Abstract
This article attempts to expand the scope of the project of global justice on one parameter but to circumscribe that project on three other parameters. It is argued that the difference of level of application as between individuals and collectives should be transcended in a ‘collective turn’. But this inclusiveness must be accompanied by an insistence on the distinction between a generic or intrinsic understanding of vulnerability on the one hand, and a contingent understanding of vulnerability on the other. Another distinction that must be observed is that between private and public entities. On both dimensions the latter option is to be preferred. Only the contingent vulnerabilities of public entities are of relevance to a practical program of global justice. It is also suggested that formal distinctions in entitlements should be observed. Hohfeld’s scheme is called upon in order to distinguish between claim-rights and immunities and to advocate for the latter as better reflecting the desiderata of global justice. Frequently presupposed connections between vulnerability and rights are thus brought into question. Finally, the proposed framework for global justice enables a novel articulation with, and an illumination of, the demands of equality. For that which is private in a legal sense is constituted by the clash of wills of individual legal persons. Public interests are always shared, thus connoting spheres of equality; understood in this way equality is the stuff of global justice.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
As observed by Weis (2015, p. 235).
The adoption by the G20 in 2008 of a macroeconomic perspective has been described as ‘encompassing the world economy as a whole … The change in perspective is comparable to that of the emergence of global environmental law or the human rights debate:’ Lehmann (2017, p. 409).
Miller (2013, p. 174).
Ibid 3; impracticality is a related, important ground on which to disqualify candidate theories of distributive justice: Tasioulas (2005, p. 10).
Miller (2013, p. 175).
Ibid 165.
Rawls (1999a).
Nussbaum (2006, p. 92).
This paper does not enter the cognate debates on the extension of justice to non-human animals or to objects conventionally thought of as inanimate such as rivers and mountains.
Waldron (2017, p. 130).
Ibid 84. ‘Range’ can be analogised with the geographical boundaries of a province within which, say, two cities are of equal status as such even if one is central and the other peripheral. Usage above is also analogical. Note that the Rule of Law as usually understood, expresses a somewhat similar view of equality within boundaries or classes.
Golder (2016, p. 684).
Ibid.
Sen (2009, p. 5).
Sen further argues that ‘[i]f a theory of justice is to guide reasoned choices of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient’: ibid, 15.
Sandel (2010, p. 261).
Howse and Teitel (2010, p. 439).
Nussbaum, ibid, 231 and Rawls, ibid 103.
This approach might be thought of as cognate with a ‘pragmatic’ approach to human rights: Golder (2016, p. 685). The suggestion by Nagel that human institutions may have to pass through a phase of injustice on their way to justice might be thought of as a radical version of the responsive approach to global justice: Nagel (2005, p. 145).
Kurasawa (2007, p. 200).
Skogly (2010, pp. 71, 96).
Ibid 96.
Kinley and Tadaki (2004, p. 935).
Valentini (2017).
Bentham (1987, p. 49).
It should be noted that the Hohfeldian analysis of claim-rights and other basic legal relationships, an analysis that owes much to Bentham, is to be called upon at a later stage of the argument at a point when definitional precision of a formal kind will be required.
A stronger claim that all human rights are collective rights is thus adumbrated but will not be pursued here. This proposal would now, in the light of discussions below, in any case need reconsideration to the extent that a more precise Hohfeldian terminology is to be preferred.
On the community-scale effects of international law, see Eslava (2015).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
Charter of Human Rights and Responsibilities Act (Vic) 2006.
Kinley (2009, p. 33).
Koskenniemi (2010).
Endicott (2006, p. 358).
Gardner (2017).
Waldron (2012).
Endicott (2010, p. 181).
Fischer-Lescano (2012, p. 7).
‘[The] so-called rights of man, as distinct from the rights of the citizen, are simply the rights … of egoistic man, of man separated from other men and from the community’: Karl Marx, cited by Knox (2016, p. 310) (emphasis in original).
It has been observed in the context of a cosmopolitan approach to toleration that ‘[t]he world is vulnerable to excessive intervention’: Tan (2005, p. 707).
Charter of the United Nations art 51.
UN Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Bhatia (2015, p. 10).
Rawls (1999b, p. 103).
Junker-Kenny (2014, p. 295).
Fineman (2008–9, p. 8).
Venturi (2017, p. 192).
Nussbaum (2006, p. 92).
Humans were understood as ‘equal, not least in their weakness:’ Siedentop (2014, p. 301).
Waldron (2017, p. 139).
Ibid 97.
Adam Smith, Theory of Moral Sentiments, cited by Ronge (2017, p. 287).
Adam Smith ibid.
Adam Smith, Theory of Moral Sentiments, cited by Ronge, ibid 300.
Rawls (1999b, p. 110).
Ibid 17.
Ibid 331.
Rawls (1999b, p. 83).
Macmillan (2011, p. 194).
Tuck (1979, p. 173).
Ryan (2012, p. 476).
Tuck (1979, p. 172).
Property as natural right in this iconic sense was a well developed idea much earlier than Locke; as expressed early in the sixteenth century by Thomas More ‘every man has, by the law of nature, a right to such a waste portion of the earth as is necessary for his subsistence:’ More (2016, p. 87).
Ryan (2012, p. 479).
Ibid 481.
Frankopan (2015, p. 191).
Thus, ‘[g]lobal financial regulation is not about individual institutions or national markets as such; rather, it deals only with those factors that pertain to the functioning of the global market. More specifically, its aim is to guarantee worldwide financial stability and prevent systemic risk’ (Lehmann 2017, p. 408).
Katz (2011, p. 120).
Ibid; emphasis in original.
Hertzberg v Finland No. 14/61 U.N. GAOR Hum. Rts Comm., 37th Session, Supp. No 40, at 161, U.N. Doc. No. A/37/40 (1982).
Newcrest Mining (WA) Limited and BHP Minerals Limited v Commonwealth of Australian and Director of National Parks and Wildlife (1997) 190 CLR 513, 660 per Kirby J; the assertion is in any event obiter since the ratio of the decision (to allow the appeal) comprises, as Kirby J acknowledges at 661, the opinion shared by the majority on the effect of the National Parks and Wildlife Conservation Act 1975 (Cwth) in the light of s 51(xxxi) Australian Constitution. See Brazil (1997, p. 185).
To assert that fair dealing by public bodies with private companies must be consistent with the Australian Constitution is not controversial. However that Constitution does not contain a Bill of Rights.
Kinley and Tadaki (2004, p. 1009).
McBeth (2010, p. 155).
Morss and Bagaric (2005).
Ratner (2001, p. 514).
Ibid 542.
Ibid 514.
Ibid.
The United Nations might be considered a playing field of the same ‘Vattelian’ species in that formal equality of member states is accompanied by massive differentials of population, wealth and military or economic power.
As Backer observes, governance in the contemporary world no longer looks to the traditional territorial state as paradigm. The organisation of governance ‘does not require a territory from which to project governance power beyond territorial boundaries…. [G]lobalisation has made it possible to develop governance spaces outside of both states and public international organisations:’ Backer (2012, p. 88). Also see Backer (2017).
Kramer et al. (1998, p. 20).
Ibid.
Ibid 21.
Gray (2008, p. 33).
Theodore Roosevelt’s ‘Corollary to the Monroe Doctrine’, further developed by Woodrow Wilson, purported to legitimate ‘the exercise of an international police power’ in response to ‘chronic wrongdoing’ in foreign states: Ferguson (2004, p. 52).
The formula is thus applied with more precision than earlier in this paper. Within the present scheme unlike that of Waldron, those entities that enjoy equality with each other are not exclusively or even predominantly individual natural persons. On a cognate approach, see the discussion by Harris (2004, p. 434) of what he terms ‘domain rights’.
The Will Theory and the Interest Theory are competing accounts of rights so that a mapping of the former onto Hohfeld’s first (private) order, and the second onto his second (public) order, would be conceptual monstrosity of Piltdown Man proportions. However the enlivening of the relationships between wills and interests might not be entirely devoid of value.
References
Allan, James. 2008. Jeremy Waldron and the Philosopher’s Stone. San Diego Law Review 45: 133–162.
Alston, Philip (ed.). 2001. Peoples’ Rights. Oxford: Oxford University Press.
Amerson, Jena. 2012. ‘The End of the Beginning?’ A Comprehensive Look at the U.N’.s Business and Human Rights Agenda from a Bystander Perspective. Fordham Journal of Corporate and Financial Law 17: 871–942.
Arden, Rt Hon Lady Justice. 2016. Water for All? Developing a Human Right to Water in National and International Law. International and Comparative Law Quarterly 65: 771–790.
Aust, Helmut P. 2015. Fundamental Rights of States: Constitutional Law in Disguise? Cambridge Journal of International and Comparative Law 4: 521–546.
Aust, Helmut P. 2017. ‘The System Only Dreams in Total Darkness’: The Future of Human Rights Law in the Light of Algorithmic Authority. German Yearbook of International Law 60: 71–90.
Backer, Larry Catá. 2012. Governance Without Government: An Overview. In Beyond Territoriality: Transnational Legal Authority in an Age of Globalization, ed. Guenther Handl, Joachim Zekoll, and Peer Zumbansen, 87–123. Leiden: Nijhoff.
Backer, Larry Catá. 2017. The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy. Vanderbilt Journal of Transnational Law 50: 827–888.
Barker, Kit. 2018. Private Law, Analytic Philosophy and the Modern Value of Wesley Newcomb Hohfeld: A Centennial Appraisal. Oxford Journal of Legal Studies 38: 585–612.
Beckett, Jason. 2016. Creating Poverty. In The Oxford Handbook of the Theory of International Law, ed. Anne Orford and Florian Hoffmann, 985–1010. Oxford: Oxford University Press.
Bentham, Jeremy. 1987. Anarchical Fallacies. In Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, ed. Jeremy Waldron, 46–76. London: Methuen.
Bhatia, Neera. 2015. Critically Impaired Infants and End of Life Decision Making: Resource Allocation and Difficult Decisions. London: Routledge.
Birmingham, Peg. 2006. Hannah Arendt and Human Rights: The Predicament of Common Responsibility. Bloomington: Indiana University Press.
Brazil, Pat. 1997. Newcrest Mining (WA) Limited and BHP Minerals Limited v Commonwealth of Australian and Director of National Parks and Wildlife. Australian Mining and Petroleum Law Journal 16: 184–188.
Bronitt, Simon, and David Kinley. 2017. The Limits of Corporate Responsibility and Human Rights: A Right to Live Free from Corruption. Australian Journal of Legal Philosophy 42: 228–246.
Carter, Linda, Mark Ellis, and Charles Jalloh. 2016. The International Criminal Court in an Effective Global Justice System. Cheltenham: Edward Elgar.
Crawford, James. 2014. Chance, Order, Change: The Course of International Law. The Hague: The Hague Academy of International Law.
Endicott, Timothy. 2006. The Infant in the Snow. In Properties of Law: Essays in Honour of Jim Harris, ed. Timothy Endicott, Joshua Getzler, and Edwin Peel, 348–366. Oxford: Oxford University Press.
Endicott, Timothy. 2010. What Human Rights Are There—if Any—and Why? Studies in Christian Ethics 23: 172–181.
Eslava, Luis. 2015. Local Space, Global Life: The Everyday Operation of International Law and Development. Cambridge: Cambridge University Press.
Ferguson, Niall. 2004. Colossus: The Rise and Fall of the American Empire. London: Penguin.
Fineman, Martha. 2008-9. The Vulnerable Subject: Anchoring Equality in the Human Condition. Yale Journal of Law and Feminism 20: 1–23.
Fischer-Lescano, Andreas. 2012. Critical Systems Theory. Philosophy and Social Criticism 38: 3–23.
Frankopan, Peter. 2015. The Silk Roads: A New History of the World. London: Bloomsbury.
Gardner, John. 2017. The Negligence Standard: Political not Metaphysical. Modern Law Review 80: 1–21.
Golder, Ben. 2016. Theorizing Human Rights. In The Oxford Handbook of the Theory of International Law, ed. Anne Orford and Florian Hoffmann, 684–700. Oxford: Oxford University Press.
Gray, Christine. 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press.
Harris, Jim. 2004. Human Rights and Mythical Beasts. Law Quarterly Review 120: 428–456.
Hohfeld, Wesley N. 1923. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven: Yale University Press.
Howse, Robert, and Ruti Teitel. 2010. Global Justice, Poverty, and the International Economic Order. In The Philosophy of International Law, ed. Samantha Besson and John Tasioulas, 437–449. Oxford: Oxford University Press.
Johns, Fleur. 2017. Data, Detection and the Redistribution of the Sensible in International Law. American Journal of International Law 111: 57–103.
Junker-Kenny, Maureen. 2014. Dignity, Fragility, Singularity in Paul Ricoeur’s Ethics. In The Cambridge Handbook of Human Dignity, ed. Marcus Düwell, Jens Braarvig, Roger Brownsword, and Dietmar Mieth, 286–297. Cambridge: Cambridge University Press.
Katz, Larissa. 2011. Ownership and Social Solidarity: A Kantian Alternative. Legal Theory 17: 119–143.
Kinley, David. 2009. Civilising Globalisation: Human Rights and the Global Economy. Cambridge: Cambridge University Press.
Kinley, David, and Junko Tadaki. 2004. From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law. Virginia Journal of International Law 44: 931–1023.
Knox, Rob. 2016. Marxist Approaches to International Law. In The Oxford Handbook of the Theory of International Law, ed. Anne Orford and Florian Hoffmann, 306–326. Oxford: Oxford University Press.
Koskenniemi, Martti. 2010. Human Rights Mainstreaming as a Strategy for Institutional Power. Humanity: An International Journal of Human Rights, Humanitarianism and Development 1: 47–58.
Kotzmann, Jane. 2018. The Human Rights-Based Approach to Higher Education: Why Human Rights Norms Should Guide Higher Education Law and Policy. Oxford: Oxford University Press.
Kramer, Matthew H. 2017. In Defence of the Interest Theory of Right-Holding. In New Essays on the Nature of Rights, ed. Mark McBride, 49–84. Oxford: Hart.
Kramer, Matthew H., Nigel Simmonds, and Hillel Steiner. 1998. A Debate Over Rights. Oxford: Oxford University Press.
Kurasawa, Fuyuki. 2007. The Work of Global Justice. Cambridge: Cambridge University Press.
Kurki, Visa. 2017. Legal Power and Legal Competence. In New Essays on the Nature of Rights, ed. Mark McBride, 31–47. Oxford: Hart.
Kurki, Visa. 2018. Rights, Harming and Wronging: A Restatement of the Interest Theory. Oxford Journal of Legal Studies 38: 430–451.
Lehmann, Matthias. 2017. Legal Fragmentation, Extraterritoriality and Uncertainty in Global Financial Regulation. Oxford Journal of Legal Studies 37: 406–434.
Macmillan, Fiona. 2011. The Emergence of the World Trade Organization: Another Triumph of Corporate Capitalism? In Events: The Force of International Law, ed. Fleur Johns, Richard Joyce, and Sundhya Pahuja, 191–206. London: Routledge.
McBeth, Adam. 2010. Human Rights in Economic Globalisation. In Research Handbook on International Human Rights Law, ed. Sarah Joseph and Adam McBeth, 139–166. Cheltenham: Edward Elgar.
Miller, David. 2013. Justice for Earthlings: Essays in Political Philosophy. Cambridge: Cambridge University Press.
More, Thomas. 2016. Utopia. London: Verso.
Morss, John R. 2009. The Legal Relations of Collectives: Belated Insights from Hohfeld. Leiden Journal of International Law 22: 289–305.
Morss, John R. 2013. International Law as the Law of Collectives: Toward a Law of People. Farnham: Ashgate.
Morss, John R. 2018. Pluralism, Peoplehood and Political Theology in International Legal Scholarship. Griffith Law Review 27: 77–98.
Morss, John R., and Mirko Bagaric. 2005. Human Rights as Copyrights: A Third Way in Human Rights Discourse. University of Baltimore Intellectual Property Law Journal 13: 103–120.
Nagel, Thomas. 2005. The Problem of Global Justice. Philosophy & Public Affairs 33: 113–147.
Nussbaum, Martha. 2006. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge, MA: Belknap Press.
Nussbaum, Martha. 2011. Creating Capabilities: The Human Development Approach. Cambridge, MA: Belknap Press.
Orakhelashvili, Alexander. 2006. Peremptory Norms in International Law. Oxford: Oxford University Press.
Ratner, Steven. 2001. Corporations and Human Rights: A Theory of Legal Responsibility. Yale Law Journal 111: 443–545.
Rawls, John. 1999a. The Law of Peoples with ‘The Idea of Public Reason Revisited’. Cambridge MA: Harvard University Press.
Rawls, John. 1999b. A Theory of Justice. Cambridge MA: Belknap Press.
Raz, Joseph. 1988. The Morality of Freedom. Oxford: Oxford University Press.
Raz, Joseph. 1995. Ethics in the Public Domain. Oxford: Oxford University Press.
Ronge, Bastian. 2017. Towards a System of Sympathetic Law: Envisioning Adam Smith’s Theory of Jurisprudence. In System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel, ed. Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit, 283–302. Oxford: Oxford University Press.
Ryan, Alan. 2012. On Politics: A History of Political Thought From Herodotus to the Present. London: Penguin.
Sandel, Michael. 2010. Justice: What’s the Right Thing to Do?. London: Penguin.
Sen, Amartya. 2009. The Idea of Justice. London: Penguin.
Siedentop, Larry. 2014. Inventing the Individual: The Origins of Western Liberalism. London: Penguin.
Skogly, Sigrun. 2010. Extraterritoriality: Universal Human Rights Without Universal Obligations? In Research Handbook on International Human Rights Law, ed. Sarah Joseph and Adam McBeth, 71–96. Cheltenham: Edward Elgar.
Tams, Christian. 2009. Enforcing Obligations Erga Omnes in International Law. Cambridge: Cambridge University Press.
Tan, Kevin. 2005. International Toleration: Rawlsian Versus Cosmopolitan. Leiden Journal of International Law 18: 685–710.
Tan, David. 2018. Metaphysics of Statehood. Canadian Journal of Law and Jurisprudence 31: 403–429.
Tasioulas, John. 2005. Global Justice Without End? Metaphilosophy 36: 3–29.
Tobin, John. 2012. The Right to Health in International Law. Oxford: Oxford University Press.
Tuck, Richard. 1979. Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press.
Turner, Bryan. 2006. Vulnerability and Human Rights. University Park, PA: Pennsylvania State University Press.
Valentini, Laura. 2017. Dignity and Human Rights: A Reconceptualisation. Oxford Journal of Legal Studies 37: 862–885.
Venturi, Denise. 2017. Book Review, F. Ippolito and S. Sanchez (eds), Protecting Vulnerable Groups: The European Human Rights Framework. Human Rights Law Review 17: 187–92.
Von Bogdandy, Armin, and Sergio Dellavalle. 2017. Universalism and Particularism: A Dichotomy to Read Theories on International Order. In System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel, ed. Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit, 482–504. Oxford: Oxford University Press.
Waldron, Jeremy. 2012. Dignity, Rank and Rights. Oxford: Oxford University Press.
Waldron, Jeremy. 2017. One Another’s Equals: The Basis of Human Equality. Cambridge MA: Belknap Press.
Weis, Lael. 2015. Resources and the Property Rights Curse. Canadian Journal of Law and Jurisprudence 28: 209–236.
Zyberi, Gentian. 2016. United Nations–related Criminal Courts and Tribunals: Fleeting Mirages of Transitional Justice or a Piecemeal Approach to Cosmopolitan Justice? Transnational Legal Theory 7: 114–132.
Acknowledgements
My grateful thanks to the following for generous commentary and other support and encouragement with this project: Helmut P. Aust; Larry Catá Backer; Michelle Bendall; Matt Lister; Karen Powell; Prabhakar Singh; David Tan. Howlers I sequester.
Author information
Authors and Affiliations
Corresponding author
Ethics declarations
Conflict of interest
The author declares that he has no conflicting interests.
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Morss, J.R. Cutting Global Justice Down to Size? Rights, Vulnerabilities, Immunities, Communities. Liverpool Law Rev 40, 179–202 (2019). https://doi.org/10.1007/s10991-019-09231-1
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10991-019-09231-1