Berlin then offered a forceful case for respecting negative liberty. It isalso true, as classical liberal readings suggest, that he advanced an importantcritique of positive liberty. He argued, in short, that positive liberty is peculiarlysusceptible, at least in certain variations, to perversion.

Positive liberty is an ideal of self-mastery. I am unfree, for example, whenruled by foreign masters. The idea of positive freedom, however, may alsoexploit the intuition that self-mastery can be blocked not only externally butby internal obstacles as well – for example, by one’s own ignorance or weakcharacter or prior socialization. While Berlin accepted the validity of this insight,he stressed that it can also lead positive freedom into a dangerous area, par-ticularly when it is connected with a monistic conception of the authentic self (asopposed to the ‘empirical’ or apparent self). The authentic self alone is thenthought to make people free, and therefore it ‘is the only self that deserves tohave his wishes taken into account’ (Berlin, 2002: 179-81, 192-8). Monisticconceptions of positive freedom may then be used to justify whatever isnecessary to the realization of the ‘authentic’ (if hidden) self. The idea of theauthentic self may also be identified with larger groups – ‘a State, a class, anation, or the march of history itself…’. However, the subordination of empirical

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selves to the realization of groups and historical forces opens the door to terribleperversions of liberty: ‘Once I take this view, I am in a position to ignore theactual wishes of men or societies, to bully, oppress, torture them in the name …of their “real” selves’ (Berlin, 2002: 180). In short, in its perverse form positiveliberty is, ‘at times, no more than a specious disguise for brutal tyranny’ (Berlin,2002: 178).

III

Although there is much to be said for this classical liberal reading of ‘TwoConcepts’, it nonetheless runs into serious problems of at least three kinds: first,it imposes burdens on Berlin’s political thought that he neither tries, nor seemsable, to sustain; second, it has difficulty making sense of some of Berlin’s otherarguments in ‘Two Concepts’, most notably his criticisms of negative liberty andhis endorsements of positive liberty; and finally, it seems to clash in importantways with Berlin’s later comments on the essay.

Some of the anomalies that arise on the classical English liberal reading ofBerlin are frankly acknowledged even by Berlin’s most sympathetic ‘liberal’interpreters, like Ignatieff and Galipeau. For example, Berlin’s case for thegeneral prioritization of negative liberty seems weak – a point about which,as Ignatieff notes, Berlin seemed unconcerned (Ignatieff, 1998: 229). EitherBerlin’s arguments focus on the importance of preserving only a minimum ofnegative liberty, or, in the case of his historical argument, they relate primarily tothe West. Moreover, Berlin offered no clear discussion of the proper extent ofnegative liberty’s priority. Ignatieff pinpoints the difficulty in the followingpassage:

‘Two Concepts of Liberty’ made it clear what liberalism stood against. But itwas less clear about what liberalism was for – that is, how much social justicewas compatible with negative liberty, indeed how much justice was required.The polemic against positive liberty carried Berlin away from these questionsand left his commitments to social justice unspecified. (Ignatieff, 1998: 229)

For this reason Galipeau concludes that Berlin’s ‘contribution remains under-developed’ (Galipeau, 1994: 178).

Of course, these problems, however serious, do not necessarily show thatBerlin’s purpose was not to defend a general maximal priority for negativeliberty. His case might simply be flawed. The difficulties of the classical liberalreading are deepened, however, by the explicit critique of negative liberty Berlinadvances in ‘Two Concepts’.

Berlin’s critique of negative liberty has received too little critical attention.Indeed, he emphasized that exploitation by ruthless monism ‘could equallyhave been the fate of the doctrine of negative liberty’ (Berlin, 2002: 181, 37-9).


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Moreover, Berlin stressed that the politics of laissez faire, with its focus on theexclusive protection of negative liberty, fail to provide adequate protection forthe conditions of liberty’s exercise. In the ‘Introduction’ to Liberty Berlinexplained the brevity of his discussion of this point in ‘Two Concepts’ byprotesting that ‘the bloodstained theory of economic individualism andunrestrained capitalist competition does not, I should have thought, today needstressing’. He invoked nineteenth century English history to illustrate that ‘legalliberties are compatible with extremes of exploitation, brutality and injustice’.Under these conditions ‘“negative liberty” … is of little or no value to those whomay theoretically possess it’ (Berlin, 2002: 38).

Berlin also argued in ‘Two Concepts’ that negative liberty, particularly inisolation, can be compatible with ‘some kinds of autocracy, or at any rate theabsence of self-government’ (Berlin 2002: 176). Such unregulated politicalpower is not only undesirable in itself, but may exacerbate concentrations ofeconomic and social power which effectively evacuate the meaning of legalprotections. Thus, ‘It is doubtless well to remember that belief in negativefreedom is compatible with, and (so far as ideas influence conduct) has playedits part in generating great and lasting social evils’ (Berlin, 2002: 37).

So, ‘Each concept [of liberty] seems liable to perversion into the very vice itwas created to resist’ – oppression (Berlin, 2002: 39, 181). There is, however,a sense in which negative liberty has not historically proven as susceptible toperversion as has positive liberty. Historically, the characteristic perversion ofnegative liberty has been the erosion of the conditions of its exercise. Still, thelegal protections of individual choice remain. The perverse forms of positiveliberty, by contrast, have transformed liberty itself into the justification ofcoercion and repression.

Nonetheless, Berlin clearly raises serious concerns about the value of negativeliberty, particularly when established as a dominant political principle. Thispresents a difficult problem for the classical liberal interpreters. They mayanswer, however, that these worries about negative liberty are still less troublingthan those concerning positive liberty.

This response, however, runs into further difficulty because both in ‘TwoConcepts’ and in later comments on the article, Berlin not only tempered hiscritique of positive liberty, but explicitly defended it as an ultimate human valueequally as important as negative liberty. In ‘Two Concepts’, for example, heinsisted that positive liberty is ‘an ultimate value which, both historically andmorally, has an equal right to be classed among the deepest interests of mankind’(Berlin, 2002: 212). Two pages later, he stressed that he had ‘tried to show thatit is freedom in its ‘positive’ sense that is at the heart of demands for national orsocial self-direction which animate the most powerful and morally just publicmovements of our time …’ (Berlin, 2002: 214). In later commentaries, Berlinrepeatedly protested that positive liberty is ‘as noble and basic an ideal asnegative’.4 These statements create a grave problem for readings which present

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Berlin as mounting a polemic against positive liberty and defending the priorityof negative liberty.

Finally, there is a last point to be raised against the classical liberal reading thatI think proves definitive, and leads into the pluralist reading of ‘Two Concepts’.In the Conclusion of Section VI, Berlin explicitly rejected the classical liberaltradition that he associates with Mill and Constant:

The fathers of liberalism – Mill and Constant – want more than this minimum:they demand a maximum degree of non-interference compatible with theminimum demands of social life. It seems unlikely that this extreme demandfor liberty has ever been made by any but a small minority. … The bulk ofhumanity has certainly at most times been prepared to sacrifice this to othergoals: security, status, prosperity, power, virtue … and many other values. …(Berlin, 2002: 207)

Indeed, the failure to recognize the validity of some claims to positive libertyhad, in Berlin’s view, ‘blinded some contemporary liberals to the world in whichthey live’. Thus, he concluded, ‘Their plea is clear, their cause is just. But theydo not allow for the variety of basic needs’ (Berlin, 2002: 208).

In short then, Berlin explicitly rejected classical liberalism because it couldnot accommodate the plurality of ultimate values. He emphasized the need notonly to recognize the claims of positive liberty, but of a whole range of leadingvalues:

The extent of a man’s, or a people’s, liberty to choose to live as he or theydesire must be weighed against the claims of many other values, of whichequality, or justice, or happiness, or security, or public order are perhaps themost obvious examples. (Berlin, 2002: 215)

Indeed, Berlin seemed to encourage a pluralist reading of the essay. In hisfamous conclusion ‘the One and the Many’, for example, he appealed finally to‘pluralism’ as a ‘truer and more humane ideal’ than monism (Berlin, 2002: 216).His later revisions and comments confirm this emphasis: for instance, he com-mented that

This … was the point of the penultimate paragraph of ‘Two Concepts ofLiberty’, which was widely taken as an unqualified defense of ‘negative’against ‘positive’ liberty. This was not my intention. This much criticizedpassage was meant as a defense, indeed, but of pluralism, based on theperception of incompatibility between the claims of equally ultimate ends,against any ruthless monism which solves such problems by eliminating allbut one of the rival claimants. I have therefore revised the text … to make itclear that I am not offering a blanket endorsement of the ‘negative’ concept as


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opposed to its ‘positive’ twin brother, since this would itself constituteprecisely the kind of intolerant monism against which the entire argument isdirected. (Berlin, 2002: 50fn)

Berlin then rejected the classical liberal reading of ‘Two Concepts’ as defendingthe primacy of negative liberty, and wrote rather of defending pluralism. It isperfectly understandable then that an alternative strong pluralist reading hasrecently emerged.

IV

The strong pluralist reading of Berlin has been developed over the last decade bycommentators like John Gray, John Kekes, Erick Mack and (the early) GeorgeCrowder. On this reading ‘all of Berlin’s work’, in Gray’s words, ‘is animated bya single idea of enormous subversive force … which I call value pluralism’. His‘bottom line … is not a liberal agon but agonistic pluralism’ (Gray, 1996: 1-2).

According to this reading, Berlin argued that contemporary politics shouldbe guided by a wide range of equally ultimate political values among whichnegative liberty has no special priority. As Crowder put it, ‘If values are plural,then they must be equally valuable, hence deserving of equal respect’ (Crowder,1994: 297). Berlin’s value pluralism then, in Mack’s words, ‘consign[s] libertyto the moral scales, to be weighed against the multitude of other incom-mensurable values’ (Mack, 1993: 227).

These strong pluralist readings help to make sense of Berlin’s insistence on theequal ultimacy of negative and positive liberty, but they have great difficulty inaccommodating his liberalism. The strong pluralist readings, of which Gray’sand Kekes’ are the most developed and influential, emphasize Berlin’s assertionthat ultimate values (those that we value intrinsically) are incommensurable (thatis, each contains its own intrinsic measure of significance). They then argue thata pluralist understanding of values precludes liberal political theory in general.In Kekes’ words, ‘pluralism and liberalism are incompatible’ (Kekes, 1992:141). In Gray’s words, ‘pluralism and liberalism are rival doctrines’ (Gray, 2000:101).

For Kekes, the conflict between liberalism and pluralism arises out ofliberalism’s necessary assertion of an overriding value (although liberals aredivided over what this value should be). In his view, no liberalism that dispenseswith an overriding value deserves the name (Kekes, 1992: 145-7). Pluralism,however, precludes any overriding value and therefore precludes liberalism.

Gray argues that the conflict between liberalism and pluralism is generated byliberalism’s traditional insistence on the universal authority of its core value(s).Pluralism, however, insists on the irreducible diversity of ultimate values and ofthe forms of life that instantiate them. It therefore favors diverse forms of lifeover liberal universality. As Gray puts it, ‘what … follow[s] from the truth of

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pluralism is that liberal institutions can have no universal authority’ (Gray, 1996:155).

Gray argues, therefore, that Berlin can only bring his liberalism into line withhis pluralism by paying ‘a price [he] is reluctant to pay’, that is, by repudiatingall universality and locating ‘the ground of liberalism … in a particular culturaltradition or form of life …’(Gray, 1996: 161-3). This argument for liberalism hassome affinities, admittedly, with Berlin’s historical argument for the importanceof negative liberty, especially in the West, but abandons the argument’s widerambitions and effectively jettisons Berlin’s conceptual and prudential argumentsas well as his argument of derivation from pluralism. In short, the pluralistreading abandons too much of Berlin.

It is also unclear whether even the radical revisions that Kekes and Grayrecommend would be sufficient to salvage a coherent and defensible politicalposition for Berlin. Both Gray and Kekes draw attention to Berlin’s suggestionthat difficult value conflicts must be resolved contextually in the light of ‘theform of life in which we believe’. They argue that such value pluralism conducesbetter to a politics guided by local tradition – for Kekes, conservatism (Kekes,1998: 44-7, 60-5).

Critics like Crowder, however, have tellingly asked ‘why must context beidentified with tradition?’, and particularly with a (conservative) nationalpolitical tradition? (Crowder, 2004: 151). Moreover, the idea of tradition asa basis of conflict resolution ‘neglects the possibility of conflicts within andamong traditions’ (Crowder, 2004: 152; Galston, 2002: 50-62). Finally, even ifsome one tradition could unproblematically resolve value conflicts, the strategyfinally seems only to elevate one more alternative value – here tradition –to exactly the dominant position that value pluralism precluded. The strongpluralist reading seems then not only to give an especially ungenerous accountof Berlin’s case for liberalism, but also to lead Berlin’s thought into seriousdifficulties.

On the other hand, the strong pluralist reading of Berlin does succeed inestablishing two key points: first, it demonstrates the implausibility of theclassical liberal reading; and second, it illuminates the central problem ininterpreting Berlin’s political thought – how can his liberalism be reconciledwith his pluralism’s range of equally ultimate political values? In this way, itopens the way to a third reading of Berlin as a liberal pluralist – as advancinga strong form of pluralism which actually entails a commitment to liberalism.William Galston and (the recent) George Crowder have emerged as its leadingexponents. They disagree sharply, however, about what kind of liberalismBerlin’s pluralism entails – Galston arguing for a more Reformation-influencedliberalism emphasizing toleration of diversity, and Crowder for a moreEnlightenment-influenced liberalism which seeks to promote autonomy as itsprimary value and is intolerant of groups that are not internally pluralistic.


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V

In two important recent books, Liberalism and Value Pluralism (2002) andIsaiah Berlin: Liberty and Pluralism (2004), Crowder reverses his formerargument that Berlin’s pluralism is incompatible with liberalism, and now arguesthat a liberalism which privileges the value of ‘autonomy’ ‘is not only consistentwith Berlin’s pluralism, but is actually required by it’ (Crowder, 2004: 86, 143;2002: 1, 258-62). Crowder notes, however, that Berlin’s own statements aboutthe linkage between pluralism and liberalism are inconsistent (Crowder, 2004:142-4). In one passage at least Berlin seems clearly to indicate that some ‘liberalconsequences follow’ from pluralism (Berlin, 2000: 13) but elsewhere he insiststhat ‘Pluralism and liberalism are not the same or even overlapping concepts.There are liberal theories which are not pluralistic. I believe in both liberalismand pluralism, but they are not logically connected’ (Berlin and Jahanbegloo,1991: 44). In view of this inconsistency, Crowder thinks it best to read Berlinin terms of the former, ‘more interesting’ view, and to dismiss the latter. Healso notes, however, that ‘Berlin does not wholly succeed in explaining whypluralists should be liberals’, and so sets out to show how Berlin’s arguments canbe ‘revived and improved’.

Crowder grounds his case for pluralist entailment of liberalism on two mainlines of argument which correct and develop points made by Berlin. First, heargues that pluralism not only undermines any monist organization of public life(around a single dominant value) but also implies a case for as diverse a rangeof publicly recognized values as practically possible. Liberalism, he argues, ispeculiarly well-adapted to protecting such a diversity of goods and the reason-able disagreement among citizens that accompanies it (Crowder, 2004: 156-61).

Second, he takes up Berlin’s argument in ‘Two Concepts’ that the hard choiceswhich pluralism entails (between irreducibly distinct and incommensurablevalue-claims) gives special value to liberty. He notes that as Berlin states it,the argument falls prey to the naturalistic fallacy – moving directly from a fact(pluralism) to a value (choice-making) (Crowder, 2004: 144). He contends,however, that the argument can be re-stated to avoid the fallacy: ‘Pluralismimposes hard choices on us. To cope well with those choices, we need to developthe character traits distinctively promoted by liberal forms of politics … inparticular the exercise of personal autonomy’ (Crowder, 2004: 164). In short, weneed to be educated in autonomy to cope well with difficult choices underpluralism, and the (Enlightenment-influenced) liberalism Crowder has inmind is especially appropriate because it sharply prioritizes the promotion ofautonomy. In line with his first argument, however, Crowder’s liberalism alsopromotes diversity, as long as social groups are themselves pluralistic andheterogeneous – for ‘pluralist diversity applies within groups as well as amongthem’ (Crowder, 2004: 163, 168-9). Crowder thus concludes that value pluralismleads to Enlightenment liberalism ‘consistent with Berlin’s intentions’.

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While Crowder’s arguments are ingenious, they raise a range of difficultiesboth at the level of Berlin’s intentions and in terms of the force of the resultingargument. In terms of Berlin’s intentions, Crowder is arguably ungenerous.Berlin’s statements on the relation between pluralism and liberalism are not,when examined, strictly inconsistent. Berlin suggests that pluralism supportssome liberal values, like tolerance, but denies that it logically entails a generalliberal theory of politics. Both of these views are consistent with a belief in thecompatibility and even loose complementarity of pluralism and liberalism. Bychoosing one statement (interpreted rather problematically) and dismissingBerlin’s explicit statements to the contrary, Crowder does a disservice to thecoherence of Berlin’s views and misrepresents his intentions.

Moreover, the kind of Enlightenment liberalism Crowder favours is one thatBerlin explicitly insists that pluralist liberals will reject:

It is true, as Crowder points out, that pluralists sometimes urge the particularimportance, on their views, of some value such as variety or autonomy, whichon other views may be more or less important, or perhaps of no value at all.Once again, there is no inconsistency between their doing this, and theiraccepting that this is one value among others. If they move to asserting theoverriding importance of this value, as some liberals do, then they may beginto be in trouble with pluralism. But then pluralists will not be that kind ofliberal. … (Berlin and Williams, 1994: 308)

Indeed, as Crowder concedes, the autonomy he sees as the core value ofEnlightenment liberalism is a form of positive liberty which it is Berlin’s ‘centralpurpose’, in Crowder’s words, to ‘critique’ in ‘Two Concepts’. It is hard then tocredit Crowder’s insistence that he is merely elaborating Berlin’s arguments in‘Two Concepts’ consistent with his intentions.

Crowder’s reconfiguration of Berlin’s argument also seems to raise a numberof significant problems. For example, if pluralism asserts the equal ultimacy(as Berlin has it) of a range of political values, including positive and negativeliberty, how can it simultaneously justify the systematic prioritization of oneaspect of positive liberty – especially given Berlin’s warnings about the dangersof the perversion of positive liberty? Moreover, how can a political ideologyjustified by its promotion of diversity seek to discourage social groups that donot internally mirror its own (pluralistic) beliefs?

In another pair of influential recent books, Liberal Pluralism (2002) and thePractice of Liberal Pluralism (2005), Galston has argued that Berlin’s valuepluralism is best understood as supporting a Reformation-influenced liberalismdevoted to allowing ‘the fullest possible scope for diversity’.5 However,although Galston acknowledges that this account of liberalism ‘draws much ofits power from its consistency with the account of the moral world offered byIsaiah Berlin and known as value pluralism’, he does not strictly present his


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liberal pluralism as Berlin’s (Galston, 2002: 4-5; 2005: 11). Ironically, theposition Galston presents probably comes closer to the one Berlin developedthan any of the others canvassed thus far. Nevertheless, some important differ-ences remain, and there are at least some respects in which Berlin’s treatment ofpolitics seems more defensible than Galston’s alternative.

Galston’s central argument is that a liberalism properly grounded in Berlin’spluralism should be organized around what he calls the ‘principle of expressiveliberty’ – ‘a robust though rebuttable presumption in favor of individuals andgroups leading their lives as they see fit, within a broad range of legitimatevariation, in accordance with their own understanding of what gives life meaningand value’ (Galston, 2002: 3; 2005: 3). He focuses his argument, as he acknowl-edges, on the protection of religious diversity (in contrast, for example, toCrowder’s focus on personal autonomy), but he also insists on a robust rightof exit for individuals who dissent from their religious communities (Galston,2002: 122-3; 2005: 198-9). Moreover, the priority he assigns to expressiveliberty is limited. Specifically, Galston spells out four specific conditions underwhich it is rebuttable: ‘when necessary’ (1) to ‘reduce … conflicts among diverselegitimate activities’; (2) to ‘punish transgressions individuals may commitagainst each other’; (3) ‘to guard the boundary separating legitimate andillegitimate variations among ways of life’; and (4) ‘to secure the conditions …needed to sustain public institutions over time’.6 Where a condition is metcountervailing claims based on other leading social values like equality can‘moderate or even override claims based on … expressive liberty’ (Galston2002: 125).

Galston argues (rightly, I think) that the inclusive character of his liberalpluralism is more in keeping with Berlin’s stress on irreducible moral diversityand the importance of negative liberty than interpretations like Crowder’s whichprioritize autonomy. Yet, there remain important differences. In the first place,the expressive liberty which is the focus of Galston’s liberal pluralism encom-passes, in his own estimate, only ‘the portion of [Berlin’s] negative liberty whichbears directly on questions of identity’ (Galston, 2002: 28fn). The scope ofprotection afforded by expressive liberty is correspondingly more limited, andalso inevitably raises the difficult question of what really bears on questions ofidentity. Galston’s cases focus on protecting the practices of religious (and toa lesser degree other civil) associations, while the protection of individualconscience seems limited to a (robust) right of exit (rather than a positiveprotection of practice). If this is the case, the problem is raised of whyassociational identity is systematically privileged over individual identity onthe one hand, and overall social identity on the other – for surely a policy of‘maximal feasible accommodation’ of associational diversity can ultimatelythreaten the distinctive identity of a society (Galston, 2002: 20). Indeed, asGalston concedes, ‘one may well wonder whether liberal pluralism constitutesa form of political association capable of avoiding anarchy, pursuing shared

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purposes, and forging an even minimally adequate common life among itscitizens’.7

Moreover, Galston’s position seems less consistent with the implications ofvalue pluralism than Berlin’s, particularly in terms of what they agree is itspreclusion of any general rank ordering of values (Galston, 2005: 2). WhereBerlin, as shown in section III, only presented negative liberty as one equallyultimate value along with positive liberty (and others like equality), Galstoninsists on a strong (although rebuttable) presumption in favor of expressiveliberty – allowing exceptions only where one (of four) ‘compelling stateinterests’ apply.

The important difference between Berlin’s view and Galston’s is strikinglyillustrated in Galston’s favorite practical case, education. Galston takes it as anobvious implication of value pluralism that the state ‘cannot create a publicschool monopoly that prevents parents from sending their children to nonpublicschools’ (Galston, 2002: 93). Any such restriction on parents’ discretion wouldconstitute an intolerable restriction of their expressive liberty. Berlin, bycontrast, declares in the introduction of Liberty:

It is, I believe, desirable to introduce a uniform [public] system of generalprimary and secondary education in every country, if only to do away withdistinctions of social status that are at present created or promoted by theexistence of a social hierarchy of schools. … If I were asked why I believethis, I should give … the intrinsic claims of social equality. (Berlin, 2002:45-6)

For Berlin, the value of social equality can simply supersede the value of libertyin this case. For Galston, however, the dominance of expressive liberty can onlybe overridden under quite specific conditions, none of which he thinks applyin this case. While Galston tries to finesse the tension by characterizing hispresumption in favor of ‘expressive liberty’ as a ‘partial ordering’ of values, it isnonetheless quite steep (allowing exceptions in only four cases), and it is difficultto see how he does not fall afoul of pluralism’s insistence on the equality andincommensurability of ultimate values.

Regardless, however, of Galston’s apparent diversions from Berlin’s liberalpluralism, and the difficulties that seem to arise from such diversions, thesecriticisms have little force unless Berlin can be shown to better square the circleof pluralism and liberalism (as complementary). In the last section whichfollows, I outline how Berlin’s own liberal pluralism can best be understood.

VI

Berlin insisted that he was committed both to liberalism and to pluralism,and, contrary to the claims of commentators like Gray and Kekes, that these


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commitments were fully compatible. On the most generous reading of hiscomments, he suggested a loose complementarity between the two – althoughnot the entailment that Crowder and Galston insist upon. To show how he linkedthese commitments, it will be useful to return to his central line of argument in‘Two Concepts’. Contrary to the classical liberal reading of the essay as assertinga strong (even maximal) primacy for negative liberty, Berlin himself embracedboth positive and negative liberty as equally ultimate political values within whathe calls an ‘uneasy’ or ‘precarious equilibrium’ (Berlin, 1998: 15-16):

Both concepts of liberty offer their own promise and their own danger:Emphasis on negative liberty, as a rule, leaves more paths for individuals orgroups to pursue; positive liberty, as a rule, opens fewer paths, but with betterreasons or greater resources for moving along them; the two may or may notclash. (Berlin, 2002: 49)

Both are distinct and valid goals in themselves, but there is also an importantsense in which both act as correctives against the degenerative tendencies of theother - positive liberty is valuable because ‘without it, negative liberty may betoo easily crushed’ by being evacuated of the conditions of its exercise; on theother hand, a commitment to negative liberty constrains the perversion ofpositive liberty by directly protecting its ‘central meaning’, and preventingimprisonment or coercion in the name of an elusive ‘authentic self’. What Berlinshowed in ‘Two Concepts’ is that there are two equally legitimate and ultimateforms of liberty, and that we are best off recognizing both of them, and balancingthem as best we can in particular situations. Thus he concluded, ‘Negative libertymust be curtailed if positive liberty is to be sufficiently realized; there must be abalance between the two, about which no clear principle can be enunciated’(Berlin and Jahanbegloo, 1991: 41).

His basic position then was essentially pluralist – distinguishing twoirreducibly distinct and equally ultimate values (two forms of liberty) which cancome into conflict, and whose claims then need to be worked out in reference tothe details of the particular case and the general form of life in which they occur.He also mentioned other ultimate values, like equality and justice, although hisfocus in ‘Two Concepts’ is on liberty. How then does this pluralism – thisequality of ultimate, incommensurable and sometimes conflicting values –connect complementarily with liberalism?

The key to the relationship is Berlin’s understanding of the liberal tradition asitself pluralistic, and therefore as particularly well-suited to a deeply pluralisticsociety. For him, the tradition of political liberalism is grounded in a core liberalmorality which he described as follows in ‘Two Concepts’:

Equality of liberty; not to treat others as I should not wish them to treat me;repayment of my debt to those who alone have made possible my liberty or

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prosperity or enlightenment; justice, in its simplest and most universal sense– these are the foundations of liberal morality. Liberty is not the only goal ofmen. (Berlin, 2002: 172)

Liberalism is, even in its most basic moral sense, a constellation of values, likeliberty and justice, and so can be said to be especially appropriate to a worldcharacterized by a similar diversity of leading values. Indeed, as noted in thelast section, the leading theories of liberalism have historically taken twopredominant forms – an Enlightenment form devoted to the realization ofpositive liberty as ‘autonomy’, and a Post-Reformation form devoted primarilyto tolerance and the protection of negative liberty.8 Liberalism is then definedhistorically by the two concepts of liberty that Berlin affirmed in ‘TwoConcepts’. Moreover, contemporary liberal theories are most typically framedaround theories of justice (as exemplified in the work of John Rawls) or equality(as illustrated in the thought of Ronald Dworkin). In its internal debates, then,the liberal tradition tracks roughly the ultimate values that Berlin saw charac-terizing modern pluralism.

No doubt, some specific theories of liberalism, as Berlin noted, are monisticin nature, giving precedence to one leading value over the others, but as we haveseen these are not the theories that pluralists like Berlin support:

If they move to asserting the overriding importance of this value, as someliberals do, then they may begin to be in trouble with pluralism. But thenpluralists will not be that kind of liberal. …

What Berlin was interested in supporting was what he called ‘a liberal society ofa pluralist kind’:

… what we need is a kind of system which permits pursuit of several valuesso that, so far as possible, there arises no situation which makes men dosomething which is contrary to their deepest moral convictions. In a liberalsociety of a pluralist kind there is no avoiding compromises … the very worstcan be averted by trade-offs. So much for this, so much for that. How muchequality, how much liberty? … How much kindness, how much truth? Ibelieve in a pluralist democracy, which demands consultation and com-promise, which recognizes the claims – rights – of groups and individualswhich, except in situations of extreme crisis, is forbidden to reject democraticdecisions. (Berlin and Jahanbegloo, 1991: 143-4)

‘Liberalism of a pluralist kind’ is well-suited to guiding such a pluralistdemocracy because it recognizes a spectrum of leading values embedded in theliberal tradition and exemplified by the ‘Two Concepts of Liberty’. In this way,it contrasts sharply with the totalitarian political traditions that Berlin was mainly


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concerned to criticize, which tend to give priority to perverse forms of positiveliberty.

Because liberalism is in this way preferable to totalitarianism does not mean,however, that liberalism is the only legitimate, or even always the best, form ofpolitics in a pluralist society (especially if liberalism itself takes monistic form).There is no necessary reason why other political traditions, such as conservatismor social democracy, especially when they are more intimately bound up withthe life of a particular society and are themselves internally pluralistic, cannotsometimes offer a viable and even preferable alternative to a liberal politics. Butgiven its rich heritage of values and its commitment to open deliberation overparticular cases of value conflict, Berlin’s suggestion of a real complementaritybetween pluralism and liberalism carries significant force.

At this point, however, an important objection can be raised against Berlin’sargument. If Berlin rejects monistic liberal political theories and endorses onlythose which recognize a range of equally ultimate guiding values, preferably thefull pluralist spectrum, does he not effectively collapse liberalism into pluralismand at the same time deny liberals the opportunity to argue for some particularvalue or set of values as of special importance? Berlin’s answer has already beengiven in response to Crowder. He stresses that ‘there is no inconsistency’between recognizing the diversity of ultimate values on one hand, and feeling the‘particular importance’ of a specific value – as long as pluralists do not seek tooverride other contending values with a procedural priority, but limit themselvesto attempting to persuade others of its importance. For example, I might feel thatnegative liberty is of special importance, but recognize that you legitimatelybelieve the same of personal autonomy, and so I will not seek to impose my viewon you but will try to persuade you to accept my view in particular cases ofconflict. Indeed, this is exactly the ideal of behavior with which Berlin concludes‘Two Concepts’: ‘to realize the relative validity of one’s convictions … and yetto stand for them unflinchingly is what distinguishes a civilized man from abarbarian’ (Berlin, 2002: 217). It is also this restrained liberal pluralist attitudewhich gives the answer to Kekes’ and Gray’s complaints about how pluralismundermines liberalism: a pluralist liberal can believe that a preferred value (orvalues) should generally supersede others in deliberation over particular cases,even universally, provided that they recognize the legitimacy of countervailingclaims and limit themselves to advancing their beliefs in open, democraticdeliberation, and do not seek any procedural priority. They thus keep faith withboth liberalism and pluralism.

In sum then, classical English liberals are correct to see ‘Two Concepts’ as acold-war broadside against totalitarianism, but mistaken to think that the core ofBerlin’s argument for liberalism is the privileging of negative liberty – it is ratherthe combination of liberties. Pluralist readers are right in thinking the core ofBerlin’s thought is his insight into the diversity of equally ultimate values (anddifferent expressions of the same value), and that this insight undermines monist

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forms of liberalism, but mistaken to see it as incompatible with a pluralistliberalism. Finally, Crowder and Galston are correct to see an important comple-mentarity between pluralism and liberalism, but both exaggerate this into anecessary, logical linkage, and wind up defending forms of liberalism which givestrong precedence to a form of negative or positive liberty.

Of course, there are many salient concerns that can be raised in relation toBerlin’s pluralist liberalism. For example, his precarious equilibrium of ultimatevalues demands at least a rough idea of what these values are, and that is likelyto become a point of dispute and frustration. Moreover, it calls on citizenscontinually to assess and balance the claims of these ultimate values in particularcases – an agonizing, contentious and time-consuming task. Indeed, Berlin canbe said to import the possibility of genuinely irreconcilable, tragic conflict overultimate values into the very heart of public life. Finally, a troubling question canbe raised over whether modern individuals are psychologically capable ofmaintaining overriding/universal values without undermining their recognitionof pluralism and vice versa. While all of these are legitimate concerns warrantingconsideration, none of them impeaches the coherence or insight of Berlin’sthought. In ‘Two Concepts’ then, Berlin advances a forceful case for liberalpluralism on the basis of the equal importance of two distinct and potentiallycontradictory concepts of liberty with which his critics have yet to fully come togrips.

Notes1 Berlin acknowledges this in a number of places, including: Berlin, 2002: 3, 38; Berlin 1983:

388, 393; Berlin and Lukes, 1998: 93.2 See, for example, Ignatieff, 1998: 250; Strauss, 1989: 13-18; Skinner, 1984: 194-6, 202-17;

Dworkin, 2001: 84; Taylor, 1979: 175-9; and C. B. Macpherson, 1973: 103-18.3 Berlin, 2002: 215-16; 1990: 32; Berlin and Williams, 1994: 306. Similarly, in the ‘Introduction’

he insists that such conflicts can ‘not be solved by any hard-and-fast rule’ for ‘the issue dependson one’s view of human nature, or of human goals (on which men differ)’. ‘The simple point Iam concerned to make is that where ultimate values are irreconcilable, clear-cut solutionscannot, in principle, be found’ (Berlin, 2002: 41-3).

4 See Berlin and Lukes, 1998: 93; Berlin, 2002: 39, 49; Berlin and Jahanbegloo, 1991: 41.5 See Galston, 2002: 23-6; 2005: 180. His most detailed examination of this relationship can be

found in his chapter in Liberal Pluralism, ‘From Value Pluralism to Liberal Pluralist Politics’(2002: 48-64). In The Practice of Liberal Pluralism in particular, however, he stresses thatwhatever the conclusion of ‘liberal pluralist “ideal theory”’, they are ‘inadequate’ to practicalpolicymaking in our ‘highly imperfect and challenging circumstances’ (2005: 198). As a matterof ‘prudence’, especially when not dealing with ‘advanced industrial societies’, Galstonbelieves that liberal pluralists should be willing to recognize the legitimacy of a wide-variety ofregimes, including ‘non-democratic governments’ provided that they meet the standards ofminimal universal morality (and particularly the protection of basic liberty).

6 See Galston, 2002: 3; 2005: 3. In the latter book, Galston reduces the conditions to three,seemingly by the integration of conditions 2 and 3.

7 See Galston, 2002: 125. Galston ends his book by trying to offer some reassurance on this point(Galston, 2002: 125-30), but nonetheless puts his finger on a concern that many readers willcontinue to feel.


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8 Just as Berlin describes contemporary individuals as the children of both the Enlightenment andthe great historical revolt against it, so too is liberalism the child of this dual heritage (Berlin1999: 141-2).

References

Berlin, I. 2002. Liberty. H. Hardy (ed.). Oxford: Oxford University Press.Berlin, I. 2000. The Power of Ideas. H. Hardy (ed.). London: Chatto & Windus.Berlin, I. 1999. The Roots of Romanticism. H. Hardy (ed.). Princeton: Princeton

University Press.Berlin, I. 1998. The Proper Study of Mankind. H. Hardy and R. Hausheer (eds.).

London: Pimlico.Berlin, I. 1983. ‘Reply to Robert Kocis’, Political Studies 31: 388-93.Berlin, I. and Lukes, S. 1998. ‘A Conversation with Isaiah Berlin’, Salmagundi

120: 52-135.Berlin, I. and Williams, B. 1994. ‘Pluralism and Liberalism: A Reply’, Political

Studies 42: 393-403.Berlin, I. and Jahanbegloo, R. 1991. Conversations with Isaiah Berlin. New

York: Charles Scribner’s and Sons.Crowder, G. 2004. Isaiah Berlin: Liberty and Pluralism. Malden, MA: Polity

Press.Crowder, G. 2002. Liberalism and Value Pluralism. New York: Continuum.Crowder, G. 1994. ‘Pluralism and Liberalism’, Political Studies 42: 293-305.Dworkin, R. 1991. ‘Two Concepts of Liberty’, in E. and A. Margalit (eds.),

Isaiah Berlin: A Celebration. London: The Hogarth Press.Galipeau, C. J. 1994. Isaiah Berlin’s Liberalism. New York: Oxford University

Press.Galston, W. 2005. The Practice of Liberal Pluralism. Cambridge: Cambridge

University Press.Galston, W. 2002. Liberal Pluralism. Cambridge: Cambridge University Press.Gray, J. 2000. ‘Where Pluralists and Liberals Part Company’, in M. Baghra-

manian and A. Ingram (eds.), Pluralism. New York: Routledge.Gray, J. 1996. Isaiah Berlin. Princeton: Princeton University Press.Ignatieff, M. 2001. Human Rights as Politics and Idolatry. A. Gutmann (ed.).

Princeton: Princeton University Press.Ignatieff, M. 1998. Isaiah Berlin: A Life. Toronto: Viking Press.Kekes, J. 1998. A Case for Conservatism. Ithaca: Cornell University Press.Kekes, J. 1992. ‘The Incompatibility of Liberalism and Pluralism’, American

Philosophical Quarterly 29(2): 141-51.Lilla, M., Dworkin, R. and Silvers, R. (eds.) 2001. The Legacy of Isaiah Berlin.

New York: New York Review of Books.Mack, E. 1993. ‘Isaiah Berlin and the Quest for Liberal Pluralism’, Public

Affairs Quarterly 7(3): 215-30.

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Macpherson, C. B. 1973. Essays in Democratic Retrieval. Oxford: ClarendonPress.

Sandel, M. (ed.). 1984. Liberalism and its Critics. New York: New YorkUniversity Press.

Skinner, Q. 1984. ‘The Idea of Negative Liberty’, in R. Rorty, J. B. Schneewindand Q. Skinner (eds.), Philosophy in History. New York: CambridgeUniversity Press.

Strauss, L. 1989. The Rebirth of Classical Political Rationalism. Thomas Pangle(ed.). Chicago: University of Chicago Press.

Taylor, C. 1979. ‘What’s Wrong with Negative Liberty?’, in A. Ryan (ed.), TheIdea of Freedom: Essays in Honor of Isaiah Berlin. Oxford: OxfordUniversity Press.


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WAGING WAR AGAINST IRAQ:JUS AD BELLUM CONSIDERATIONS

CHRIS J. DOLAN

The US-led invasion of Iraq is an attractive case to assess against the frameworkof just war theory, which has influenced the Bush administration’s effort toconstruct a moral and political basis for launching the war. On the whole, the justwar tradition has developed with a rich historical significance when it comes toevaluating the moral and political implications of warfare. The advantage of justwar theory is that it recognizes conflict among states and seeks to constrict itsdestructiveness and frequency by demanding the observance of jus ad bellum,jus in bello, and jus post bello moral principles. For some, this article may appearas an unethical relaxation of moral structures designed to constrain the use offorce. Others may interpret the argument as an exaggeration of moral concernsand international restraints. The goal here is to tap the just war tradition, whichat times allows for the use of force with limitations, in observing and assessingjus ad bellum considerations in the Bush administration’s case for war againstIraq.

The Evolution of Justice in War

The concept of just war was developed by early Christian philosophers wholinked war with the objective standard of punishing transgressions. St Ambrose(2002) believed that Christians have a moral obligation in charity to use force toprotect the innocent and St Augustine (1972) claimed that a just war is promptedby an injury committed by an adversary and with the goal of establishinga lasting peace. St Thomas Aquinas argued that a just war is waged by ‘theauthority of the sovereign’ to further ‘the advancement of good, or the avoidanceof evil’ (1952: XL, 1). Notions of justice were based on universally recognizedcriteria for what was considered ‘good’ or ‘bad’. It meant, however, that just warapplied to wars among Christians, not to wars with non-Christians.

As early Christian doctrine gradually diminished with the emergence ofsovereign states, global exploration and conquest, and the Reformation, scholars

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began recognizing that objective justice in war is largely unknowable. Thedilemma, according to James Turner Johnson, was ‘simultaneous ostensiblejustice’ or the idea that war could appear just to all warring parties (1998).Francisco de Vitoria observed that just war has different meanings in sub-stantively different contexts and should be grounded in natural law: ‘[t]here is asingle and only just cause for commencing a war, namely, wrong received’ (seeGajzágó, 1942: 229). Vitoria claimed that non-Europeans could legitimatelymake a case for just war against Europeans in the Americas. He argued, ‘there isno inconsistency, indeed, in holding the war to be just on both sides’ and assertedthat while warring parties must appeal to just cause, this does not necessarilymean that one is justified in waging war (1934: XL, 6). For Vitoria, just war wasnot unique to Christians; it was common to all.

What if a rightful authority only probably, as opposed to certainly, can claimto wage a just war? Hugo Grotius supplied legal justification for would come todefine contemporary interpretations by contending that the causes invoked forwar may not necessarily be equivalent to the causes that prompted the hostilities.In referring to ‘defense, recovery of property, and punishment’ as just causesfor war, he permitted justifiable preemption as a way of thwarting attacksbefore they are launched (Grotius, 1999: 174). Before preemption is employed,a legitimate authority must be certain that an enemy intends to attack. FranciscoSuárez added that a just war must represent a proportional response to the wronga state is attempting to right. Thus, cruel acts on the part of aggressors do notnecessarily give others the moral right to wage war (Suárez, 1944: 805, 817).

Although Balthasar Ayala agreed that a just war must be initiated by alegitimate authority, he claimed that rulers must also possess rightful intentions.For Ayala, rightful intentions involve ‘an entire absence of passion to do hurt andof vengeful savagery and of the lust of conquest’ (1912: 10-11). This added ameasure of possibility because a legitimate authority could justifiably claim justcause but possess unjust and wrongful intentions in resorting to war. The goalof a just war should be so that ‘peace may appear to be its sole object’ (Ayala,1912: 8).

With the emergence of the post-Westphalia system of state sovereignty, justwar fell into a temporal category and was crystallized as a coherent conceptcomposed of three principal segments: jus ad bellum (justification for going towar), jus in bello (conduct of justifiable acts in wartime), and jus post bello(justifiable establishment of peace). For Suarez, the advantage of the frameworkis exhaustive, since ‘periods must be distinguished with respect to every war: itsinception; its prosecution, before victory is gained; and the period after victory’(see Kellogg, 2002: 84).

In the post-WW II era, subjective interpretations influenced legal and moralthought as international organizations were authorized to constrain the use offorce by states. Authorization to use offensive force, in particular, was lodged inthe United Nations Charter and the UN Security Council. Although Article 51

Waging War against Iraq: Jus Ad Bellum Considerations

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allows defence against attacks already launched, the development of the just wartradition also permits states to preempt imminent attacks still in preparation.However, the Cold War rendered the UN largely unable to prevent the nucleararms race, East-West tensions, and proxy wars fought by the major powers. Withthe collapse of the Cold War, the UN was, theoretically, better suited to intervenein conflicts. However, it proved ineffectual in Bosnia and Kosovo, Afghanistan,Sudan, Somalia, and Rwanda, as well as in dealing with non-state terrorism.Collective defence overlooked the reality that the international system as definedthrough the UN depended on sovereign states.

The Bush Administration’s Case for Just War against Iraq

Just Cause

Just Cause is often framed as the most fundamental requirement in the justwar framework. The classical formulation advanced by Aquinas emphasizedretribution: ‘a just cause is required namely that those who are attacked deserveit for some wrong they have done’ (1952: XL, 1). Important for Grotius was thatJust Cause must be declared publicly for all to judge, thereby imposing moralrestraints on a legitimate authority’s claim to serve as the definitive arbiter. Indoing so, Grotius defined the parameters around which the relationship betweenthe just war tradition and international law would evolve (see Christopher,1999). Although contemporary interpretations view aggressive action as unjust,the use of force in response to an ongoing or recent attack is legitimate. Article51 of the Charter of the United Nations holds that nothing ‘shall impair theinherent right of individual or collective self-defense if an armed attack occursagainst a member of the United Nations’ (UN Charter: Article 51).

However, the nexus between Just Cause and self-defence is somewhatrestrictive. According to President Bush’s 2002 National Security Strategy(NSS), ‘nations need not suffer an attack before they can lawfully take actionto defend themselves against forces that present an imminent danger of attack’(2002: 12, 19). The use of preemptive force may be legitimate when invoked toobviate an imminent threat that has yet to strike. James Wirtz and James Russelldescribe preemption as ‘upon detecting evidence that an opponent is about toattack, one beats the opponent to the punch and attacks first to blunt theimpending strike’ (2003: 4). Grotius claims that while the use of preemptiveforce against attacks still in preparation is justified, the right is not absolute: ‘Thedanger [to be defended against] must be immediate, and as it were, at the pointof happening … If my assailant seizes a weapon with an obvious intention ofkilling me, I admit too that I have a right to prevent the crime’ (1901: 2, 1-2, 1).Similarly, US Secretary of State Daniel Webster clarified that America couldlegitimately preempt an attack only when ‘the necessity of that self-defense isinstant, overwhelming, and leaving no choice of means and no moment for

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deliberation [the act of self-defense must also involve] nothing unreasonable orexcessive’ (1906: 412).

In contrast, preventive war is the use of force to eliminate a perceived threatthat is not yet imminent (Walzer, 1977: 21). For Wirtz and Russell, preventivewar sees ‘that it is better to fight now while the costs are low than later when thecosts are high’ (2003: 4). Walzer elaborates by describing preventive force as an‘attack that responds to a distant danger, a matter of foresight and free choice’and ‘has nothing to do with the immediate security of boundaries’ (1977: 75-6).

Although Walzer asserts that just war legitimately supports preemption, heputs forth a ‘moral necessity of rejecting’ preventive war since it is based onsuspicion (1977: 81). Threats must represent ‘a manifest intent to injure, a degreeof active preparation that makes that intent a positive danger, and a generalsituation in which waiting, or doing anything other than fighting greatlymagnifies the risk’ (1977: 81). Regarding the use of force against Iraq, the firsttwo requirements will be discussed in relation to Just Cause and the third inrelation to Last Resort. Based on Walzer’s framework, Iraq must possess hostileintentions and be in active preparation to engage in aggressive action against theUS and its allies. However, uncertainty is a significant obstacle as we sometimesonly have probable rather than certain knowledge of hostile intent and activepreparation.

Evidence suggests that the Bush administration was certain in its convictionthat Iraq had hostile intentions by claiming that it demonstrated an ‘unrelentinghostility toward the United States’ and was a ‘grave and gather threat’ (CIA,2002). Bush argued Iraq ‘aids and protects terrorists, including members of alQaeda’ and that ‘you can’t distinguish between Al Qaida and Saddam when youtalk about the war on terror’ (2002b; 2002e). Eliminating Saddam would achieveretribution for hostile intentions and eliminate the threat of WMD falling into thehands of terrorists ‘on any given day’ (Powell, 2002).

The administration was also certain in its confidence that Iraq was in activepreparation to produce WMD. According to President Bush, this rendered theconventional aggressor-defender conception obsolete: ‘Facing clear evidence ofperil, we cannot wait for the final proof – the smoking gun – that could come inthe form of a mushroom cloud …’ (2002a). In referring to Saddam’s nuclearcapabilities, Bush even claimed that Saddam was ‘six months away fromdeveloping a weapon’ (quoted in Milbank, 2002: 1). Vice-President RichardCheney further asserted: ‘there is no doubt that Saddam Hussein now hasweapons of mass destruction …’ (2002). Secretary of Defense Rumsfeld evenboldly asserted that: ‘Any country on the face of the earth with an activeintelligence program knows Iraq has weapons of mass destruction’ (quoted inCullihan, 2002: 5).

The problem is that the administration’s definitions of hostile intent and activepreparation were far too broad, especially when examined in light of its post-9/11 strategy of ‘regime change’ against so-called rogue states seeking WMD,


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sponsoring terrorism, and challenging US global power. According to RichardBetts: ‘When security is defined in terms broader than protecting the near-termintegrity of national sovereignty and borders, the distinction between offenseand defense blurs hopelessly. … Security can be as insatiable an appetite asacquisitiveness – there may never be enough buffers’ (1982: 14).

In making its accusations, the administration weakened the imminence-criterion in Just Cause by considering the mere possession of allegedunaccounted for WMD as imminent threats. According to the United NationsMonitoring, Verification, and Inspection Commission (UNMOVIC), ‘up untilthey were withdrawn from Iraq on 18 March – the day before the armed actionbegan – United Nations inspectors had found no continuation or resumption’ ofa WMD programme in violation of its international obligations (UN SecurityCouncil, 2003). After the invasion, Hans Blix claimed that the US jumped to ‘theconclusion that something exists just because it is unaccounted for’ (2003). Whatappeared as legitimate preemption was, in reality, a preventive war.

Just Cause has also come to imply that states can use force in defence of otherswho are being threatened (Walzer, 1977: 59). Defending victims of repression,atrocities, and crimes against humanity via humanitarian interventions (HI) hasbeen considered just cause for resorting to war (Walzer, 1977: 101-8; Johnson,1999: 117). While HI can be interpreted arbitrarily, an imminence-criterionprovides some clarity. HI is justified when far reaching human rights violationsare committed as a result of a government’s inability or unwillingness to protectthe innocent at the very moment the suffering occurs. Thus, states lack moraljustification in using force long after the repression has occurred (Walzer, 1977).

President Bush accused Saddam of being a ‘murderous tyrant’ and a ‘brutaldictator’ who was ‘capable of killing millions’ (Bush, 2002a). True, Saddam andhis Baath Party murdered tens of thousands of innocent civilians, mostly Shiitesand Kurds. In the past, there were times when the human suffering was so intensethat a HI would have been justified; for example, during the 1988 Anfal genocideagainst the Kurds, when chemical weapons were used, or in 1991 after GeorgeHW Bush encouraged Shiite and Kurdish insurrections (Aburish, 2000: 259).However, in 2003, Human Rights Watch concluded that Saddam was notengaged in the type of killing near this magnitude (HRW, 1995). A ‘better latethan never’ argument is not consistent with Just Cause.

Legitimate Authority

War cannot be just if it is not waged by legitimate authorities (Coates, 1997;Krasner, 1999). While the principle refers to state institutions as legitimateauthorities, legitimacy does not primarily derive from national interests. Inparticular, a state’s right to wage war has also come to be drawn from itsinternational legal commitments to maintaining global peace and collectivesecurity (Coates, 1997: 126-8). As Grotius claimed, only ‘by the law of nations

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it is right to take up arms in order to weaken a rising power, which, if it grew toostrong, might do us harm …’ (quoted in Johnson, 1998).

Although a state can legitimately wage a preemptive war against a threat withhostile intent and in active preparation to attack, in the absence of an imminentthreat or an actual armed attack the use of offensive force must be authorizedby the United Nations. Article Two, Section Three of the Charter of the UNobligates that member states ‘settle their international disputes by peacefulmeans in such a manner that international peace and security, and justice, are notendangered’ (UN Charter: Article 2, Section 3). Furthermore, Article Two,Section Four states: ‘All Members shall refrain in their international relationsfrom the threat or use of force against the territorial integrity or politicalindependence of any state …’ (UN Charter: Article 2, Section 4). To resolvedisputes that may lead to armed attacks, member states must bring theirdisagreements before the Security Council. The Council can authorize states,coalitions, or regional organizations with all ‘all necessary means’, includingsanctions, embargoes, or force to resolve a conflict (UN Charter: Article 2,Section 4).

But what constitutes an armed attack? According to the International Courtof Justice (ICJ) in Nicaragua v. United States (1986), an armed attack covers‘the sending by or on behalf of a state of armed bands, groups, irregulars ormercenaries’ and a state’s ‘substantial involvement therein’ (see Franck, 2003).Although the ICJ rejected the notion that mere assistance constituted an armedattack, it did hold that force is legitimated in light of grave acts, which doconstitute as armed attacks.

The formal endorsement of the UN Charter by member states does not resolvethe question of where Legitimate Authority in waging preemptive war ultimatelyresides. One position is that the Security Council retains exclusive authority,since it is the only institution that represents all sovereign states. A secondposition holds that the right to wage an offensive war is vested primarily,although not exclusively, in the Security Council given that regional organiz-ations and other informal coalitions can legitimately act in an autonomousfashion. Consistent with this second position, Paul Ramsey refers to the lack ofan ‘exercise of real power’ by the Security Council and Walzer cites the failureof the UN to at times act in a ‘willing and able’ fashion (quoted in Coppieters andFotion, 2002: 50). President Bush conforms to a third position: ‘when it comesto our security, we really don’t need anybody’s permission’ (2003).

As much as Iraq had to fulfill its international commitments to disarm, the UShad to fulfill its own commitments as a member state to adhere to UN restrictionson authorizing war. Article 39 gives the Security Council the power to ‘deter-mine the existence of any threat to the peace, breach of the peace, or act ofaggression and shall … decide what measures shall be taken … to maintain orrestore international peace and security’ (UN Charter: Article 39). Article 42adds, ‘Should the Security Council consider that measures … be inadequate or


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have proved to be inadequate, it may take such action by air, sea, or land forcesas may be necessary to maintain or restore international peace and security …’(UN Charter: Article 42). In the absence of an armed attack or an imminentthreat, the US does not possess Legitimate Authority to unilaterally enforce UNresolutions against Iraq unless the Council determines there has been a breach orexplicitly authorizes military force.

Moreover, since Iraq did not carry out or possess the means to engage in anarmed attack on the US or its allies, an appeal to self-defence in Article 51 doesnot hold. Resolution 1441 did supply ‘Iraq … a final opportunity to complywith its disarmament obligations’ (UN Security Council, 2002). The resolutionfurther stated that should Iraq fail to comply with disarmament, the Councilwould:

convene immediately … to consider the situation and the need for fullcompliance with all of the relevant Council resolutions in order to secureinternational peace and security … [and] … recalls, in that context, that theCouncil has repeatedly warned Iraq that it will face serious consequences asa result of its continued violations of its obligations. (UN Security Council2002)

The resolution did not authorize the use of military force; however, the in-sinuation was that if Iraq did not take its ‘final chance’, ‘serious consequences’would follow.

Rightful Intentions

Whereas Just Cause is concerned with the ideas for which a state is fighting andLegitimate Authority with recognized legal entities, Rightful Intentions dealswith genuine goals and the means by which they are achieved (Christopher,1999: 40; US Catholic Bishops 1992). Just Cause may be pursued with intentionsthat have little to do with Just Cause. Augustine warned against the influence ofpersonal intentions in waging warfare: ‘the real evils of the war are love forviolence, revengeful cruelty, fierce and implacable enmity, wild resistance, andlust for power’ (1872: 22, 74). Any state can attack another with Just Cause, butgo to war intending to occupy territory or exploit resources.

On the whole, a state’s intention to wage war should be directed at promotingJust Cause (Coppieters and Kashnikov 2002: chapter 4). While a state may havemultiple intentions, the intention to act in accord with Just Cause should pre-dominate. However, is it sufficient to claim that good intentions should prevailamong the various intentions involved in the decision to launch a war? In thecase of mixed intentions, subjectivity makes satisfying this just war principle adifficult task indeed. One could assume that America’s primary intention was toensure Iraqi disarmament; however, such an interpretation may allow the US and

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its allies to claim that it was also their intention to control territory or economicresources. Promoting additional intentions does not necessarily mean that the USfails adhering to Rightful Intentions; however, waging war primarily to obtainterritory or serve economic interests is not.

Among the Bush administration’s intentions were that regime change in Iraqmight lead to a flourishing of democracy and that Iraqi oil belongs to the Iraqipeople. With respect to promoting democracy, Bush’s NSS contends, ‘We willactively work to bring the hope of democracy, development, free markets, andfree trade to every corner of the world’ (2002: 4). The challenges are formidablegiven many consider a strategy of ‘democratic enlargement’ a reflection ofhegemonic intentions. Besides, a democracy built on strong institutions takesdecades to evolve. More important, the US would not have much time to conveyits rightful intentions and underscore ownership of the democracy by the Iraqipeople.

Intentions can also be viewed from an economic standpoint. It cannot beoverlooked that Iraq currently possesses the world’s second largest proven oiland natural gas reserves (EIA, 2004). Prior to the war, Vice President Cheney’sEnergy Task Force declared that ‘The [Persian] Gulf will be a primary focusof US international energy policy’ (Witt and Kemper, 2002: 1). A report by theCouncil of Foreign Relations (CFR) and endorsed by the Bush administration’sDepartment of Energy asserted that ‘the US should conduct an immediate policyreview toward Iraq including military, energy, economic and political/diplomaticassessments’ (Morse, 2001). On 16 January 2003, the administration met with oilexecutives to plan the post-war expansion of Iraqi oil production (Walsh, Borger,et al., 2003: 1). Ahmad Chalabi, leader of the Iraqi National Congress, was evenquoted as saying: ‘American companies will have a big shot at Iraqi oil’ (quotedin Collier, 2002: 1). The role of economic intentions is a significant matterbecause it reduces the moral significance of Just Cause.

Likelihood of Success and Proportionality

Grotius identified the principle of Likelihood of Success as a force that stateshad to contend with when making the decision to go to war or in response toan ongoing attack (1901: 2, 24, 4-8, 280-4). The problem lies with the term‘success’, which can mean almost anything (Coates, 1997; Regan, 1996: 17-18).Another drawback is in the tendency of states to redefine victory as events in thewar unfold.

Preemption must succeed in reducing or eliminating threats. The Bushadministration appeared confident that the military would succeed on thebattlefield and that most Iraqis would aid coalition forces. On 6 February 2003,Cheney contended, ‘the read we get on the people of Iraq is there is no questionthey would like to get rid of Saddam Hussein and they will welcome as liberatorswhen we come to do that’ (quoted in Milbank, 2003: 1). To avoid the risk of a


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prolonged conflict among insurgent groups during an occupation, the US wouldneed a stable post-Saddam government.

The probability of a stable Iraq after Saddam would be determined by twoelements. First, the military presence during the occupation would have to bestrong and large enough to secure Iraq’s borders, patrol the cities, conduct raidsinto insurgent areas, and deliver humanitarian assistance to civilians. However,the administration was divided over how many troops would be needed. ArmyChief of Staff General Eric Shinseki and Army Secretary Thomas White arguedthat a smaller force would make it difficult to stabilize Iraq and providehumanitarian relief. They favored roughly 400,000 troops, which was far morethan the 75,000 troops Rumsfeld was willing to provide (Fallows, 2004). It washighly debatable as to whether or not the 130,000 US troops the administrationdeployed would serve as an effective occupational authority to win over thepopulace and demonstrate that it not only has good intentions, but the will tosucceed in constructing a stable, democratic Iraq (Anderson, Bennis, et al., 2003;Norton-Taylor and MacAskill, 2004: 1; Wright and Graham, 2004: 1).

Second, the campaign to overthrow Saddam would entail a large-scalemilitary operation, in which America would have to assume most of the burdenwithout the UN. Among the 32 nations contributing 154,363 combat troops tothe ‘coalition of the willing’, US troops numbered 130,000 or 84% of the totalstrength. The remaining nations contributed a total of 24,363 troops or 16% ofthe overall force (Anderson, Bennis, et al., 2003; Norton-Taylor and MacAskill,2004: 1; Wright and Graham, 2004: 1). The invasion would not only be US-led,it would have an American face. Moreover, any dwindling of the coalition in thepost-invasion phase could complicate the job of establishing a lasting peace in apost-Saddam Iraq (Wright and Graham, 2004: 1).

For what does it mean to be successful when it is difficult to perceive howdestructive a war will really be? According to Paul Ramsey, a state achieveslegitimate Proportionality when ‘more good will be done than undone or agreater measure of evil prevented’ (1968: 195). For James Turner Johnson,applying Proportionality means ‘determining what are the upper limits of the useof force that may rationally be employed’ in achieving just war goals (1984: 120,145). Thus, the goal is to apply the minimum force necessary to achieve one’slegitimate objectives.

The requirements of Proportionality are, virtually by definition, relative andthus subject to considerable debate (Johnson, 1981: 196). One reason may bethe challenge of collapsing the principle into discrete elements that providesufficient parameters for waging war. For William O’Brien, Proportionality istwo-fold. First, the harm one intends to inflict must be proportionate to alegitimate goal as defined by international law and justifiable military standards.Second, harm must be proportionate to Just Cause. The Proportionality calcu-lation in pursuing Just Cause is a matter of balancing the probable good and evilin war in light of the Likelihood of Success (O’Brien, 1981: 40-2).

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Several factors had the potential of altering the proportionality equation forthe invasion. In recent years, the US military has made legitimate efforts toconduct warfare in a manner that minimizes casualties and obviates the need forfighting broader wars. This included combining advanced weapons technologywith a focus on ‘high value targets’ against political and military leaders(Conetta, 2003; HRW, 2003). However, in the immediate aftermath of 9/11, theDefense Department made a decision in its Nuclear Posture Review (NPR) to usetactical nuclear weapons and other high-powered earth-penetrating weaponsto destroy caves and bunkers (Kravlev, 2002: 1; Richter, 2002: 1; Bleek, 2002;Payne, 2001; Kushman, 2002: 23). The use of such weapons on the battlefieldwas likely to increase collateral damage to non-combatant civilian populations.

Another aspect is the worst-case risks associated with WMD. If people werekilled by attacks with WMD, obviously the charge of negligence would restagainst those who failed to act. In the case of protecting innocents, Propor-tionality becomes more tangible. Proportionality is intended to engage bothrestraint in the use of deadly force and precision in employing such force.However, the US-led war violated Just Cause because Iraq did not attack orthreaten to attack the US or other nations. The claim that Iraq’s possible futureacquisition of WMD poses a threat at an unspecified time is not adequate to claimrefuge under Proportionality.

The most important question was not if US-led forces would prevail intoppling Saddam, but if regime change would deter other rogue states in the ‘axisof evil’ from engaging in hostile behavior toward the US. Certainly, regimechange against rogue states presented the Bush administration with more clearlyidentifiable targets than obscure terrorists. The risk was that a war against Iraqcould encourage others to accelerate weapons development (Hoffman, 2003).For example, immediately after the invasion of Afghanistan, North Koreaexpelled IAEA inspectors, withdrew from the nuclear Non-Proliferation Treaty,and announced it accumulated enough weapons-grade material to deploy nuclearmissiles. At the same time, Iran assembled the required components to moveforward with an advanced nuclear programme (CIA, 2003). The possibility ofreducing threats from other rogue states was lowered and the potential that moreharm would be caused was elevated with an invasion of Iraq. These tribulationswere exacerbated by the reality that the administration did not limit the numberof states it sought to target.

Last Resort

Since war should never be the first mechanism for resolving disputes, LastResort requires that a state exhaust all available measures before using force(Regan, 1996; Coppieters, 2001; Glover, 2001; Baldwin, 1999/2000: 87-92;Walzer, 1977; Johnson, 1999). As Walzer contends, ‘It is obvious that measuresshort of war are preferable to war itself whenever they hold out the hope of


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similar or nearly similar effectiveness’ (1977: 81). According to George Wiegel,Last Resort is a ‘moral threshold crossed by political leaders … only with greatreluctance and trepidation’ (1992: 6).

In assessing Last Resort, we must differentiate credible threats from simplefears. Simple fears or suspicions of future attacks are not enough to claim a rightto exercise force. Only hostile intent coupled with a capacity to do immediateharm on the part of the aggressor represents a credible threat (Crawford, 2003aand 2003b). When confronted with an imminent attack, it is not unreasonable tosuggest that a state is justified in waging a preemptive war. As Walzer suggests,‘states can rightfully defend themselves against violence that is imminent but notactual; they can fire the first shots if they know themselves to be attacked’(Walzer, 1977: 74-5). However, simple fear or suspicion may lead a state tointerpret adversaries to the point of hypervigilance where threats are overblownand war is unjustifiably placed ahead of other available mechanisms.

The distinction between credible threats and simple fears is absolutelyconsequential (Crawford, 2003b). During the Cold War, the likelihood of nuclearwarfare dissuaded the US and USSR from directly engaging one another on bothconventional and unconventional levels; annihilation was allayed when it wasrealized that deterrence was the only morally acceptable strategy (Goodwin,1982; Walzer, 1977; Carr, 1945; Morgenthau, 1985; Morgenthau, 1995; Waltz,1979; Mearshimer 1994/1995; Layne, 1993; Katzenstein, 1996; Snyder andDiesing, 1977; Gilpin, 1981; Keohane, 1986). Neta Crawford contends that thethreshold separating credible threats from simple fears should be lowered inAmerica’s wars against terrorists and rogue states, although the consequencesmay elevate the prospect of prematurely exercising force. However, thethreshold for credible fear cannot be too high where those who may be about todo harm cannot be stopped (Crawford, 2003b).

For clarity, we return to Walzer’s third requirement in his imminence criterion,in which waiting or doing nothing elevates the risk. On the whole, the adminis-tration claimed that failing to confront Iraq increased the danger. Interestingly,unlike hostile intent and active preparation in Just Cause, the US argument interms of Last Resort was phrased in terms of urgency and uncertainty: ‘Thegreater the threat, the greater the risk of inaction – and the more compelling thecase for taking anticipatory action to defend ourselves, even if uncertaintyremains as to the time and place of the enemy’s attack’ (Bush, 2002d). For Bush,not using force was calamitous: ‘we have an urgent duty to prevent the worstfrom occurring’ (Bush, 2002a).

Did simple fears or suspicions lead the US and its allies to prematurelyexhaust available mechanisms before resorting to war against Iraq? Based onurgency and uncertainty, the US argued that sanctions, no-fly zones, andweapons inspections could not guarantee Iraqi WMD compliance and theresulting ambiguity left it with no other choice but to use force. UN Resolutions687 and 1441 authorized inspectors to dismantle banned WMD and, despite

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episodes of non-cooperation, inspections decommissioned roughly 95% ofIraq’s WMD (UNSCOM, 1999). Even before Resolution 1441, the IAEAdeclared that Iraq no longer possessed a nuclear programme (UN SecurityCouncil, 2002). Contrary to Cheney’s declaration that ‘A return of inspectorswould provide no assurance whatsoever of his compliance with UN resolutions’,as Hans Blix’s claimed, ‘the UN and the world had succeeded in disarming Iraqwithout knowing it’ (Cheney, 2002; Blix, 2004).

Iraq was also severely weakened by the no-fly zones and sanctions. Alongwith the inspections, a decade of US and UK air attacks over the northern andsouthern no-fly zones degraded the Iraqi military to one-third of its pre-Gulf Warstrength (US House of Representatives, 2003; Graham-Brown, 2001). Sanctionsprevented Iraqi rearmament by shutting down oil exports, resulting in $250billion in lost revenue (UNOIP; David and Hope, 2003: 1). Although sanctionsproduced thousands of preventable deaths and Saddam siphoned billions fromoil-for-food profits, Iraqi defence spending plummeted from $15 billion in 1989to roughly $1.4 billion in 2002 (Lopez and Cortright, 2004: GAO, 2004; Davisand Hope, 2003: 1).

Moreover, on a strategic level, the administration calculated that deterrenceand containment were antiquated and dangerous strategies in dealing with so-called rogue states. ‘In the Cold War’, states Bush’s NSS, the US faced a ‘risk-averse adversary. … But deterrence based solely on the threat of retaliation isless likely to work against leaders of rogue states more willing to take risks,gambling with the lives of their people, and the wealth of their nation …’ (Bush,2002c: 19). Bush even declared that ‘Containment is not possible whenunbalanced dictators with WMD can deliver those weapons or missiles orsecretly provide them to terrorist allies’ (Bush, 2002d).

Was deterrence unjustifiably dismissed against Iraq? Unlike America’sadversaries during the Cold War, the Bush administration assumes that pettytyrants of the contemporary scene, like Saddam Hussein, are reckless leaderswith nothing substantial to lose and cannot be deterred by threats of retaliation.However, the mere labeling of leaders as rogues or tyrants does not prove thatthey are equally grandiose in their design or that they are immune to theconstraints of a countervailing power. Although Saddam was evil from an ethicalperspective, no state in Bush’s ‘axis of evil’ can come close to equaling thethreats America confronted from Hitler’s Germany, Stalin’s USSR, or Mao’sChina, all of which wielded significant power on the international landscape(Glad, 2004: 51-2; Karsh and Rautsi, 1991: 201-7). Moreover, it has been shownthat tyrants with a ravenous desire to use any means necessary to protect theirpersonal and political power are not usually apt to hand over their hard-earnedweapons systems to terrorists who may threaten them (Glad, 2002). The decisionto abandon deterrence and containment against Saddam’s Iraq represented ahypervigilance that drove the administration to overlook the success of theweapons inspections, no-fly zones, and sanctions, which enabled the inter-


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national community to restrain any future Iraqi aggression. Although disarmingIraq was a moral goal, it was one that could have been achieved with measuresshort of war.

Conclusions

Based on the way this article has applied the just war tradition, the Bushadministration’s case for a US-led war against Iraq did not fully satisfy jus adbellum moral principles. With respect to Just Cause, the analysis suggests that in2003, Iraq did not present an imminent threat to legitimate a preemptive attackby the US and its allies. Furthermore, arguments from a humanitarian inter-vention perspective were not adequate to justify the invasion. The administrationalso lacked legitimate international legal authority to attack Iraq in bypassing theUN Security Council authorization structure. The administration’s argumentsbased on individual or collective self-defence cannot be justified since Iraq didnot possess the means to threaten and did not attack the US and its allies. Inaddition, while it is difficult to demonstrate that the US had unjust intentions, thechallenge of building a real democracy in Iraq and the role of economic interestsreduce the moral significance of the administration’s case for war.

In terms of Likelihood of Success, there is evidence to suggest that the US-ledattack on Iraq has contributed to more fearful and aggressive behavior on the partof rogue states. Dangerous and threatening states can now point to the Bushadministration precedent for waging preventive wars to possibly justify theirown cases for offensive warfare. Proportionality was not completely satisfiedsince the US did not effectively plan for a post-Saddam Iraq. As a result, the USmay have elevated threats from terrorists and other rogue states. In addition,mechanisms short of war were clearly not sufficiently exhausted and the risks ofinaction did not outweigh the risks of using force. The US prematurely resortedto war when other non-lethal choices remained available to reduce or eliminatethe Iraqi threat. Although the Bush administration sought to make a moral andpolitical case for a justified preemptive attack, the result was a preventiveinvasion that fails to completely satisfy jus ad bellum considerations.

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FRAMEWORKS FOR UNDERSTANDING DILEMMASOF HEALTH CARE IN A GLOBALIZED WORLD:A CASE STUDY OF REPRODUCTIVE HEALTH

POLICIES IN PERU

J. JAIME MIRANDA AND ALICIA ELY YAMIN

Introduction and Context

The way health is conceptualized determines the actions taken to protect andpromote it and, in turn, the actors responsible for such actions in an increasinglyinter-dependent world. This essay presents a brief description of health policiesin Peru during the last ten years in order to analyze the implications of paradigmsof medical ethics, human rights and quality of care. These paradigms offerdistinct ways of formulating, applying and evaluating health policies andunderstanding the relationship among different actors at various levels. Buildingupon other detailed analyses of sexual and reproductive health policy in Peru(Coe, 2004; Miranda and Yamin, 2004), as well critical appraisals of healthservices models (Gericke, Kurowski, Ranson and Mills, 2005; Krieger,Northridge, Gruskin, Quinn, Kriebel, Davey Smith, Bassett, Rehkopf and Miller,2003), this article advocates the importance of construing and promoting healthas a human right.

Peru’s health indicators are notoriously poor for a middle income country.Of a total of 27 million Peruvians, women of reproductive age (15-49 yearsold) constitute 25% of the population (Instituto Nacional de Estadística eInformática, 2005). According to the WHO, in 2000 the maternal mortality ratioin Peru, which is widely recognized as an indicator both of the level of margin-alization of women in a society and of the functioning of the health system, stoodat 410 per 100,000 live births. Peru and Bolivia, with 420 per 100,000 live births,are the South American countries with the highest maternal mortality ratios,followed by Brazil with 260 and Paraguay with 170 deaths per 100,000 livebirths.

99% of maternal mortality occurs in the developing world, and it is the


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indicator that demonstrates the greatest disparities between the North and theSouth. Thus, maternal mortality ratios in the United States, the United Kingdomand Finland – 14, 11 and 5 respectively – demonstrate that this is not a significantpublic health issue in these societies (World Health Organization, 2004).Nevertheless, other countries in Latin America where women’s access to healthservices has been improved also show dramatically lower maternal mortalityratios. For example, Chile and Uruguay have maternal mortality ratios of 30 and20 deaths per 100,000 live births, respectively (World Health Organization,2004).

The picture of infant mortality in Peru is equally discouraging. A child born inPeru, where the infant mortality rate is 32 per 1,000 live births, has double theprobability of dying before reaching a year as a child born in neighbouring Chile,4.5 times the probability of dying as a child born in the United States and morethan 10 times the probability of one born in Sweden or Japan (World HealthOrganization, 2004).

From these indicators it is clear that the coverage of health services in Peru –ranging from immunization and primary care for infants to essential obstetricservices for pregnant women – leave much to be desired. Moreover, while thesefigures are useful for international comparisons, they mask enormous disparitieswithin the country, where the Andean and Amazonian regions fare poorest andthere are marked disparities between rural and urban areas throughout Peru(Miranda, 2002; Miranda, Malca, Bedriñana and Loayza, 2002).

1995-1998: Population Control as the Goal

Since the 1980s, many developing countries have faced and continue to faceinternational pressure to apply neo-liberal economic models through so-called‘structural adjustment programs’. Such models, based on the ‘Washington Con-sensus’ of the 1980s and 1990s, insist that the market offers the most efficientmechanism for allocating the cost of even basic social services, including healthcare. The laws of supply and demand will, in this theory, afford the necessaryconditions for appropriate services to be delivered to the consumer in keepingwith his preferences. At the same time, privatization of social services willenable the state to streamline, become more efficient, maintain fiscal austerityand re-pay sovereign debt. The result of this model, which has been applied withmore or less rigidity in different countries by the International Monetary Fund inconjunction with multilateral development banks, has in practice often beencatastrophic (Stiglitz, 2002). Further, health sectors in developing countries,including Peru, have been among the first affected in terms of the state’sabandonment of public financing (Ooms and Schrecker, 2005).

The predicted benefits of fiscal austerity and structural adjustment havenot arrived to millions of poor people in the developing world, including in Peru,and what is even worse, many outside the ‘productive economy’ have found


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themselves trapped in a vicious cycle of poverty and ill-health (Stiglitz, 2002).In Peru, between 1997 and 2001, 80% of total private expenditures were out-of-pocket expenditures (World Health Organization, 2004). In a country with overhalf of the population living below the poverty line – 57.4% in 1991 and 54.1%in 2000 (Instituto Cuanto, 2003) – the results of forcing this sector of thepopulation to assume health costs are predictable declines in health status, aswell as invisible tradeoffs with other basic goods.

This model of health has distinct gender implications, as women are both thecaretakers of the family, who assume greater responsibilities in the face of thestate’s abandonment of its role providing social services, as well as those whoreproduce children, who will eventually either enter the work force or becomedrains on the economy (Ewig, 2001; Evers and Juárez, 2002).

In Peru during the 1990s, Alberto Fujimori (1990-2001) zealously pursuedthe neo-liberal economic model for growth, including a ‘modernization’ of thehealth sector in general. During this period, population expansion was con-sidered one of the limiting factors for the country’s economic development. In acountry where health issues were far from the top of the policymaking agendaand did not make headlines, Fujimori himself, in July of 1995, announced thatfamily planning would be a high priority for the government. Shortly thereafterCongress legalized surgical sterilization as a method of family planning.

The goal was to reduce the annual population growth rate to a figure ofapproximately 1.17 for the period 1995-2000 (Anon., 1997). That benchmarkreflected a progressive decrease that had begun in previous decades: 2.8 in 1961-1972, 2.0 in 1981-1993, reaching 1.7 between 1993-2002. In other words, theexpectation was that the reduction in the population growth rate consonant withobserved trends would not be adequate and establishing numerical goals wastherefore necessary to accelerate the process. Fujimori took a personal interest inthe family planning programme. Unlike any other health programme, evaluationof progress in the family planning programme was done directly from thePresidential Palace, according to certain numerical targets that were establishedfor numbers of women to be sterilized (Anon., 2001).

More than 250,000 ‘beneficiaries’ of the family planning programme weresurgically sterilized – the majority without an adequate process of informedconsent as a result of the tacit pressure to comply with the established targets(Bosch, 2002). The great majority of women sterilized corresponded to thelowest socio-economic strata and came from rural areas with a high proportionof indigenous persons.

In 1998 and 1999, as revelations regarding involuntary sterilization as part ofa systematic campaign by the government came to light, they created a scandalat both the national and international levels. In particular, a group of Con-gressional representatives in the United States launched their own investigation,as USAID, the US Agency for International Development, had in large measurefinanced the family planning programme.

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2001-2003: Going to the Opposite Extreme:Introducing Conservative Agendas as Part of the Remedy

When President Alejandro Toledo assumed power in 2001, the Ministry ofHealth came to be dominated by conservative religious elements who refor-mulated programmes relating to sexual and reproductive health in accordancewith their own ideological agenda. That mandate was reflected most notably –although not exclusively – in a restriction of access to contraception and theimposition of more severe penalties in cases of abortion (Miranda and Yamin,2004; Coe, 2004; Coe and Jacobson, 2002). In part, the sweeping changes in thegovernment’s posture toward reproductive and sexual health were justified asresponses to the sterilizations.

Almost immediately after Toledo took office, two commissions were createdto investigate the cases of sterilizations – one within the Ministry of Health andone within Congress, which was also sponsored by people tied to conservativereligious agendas. Both Commissions issued similar findings. The Congres-sional commission argued among other things that that the involuntarysterilizations constituted ‘genocide’ and cited a figure of cases on the order ofninety times that documented by women’s groups and the Human RightsOmbudsman’s Office (Subcomisión investigadora de personas e institucionesinvolucradas en las acciones de anticoncepción quirúrgica voluntaria, 2002).Both commissions recommended that voluntary surgical contraception beprohibited. Neither suggested the need for promoting transparency of healthinformation or for establishing mechanisms to make the justice system moreaccessible in the case of health rights violations.

Just as the desire to control population growth to facilitate economicdevelopment fed upon and reflected transnational trends, so too did the growthof fundamentalist religious influence in the health sector in Peru. For example,at the same time, the government of the United Status increasingly began toblock programmes that promoted programmes that promote reproductive andsexual health in ways that contradicted to their ideological beliefs. This growingconservative religious influence on the US government’s health policies led,among other things, to a reduction in financing for technical organs of the UnitedNations, such as the United Nations Population Fund (Yamin, 2004; Yamin,2002). In particular, the US government’s policies relating to restrictions onfunding to any foreign group that provides not only services but even justinformation about abortion (commonly referred to as the ‘Global Gag Rule’) andthose relating to prevention strategies for HIV/AIDS, which stress abstinence,often over or at the expense of sexual education and the use of condoms havebeen the source of great protest among health actors in the field. Nevertheless,any organization that seeks US government funding must now subject itself tothe ideologically-driven policies of the Bush Administration with respect toreproductive and sexual health (Boseley and Goldenberg, 2005).


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Paradigms to Understand Service Delivery:Different Starting Points Produce Different Interpretations

Medical Ethics

The medical profession has a long history in the protection and promotion ofpatients’ well-being. The Hippocratic Oath still stands today as the code thatguides ethical and responsible behavior toward patients. Since the end of WorldWar II, local and international professional medical bodies, have creatednumerous additional declarations and ethical codes relating to the respon-sibilities of the physicians in treating patients (Colegio Médico del Perú, 2005;World Medical Association, 1983).

The traditional medical ethical paradigm assumes a dyadic relationshipbetween physician and patient, which is largely divorced from social context.The majority of ethical discussions in medicine examine how ‘pure’ clinicaldecisions may affect the life of patients. The physician’s specialized expertiseand the patient’s vulnerability demand a fiduciary relationship from which aset of ethical obligations logically flow – e.g., beneficence, non-maleficence,autonomy, and fairness (Ugarte, Gil, Miranda and Echevarría, 2004). In thismodel, the discharge of such obligations by the practitioner can be regulated andevaluated within the profession by the relevant medical association or otherbody.

The ‘voice’ of patients – who come from specific cultures and have specificconceptions of their own well-being – is rarely heard in professional ethicsdiscussions. Furthermore, factors that lie outside of the physician–patientinteraction – including the influence of entrenched belief systems that bearon how the well-being of the patient is defined as well as promoted – are notcontemplated.

Indeed, the different models of physician-patient interaction that have beendeveloped by ethicists in the industrialized world would seem to have littlerelevance to rural Peru. Cultural and historical prejudices lead to the doctoroften playing not just a paternalistic role but a ‘civilizing’ role, where Westernmedicine and the logic inherent to that medicine is seen to have a civilizing effecton the customs of indigenous or campesino patients. Further, many patients donot make individual decisions about their health and have no choice about whereto receive their health care. If the power of the physician is in theory containedthrough ethical standards, the power relations that lie outside of the physician-patient interaction that affect the well-being of the patient are not subject toscrutiny in this model.

In relation to the sterilizations performed without adequate consent, a modelbased on medical ethics in a vacuum would only sanction the individualpractitioner and would not address the policy per se or how it structuredindividual health professionals’ conduct. Still within the ethics framework, thefirst Minister of Health under the government of Alejandro Toledo, Dr Luis


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Solari de la Fuente, took actions that made it clear he viewed the sterilizations asa dual loyalty issue – that is, of health professionals’ duty of loyalty to the patientbeing subordinated to the interests of the perverse politics of the formeradministration (Yamin and Miranda, 2002). Solari proposed a ConscientiousObjection Law, which would have permitted physicians to refuse to provide careon the basis of religious or other objections (Solari de la Fuente, L 2001). Solariargued that the cause of the involuntary sterilizations lay in the fact that ‘thehealth professional did not have the freedom to do what his conscience andtraining demanded of him’.

The solution proposed appeared to seek to empower physicians with theultimate aim of securing better care for patients. However, in providing theattending physician with untrammelled discretion to refuse to treat, even in casesof emergency where a particular physician is often the only source of careavailable in rural Peru, it would have potentially jeopardized care. Authors whohave explored the ‘dual loyalty’ problem which arises from the conflict ofinterests between that of the patient and that of the state have emphasized theneed to expand traditional ethical conceptions beyond the inter-personalrelationship between physician and patient to consider the context in which careis being offered (International Dual Loyalty Working Group, 2002; Rubenstein,2001; Rubenstein, 2001).

Quality of Care

Shifts in public health leading to greater focus on quality of care, including thetreatment of a patient by her health care provider – as opposed to mere healthoutcomes – have been critical to the improvement in health services in Peru, andthroughout the world. What is referred to here as the ‘quality of care framework’emerges from the field of public health, as opposed to clinical medicine.Economic notions of efficiency, cost-effectiveness and the marketing of healthservices have played a substantial, although not exclusive, role in thedevelopment of models for evaluating the content of quality of care. Cost-benefitanalyses constitute one tool, among others, upon which decisions regardingquality of care can be made (Gericke, Kurowski, Ranson and Mills, 2005).

This construct situates the practice of medicine in the context of the healthsystem, where doctors and patients come to play the respective roles of‘providers’ and ‘clients’. On the level of health systems, the standard of careshould not be left to the discretion of the individual provider, but rather shouldmeet certain standards and be guided by fixed norms. Some of these are directlyrelated to the treatment of clients by providers, but others are of a technicalnature, aimed at improving the capacity of health services and the managementof individual health care establishments.

In Peru, in response to criticisms of its having underwritten the familyplanning programme after the public disclosure of involuntary sterilizations,


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USAID commissioned a review of what had transpired by the PopulationCouncil, which adopted a quality of care analysis. The Population Council reporteschewed discussion of abuses, and of the state’s inappropriate intervention intoan ostensibly private sphere of interaction between physician and patient. Thereport concluded that, inter alia, there had been breaches in communication andinformation between providers and clients, as well as between different levels ofthe health system, which had led to a poor standard of care, including the deathsof a number of women. Essentially, the costs and benefits of providing incentivesand disincentives for health professionals performing sterilizations had beenmiscalculated, with ensuing secondary consequences. The report also includedrecommendations for how the Ministry of health might rectify such errors in thefuture (León, 1999).

Human Rights

A human rights framework situates health and, in turn, the practice of medicine,within social relations and institutions that ultimately advance or underminesocial justice. Thus, health personnel have a role to play in assuring that healthcare is available, accessible, of adequate quality and provided without anydiscrimination (Committee on Economic, Social and Cultural Rights, 2000).

Both the ethical treatment of patients and the assurance of quality of careconstitute integral parts of the right to health. However, the paradigm of humanrights goes further, aiming to empower people to see themselves neither aspatients with a given diagnosis nor as consumers of health services who shouldreceive quality, but as citizens who possess rights and are capable of makingdemands that go beyond packages of services. Health in this paradigm is under-stood as a precondition for and a reflection of the active exercise of citizenship.Therefore, it is logical that the human rights perspective focuses on sociallymarginalized groups who are excluded with respect to health as well as thepossibility of participating as full citizens of society (Miranda and Farmer,2001).

In contrast to the approaches taken by Minister Solari or the PopulationCouncil, a report by the non-governmental women’s rights group, the LatinAmerican Committee for the Defense of Women’s Rights (CLADEM), con-ceptualized the problem as a human rights issue (Tamayo, 1999). CLADEMsituated the events not in the context of the health system alone, but of thebroader society, and insisted upon broad policy and legislative as well ascompensation for the victims and their families. Such a human rights perspectiveon the forced sterilizations understands the problem as concerning funda-mentally the undermining of the capacity for choice and dignity of women whowere overwhelmingly poor and indigenous. Thus, in a rights frameworkprotecting the right to health must be linked to actions that go beyond thehealth sector, to include providing education, access to the judicial system, civil


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liberties, labor rights, and opportunity to participate politically, assertions whichcoincide with new thinking from the public health field about which inter-ventions are most effective (Daniels, Kennedy and Kawachi, 2000).

In addition to offering a distinct conceptual paradigm that sees health asdeeply embedded in the broader conditions of people’s lives, human rights alsoconstitutes a body of law. As such, it imposes certain obligations on states inrelation to health, as well as a series of other related aspects of social well-being.Governments that ratify international treaties are legally bound to comply withcertain obligations on behalf of the people within their territories. Such obli-gations imply that, first, the determination of policies and the implementation ofprogrammes with respect to health should be guided by certain fundamentalprinciples rather than being a matters of political negotiation, and second, thatrecourse shall be made available to those aggrieved by the state’s failure tofollow such principles. The discourse of rights and the ensuing legal respon-sibility of the government to respect, protect and fulfill its obligations in respectof health fosters dialogue and helps to maintain a given health issue on the publicagenda when it otherwise might have been neglected (Yamin, 2000). Thus,considering rights as simply another group of ethical principles or guidelinesfor quality of care would fail to capture this important dimension of rights(Chapman, 1996; Easley, Marks and Morgan, 2001). As Easley et al. writes, ‘Theuniversality of human rights claims derive from the agreement of practically allstates to be bound by them, rather than from human nature’ (Easley, Marks andMorgan, 2001).

In Peru, for example, CLADEM sought compensation on behalf of victimsand to establish legal precedents of institutional responsibility. Together withother human rights groups CLADEM litigated one emblematic case, in which awoman was forcibly sterilized and later died as a result of the surgery. After thecase was dismissed in the Peruvian legal system, these groups successfullybrought a petition to the Inter-American Commission on Human Rights (Inter-American Commission on Human Rights, 2000).

Conclusion

Improvements in quality of care and education in medical ethics per se do littleto subvert the societal power structures that deny voice to people with respect totheir own health. Growing disparities within and between countries in terms ofhealth resources as well as health outcomes demands a human rights framework,which responds to health policy questions in ways which will protect andpromote human dignity. As increasingly transnational trends and internationalactors shape the very possibilities for people to be healthy, the universality ofhuman rights may prove a critical counterweight to models based on utilitarianconsiderations or ideological postures.

In countries such as Peru, with histories of repressive governments, there can


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be resistance to using the term ‘human rights’ among health policy-makersand programme planners, precisely because a discourse of human rights impliesbinding obligations on the part of the state. In the minds of many in Peru, humanrights is intimately tied to the legal advocacy carried out during the years ofpolitical violence, and is strongly associated with dissidence and an adversarialposture with respect to the state. As a result, even many health activists prefer touse the terms ‘quality of care’, ‘medical ethics’, or even ‘values’. Neverthelessit is important to be explicit in thinking through the implications of differentconstructs and to recall that these terms cannot be substituted for human rights.

References

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Anon. 1997. ‘Population: Brickbats and Bouquets for Peruvian Policies’. InterPress Service, 14 November.

Anon. 2001. ‘Gobierno ordenaba a médicos cumplir cuotas de mujeresesterilizadas’. La República, 23 September.

Bosch, X. 2002. ‘Former Peruvian government censured over sterilisations’.British Medical Journal 325: 236.

Boseley, S. and S. Goldenberg. 2005. ‘Brazil spurns US Aids help. Move resistseffort by Washington to impose religious right’s agenda’. Guardian Weekly,13-19 May: 32.

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Coe, A. B. 2004. ‘From Anti-natalist to Ultra-conservative: Restricting Repro-ductive Choice in Peru’. Reproductive Health Matters 12: 56-69.

Coe, A. B. and J. Jacobson. 2002. ‘Government Extremists in Peru FurtherUndermine Reproductive Rights’. Center for Health and Gender Equity(CHANGE), Tahoma Park, MD.

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de la salud La Absoluta Libertad Profesional Para Ejercer el Derecho deObjeción de Conciencia’. Proyecto No. 116/2001-CR, presented 26 July 2001,Congreso de la República del Perú.

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acciones de anticoncepción quirúrgica voluntaria (AQV). 2002. ‘Informe finalsobre la aplicación de la anticoncepción quirúrgica voluntaria (AQV) en losaños 1990-2000 [Final Report on the Application of Voluntary SurgicalSterilization in 1990-2000]’. Congreso de la República del Perú, June 2002,Lima.

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Ugarte Gil, C. A., J. J. Miranda and J. Echevarría. 2004. ‘Principios éticos yderechos relacionados con el tratamiento antirretroviral en los pacientes conVHI-SIDA. [Ethical principles and rights related to antiretroviral treatment inpatients with HIV/AIDS]’, in Taller de Telemedicina. Lima: Instituto deMedicina Tropical Alexander von Humbdolt, Universidad Peruana CayetanoHeredia.

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INTERNATIONAL BIOETHICS AND HUMAN RIGHTS:REFLECTIONS ON A PROPOSED UNIVERSAL

DECLARATION ON BIOETHICS AND HUMAN RIGHTS

ROBERT BAKER

On 24 June 2005 the International Bioethics Committee (IBC) of the UnitedNational Educational, Scientific and Cultural Organization (UNESCO) issued a‘Universal Draft Declaration on Bioethics and Human Rights’ (hereafter, BHR).I was delighted with the document from the moment I read its title. LeadingAmerican bioethicists (Beauchamp, 1998; Macklin, 1998) had criticized mycontention that any attempt to construct international bioethics by searchingfor principles of common morality would prove feckless; the best hope forinternational bioethics, I had argued, lay in negotiated rules bounded by acosmopolitan conception of human rights (Baker, 1998a, 1998b, 1998c, 2001).The term ‘human rights’ in the proposed title of BHR seemed to confirm myposition, and thus – since confirmation is not one of the delights philosophyusually offers its practitioners – the very title of the document gave me a tinge ofsatisfaction. Satisfied philosophers, however, serve little function. As John StuartMill famously implied of Socrates, a certain level of intellectual dissatisfactionis written into the job description. Returning to my role, in this paper I draw onmy earlier analysis to assess whether the BHR provides an adequate frameworkfor international bioethics.

Human Rights: What They Are and What They Aren’t

The sophisticated form of common morality theory embraced by Americanbioethicists (Beauchamp 1998, Macklin 1999), while replete with complexdetail, has at its core the readily grasped philosophical insight that, despitesignificant variation at the periphery, a core of common morality is universallyshared and accepted in all eras and cultures. It would be wonderful if thephilosophical intuition underlying contemporary cosmopolitan human rightstheory could be stated as succinctly or grasped as readily. Unfortunately, a

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straightforward exposition eludes my powers; so I shall instead offer a briefhistorical introduction to cosmopolitan human rights theory.

As every college student ought to know, but seldom does, ‘human rights’descend from the droits de l’homme, the ‘natural, inalienable and sacred rightsof man’, to ‘liberty, security, property, and resistance to oppression’ declared bythe French Republic in 1789 (French Assembly, 1789). These, in turn, derivefrom the God-given inalienable rights to life, liberty, and the pursuit of happinessproclaimed in the American Declaration of Independence of 1776, which, inturn, traces back to the works of classical British political philosophers like JohnLocke (Locke, 1690). Moreover, as every political philosopher and politicaltheorist ought to know – but frequently does not – although human rightsdescend from the natural rights, they differ significantly.

Natural rights are ‘the sacred rights of Mankind written, as with a sunbeam, inthe whole volume of human nature by the hand of Divinity itself, and can neverbe erased or obscured’ (Hamilton, 1787: 18). As this quotation indicates,American constitutionalists had inherited from Locke the notion that rights wereimplanted in human nature, by ‘the hand of Divinity’. By 1789, however, Frenchrationalism, abetted by kindred spirits like Citizen Tom Paine (Paine, 1796),offered an agnostic conception of natural rights stripped of any association withdivinity and anchored in human nature alone.

The concept of human rights rests upon a foundation that is even moreminimal. It strips away both divine and human nature. The concept originated asempty political rhetoric, a turn of phrase conceived as a place marker for someas yet undefined alternative to the concept of ‘group rights’ or ‘minority rights’.These concepts had emerged in the aftermath of the First World War. One ofPresident Woodrow Wilson’s war aims had been to ‘secure habitation for thefundamental right of man to be governed by rulers accountable to him’(Schwelb,1964: 24). Wilson envisioned a post-war world in which the multi-ethnicAustro–Hungarian and Turkish empires were replaced by independent ethnicallycohesive nation-states. Inevitably such states would contain minorities; so, toprotect these minorities, the treaties creating the new nation-states grantedminorities ‘rights’, not as individuals or as citizens, but as members of minorityethnic or religious groups – creating the concept of minority group rights.

These minority rights, however, tended to undermine the stability of the newlycreated nation-states. For in claiming their rights as minorities, individualsconstructed their identity not as citizens who happened to have a certain ethnicityor religion, but as minorities who happened to be citizens of a certain nation.Minority identity was thus in tension with national identity, fomenting separ-atism and the problem of ‘irredentism’– the desire of minority groups to bejoined with their ethnic or religious counterparts to form a majority in their ownstates. Irredentist demands by the German minority in Czechoslovakia, in fact,became a precipitating cause of World War II.

In drafting plans for the post-war world Prime Minister Winston Churchill and

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President Franklin Delano Roosevelt (FDR), seeking to avoid past mistakes,substituted a rhetoric of individual human rights for Wilson’s concept of groupminority rights. As early as 1942, the Declaration of the United Nations declaredas its aim the ‘preservation of human rights’. This commitment was reiterated inthe UN Charter, whose Preamble, ‘reaffirm[s] faith in fundamental human rights,in the dignity and worth of the human person, in the equal rights of men andwomen and of nations large and small’ – note the emphasis on the human person,on the rights of individuals, rather than groups (UN Charter, 1945). Groupidentity and group rights had thus been supplanted by human identity and humanrights in the new political rhetoric; however, the concept of human rights was leftundefined.

The task of giving meaning to this vague but potent rhetoric was turned overto Eleanor Roosevelt, US representative to the UN, and, not coincidently, FDR’swidow. In 1947 she convened a committee at her Greenwich Village townhousein New York to draft a Universal Declaration of Human Rights. These draftingsessions coincided with the 1947 Nuremberg trials of Nazi doctors for ‘crimesagainst humanity’. Not unnaturally, given Mrs. Roosevelt’s connections andthe members’ interests, the committee received briefings on the trials, which,serendipitously, providing it with concrete examples of what it meant to striphumans of their rights.

They thus crafted the Universal Declaration of Human Rights as a way ofinsuring that ‘never again’ would anyone receive the sort of treatment that Jewshad suffered under the Nazis. Thus articles 4, 5 and 9 prohibited the ‘slaveryor servitude’, ‘arbitrary detention or exile’, and ‘torture, or cruel, inhuman, ordegrading treatment or punishment’ that had been documented at the Nurembergtrials. Mindful of Nazi racial purity laws Article 16 declares that everyone hasa right to marry freely and found a family ‘without any limitations due torace, nationality or religion’. Article 13 guarantees that, unlike the Jews of the1930s and 1940s, victims of human rights abuse would have the right to fleepersecution. Collectively, the first 20 declarations of human rights were designedto assert rights that would protect any human from ever undergoing the treatmentaccorded to the Jews by the Nazis (Morsink, 1999).

The common themes running through the Declaration of Human Rights andits predecessors were thus to provide universal protection and to do so in thename of humanity. Unlike its precursors, however, the Universal Declaration hadto do more than proclaim universality and invoke the name of humanity. Asa practical matter it had to be universally accepted by humans around the globe.It had to be acceptable to god-fearing Buddhists, Christians, Confucians, Hindus,Jews, Moslems, Sikhs, and Zoroastrians, and to godless communists alike.Human rights thus could not be natural rights because the concept could notpresume any particular vision of human nature, morality or religion. The concepthad to be cosmopolitan as a matter of necessity.

The UN adopted the Universal Declaration of Human Rights in 1948. Within

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a few years Cold War realists had dismissed the document as unrealistic rhetoric,an artifact of post-war idealism. Yet these ‘unrealistic’ ideals ultimately pre-vailed – especially after 1975, when the Final Declaration of Helsinki acceptedhuman rights language in a cynical ploy to distract from the document’s realintent, legitimization of the Soviet Empire. As political theorist Michael Ignatieffobserved, when ‘a Soviet leadership desperate to secure Western acquiescence inthe Yalta settlement conceded the right of East Europeans to have human rights’,the Soviets actually ‘legitimate[d] the very human rights movements that wouldeventually bring the Soviet system crashing down’ (Ignatieff, 1999: 59).

How could rhetoric fleshed out in a document written by a committee ofpolitical appointees meeting at Eleanor Roosevelt’s Greenwich Village town-house prove more powerful than the entrenched power of the Soviet Union? Theanswer lies in the core moral intuition that underlies the concept of rights. Lockeand other inventors of rights theory employed the metaphor of a hypotheticalsocial contract to pose a fundamental philosophical question: if people couldactually opt out of civil society, what minimal conditions would they demand aspreconditions for voluntary membership? Locke famously answered that no onewould voluntarily join civil society if doing so required them to forfeit their life,their liberty, their health or their means of ensuring a livelihood (which hecharacterized as their ‘property’) – i.e., their ‘rights’. Eleanor Roosevelt’s com-mittee answered the same question by asserting that no one would voluntarilyjoin civil society if doing so meant being treated as the Nazis had treated Jews.The list of rights offered in the 1948 Universal Declaration may have been longerthan the lists offered by Locke in 1690, or by Jefferson, Hamilton and companyin 1776, or by the French revolutionaries of 1789, but the underlying conceptionremains the same: rights are the prerequisites for voluntarily accepting civilsociety – and, correlatively, as the American Declaration of Independence statedso eloquently, no government can be considered morally legitimate if it violatesthese rights.

Rights discourse is thus superlatively well designed to articulate the protestsof individuals or groups who find conditions so abhorrent that they nullify thebenefits of collaboration in civil society. Consequently rights rhetoric became theuniversal protest discourse of the oppressed and disenfranchised, whether rebel-lious eighteenth-century American colonists, or French subjects, or twentieth-century Soviet bloc dissidents. The power of the rhetoric derives from itscapacity to serve as both a legal doctrine characterizing the requirements of, andthe constraints upon governmental bodies, and as a moral claim that any personor group can assert against any other person, group or government that, in theirview, is denying them the minimal requisites required for voluntarily acceptingcollaboration.

As we observed earlier, the international committee convened by EleanorRoosevelt shared no common religious heritage and held no common view ofhumanity. The concept of human rights that they invented was not, and could not


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have been, grounded in any conception of divinity, in any common view ofhuman nature, or in any shared norms of universal morality. From the momentof their conception, human rights have been inherently cosmopolitan, offeringa conceptual framework and discourse that is open to persons’ holdingsignificantly different views about human biology, human nature, divinity andreligion – and holding significantly different positive moral norms. Any onecapable of voluntarily joining civil society, even non-human persons, couldembrace the UN’s cosmopolitan concept of human rights, because human rightsstate the minimal requisites for any person’s voluntary acceptance of civilsociety – or any similar collaborative framework. Specific lists of what countsas a human right can and should vary but the concept of human rights itself isso cosmopolitan that it could be embraced universally, even by those who donot share a common underlying morality – all they need share is a desire tocollaborate voluntarily and a willingness to respect each other’s views of whatthey would not sacrifice as the price of collaboration, i.e. each others rights.

Assessing UNESCO’s BHR in Terms of Human Rights Theory

UNESCO’s BHR is an eight-page document consisting of a preamble – assertingits provenance and heritage – followed by twenty-eight articles, divided into fivesections. The section entitled Principles lays out the core of the document: fifteenarticles (Articles 3-17) designed to guide member nation-states of the UN,international organizations, corporations, non-governmental organizations andUNESCO itself with respect to bioethics. The first of these principles, HumanDignity and Human Rights states a fundamental premise of human rights theory:‘(a) Human dignity, human rights and fundamental freedoms are to be fullyrespected. (b) The interests and welfare of the individual should have priorityover the sole interest of science or society’ (UNESCO, 2005: Article 3). TheDeclaration closes in the same vein, reasserting the preeminence of humanrights, fundamental freedoms and human dignity over all other principles(UNESCO, 2005, Article 28).

Something startling happens in the body of the document however; humanrights or, at least, human rights discourse, is abandoned. A comparison withthe UN’s Universal Declaration of Human Rights illustrates the point. TheDeclaration asserts: ‘All humans are equal in dignity and rights’ (Article 1),‘Everyone is entitled to all the rights and freedoms set forth in this document’(Article 2), ‘Everyone has a right to life, liberty and security of person’ (Article3), and ‘Everyone has the right to recognition everywhere as a person before thelaw’ (Article 6). It is also replete with forthright prohibitions of rights violations:‘No one shall be held in slavery’ (Article 4), ‘No one shall be subjected totorture’ (Article 5). BHR, in contrast, eschews such language. Instead ofasserting that vulnerable individuals have a right to be respected and should betreated with special caution, it states ‘human vulnerability should be taken into

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account … and the personal vulnerability of such individuals should berespected’ (UNESCO, 2005: Article 8, emphasis added). More surprisingly,instead of asserting that people have a right to privacy and confidentiality, itasserts, ‘The privacy of the persons concerned and the confidentiality of theirpersonal information should be respected’ (UNESCO, 2005: Article 9, emphasisadded). A discourse of respect has replaced the language of rights.

Does the different wording – ‘respect’ as opposed to ‘rights’ – really make adifference? Or is this mere academic nitpicking? To appreciate the difference,imagine that someone is charged with a violation of one of the articles in BHR –the requirement of respecting confidentiality. Which charge would be stronger?The charge that a person’s confidential information was not respected, or thecharge that a person’s right to confidentiality was violated? A charge of rightsviolation is clearly more serious. Why? Because the concept of disrespect isbroad enough to encompass comparatively minor indiscretions, whereas wereserve charges of human rights violations for more serious matters. At pointsBHR’s drafters seem to recognize the weakness of their discourse of ‘respect’.Article 10, for example, stipulates, ‘The fundamental equality of all humanbeings in dignity and rights is to be respected so that they are treated justly andequitably’ (emphasis added). The italicized coda – ‘so that they are treated justlyand equitably’ – is necessitated by the recognition that respecting is a passivevirtue that does not require acting to insure just or equitable treatment. Had thearticle asserted instead people’s right to be treated justly, equitably and withdignity, it would have stipulated that people have a right to just, equitable anddignified treatment and, given the empowering nature of rights, it would haveempowered people themselves to demand what is theirs by right.

If a rights-based formulation was more consistent with the precedent set by theUN’s Universal Declaration on Human Rights, easier to formulate linguistically,morally stronger and, one might add, more easily enforceable as internationallaw, why did UNESCO’s IBC drafting committee opt for weaker more complexcircumlocutions about respect? One can only surmise, but my suspicion is thatthe actual precedent for this document was not the Universal Declaration ofHuman Rights, but the more recent 1997 Council of Europe Convention onHuman Rights and Biomedicine, which shared a great deal of inelegant languagewith an earlier draft of BHR – and which also asserts principles while gesturingtowards rights.

The precedent of the European Convention, however, was not the sole reasonfor BHR’s awkward circumlocutions. BHR was initially envisioned, not as astatement of human rights, but as a statement of common moral principlesuniversal to bioethics. Earlier drafts of the document had actually been entitled‘Preliminary Draft on Universal Norms of Bioethics’. Human rights discoursewas only inserted later, probably as a rhetorical afterthought to insure somemeasure of conformity with other UN Documents. Sadly human rights theoryappears never to have been seriously considered by the drafting committee.


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If we accept the view that BHR is a universal norms project dressed up with abit of rights language, what are its prospects? Those aspects of the BHR thatreflect a convergence of interests are likely to prove useful to bioethicists, whilethose that merely reflect political compromise are likely either to be ignored orto prove divisive. Developing world bioethicists, for example, are likely to citeArticle 23 (Bioethics Education, Training and Information) in their efforts tosecure funds for bioethics education. On the other hand, articles stating con-flicting principles about ‘giving due regard’ to ‘cultural diversity and pluralism’without ‘infring[ing] on human dignity, human rights, and fundamental free-doms’ (UNESCO, 2005: articles 5, 12) provide little or no guidance and arelikely either to be ignored, or to prove divisive.

BHR’s presumptions of universality create problems even at the level ofterminology. Some of the terms used in the document lose their meaning outsideof the European cultural context in which it was drafted. ‘Solidarity’ (affirmed inArticle 13) is a case in point. The concept lacks resonance in much of Asia andall of North America. It emerged during the French Revolution when a legalconception of group liability was fused with the concepts of fraternité andmutualité to form a single concept, solidarité. The concept has come to connotecollective obligation and mutual reciprocity based on feelings of social unity(Wildt, 1999: 209-22).

Sadly the concept of solidarité has no resonance in North American culture.Even sophisticates like the late John Rawls, the most important Americanpolitical philosopher in the twentieth century, have had trouble grasping itsmeaning (Rawls, 1971:146-8). At one point Rawls tried to explicate solidarity interms of a (maximin) principle of justice that prioritizes allocations in favour ofthe least well off (Rawls, 1971: 105-6). Yet the concepts of solidarity and justiceare dissimilar at their core. Justice is inherently impartial and emotionless – itis ‘blind’. Solidarity, in contrast, presumes a compassionate emotional bondthat permits people to feel for the suffering of others. As one European criticobserved, without sentiment the concept of solidarity is meaningless (Dardé,1999: 81-100). To return to the point, if even the most sophisticated Americanphilosopher of the twentieth century could not appreciate the European conceptof solidarity with its three elements – group obligation, mutuality, and socialfeeling – how can ordinary Asians or North Americans hope to grasp its meaningin Article 13 of BHR? Or, to press more deeply, how can a parochial concept thathas currency only in Europe and Latin America be asserted as a universal normof bioethics?

In the light of these problems it is evident that BHR is unlikely to be accordedthe same stature as the UN’s Universal Declaration of Human Rights. Ambitiousto establish universal norms of bioethics, it employs parochial but content-richconcepts at some points, while at others it papers over deep differences withpolitical language that can neither guide nor clarify. Anyone seeking clearguidance on issues of international bioethics is thus likely to look to the more

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detailed and definitive statements of the World Medical Association (WMA),or, in the case of research ethics, the World Health Organization’s Council ofInternational Organizations of Medical Science (CIOMS). Sadly, UNESCO’sIBC appears to have missed an opportunity to create a strong comprehensivestatement on bioethics and human rights.

The IBC might have fared better had it opted for a true human rights strategyby seeking a consensus on the minimal conditions for voluntary collaborationbetween health professionals and patients, between researchers and subjects,between the developing and the developed world, and so forth. The language ofhuman rights would also have had a rhetorical, political (and legal) resonancethat would have echoed beyond sparsely populated corridors in which bio-ethicists congregate. For the power of rights discourse lies in its ability to serve,not only as a guide to the officially empowered, but also as the voice of theaggrieved and exploited, and of the dissidents, non-governmental and quasi-non-governmental organizations who speak in their name. Since this is only a draftdocument, UNESCO’s IBC might yet reformulate it. If it doesn’t, I believe that,although the document will prove useful in raising the profile of bioethics ininternational fora and in the developing world, it will be regarded, not as thefirst step towards universally accepted norms of bioethics, but as a missedopportunity to develop an international bioethics based on human rights.

My prediction is predicated upon my rejection of common morality theory.Should the prediction prove wrong, should BHR in its present form become auniversally acknowledged statement of the principles of international bioethics,it would tend to undermine my skepticism about the possibility of commonmorality theory. In an odd sense I would find satisfaction in disconfirmation. Thenotion of a common universally accepted core morality – the universal normsof bioethics – is more reassuring and straightforward than a convoluted theoryof negotiated rules bounded by a cosmopolitan theory of human rights. Sadly,however, I suspect that my skepticism will not be disconfirmed, that I shallremain dissatisfied – and that I will thus remain qualified to ruminatephilosophically about the prospects for international bioethics.

References

Baker, R. 1998a. ‘Multiculturalism, Postmodernism and the Bankruptcy ofFundamentalism’, Kennedy Institute of Ethics Journal 8(3): 210-31.

Baker, R. 1998b. ‘A Theory Of International Bioethics’, Kennedy Institute ofEthics Journal 8(3): 233-74.

Baker, R. 1998c. ‘Negotiating International Bioethics: A Response to TomBeauchamp and Ruth Macklin’, Kennedy Institute of Ethics Journal 8(4):423-53.

Baker, R. 2001. ‘Bioethics and Human Rights: A Historical Perspective’,Cambridge Healthcare Quarterly 10: 241-52.


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Beauchamp, T. L. 1998. ‘The Mettle of Moral Fundamentalism: A Reply toRobert Baker’, International Affairs 8(4): 389-401.

Dardé, V. M. 1999. ‘Fraternity and Justice’, in K. Bayertz (ed.), Solidarity.Dordrecht: Kluwer Academic Publishers.

French Assembly. 1789. ‘Declaration of the Rights of Man and the Citizen’, inJ. Waldron (ed.), Nonsense on Stilts: Bentham, Burke and Marx on the Rightsof Man. London and New York: Methuen.

Hamilton, A. 1787. In J. Waldron (ed.), Nonsense on Stilts: Bentham, Burke andMarx on the Rights of Man. London and New York: Methuen.

Locke, J. 1960. ‘Second Treatise of Civil Government’, in P. Laslett (ed.), Locke:Two Treatises of Government. Cambridge: Cambridge University Press.

Macklin, R. 1998. ‘A Defense of Fundamental Principles and Human Rights:A Reply to Robert Baker’, Kennedy Institute of Ethics Journal 8(4): 403-22.

Macklin, R. 1999. Against Relativism: Cultural Diversity and the Search forEthical Universals in Medicine. New York: Oxford University Press.

Michael, I. 1999. ‘Human Rights: The Midlife Crisis’, The New York Review ofBooks 46: 59.

Morsink, J. 1999. The Universal Declaration of Human Rights: Origins,Drafting and Intent. Philadelphia: University of Pennsylvania Press.

Paine, T. 1796. ‘The Age of Reason’, in E. Foner (ed.), Thomas Paine: CollectedWritings. New York: Library of America.

Rawls, J. 1971. A Theory of Justice. Cambridge: Harvard University Press.Schwelb, E. 1964. Human Rights and the International Community: The Roots

and Growth of the Universal Declaration of Human Rights, 1948-1963.Chicago: Quadrangle Books.

The Eleanor Roosevelt Papers. ‘Universal Declaration of Human Rights’, inA. Black and J. Hopkins, et al. (eds.), Teaching Eleanor Roosevelt. HydePark, New York: Eleanor Roosevelt National Historic Site. Online athttp://www.nps.gov/elro/glossary/udhr.htm (17 July 2005).

United Nations Educational, Scientific and Cultural Organisation. 2005. DraftDeclaration on Bioethics and Human Rights. Paris: Division of Ethics ofScience and Technology.

Wildt, A. 1999. ‘Solidarity: Its History and Contemporary Definition’, inK. Bayertz (ed.), Solidarity. Dordrecht: Kluwer Academic Publishers.

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HIV/AIDS EPIDEMIC, HUMAN RIGHTSAND GLOBAL JUSTICE

SIRKKU K. HELLSTEN

This article maps out some of the most burning political, legal and social issuesrelated to the HIV/AIDS epidemic, human rights protection and global justice.The article will focus particularly on the problems that the poor, developingcountries face in their attempts to combat HIV/AIDS in relation to the humanrights framework. The article will on the one hand, discuss human rights andHIV/AIDS from the point of view of ‘global justice’. On the other hand, itexplores local and national political and legal quandaries that many developingcountries face in their efforts to deal with the epidemic. Thus, my aim is, first, toidentify the problems involved in the debates on conflicting rights; second, todiscuss the ethical framework related to the conflicts between rights andresponsibilities; and third, to analyse who the duty bearers are in relation to theclaimed rights as well as to clarify their responsibilities, obligations and duties –both in global and local contexts. I shall show that while the main obstacleto human rights protection in the context of global AIDS is still the lack ofinternational commitment to share scarce resources equally particularly whendealing with the virus (whether we talk about prevention or treatment), otherserious ethical issues arise when we use the language of rights – more widely thehuman rights framework – to justify ‘double standards’ in global HIV/AIDSprogrammes. My main thesis is that in order find any consistent internationalguidelines for ‘global bioethics’ dealing with HIV/AIDS, there is a need tountangle the arguments for conflicting rights in relation to global and localresponsibilities.

HIV/AIDS in the Global Arena

HIV/AIDS is the most challenging global health threat at the moment. In 2003alone over 5 million people were newly infected with HIV worldwide. Of these4.2 million were adults and 700,000 were children below the age of fifteen years.

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This brings the number of people living with HIV/AIDS around the world toover 40 million. In the same year of 2003, more than 3 million people died ofAIDS worldwide. Out of these, half a million were children below the age offifteen years. Since its diagnosis in 1981, HIV/AIDS has killed over 20 millionpeople worldwide (UNAIDS/WHO, 2003; UNAIDS, 2004).

While HIV/AIDS is a global problem, according to UNAIDS/WHO figures(2004), the situation is still most severe in developing countries, which lackresources to efficiently deal with the epidemic. HIV/AIDS infections areconcentrated largely in poor countries least able to afford the care for infectedpeople. In fact over 90% of people with HIV live in third world countries and itis estimated that by the end of 2020 HIV will be responsible for 37% of all adultdeaths from infectious diseases in the developing world. For instance, in sub-Saharan Africa the total number of people living with HIV/AIDS is over26 million (UNAIDS, 2004; UNAIDS/WHO, 2003). In 2003, an estimated3 million people in the region became newly infected, while AIDS killedapproximately 2.3 million. This region also has 50 million orphaned children,and more than a third will have lost one or both parent to AIDS. More recently,fast growing epidemics are being experienced in Asia, the Pacific, and EasternEurope.

HIV/AIDS, Human Rights and Global Bioethics

When HIV/AIDS is discussed within the human rights framework the ‘right tolife’, the ‘right to the enjoyment of the highest attainable standard physical andmental health’ and the more general right to health care come to mind as the mostrelevant rights. However, other rights such as to ‘non-discrimination’, ‘equalprotection’ and ‘equality before the law’ as well as to ‘freedom of movement’, toseek and enjoy asylum, ‘right to privacy’ and ‘right to freedom from torture orcruel, inhuman or degrading treatment or punishment’ are also directly related tothe treatment of those infected with the HIV virus and easily marginalised in asociety (UNAIDS, 2003)

The lack of the freedoms of speech and association as well as the violation ofthe right to information and education also hinder an efficient response to theHIV epidemic. If taken seriously most of the rights listed in the InternationalCovenant on Economic, Social and Cultural Rights (ESCR), particularly suchrights as the right to ‘participate in the cultural life of the community’ and to‘enjoy the benefits of scientific progress and its applications’ when related to theaccess of new medical treatments and technology, are relevant in the context of‘global AIDS’ (UNCHR, 1997). However, what complicates global attempts todeal with HIV/AIDS within the human rights framework is the fact that whilevarious individual rights might be spelled out in international and local pro-grammes, either they tend to conflict with each other or there is no agreement onthe respective duty-bearers. Collective rights, for their part, often enter into the

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discussions on the prevention and care of HIV/AIDS, when the discussion isabout the protection of ‘public health’, or respect for cultural integrity.

The web of ethical dilemmas related to HIV/AIDS and human rights in aglobal context, could roughly be split into the two following categories: a) theproblems of social justice related to responsibilities of duty-bearers in local andglobal resource allocation; and b) the conflicting claims and rights of individuals(rights to life, health care, equality, privacy, confidentiality, non-discrimination)as well as the more collectivist claims, not only those of the public healthimperatives and demands for individual and social responsibility needed tocontrol the spread of the disease, but also those related to collective rights andcultural integrity. In addition, particularly in patriarchal social systems, culturalrights are often set against women’s rights and gender disparity is defended inthe name of cultural integrity.

These categories are overlapping, since on the one hand, HIV/AIDS cannotbe separated from extreme poverty and, on the other hand, there are issues ofprioritising resource distribution between the competing needs and rights ofprevention among the still-uninfected and medical treatment and social supportfor those already infected and/or affected by HIV. This complex relation betweenconflicting rights as well as rights and responsibilities is further complicatedparticularly in poor developing countries due to the disagreement on the role thatinternational donor agencies and governments of affluent countries should havein dictating policies and priorities for the resources they provide.

All in all, in the global context we need to explore the questions of rights inthe following, distinct but clearly overlapping, debates:

1. Distribution of all resources and the problem of global and local inequalitiesin relation to basic rights to life and well-being/identification of duty-bearersin a global context

2. Conflicting rights and duties in the national or local contexts(a) In relation to individual rights vs. (collective) public health (as the

responsibility of state/other relevant institutional collective)(b) In relation to individual rights vs. social responsibility (of individuals)(c) In relation to individual rights vs. collective group rights (cultural rights,

cultural integrity and identity in defence of traditional values andpractices) that fuel the spread of HIV/AIDS – and that tend to suppressparticularly the rights of women in patriarchal communities.

Global Distribution of Resources and the International Reactionto the HIV/AIDS Epidemic

Equal human rights standards should be implemented across the world inrelation to the attempts to curb the HIV/AIDS epidemic and to protect the rightsof those who are living with the virus as well as those who are not yet are

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infected. This means that we need not only take into account the promotion ofindividual rights but that we also need to consider seriously individual, nationaland global responsibilities in promoting ‘public health’. The realisation ofindividuals’ human rights requires that not only those states which are mostaffected by the epidemic, but also the international community as a whole takesresponsibility. However, even if we accepted our global responsibility, thequestion remains: who in practice has a duty towards those at risk (infected orat risk of being infected); what is it that each of us needs to be responsible forand how?

Finding the relevant duty-bearers in the global context has always proved tobe difficult, particularly since any attempts to realise ‘global justice’ require thatwe also take into account earlier human rights violations and structural injusticesin local social systems, in national policies as well as in international relations.After all, persistent structural injustices that have led to consistent human rightsviolations mean that individuals and groups of people who suffer from variouskinds of discrimination, and whose rights are not protected to start with are bothmore vulnerable to becoming infected and less able to cope with the burdens ofHIV/AIDS. As the UNAIDS programme has pointed out refugees, migrants,prisoners, sex workers, people discriminated because of their sexual orientation,and drug users are often more susceptible to infection as well as to other humanrights violations because they often are unable to realise their civil, political,economic, social and cultural rights. In addition gender inequalities spur on thespread of the epidemic and its disproportionate impact on women (UNAIDS2003, 2004).

Whose Rights Should be Set Against What Responsibilities?

These injustices have to be dealt with locally as well as globally. However, theinternational community with knowledge and resources to deal with theseproblems, has not acknowledge its direct moral responsibility in righting theexisting wrongs. While affluent donor countries and the international communitydiscuss HIV/AIDS programmes within the human rights framework, theHIV/AIDS epidemic is still the most serious global health challenge. There isa lack of serious international ethical commitment and while the language isused the actions of affluent countries have not followed the kind words.1 Theresponsibility has been shifted between the governments of affluent and poorcountries. Time is wasted in pointing fingers at each other in order to pass theblame. The poor countries argue that the wealthy countries should do share inresponding to the epidemic. This would require the wealthy countries to make aserious attempt to alleviate poverty by reconstructing the world economic orderand by agreeing to have balanced trade policies and more equal distribution ofall scarce resources. Particularly there is a need to guarantee an open accessto medicine and to do away with the patent protections for pharmaceutical

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companies, which allows the high pricing of drugs and the banning of genericdrugs (which has been the case until very recently). While there have been someimprovements in drug availability lately, relatively all treatment is still much tooexpensive in most developing countries.

Wealthy countries, for their part, argue that they have not purposefullyinfected (the poor) people nor intended to harm them, and corrupt governmentsin many developing countries do not give priority to health care but rather usescarce resources for arms and war. Thus, the rich countries claim not to have anydirect moral duties to correct the injustices occurring in developing countries,and that their help should rather be seen as a sign of good-will and humanitarianconcern for those less fortunate.

The tendency of the affluent countries to shun their responsibility in dealingwith HIV/AIDS despite their demand for universal human rights promotion issometimes also excused by the enormity and insolubility of the HIV/AIDSproblem. This tends to lead into ‘lifeboat ethics’, which accepts that since thereis no cure for HIV/AIDS and the basic treatment is too expensive and difficult tomanage in the third world, we should not extend the suffering of those livingwith AIDS in poor countries by giving them useless hope by offering treatmentthat in the end is not going to solve the problem. This view is certainlyinconsistent and promotes ‘double standards’ since in the affluent countries itwould clearly be seen as a human rights violation not to provide individualsinfected with the best care and treatment available that in fact can provide peopleliving with HIV/AIDS (PLWHA) with a relatively comfortable life for a longperiod of time.

It is evident then, that if we accept that international human rights standardsare relative not only to cultural understandings but also to the resourcesavailable, the duty-bearers can easily escape their responsibility. The claim for‘the highest attainable standard of physical and mental health’ gives free handsto affluent countries to defend the already strong ‘double-standards’ in dealingwith the epidemic in the global context.

Individual vs. Collective Rights in Relation to Public Health

The unequal global distribution of resources hinders poor countries in providingfor individual rights – and particularly for the positive claim rights of healthcareand social security. The lack of adequate medical resources and technology leadsinto other issues of prioritisation: should more resources and energy be putinto the prevention of diseases or to the treatment of those already ill? Whichtreatments and which diseases should the health policies and services focus on?Should the states and public health services concentrate on treating first curablediseases such as malaria, diarrhoea, and bilharzias and only after that focus onincurable diseases such as HIV/AIDS? Or should they invest more resources in


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preventing HIV/AIDS? How should they deal with the HIV-related symptomssuch as various opportunist infections?

The main quandary is in finding a way to organise health care policies andservices in poor countries in a manner that gives people as fair access as possibleto the available resources in poor developing countries. This has to be checkedagainst the human rights standards that call for equality and equal rights, not onlywithin the context of global alleviation of resource shortages but also in relationto local distribution and particularly when the lack of resources is related tocorrupt practices (not only in government and law, but also in education andhealth care services) as well as other forms of unprofessionalism. Thus, theproblems of scarce resources overlap with other ethical issues in medicalpractice such as the protection of public health as well as the enforcement ofmedical codes of conduct (Seidel, 2003; Baylies, 2000a). On the other hand, theyare related to gender inequality, local biases and cultural prejudices.

The codes of conduct of medical practice relate to the dilemmas of publichealth and social responsibility in dealing with HIV/AIDS. As an example wecan take the principle of doctor-patient confidentiality. As noted earlier one mainconflict in relation to human rights in national HIV/AIDS policies as well as inprofessional practice is between the protection of individual rights, on the onehand, and the promotion of public health, on the other. Many doctors and healthcare professionals in developing countries face a dilemma when the principlesof confidentiality and privacy based on the respect of individual’s ‘moralautonomy’ clash with the demands of social responsibility in form of protectingthose yet uninfected. Particularly in cases when the latter would require medicalpractitioners to reveal the HIV test results to the patient’s family.2 Similarlymedical professionals have to brood over whether to obtain informed consentfrom the patient for testing, or whether to conduct the test routinely in any case;even – and often particularly – when the patient does not want to know his orher health status for fear of being stigmatised by his or her community. Theinternational, Western-led legal human rights arguments tend to emphasise theprotection of those infected over public health considerations, particularly in theaffluent countries where medication is easily available. The donors, however,when operating in poor countries tend to focus on prevention rather thantreatment, and give priority to public health over individual cases. Here theinconsistency in practices and the lack of genuine agreement between donors,national governments and medical professionals can be seen to contribute todisjuncture between national policies, public health acts and social ethics, all ofwhich, for their part, in many developing countries emphasise the protection ofthe public/group over the individual (Baylies, 2000b).

Cultural Rights and Traditional Practices

The demand for cultural integrity is often also disputed between donor agencies

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and developing countries in relation to HIV/AIDS prevention and treatment.This debate brings together the issues of individual and group rights whenit comes to individuals’ willingness to abide with new ways of life and withmodern recommendations and regulations in order to combat HIV/AIDS or totheir freedom to cherish traditional practices and ways of life.

In relation to cultural integrity and group rights many conflicts emerge. Notonly do religious or spiritual beliefs, and related norms, oppose many preventivemeasures such as condom use, but various cultural traditions and practicesthemselves may actually contribute to the spread of HIV/AIDS. The humanrights framework is often seen inadequate when we have to deal with conflictsbetween collective/group rights and individual rights. The following questionssurface: do foreign donor agencies have the right (or possibly an obligation) tointercede against cultural practices, which are believed to facilitate the spreadof AIDS? What about the state itself, should it abolish certain local culturalpractices, particularly if this is a condition for receiving more external aid andassistance? Or is should the interference with traditions be seen as a violation ofcultural integrity, which undermines the very national sovereignty in the eyes ofthe citizens and which creates internal resistance to various national measures tocurb the epidemic?

The promoters of collective cultural rights and cultural integrity may claimthat ‘Southern cultures’ in many developing countries are not based on Western‘individualism’ and forcing the idea of individual rights merely disintegrateslocal social structures and their traditional culture and makes people shun theirsocial responsibility as well as duties as members of various communities. Thissocial responsibility and its related duties, for their part, could be central incurbing the HIV/AIDS epidemic. In other words, the Western individualistichuman rights framework as a whole is sometimes seen as form of bringing inWestern individualist ways of life, which are often seen as part of the problemrather than part of the solution. Western individualism is, for instance, blamedfor the degeneration of moral standards by liberating sexual behaviour andcreating self-interested anti-social behaviour that disintegrates families andcommunities, while traditional practices and beliefs are believed to do theopposite. The Western ‘individualist right framework’ is then blamed for theemergence and acceptance of homosexuality, the existence of which is officiallyrejected particularly in Africa – both as cultural tradition and as a form ofacceptable behaviour or way of life that could/should be tolerated. Thepromoters of collectivist traditional cultures in many poor countries could thenalso claim that instead of relying on the individualistic protection of individualfreedom and ‘morally suspicious’ ways of life, collective social duties andcollectivist traditions based on the local values of social responsibility andsolidarity should be harnessed to combat AIDS. This local combat, for its part, isoften seen to require the promotion of collective and cultural rights rather thanindividual rights (Baylies, 2001a; Harris and Siplon, 2001; Seidel, 2003).


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However, in many cases traditional practices themselves are fuelling thespread of the HIV virus. This is particularly true in relation to gender inequalityand the violation of the rights of women, which has led to the increasing‘feminisation’ of HIV/AIDS in many developing countries. These discrepancieshave been attributed to several factors. Besides the biological fact that HIV ismore easily transmitted from men to women (than vice versa),3 in many poorsocieties women have a limited say about with whom, when and under whichconditions they have sex. In many developing countries there are also socio-cultural traditions (for example male and female genital mutilations, polygamy,widow inheritance, conjugal bonds, and few social sanctions on premarital orextramarital sex), which are seen to contribute further to the spread of HIV/AIDSparticularly among women. Due to gender disparity women are in triplejeopardy: women are physically and socially more vulnerable to the virus.Women also have less influence in policies concerning HIV/AIDS and womenliving with HIV/AIDS often experience greater stigma and discrimination thaninfected men (Irwin, Millen and Fallows, 2003). To make the situation evenmore complex there is a need to be aware of the situations in which promotingwomen’s political, social and reproductive rights within a patriarchal culturalcontext may backfire and lead to more furious promotion of cultural rights. Thiscan become an issue also when health care professionals try to find ways toadvise women, educate women and help women against the wishes of theirsocial settings or against cultural beliefs and practices (Baylies, 2000b;UNAIDS, 2004).

In relation to choice between the promotion of individual and cultural rightstwo very different arguments are tangled together: on the one hand, the demandfor social responsibility and cultural values, and on the other hand, the promotionof cultural practices and power structures which have nothing directly to do withthese claimed traditional values. Instead, hasty generalisations are made to createfurther polarisations and false dichotomies between the different human rightsframeworks. Firstly, there is an argument for cultural integrity and nationalrights to choose the most efficient methods of dealing with HIV/AIDS in anon-Western cultural context. Secondly, individual rights are equated with indi-vidualistic ways of life and collectivist rights with collectivist cultural traditions.In other words, traditions are set against values by both sides. In the legal contextthis is difficult particularly in many developing and newly independent countrieswhich have both individual as well as collective rights in their constitution aswell as various interpretations of the social duties that individuals have inrelation to national interests and security.

Conclusion

Dealing with HIV/AIDS both in global and local contexts requires acomprehensive approach to human rights standards and bioethical guidelines

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that includes international and national HIV/AIDS policies that not onlyrestructure health priorities, and address socio-economic and medical issuesbut which also take into account wider ethical and legal questions, such asprofessional medical ethics, social ethics related to various cultural traditions,policies and related legal sanctions on testing, prevention and treatment. Theset of the guidelines presented have to be consistent. The legal protection ofindividual rights is needed, while room has to be left for designing collectivepublic policies on prevention and promotion of public health in a culturallysensitive matter that can harness culture to combat the HIV/AIDS epidemicrather than the create new policies that are trying to do just this, but tend to clashwith local cultures. However, local policies and measures to combat theHIV/AIDS problem in the developing world are not likely to be enough withoutdeveloped countries accepting their global responsibilities and commitment tocertain universal standards of ‘global ethics’. Thus, there is a need to find a wayto integrate both human rights frameworks to make a consistent set of principlesthat combine the protection of individual rights with the demand for bothindividual and collective social responsibility – in local and global contexts.

Notes1 Copy required????

2 Copy required????

3 Copy required????

References

Baylies, C. 2000a. ‘Overview: HIV/AIDS in Africa: Global and Local In-equalities and Responsibilities’, Review of African Political Economy(ROAPE), 28(87): 487-500.

Baylies, C. 2000b. ‘Perspectives on Gender and AIDS in Africa’, in C. Bayliesand J. Bujira (eds.), AIDS, Sexuality and Gender in Africa. London: Routledge

Harris, P. and Siplon, P. 2001. ‘International Obligation and Human Health:Evolving Policy Responses to HIV/AIDS’, Ethics and International Affairs15(2): 290-52.

Irwin, A., Millen, J. and Fallows, D. 2003. Global AIDS: Myths and Facts.Cambridge, MA: South End Press.

Seidel, G. 2003. ‘HIV/AIDS: Behind the Rhetoric, Whose Interests Are BeingServed?’, Review of African Political Economy (ROAPE) 30(98): 664-70.

UNAIDS/WHO. 2003. AIDS Epidemic Update. Geneva: UNAIDS, online athttp://www.unaids.org/Unaids/EN/Resources/Publications/corporate+publications/aids+epidemic+update+-+december+2003.asp (accessed 27 April2005).


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UNAIDS. 2004. Report on Global HIV/AIDS Epidemic: Fourth GlobalReport. Geneva: UNAIDS, online at http://www.unaids.org/bangkok2004/GAR2004_pdf/UNAIDSGlobalReport2004_en.pdf (accessed 27 April 2005).

UNCHR, International Guidelines on HIV/AIDS and Human Rights, UNCHR.res 1997/33, UN Doc. E/CN.4/1997/150, online at http://www1.umn.edu/humanrts/instree/t4igha.html (accessed 27 April 2005).

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A RIGHTS-BASED APPROACH TO DEVELOPMENT:PROSPECTS AND PROBLEMS

SUKANYA MOHAN DAS,WITH RAY GOLDSTEIN AND SUE ELLIOTT

A review of Peter Uvin, Human Rights and Development (Bloomfield, CT:Kumarian Press, 2004).

International development assistance, humanitarian relief and human rightsinterventions, like many other noble human endeavours are inherently politicaland liable to have unexpected and/or unintended, positive or negative outcomes.Since Mary Anderson’s seminal work Do No Harm (Lynne Rienner, 1999)highlighted the inadvertent and harmful effects of relief and developmentassistance in conflict zones, there has been greater consciousness amongstindividual aid workers and relief and development agencies of the socio-economic and political impacts of their presence and interventions in theseenvironments. These realizations have in turn contributed to the emergenceof conflict-sensitive approaches, and the use of conflict analysis in the formu-lation and implementation of projects and programmes located in conflictenvironments.

Peter Uvin painstakingly articulates an emerging and potentially progressiveapproach to the international practice of development in his groundbreakingbook, Human Rights and Development. It is an inspiring attempt to integratehuman rights values within international development practice. Although otherscholars have challenged the false dichotomy that separates the discourses andpractices of human rights from mainstream development, Uvin’s analysis of thechallenges and implications of integrating human rights values and developmentpractice is a significant and seminal contribution.

The core questions considered in Human Rights and Development are: howcould development assistance be re-conceptualized in order to better integrateand uphold human rights; what changes need to be made in developmentpractice; and what are the probable implications of such changes? According to

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Uvin, these questions and the arguments he presents are intended to forcedevelopment practitioners to face up to ‘matters of power and politics, exclusionand discrimination, structure and policy’ which they have tended to overlook inthe course of their work (3).

The crux of Uvin’s argument is that blind development aid fails to accountfor human rights, politics, and conflict dynamics, and will inevitably fail. Uvinsubstantiates this by analysing past failures in development policy such as the1994 Rwandan genocide (see his Aiding Violence: The Development Enterprisein Rwanda, Kumarian Press, 1998). According to Uvin such failures provideample proof of the urgent need for change, and so he presents a comprehensiveanalysis of the major trends in international development and human rightspractice, concluding with a proposal for a rights-based approach to development,in which the artificial ‘boundaries between human rights and developmentdisappear, and both become conceptually and operationally inseparable parts ofthe same processes of social change’ (122).

Uvin’s argument and response to the core questions are divided into two parts.First, he begins by tracing the origins of the current international human rightsregime, including the charge that human rights are Eurocentric, and considers therelative merits and weaknesses of six rationales or approaches that have beenused to assert and/or reinforce the universality of human rights. Uvin refers tothese as: the legal solution; weak cultural relativism; the affirmative position;the empiricist strategy; the philosophical approach; and incremental change. Heconcludes that none of the six approaches is able to provide a perfect solution tothe relativity ‘conundrum’.

Uvin then considers the relativity question in respect to the promotion of‘development’ and the essentially contested nature of development practice anddiscourse. He refers to three specific challenges to the purported universalityand technical neutrality of development assistance. First, the views of ‘radicalintellectuals’ such as Escobar, Ferguson and Rist, who see development dis-course as justifying ‘the existence of an interventionist and disempoweringbureaucracy’. Second, a less radical relativist critique by scholars such asMarglin and Marglin, Kothari, and Shiva who assert that the ways in whichdevelopment assistance has been implemented is ‘wrong, culturally unadapted,often exploitative, unsustainable, unjust and gender biased’ (32). And third, anargument made by development practitioners in the field that – for a variety ofreasons – people do not seem to participate enthusiastically in projects andprogrammes implemented by aid agencies. In response to these challenges, Uvinfinds that unlike the human rights field that has been able to rely on legalistarguments about the universality of human rights, the development industryinstead has relied on empirical, philosophical and incremental solutions, whichhave to varying degrees enabled development practitioners to take steps to makeprojects work better.

The second part of Uvin’s analysis turns to the practical considerations of

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integrating human rights in development. He does this by analysing the pros andcons of three current methods for integrating human rights within the develop-ment interventions. They are the rhetorical repackaging of current developmentpractice in politically correct jargon, with little effect in daily operationalpractice; the use of political conditionalities that tend to hurt those mostvulnerable and deserving of development assistance and not the perpetrators ofhuman rights violations in its most holistic sense (comprising civil and politicalliberties, as well as economic, social and cultural rights); and positive supportthat takes an ahistorical and purportedly ‘technical’ and neutral approach todevelopment interventions in recipient countries. The last effectively depoliti-cises the inherently political nature of the intervention and consciously over-looks the power-counter-power dynamic of these interventions (e.g., the politicaland economic effects of ‘good governance’ criteria in structural adjustmentpackages and later poverty reduction strategy papers).

Uvin’s analysis of the above approaches makes a number of important obser-vations and insights about the differential advancements of each camp. Theseinclude: the relative neglect of economic, social and cultural rights by the humanrights community; the tendency for mainstream development interventions tobe superficial (apparent by their form rather than substance); the failure of the‘development enterprise’ to support and build bridges with local struggles forsocial change and empowerment (while human rights organizations havepreferred to remain on the ‘safe, moral high ground and to focus on exposinga limited number of widely accepted civil and political rights’ (31); and mostimportantly, that the processes used by development agencies and practitionersare as important as the development objectives or actual outcomes.

As a counter to the internal inconsistencies of current approaches, Uvinconstructs an alternative, ‘rights based’ approach (RBA) to development. ForUvin, the RBA reflects the highest level of integration of human rights valueswithin development practice – ‘the boundaries between human rights anddevelopment disappear, and both become conceptually and operationallyinseparable parts of the same processes of social change’ (122). The RBA is seenas distinct from other approaches for integrating human rights values andstandards in development practice in two ways: first, it ‘creates claims and notcharity (the end of development aid differs, and consequently the whole processof thinking about it, of defining the nature of the problem, changes as well – anew vision emerges). Second, the RBA affects the way development actions areimplemented (the means, the processes, are different, even if many of the goalsremain the same)’ (129). Uvin argues that the move to a RBA would requiredevelopment practitioners and institutions to shift their current focus onaggregates and averages to the rights and claims of individuals. This wouldsupposedly result in ‘development practitioners thinking more in terms of policy,inequality, exclusion and discrimination – and not just poverty as a fact of natureor some original state everyone departs from’ (130). Since the RBA sees

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individuals as having rights and claims, the accountability of donors and inter-mediaries to the recipients or ‘beneficiaries’ is at the core of the RBA framework.Moreover, the RBA to development would necessarily be premised on meaning-ful and comprehensive participation of the envisaged recipients, from inceptionthrough implementation to evaluation.

Uvin identifies some possible practical implications of adopting a RBA todevelopment. These include: the importance of understanding the internationalhuman rights framework and apparatus; the significance of building the capacityof civil society and potential development partners; the need for internationaldevelopment actors to conduct greater advocacy and campaign on policy issuesarising in recipient countries; the importance of documenting potential andactual violations of economic, social and cultural rights arising from develop-ment interventions; the necessity for individual reflection and critical internaldebates within development agencies and with their development partners; thevital importance of the rule of law in a RBA developmental framework; the needto improve information flow to the poor; the requirement to ensure the broadestlevel of participation, accountability and ‘transparency with equity’ in develop-mental decision-making; and the challenge of distribution of the benefits arisingfrom development processes. The nature of participation within a RBA frame-work would therefore be far more meaningful on an individual level than thatcurrently seen in mainstream development work. The rationale for this muchdeeper level of participation stems from two principles: ‘that the process bywhich development aims are pursued should itself respect and fulfil humanrights’ (176), and that the enjoyment of any one right should not be sacrificedor compromised in the pursuit of achieving other rights (the principle of non-retrogression).

Uvin acknowledges that the RBA is not a ‘magical key’ that opens the doorsto a ‘development nirvana’. To his credit, he acknowledges the risks of adoptingthe language of rights, which could equally serve the promotion of ‘rhetoricalfluff’. He also asserts that donors and others involved in development work mustdirectly confront the need to make choices or set priorities amongst the rights, aswell as accept trade-offs, given the resource-constraints that make it improbablefor the full range of human rights needs to be met simultaneously. However, forUvin a more fundamental challenge to using the RBA framework is its unmaskedinterventionism. Although he admits discomfort with the carte blanche for inter-ventionism that the RBA appears to provide, Uvin suggests that the apparentexpansion of the development community’s mandate could be countered throughan ‘equally necessary reduction in its power, its capacity for conceptualizationand initiative, its control over finances, and its lack of accountability’. Theimperative to overcome such huge challenges is buttressed by an ethicalaffirmation he shares with Mary Anderson who asserts that there is a moralresponsibility on the part of those who have power, ‘to act in solidarity and infavour of social change’ (197). Uvin realizes that a voluntary relinquishing of

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power by development agencies, practitioners and donors along such lineswould by no means be easy, and certainly there would be substantial objectionsto solving developmental disparities by the wholesale redistribution of wealth ona global scale. Yet, what are the alternatives and who suffers the consequences?

We do not have the audacity to profess to know the answers but would ventureto suggest some ways of clarifying and strengthening Uvin’s approach. While itis refreshing to read his frank and astute analysis of the double standards andinternal contradictions of current international human rights and developmentpractice, some of his assertions, examples and conclusions are problematic.

For a start, Uvin holds that the RBA entails a major extension of thedevelopment mandate. This seems odd given his previous argument that humanrights and development are different parts of the same social processes, and thatwhat is needed from development practitioners and institutions by way of humanrights is not to take on the role of a human rights practitioner, but rather to bemeticulous in development practice and ensure their interventions respect inter-national human rights. The RBA therefore makes it incumbent on developmentpractitioners and agencies to consider the human rights implications of theirinvolvement in a recipient country. Moreover, the emphasis on meaningfulparticipation and down-stream accountability of donors and those in power tograss roots communities would not be extending the mandate of developmentprofessionals, but instead limiting their unfettered and unaccountable use ofproject and programme funds.

The RBA simply but crucially leads development practitioners and develop-ment institutions to reconsider what ‘development’ is really and holisticallyabout, and gives substance to the oft used mantra of placing people, particularlythe vulnerable and disadvantaged, at the centre of development practice. How-ever, it is safe to assume that the amount of time allocated for the achievementof a development objective and its associated project or programmes would beextended, because meaningful participation from the bottom up requires time,and since a certain amount of flexibility would have to be built into projectdesign to allow for re-focussing of priorities and any other important amend-ments or corrections that may arise in the course of implementation. We wouldalso argue that the greatest ‘extension’ that the RBA exacts from developmentpractitioners and institutions is that of their mind-set and attitudes towardstheir work and relationships. Such a shift within the development industry wouldmark the greatest and most profound ‘break’ with contemporary, mainstreamdevelopment practice.

The second problematic area in Uvin’s analysis concerns the examples hegives in general and in particular of the World Bank-financed KecamatanDevelopment Project (KDP) in Indonesia. Uvin points to a list of safeguards putin place by the Bank to reduce the risks of corruption and other abuses in thisproject (which provides grants to villages from elected development councilslocated at the sub-district level). The raison d’être of the project was to provide


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development funds at the grassroots level, by-passing the layers of governmentabove the sub-district level and thus reducing the risks of corruption and otherforms of abuse. While the majority of safeguards looked good on paper, they didnot inspire very much confidence because there was no indication of howeffective those measures were in practice. The final safeguard listed he mentions,was that of the Handling Complaints Unit, which included the Bank’s powerto block the disbursement of funds. However, based on observation of thecontradictions in the implementation of the KDP’s sister project in Timor-Leste,the Community Empowerment and Local Governance Project (often referred toas the ‘CEP’), a more meaningful safeguard would have been to ensure that:(a) disbursement of project funds was linked to the achievement of socialobjectives promoted by the project, including high levels of participation at thehamlet and village levels; and (b) that either the government or an independentbody would have the authority to block disbursement where qualitative socialindicators have not been met.

A third area needing further clarification is Uvin’s final set of recommen-dations for future rights based development initiatives. These include: the needto reduce the areas of development intervention in any one recipient country; theimportance of providing more space for local social forces to ‘define their futureand engage in social struggle for it’ (199); and implementing the RBA todevelopment through participatorily-derived ‘country-specific compacts’ that setout the limited areas in which the international community will invest over thelong term.

It is questionable whether, especially in post-conflict environments, it ispossible to stick to providing development assistance to a limited set of sectors.Although there is much merit in Uvin’s rationale (that it is important to at leastdo something really well, rather than do everything half way), the politicalrealities in post-conflict environments may not give governments the luxury ofexcluding certain sectors from external funding. Political survival and, moreimportantly, public security may warrant a fine balancing act of injecting fundingto a number of key sectors. And while it may seem wise to prioritize education,nutrition and health as sectors in which international donors will collaborate toguarantee each and every person in the world ‘access to the key elements of theright to life’ (199), it is not clear whether this would include the right to earn adecent livelihood. While education is indeed a priority right, the demographicand economic realities in post-conflict societies often mean that there is a direlack of livelihood opportunities for young, fresh graduates from high school andtertiary institutions, as well as recently demobilized former combatants. It wouldtherefore be imperative for educational and economic development strategies toreflect the needs of a post-conflict environment and, as far as is possible, providethe population with the skills, knowledge and tools to independently earnreasonable livelihoods.

With regard to giving local people (as construed in the most inclusive and

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equitable sense – hence not limited to local elites) sufficient space to decide theirown development paths, it may be worthwhile to consider whether the donorcommunity could play a supporting role by, for example, providing recipientgovernments and communities with complete information on the pros and consof the various development options under consideration. In some post-conflictenvironments, for example Timor-Leste, many of the conventional economicmodels, including those related to cost-recovery of public infrastructure invest-ments (e.g. water and electricity supply) may not have much relevance or beworkable given the scarcity or low levels of cash circulating within the localeconomy. Hence the need for innovative thinking and the creation of new modelsof development that are in tune with local conditions and aspirations. Such issuesare not clearly articulated in Uvin’s analysis and constitute areas for furtherinvestigation.

A related recommendation that could benefit from further clarificationconcerns giving local people the space to wage their own social struggles.Although Uvin acknowledges that the RBA would require a robust rule of law,there are considerable hurdles to be overcome in any development context, butparticularly in post-conflict environments and so there may be dangers in simplyleaving impoverished and still traumatized populations to wage their socialstruggles for justice and equity in a volatile post-conflict environment where aculture of respecting the rule of law and human rights and structures to supportthis has yet to emerge. While human rights monitoring and promotion have beenpart and parcel of international assistance to societies emerging from violentconflict, one could argue that mainstream human rights initiatives have not beenentirely effective in two critical areas. First, in terms of promoting human rightsin its holistic sense, and which emphasize the indivisibility of social, economicand cultural rights from civil and political liberties. Second, the failure toconnect human rights education to the broader social dimensions of peacebuilding and the rule of law, which deal with questions such as the rights,privileges, responsibilities and obligations of the state vis-à-vis its citizens, andvice versa. The latter, we argue would be crucial in ‘normalising’ or ‘decriminal-ising’ democratic processes such as public demonstrations and other forms ofsocial mobilization which call on states or governments to be answerable andaccountable to the broader population. The importance of this last point forconflict prevention and ‘post-conflict’ peace building cannot be dismissed, giventhe crucial need to ensure that nascent or reformed security services (military andcivilian) recognize as their purpose the protection of civilians or the ‘public’ – asopposed to that of political elites and regimes.

In closing, although Uvin clearly states that his advocacy of a RBA approachto development is not a miracle solution for the many ills that beset internationaldevelopment practice, his final suggestions do not really do justice to what couldhave been a broader, more holistic vision of how human rights values could beintegrated with development interventions. It is also surprising that Uvin has not


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considered the implications of applying rights-based approaches in efforts toachieve the Millennium Development Goals. A final comment is that it may havebeen more useful for Uvin to have substantiated his arguments by using concreteexamples from his extensive and valuable fieldwork in Rwanda and in othersocieties where there have been significant failures to protect the rights of all.

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BOOK REVIEWS

Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London and New York: Verso, 2003).

This book offers a lively dialogue on the fundamental questions of justice. Likethe best of this genre of philosophical writing this exchange between NancyFraser and Axel Honneth brings focus and clarity to difficult issues. In thecomplex world of political theory Fraser and Honneth stand behind the samebarricade. They are both critical theorists and so there is an extensive overlap inboth the philosophical and political questions they ask and the answers theyoffer. However their overt similarities disguise significant disagreements on theplace and meaning of fundamental concepts, the content of normative principles,and the role of critical theory itself.

At the sharp end of their disagreement is the place of the concept ofrecognition in the elaboration of an adequate theory of justice. More specifically,Fraser and Honneth differ about whether the idea of recognition is sufficient toexplain injustice and whether recognition is sufficient to ground transcendentalnormative claims. The text is divided into four parts. First Fraser sets out her‘two-dimensional’ (19) conception of justice. This is followed by Honneth’sresponse that both criticizes Fraser and sets out an alternative conception. Thefinal two parts offer each contributor an opportunity to respond.

Fraser identifies what she takes to be a false antithesis between ‘economism’and ‘culturalism’. The former takes the notion of redistribution as its explanatoryand transformative concept while the latter uses recognition for the samepurposes. The familiar arenas of political contestation, class and identity, trackFraser’s distinction. Fraser contends that the predominance of identity politics,that is, politics that seeks to secure recognition (of culture, sexual orientation,race, etc.), has recently eclipsed struggles aimed at redistributing resources.However, her aim is not to substitute recognition with redistribution but todevelop a theory that acknowledges both as primary and ‘co-original’. Herpurpose is what she calls a ‘perspectival dualism’ that forms ‘two analyticallynormative vantage points’ (63).

Justice therefore requires remedying both maldistribution and malrecognition.

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But what is to count as a failure of distributional justice and recognition?And what are the practical political strategies for addressing these failures?Here Fraser introduces the normative notion of ‘participatory parity’. This idea,that demands equality of respect and equality of ‘independence’, guides us indetermining instances of injustice and a normative standard at which to aim.

This then is the rough conceptual framework Fraser offers. It is importantthough to note that Fraser takes the ‘folk paradigms of justice’ (207) as herstarting point and is keen to anchor her theory in the immanent discourse ofpolitical activism. Her discussion therefore relies on numerous examples ofidentity and class struggles that help the reader through the conceptual maze.

Honneth’s reply consists primarily in the elaboration of an alternative theoryof justice that privileges recognition and rejects Fraser’s dualism. He recom-mends a ‘recognition-theoretical turn’ (111) that understands injustices,including ‘material’ inequalities as the withdrawal of recognition and asinstances of ‘humiliation and disrespect’. Honneth conceives capitalist society asan ‘institutionalized recognition order’. So the struggle for justice in capitalistsociety is, and in fact has always been, a struggle of recognition and thus heinterprets class conflict as one particular historical form of the fight againstdisrespect.

Honneth describes three spheres of recognition in capitalist society: love, lawand achievement. Each of these spheres is organized according to particularnormative social relations. Love is ‘distinguished by the principles of affectionand care’ (139). Law is distinguished by the principle of legal equality, andachievement distinguished by merit. It is these principles that stand as normativestandards against which citizens make their claims of inadequate recognition.Thus the idea that the problem of recognition is a recent political claim and thatit marks a new form of political struggle (identity politics) is firmly rejected byHonneth. The moral order of capitalist society is in fact organized by the notionof recognition and all claims of injustice are claims of ‘unwarranted disrespect’(151). For this reason Honneth also rejects the thought that recognition is insome sense ‘cultural’ and as such distinct from concerns of redistribution.

What then do we struggle towards when we challenge injustices in capitalistsociety according to Honneth? For Fraser the normative goal is ‘participatoryparity’, which Honneth rejects. Instead he argues that the distinction of a justsociety is ‘the most intact possible identity formation’ (176) enjoyed by citizens.This is another way of saying that the aim of justice is individual self-realization.So in the place of Fraser’s perspectival dualism Honneth offers a psychologicalmonism that grounds political norms in the notion of recognition.

Fraser’s sharp retort consists of three main claims. Firstly, she argues thatHonneth errs in reducing political sociology to a ‘moral psychology of pre-political suffering’ (203). Fraser objects to this as foundationalist and incapableof engaging with the immanent politics of the everyday. Secondly, Fraser objectsto the idea that capitalism is nothing more than a particular ‘recognition order’.

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She tries to show that the impersonal mechanisms of the market in capitalismhave consequences that transcend questions of recognition and so struggles overdistribution cannot be reduced to struggles about recognition. Her final counter-argument concerns the normative weight of the idea of self-realization. Shesuggests that this weight is greater than contemporary diverse societies can bear.In societies containing many ‘reasonable visions of the good life’, Honnethoffers only a ‘particular scheme of ethical value’ (223).

Honneth of course rejects both these criticisms and Fraser’s interpretation ofhis theory. He offers that ‘I had to rub my eyes to be quite sure that I was meantto be the author of such absurd conclusions’ (237). In the final chapter of thebook he clarifies and defends his arguments asserting, firstly, that Fraser failsto see the historical character of his claims to normative transcendence and,secondly, that Fraser’s dualism disguises an essentialism of culture and econ-omics. Lastly, he contends that Fraser’s participatory parity is in fact a particularand substantial idea of the good as much as his own is claimed to be.

Overall, the debate between Fraser and Honneth has the virtue of allowingreaders to identify the sharp points of disagreement in contemporary criticaltheory. I suspect that their differences rest mainly on divergent understandings ofthe concept of recognition. So while they both wish to embrace recognition asessential to a theory of justice they slide apart quickly once each tries to pin downa meaning for the use of this considerably elastic concept.

Paul VoiceBennington College

Colin Crouch, Post-Democracy (Cambridge: Polity Press, 2004).

It is a much remarked upon paradox that at the same time as the numbersof totalitarian regimes have fallen sharply since the 1980s, and when significantand widespread steps are being taken towards multi-party electoral democracy,numerous commentators have pointed towards a growing democratic crisischaracterized by a variety of dilemmas, including: the state ‘hollowed out’ withglobalization, partly through the rising strength and mobility of commercialand financial powers; reigning notions of citizenship being challenged; thefragmentation of older class, party, and national senses of belonging, along witha more general waning of civic life; the emergence of new political actors aboveand below the state; and a widespread loss of faith in, and growing scepticaldistance from, the state, political parties, and democratic government.

We have seen, in this vein, a series of depressingly lucid analyses of theseemingly downward trajectory of Western political life: Bauman on the shift ofpublic affairs towards questions of penal justice; Castoriadis’s characterizationof liberal democratic politics as declining into ‘hobbies and lobbies’; Castells on

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the rise of informational (and, linked to this, scandal) politics, which leavedemocracy an ‘empty shell’. Colin Couch’s Post-Democracy is a variety of thiscritique – an acute, expansive, slightly more upbeat examination of thecontemporary Western political malaise.

‘The idea of post-democracy,’ Crouch (19-20) explains, ‘helps us describesituations when boredom, frustration and disillusion have settled in after ademocratic moment; when powerful minority interests have become far moreactive than the mass of ordinary people in making the political system work forthem; where political elites have learned to manage and manipulate populardemands; where people have to be persuaded to vote by top-down publicitycampaigns.’ In these post-democratic situations political rivalries are more andmore ‘bland and vapid’ (21); rational dialogue disappears in favour of adver-tising and personality-based campaigning that is largely devoid of substance;crime and tax cuts become the only significant electoral issues; citizens arereduced to ‘manipulated, passive, rare participants’ (21); negative rights becomeascendant over positive rights; and corruption escalates.

Globalization is deemed important in the arrival of post-democracy, withcapitalism and the consumer triumphing over politics and the citizen. Mostcentral, in Crouch’s estimation, are the growing power of corporate elites and theprioritization of the market. Class fragmentation is an important and relatedfactor as well, with parties no longer appealing to interests and programmes, andpolitical action sinking into a mass of causes and lobbies, most of the successfulones representing the already rich and powerful. For Crouch, Berlusconi’s ForzaItalia is an exemplar of this post-democratic political situation: ‘it is essentiallya firm, or a network of firms, rather than an organisation of the classic party type;it did not emerge from any formulation of interests by social groups, but wasa construction built up by parts of the existing political and financial elite. It isalso based on the personality of its leader more than on any particular partyprogramme’ (75).

In confronting this post-democratic state, Crouch shows none of the un-bounded optimism of ‘second modernity’ thinkers, where reflexivity, choice,detraditionalization, and the cosmopolitan direction that growing world inter-connectedness is generating together bring a ‘new politics’ into view. His modestappraisal is that egalitarians must learn to cope with post-democracy, ‘softening,amending, sometimes challenging it’ (12). His suggestions, towards these ends,include avoiding both uncritical party loyalty and a dejected flight from politicalparties, and instead working both around cause movements and ‘critically andconditionally through parties’ (122). In addition, Crouch mentions potentialchallenges to post-democracy offered through involvement in local and regionallevel politics and by the ‘disruptive creativity’ (116) of alternative forms ofmovement (such as the vibrant and heterodox alternative globalization move-ment). Some might well feel that too little attention is given to extant tendenciesquite counter to post-democracy – such as the ‘NGOization’ of world politics,

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the alternative globalization movement, democratic hopes for new informationand communication technology – but this slim volume clearly achieves itspurpose, as fluent and passionate provocation, in facing us forcefully towardssome of the creeping tendencies of our political horizon.

Chamsy el-OjeiliVictoria University of Wellington

Harry Frankfurt, On Bullshit (Princeton: Princeton University Press, 2004).

One quality which liberal democracies fervently prize in their public politicaldiscourse is civility. Not only should one use only one’s voice, not guns or fists,in making one’s political point but one must also use that voice politely andrespectfully, for that is what one’s fellow citizens are owed. If this sometimesproves difficult for citizens and their representatives, the opprobrium whichthey consequently receive serves only to reinforce this quality as an ideal: civilsociety should indeed be civil and nowhere should this be more so than in itspolitical life. In fact, it often even appears to be the case that civility is regardedby some as the prime liberal-democratic virtue, over and above some other rathermore obvious candidates such as truth and competence. Thus, politicians seekingto defend themselves against the critics of their mendacity or uselessnessfrequently think that their opponents can be completely dismissed if theyoverstep certain boundaries of good manners in their language, even (perhapsespecially) when their criticisms are actually warranted. But why should theythink they are necessarily owed such respect if they have behaved so con-temptibly? Politicians do things that anger and disgust, and to respond to themonly with the buttoned-up reserve of polite society just doesn’t always seemenough to convey the appropriate vehemence of condemnation. Didn’t theYippies, for example, have a point about the prissy Puritanism insisted upon bythe architects of the policy designed to bomb Vietnam back into the Stone Age?

People who swear, we were often told as children, do so because they are toostupid to know enough ‘nice’ words to say what they want to say. And of coursepolitical criticism is often devastating precisely when it is polite; eloquence isanother virtue of discourse, a quality partly defined by the absence of profanity.But Harry Frankfurt, I submit, did us a favour in applying conceptual rigour towhat is a most useful and eminently satisfying term, helping us to tell it like it iswhen we analyse a lot of the discourse in the public realm today: bullshit. For astart, it’s good to have real philosophical authority to utter the word. It has anedifying mix of consonants which help it to explode and startle like a shell whendropped into conversation and it reverberates with the profound disgust it wishesto express at that which it signifies. And it can also express an amused contemptfor the discourse in question, a judgment that it is laughably ridiculous. If not

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everything that we hear in public life and which deserves our scorn is necessarilya laughing matter, there is plenty that is, and not all of it warrants the subtletiesof satire to make that point.

More seriously though, in his classic essay that has been republished nearlytwo decades after its original appearance, Frankfurt’s real achievement is to offera definition of bullshit that identifies it as a very specific deformity of discourse.His analysis prompts us to focus attention on the serious and important questionof why politics in particular produces such torrents of the stuff. The key dis-tinction he draws is that between the ‘bullshitter’ and the ‘liar’. Frankfurt’s liaraims to deceive as to the truth, and does so by consciously uttering a falsehood.Now, it is of course very familiar to call politicians ‘liars’; some indeed seem toassume that they constitute a strange sub-species of humanity defined by acongenital inability to be honest. Most of them, I am sure, do tell lies some of thetime (and Machiavelli taught us that sometimes they may have to), and perhapsa few of them lie most of the time. But it is incredible to believe that the day-to-day modus operandi of the politicians is to apprehend the truth and thenconsciously set out to deceive us as to what it is. The charge that ‘they are allliars’ is just too crude to be sustainable. I think it much more plausible to considerthem as frequently being bullshitters in Frankfurt’s analytically precise sense.For the bullshitters, according to him, are not concerned with the truth in the waythat liars are (i.e. concerned to conceal it); rather, they are indifferent to the truthin their discourse:

[t]he fact about himself that the bullshitter hides … is that the truth-values ofhis statements are of no central interest to him; what we are not to understandis that his intention is neither to report the truth nor to conceal it. This does notmean that his speech is anarchically impulsive, but that the motive guiding andcontrolling it is unconcerned with how the things about which he speaks trulyare. (55)

Though Frankfurt nominates politics as a paradigm site for bullshit discourse, hethinks our culture as a whole is replete with it (perhaps no one is wholly free ofthe tendency to bullshit) (1). I fear the latter claim is true, though G. A. Cohen,in a valuable discussion of Frankfurt’s essay, is surely right that there aredifferent forms of ‘bullshit’ and that it is these also which so regrettably disfigureour culture.1 Let us focus for now, though, on politics: what is it that prompts thisparticular mode of disengagement from the truth, not only on the part of politicalrepresentatives but, if we are to be frank, ordinary citizens as well?

Some might argue that politics has become so predisposed to the productionof falsehoods that through habituation it ceases to be conscious of such. Soconcerned instead to convey certain messages regardless of what the truthactually is, its dissembling becomes systemically automatic. Orwell’s 1984presents a vivid description of this process in his satirical totalitarianism which

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clearly accords with this definition of bullshit. O’Brien’s behaviour sometimesimplies that the Inner Party is well aware that its propaganda is comprised of lies,but the function of the Ministry of Truth, in which Winston works, is much moreclearly the production of bullshit:

Even the written instruction which Winston received … never stated orimplied that an act of forgery was to be committed: always the reference wasslips, errors, misprints or misquotations which it was necessary to put right inthe interests of accuracy. But actually he thought … it was not even forgery. Itwas merely the substitution of one piece of nonsense for another. Most of thematerial that you were dealing with had no connexion with anything in the realworld, not even the kind of connexion that is contained in a direct lie.2

Liberal-democratic culture is not as comprehensively and tightly manipulated,of course, but it is not overly cynical to think that the phenomenon of political‘spin’ often manifests precisely this kind of disinterested disconnection fromthe truth. To take just one very obvious recent example: when we consider thedemonstrably faulty elements of the case presented by the Bush and Blairgovernments in justification of the 2003 invasion of Iraq, we might indeedreasonably conclude that some lies were consciously told in the construction ofthat case. But I doubt whether its ‘front’-men and women – Bush, Blair, Rice,Powell, Rumsfeld et al. – were always lying: rather, in the stories they spun toattempt a justification of the war, they manifested an indifference to the truth, orin the evidence to the contrary of their intentions that pointed to truths whichthey wished to resist. The evasiveness of their discourse – the chopping-and-changing of the facts presented, the justifications offered and so on – is typicalof the bullshitter, who often becomes so concerned to present an image ofhimself and a justification of his deeds and utterances regardless of whateverthe truth may happen to say that he slips free of any self-awareness that he isbullshitting. (The false sincerity of the bullshitter is very different from the falsesincerity of the liar.)

Frankfurt thinks, however, that bullshitting is more ingrained in moderndemocracy than extraordinary events such as the Iraq war might indicate. This,he says, is because democracy requires representatives and, to an extent, evencitizens, to be experts in matters of public policy which they cannot reasonablybe expected to master at all (63-4). To own up to this fact would blowdemocracy’s justificatory cover; fortunately for its own sake, no one wants toadmit that Plato was right all along and so homo democraticus remains allowedto bullshit his way through his political engagements. Frankfurt is surely on toan important, if embarrassing truth: politics is an incredibly complex businessand the idea that even its essentials can be properly grasped by anyone lacking avery high degree of intellectual ability and trained expertise is rather absurd. Butelectoral democracy has to be disposed to resist this truth in its ideals of ‘well-

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informed’ citizens and ‘competent’ representatives of the people. Politicianscampaigning for votes have to present things in terms that citizens canunderstand (and many of them do not in fact possess much more than theirconstituents in the way of such expertise anyway). The over-simplification ofpolitical understanding that this requires very often necessitates a repression ofthe recognition of how difficult political questions are, something which isstandardly facilitated by a dogged adherence to a simplistic set of ideologicaltropes and a refusal to think that they might fail to explain the political world andorient us satisfactorily in it.

There are, of course, other factors in democracy that are responsible for thebullshit in its culture: those in the media, for example, who have a vestedinterested in maintaining the fundamentals of the status quo, will often bullshitby pretending that certain issues are of crucial importance when in fact, forvarious reasons, they are not – a strategy which has the effect (intended or not)of deflecting critical attention to those issues which are really important. Butif it is correct, Frankfurt’s analysis suggests that we will not purify our cultureof bullshit simply by challenging the structures of power and vested intereststhat we find in media outlets and elsewhere. Indeed, a radical participatorydemocracy in which more political responsibility is placed upon the shouldersof ordinary citizens might be even more prone to produce this particular formof bullshit. There are, of course, overwhelming alternative reasons to supportdemocracy – but perhaps we should expect to have to hold our noses in doing so.

Still, as Cohen stresses, bullshit is a multi-faceted phenomenon and there areother forms which we may be able to tackle more effectively. He himself haslaunched a campaign against ‘unclarifiable unclarity’ as a form of bullshit inacademic discourse. I would like to add two further conceptions which I thinkdeform everyday life as well as certain aspects of academic culture and whichFrankfurt’s discussion might cause us to overlook. In an observation whichseems to go against the grain of the ‘democratic expert’ thesis, Frankfurt claimsthat the currents of relativism, which postmodernism epitomises, expresslydisparage notions of truth and ipso facto encourage and indeed legitimise bullshit(64-6). But we should not overlook the point that not only does our culture stilltry to prize the notion of the democratic expert, but it has also democratized thenotion of expertise in other areas where it is really rather inappropriate. Thuswe have all manner of people in various walks of life – many examples ofmanagement-speak especially come to mind here – talking in ways that seek tocreate for themselves an aura of intellectual authority and profundity which infact is entirely unwarranted by what it is that they are talking about. Thus wemight speak of ‘clarifiable unclarity’, which seeks through a cumbersome andconvoluted jargon to render complex something which is actually simple toexpress and often rather banal or trivial in content; and ‘over-intellectualisation’,in which, again, something which is straightforward if not trite is repackaged ashaving the rigour of an academic discipline or requiring the skills of a veritable

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craftsman (my current favourite examples of this kind of bullshitter are ‘lifecoaches’).

Frankfurt’s little book, then, opens up an important critical front against somerotten tendencies of modern culture and we should follow his lead in taking upthe fight against them. And if our civic sensibilities still cause us to demur fromcastigating them as ‘bullshit’, well, by any other name they would still stink justas much.

Mark EvansUniversity of Wales Swansea

Notes1 G. A. Cohen, ‘Deeper into Bullshit’, in S. Buss and L. Overton (eds.), Contours of Agency.

Cambridge MA: MIT Press, 2002, pp. 32-9. Frankfurt endorses the idea that ‘bullshit’ hasnumerous conceptions in his reply at ibid., pp. 340-4.

2 George Orwell, 1984. London: Penguin, 1954, pp. 39-40.

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