NON-STATE GOVERNANCE AND NON-STATE LEGITIMACY

A DISSERTATION SUBMITTED TO THE DEPARTMENT OF POLITICAL SCIENCE

AND THE COMMITTEE ON GRADUATE STUDIES OF STANFORD UNIVERSITY

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF

DOCTOR OF PHILOSOPHY

Brian Kenneth Coyne August 2014

http://creativecommons.org/licenses/by-nc/3.0/us/

This dissertation is online at: http://purl.stanford.edu/nh829cq5530

© 2014 by Brian Kenneth Coyne. All Rights Reserved.

Re-distributed by Stanford University under license with the author.

This work is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

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I certify that I have read this dissertation and that, in my opinion, it is fully adequatein scope and quality as a dissertation for the degree of Doctor of Philosophy.

Josiah Ober, Primary Adviser

I certify that I have read this dissertation and that, in my opinion, it is fully adequatein scope and quality as a dissertation for the degree of Doctor of Philosophy.

Joshua Cohen

I certify that I have read this dissertation and that, in my opinion, it is fully adequatein scope and quality as a dissertation for the degree of Doctor of Philosophy.

Alison McQueen

I certify that I have read this dissertation and that, in my opinion, it is fully adequatein scope and quality as a dissertation for the degree of Doctor of Philosophy.

Rob Reich

Approved for the Stanford University Committee on Graduate Studies.

Patricia J. Gumport, Vice Provost for Graduate Education

This signature page was generated electronically upon submission of this dissertation in electronic format. An original signed hard copy of the signature page is on file inUniversity Archives.

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Abstract:

This project reexamines the way liberal political theory normatively evaluates

the legitimacy of the power of non-state actors, including non-profit organizations,

for-profit corporations, and international institutions. I argue here that, when these

agents participate in governance, when they have independent authority to make,

change, and enforce the rules that people must live by, their power raises the same

questions of legitimacy that liberal political theory, particularly theories influenced by

Rawls, evaluates through a requirement of public justification. I present empirical

evidence here that this type of governance is widespread, deeply important for many

people’s lives, and likely to continue. However, the way that this requirement of

public justification is generally understood assumes it is a unified, Westphalian state

whose power is being evaluated, and the standard theory therefore cannot be applied

to non-state power. The reconstructive portion of this project develops revisions to the

standard Rawlsian theory of political legitimacy that, while grounded in the same

widely shared liberal values, allow the theory to be applied to governance by non-state

actors.

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Acknowledgements: I would like to thank my advisors, Rob Reich, Alison McQueen, Joshua Cohen, and in particular my principal advisor and committee chair, Josiah Ober, for all their help on this project. I would also like to thank my partner, Lily Janiak, who has provided endless encouragement and support.

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Table of Contents: Chapter 1: Introduction………………………………………………………………...1 Chapter 2: Evaluating non-state power through public justification……...............….26 Chapter 3: Where is the basic structure? Empirical evidence of participation in governance by non-state actors……………………………………………………….58 Chapter 4: Non-state governance and the limits of public justification………………91 Chapter 5: A concept of legitimacy for non-state governance………………………114 Chapter 6: From a concept to conceptions of legitimacy for non-Westphalian governance……………………………………………………137 Chapter 7: Conclusion……………………………………………………………….170 Works cited………………………………………………………………………….183

   

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Chapter 1: Introduction

1.1 Background: power and governance

Governance is only one of the many forms of power, but it is an especially

important one for people’s lives and, as a consequence, for political theory. Power in

the broadest sense can refer to any of the ways that one individual or group affects

another, from overt force and coercion to subtle, perhaps imperceptible influence.

Lukes’s (1974) influential analysis of power criticizes what he calls one- and two-

dimensional understandings of power, which focus on overt coercion, the outcomes of

political decision-making processes, and influence over the agenda-setting process.

Lukes champions instead a “three-dimensional” understanding of power that is far

broader, encompassing all the ways that individuals or groups shape people’s

understandings of their interests and attitudes that influence whether or not latent

conflicts become overt.1 Governance lies between these extremes, potentially less

tangible than outright coercion but not as diffuse as subtle influence over attitudes. As

I understand it here, governance refers to power in the form of the creation,

maintenance, and change of the various systems of rules that shape interactions among

individuals and groups. It is the power of rule-making and unmaking. As Risse (2010)

puts it, governance is “the various institutionalized modes of social coordination to

produce and implement collectively binding rules.”2 In the sense I am using the term

here, winning a game would not be governance, nor would influencing the choice

about whether the game is played. Governance would be power over the rules of the

1 Lukes (1974), 28-9. Lukes was in part responding to earlier work discussing “two faces of power,” in particular Bachrach and Baratz (1962). See also Dahl (1957) and Arendt’s (1969) definition of power in 2 Risse (2010), 8.

   

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game.3 Governance often overlaps with influence, but they are not synonymous. For

example, a corporation’s hiring decisions can strongly affect the lives of those hired or

fired, but this power is not governance. If, however, the same corporation participates

in the development of new labor laws in its municipality, it is taking part in

governance.

The crucial distinction for this project is between governance and government.

A traditional definition of governance is simply the activities of legitimate

governments, that is, the activities of formal state institutions.4 As I understand it here,

however, governance identifies a type of power rather than a type of institution. State

institutions are of course important governing actors, but participation by non-state

actors, including for-profit corporations, national and international non-profit

organizations, and international institutions, in the governance of modern societies is

no longer a new or unrecognized phenomenon.5 Yet it presents a set of deep and, I will

argue, unmet challenges to one of the dominant contemporary liberal ideas of political

legitimacy, that power is legitimate if and only if it is justifiable to those over whom it

is exercised. In standard liberal accounts, this requirement for public justification is

applied primarily to state institutions, and non-state actors, even when they participate

in governance, are not directly subject to the same requirement of justification. This

project begins from the question of whether we should continue to accept this

difference in treatment in light of the empirical evidence that non-state actors

3 As emphasized by Rhodes (1996), the term ‘governance’ is used in a wide variety of different ways, not all of them compatible. 652-3. 4 As Rhodes (1996) emphasizes, this usage has fallen out of favor as the participation of non-state actors in governance has become more widely recognized, p. 653. 5 The empirical literature on this topic is discussed in detail in Chapter 3. For overviews, see Risse (2010), Sending and Neumann (2006), and Risse (2011).

   

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participate in governance as much as, and in some cases more than, state institutions. I

will argue here that, contrary to the conventional view, liberal political theory’s most

basic commitments mean that it should be participation in governance that triggers

demands for public justification, and that this demand should arise equally whether the

governing actor is a state institution or a non-state actor. This will, however, raise

further puzzles. If state power, in order to be justifiable, must be democratically

accountable to citizens, as is generally claimed, what does democratic accountability

mean for non-state actors? How must the liberal concept of a society, which underpins

much of the debate on legitimacy, change when we drop the assumption that a society

shares a single set of rules and a single system of power? My goal in this project is to

provide answers to these questions and, in so doing, develop an overall account of

how to assess the legitimacy of non-state governance, an account that begins from the

core values of current liberal accounts of legitimacy but is able to deal directly with

the power of non-state actors.

1.2 Legitimacy through public justification

Central to contemporary political theory is the ongoing project of making the

power that shapes people’s lives accessible to them⎯accessible in the sense of known

and demystified, and also accessible in the sense that they can participate in the

exercise of power alongside their fellow citizens. This project is both practical and

theoretical; making power accessible involves seeking to replace, in the real world,

illegitimate with legitimate power, but at the same time we need a theory of legitimacy

in order to tell the difference between the two. I use the word “legitimate” here in its

   

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normative, evaluative sense. By legitimate power, I mean power that we have good

reason to consider proper, and this idea of legitimacy is based ultimately on widely

shared liberal beliefs that the members of societies should, as fully functioning adults,

be free and equal citizens.6 Legitimacy is meant to be a relatively modest threshold for

power to reach. To say that power is legitimate is not to say that it is maximally just or

that it is exercised in the best possible way as measured on any other scale. Legitimacy

is, rather, the point at which the moral claims that authorities make⎯that those subject

to rules should accept them rather than merely acquiesce⎯become plausible, both to

outside observers and to reasonable and informed participants in the political system

in question.7 Illegitimate power is mere force. I am not primarily interested here in

sociological legitimacy, the question of whether people do in fact accept the system of

authority in their society.8 The “we” then can either be observers of, or participants in,

social, economic, and political systems who want to assess these systems of rule.

There are, of course, many different forms of power, and, not surprisingly, these forms

of power are evaluated differently. The power that a parent has over a child is, for

example, evaluated differently than the power of a government over its citizens, even

if the goal of both forms of evaluation is to allow us to say whether or not the power is

legitimate. My focus here is one form of evaluation: the idea of public justification.

6 This moral underpinning of the concept of legitimate power and the liberal project of interrogating power is not my focus here, but on this point see Simmons (1999) and Larmore (2002). 7 On this point see, for example, Rawls’s (1973) discussion of the circumstances under which civil disobedience is appropriate, pp. 363-8. 8 The idea of legitimacy as the probability that commands will be obeyed by those commanded is generally traced to Weber (1919), 2-3. On the difference between sociological and normative legitimacy, see Simmons (1999), who makes the common point that Weber’s attempt “to analyze the legitimacy of power solely in terms of people’s belief in its legitimacy” has a “quite obvious circularity.” (749)

   

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Public justification is a process observers can use to be able to say with

confidence whether or not a particular instance of power is legitimate. In its most

abstract form, the idea of public justification is that if acceptable reasons for a given

exercise of power or set of rules can be given to those over whom this power is

exercised, then this power is legitimate. Power for which acceptable reasons cannot be

given is illegitimate. While there is a strong consensus within liberal political theory

that public justification is the best way to evaluate certain kinds of power, theorists

differ about exactly which kinds of power should be evaluated this way, how the

process of justification takes place, and how we should know if a justification is

successful.9 For Jürgen Habermas, justification involves a continuous process of

discussion within what he calls a society’s public sphere, a discussion that should

approximate, as closely as possible, “ideal speech conditions” of full information and

non-domination.10 In this view, successful public justification of a policy means the

public’s actual consensus, as formed by this discussion process, on the acceptability of

that policy and the reasons behind it. John Rawls’s version of the theory, which is the

focus of this project, allows, in contrast, for hypothetical justification. His “liberal

principle of legitimacy” is that “Our exercise of political power is fully proper only

when it is exercised in accordance with a constitution the essentials of which all

citizens as free and equal may reasonably be expected to endorse in the light of

principles and ideals acceptable to their common human reason.”11 We as observers

9 On the liberal consensus on public justification, see Chambers (2010), who in turn cites, among others, Waldron (1993). As will be discussed in more detail in Chapter 4, this consensus is a modern phenomenon, only appearing in the 20th century, replacing an earlier liberal consensus on consent as method of legitimation. Chambers (2012), p. 2. 10 Habermas (1996), 322-3. 11 Rawls (1993), 137.

   

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are to ask whether free and equal citizens under hypothetical ideal conditions would be

able to endorse a system of power in this way.12 Again, to say that people may

reasonably endorse the principles underlying a political system is not to say that these

are the best possible principles or that these principles are unquestionably right.

Rather, it is, from a liberal point of view, to say that these principles, and the system of

political power based on them, are not inconsistent with core ideas of people as free

and equal citizens. Exactly what counts as “political power,” what exercises of power

should be evaluated using the idea of public justification as opposed to other methods,

and exactly to whom these justifications should be addressed, are contested questions

and are central to my project here.

The process of legitimation through public justification has several practical

uses. First, legitimacy is generally understood as a goal of all political processes,

whatever the other substantive goals involved. A theory of fully justifiable power

provides an ideal model against which real power can be judged and critiqued as

closer or farther from the ideal model. The fact that much real world power does not

meet this standard does not mean that legitimacy, as a concept, is not useful.13 Rather,

the ideal model serves to throw departures from the ideal into relief and, therefore, to

orient debates about the extent to which existing institutions and procedures

correspond to ideal models. In addition, an understanding of legitimacy can often be

non-controversial enough to be widely shared in a diverse society, enabling people

who disagree about substantive issues to turn to the same conception of legitimacy.

Political parties offering, for example, rival tax plans can agree that whatever tax plan 12 Rawls (1973), 12. 13 In this way I am following Habermas’s (1996) formulation of the role played by ideal conceptions in political philosophy. (322-3)

   

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is chosen should be justifiable to all citizens understood as free and equal, and ideally

then, each side can try to articulate its plan in a way that meets this goal.14 While even

a fully formed conception of legitimacy is necessarily abstract, the goal of ensuring

that policies and practices are legitimate can help suggest practical reforms. A group

within society could, for example, oppose a particular policy by arguing not just that

they do not in fact accept it but that there are no possible reasons to support the policy

that any people understood as free and equal citizens could accept. A theory of

legitimacy shared with other groups in society could then potentially them search

together for a new policy that could be justifiable to all.

1.3 Justification and justice

It is of course true that simply requiring public justification does not, on its

own, require very much. As Chambers (2012) points out, the demand for justification

on its own only requires that something be offered or made available as a rationale for

a system of rules; it rules out only something like “Stony silence, lies, ‘it’s a secret’,

‘go away’, or ‘none of your business.’”15 For the idea of justification to do real work,

we need to know what counts as successful justification, what justifications of power

are ‘good enough’ for us to say that the system of rules under consideration is

legitimate. According to Rawls’s understanding of the relationship between justice and

legitimacy, which I use here, this is the role of principles of justice. Principles of 14 Here I follow Rawls’s (1993) discussion of the use of abstract conceptions in political philosophy. (45-6) 15 Chambers (2012), 897.

   

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justice distinguish between successful and unsuccessful justifications.16 Most liberal

theories of justice, including Rawls’s, are what Helena de Bres calls “pluralist;” they

are open to the possibility, and in Rawls’s case explicitly claim, that different

principles of justice are necessary in different contexts, that different kinds of power

need to be justified in different ways.17

1.4 The “other problems of justice”

I am interested in a particular context here: cases where non-state actors

participate in the governance of a society. In the following chapters, I will argue that

public justification is the most appropriate way to evaluate the legitimacy of the power

that non-state governing actors exercise in their societies. I will show that, based on

liberal political theory’s own basic commitments, we should demand public

justification from non-state actors in cases where they exercise power through

governance, that doing so, while contrary to the dominant liberal understanding of the

relationship between state and non-state power, is the best way to advance the overall

project of making power accessible to those whose lives it shapes. Rawls offers

several arguments for requiring public justification from what he calls a society’s

“basic structure,” which he defines as “the way in which the major social institutions

fit together into one system, and how they assign fundamental right and duties and

shape the division of advantages that arises through social cooperation.”18 We should

demand public justification from the institutions that make up the basic structure,

16 Rawls spells out the relationship between legitimacy and justice, in among other places, (1993), 134-7. 17 De Bres (2012), 4. 18 Rawls (1993), 258.

   

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according to Rawls, because it has especially profound effects on the lives of all

members of society, effects that are present from the start of people’s lives and that

shape the possibilities they have of achieving, or even hoping to achieve, their

particular goals.19 Looking closely at these arguments for requiring public justification

from the basic structure, as I do in Chapter 2, shows that they are best understood as

applying to governing actors, whether they are state institutions or non-state actors.

The power of the basic structure is best understood as the power of governance.

For Rawls, the question of whether we should evaluate non-state actors that are

part of the basic structure using the demand for public justification does not arise.

Rather, he makes clear that he is focusing on finding principles of justice⎯that is,

determining what counts as successful justification of power⎯for cases where it is

primarily state institutions that make up the basic structure. Rawls calls this “a special

case of the problem of justice.”20 In this special case, non-state actors of the kind I am

interested in here operate, by assumption, within the systems of rules, rights, and

obligations that make up the basic structures of their societies, rather than directly

shaping these rules. In this special case, we can evaluate the legitimacy of the actions

these non-state actors take, and any power they exercise over other people, by whether

these actions conform to the (legitimate) rules established by their society’s basic

structure. While Rawls recognizes that, in general, real societies are messier and more

complicated, his motivating idea is that determining what counts as legitimate power

in a society specified in this particular simplified way, which he calls a “well-ordered

society,” will allow us to more easily solve what he calls “the other problems of

19 Rawls (1993), 270. 20 Rawls (1973), 7-8.

   

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justice” later, the other problems of justice being the question of finding appropriate

principles of justice for societies that operate in different ways.21 His view, in other

words, is that once we have worked out a general method for determining what counts

as successful public justification and used it to develop principles of justice for a basic

structure composed of state institutions, we will be able to use the same method to

determine what counts as successful public justification of other forms of power as

well.22

Thus while Rawls himself declines to take up the question of how to evaluate

non-state power or other forms of power beyond his particular focus, he presents his

theory as offering both an invitation to do so and as providing resources to do so. The

empirical evidence, discussed in detail in Chapter 3, that non-state actors today often

participate directly in the shaping of economic, social, and political rules in society, in

ways identical to the basic structure Rawls discusses, seem to make this an especially

important “other problem of justice” to address. However, Rawls’s invitation has for

the most part not been taken up on this subject, even as many liberal theorists have

sought to move beyond the other assumptions Rawls makes about how power is

exercised in a well-ordered society.23 Why has liberal political theory declined to

move beyond this state focus? Some theorists have claimed that justification is 21 Rawls (1993), 20. For Rawls’s discussion of a well-ordered society, see Rawls (1973), 453-62. 22 This is the method Rawls himself uses in The Law of Peoples for finding principles with which to evaluate relationships among, rather than within, liberal societies. Rawls (1999). 23 A significant literature has, for example, examined the implications of abandoning Rawls’s assumption that well-ordered societies are self-sufficient, including Beitz’s argument that the global economic system plays just as important a role in people’s lives as the domestic basic structure and therefore we have no principled reason to think that demands of justice stop at national borders and Buchanan’s argument that these economic linkages constitute a “global basic structure.” Beitz (1975), 363-6. Buchanan (2000), 706. As will be discussed in Chapter 4, these approaches focus mostly on the question of whether the principles Rawls develops for the domestic basic structure can be applied to the purported global basic structure, rather than looking at how new principles can be developed. This project builds on this line of criticism and responds to some of the same empirical evidence but takes a different approach to the evaluation of these non-state forms of power.

   

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properly demanded only of states, notably Thomas Nagel, who argues that demands

for justification should only apply to a state’s coercion of its citizens, because only this

kind of power is exercised over people is “in their name.”24 I will attempt to show in

Chapter 2 that the argument that justification is intrinsically appropriate to the

evaluation of state power, and only state power, is unpersuasive.25 Rather, I will argue

here that the reason for the focus on state institutions in liberal theories of justification

is that, despite the pluralism discussed above, liberal theories of justification do not

have the resources to fully apprehend and evaluate non-state power. Another way to

put this point is that the assumption that state institutions make up the basic structure,

or, in non-Rawlsian terms, that the state is the primary governing actor within society,

is built not just into principles of justice, which a pluralist theory of justice holds must

change in different circumstances anyway, but directly into the theories of public

justification on which these principles of justice are based. The current liberal

understandings of public justification assume that there is a single center from which

power is exercised over the members of the community, who can then in turn establish

democratic control over the center. Taking non-state power into account upsets this

assumption, because, as will be shown by the empirical literature discussed in detail in

Chapter 3, we then have situations where many different actors, of different kinds and

not necessarily coordinated in any systematic way, are involved in governance. Even

within what is recognizably a unified society, no single set of rules that can be

assessed and no single site for potential democratic control. This sort of situation is

currently beyond the reach of current liberal understandings of justification.

24 Nagel (2005), 121. 25 Abizadeh (2007), James (2005).

   

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1.5 Towards an account of public justification of non-state power

I began this chapter with the question of whether liberal political theory’s basic

commitments should push us to demand public justification from non-state governing

actors. In Chapter 2, I will argue that we do have good reason to make this demand,

that it should be participation in governance, not sovereignty or status as a state

institution, that triggers the requirement of public justification. However, I will also

argue that even if this answer is correct, at present liberal political theory lacks the

theoretical resources to evaluate non-state power this way because of the state

assumptions built into the idea of public justification. Despite Rawls’s optimism about

the other problems of justice, a solution to one of these problems, which I will argue is

an especially important one, still seems out of reach. If governance by non-state actors

raises the same questions of legitimacy as governance by state institutions, but we

have no way to use public justification to assess this form of power, then we have a

significant gap in our theory, and the overall liberal project of making power

accessible to people has a significant blind spot. This project rests on the belief that

the idea of public justification is valuable enough that, when we get to the frontier of

where it can currently operate, we should make the changes to it necessary for it to

work in new territory rather than abandoning it.

Proposing these changes is the central reconstructive goal of this project. My

overall goal is to make a contribution to liberal political theory by developing an

account of political legitimacy through justification that is specifically tailored to cases

where the state is not the only, or even the primary, governing actor. This will need to

   

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take into account distinctive features of non-state governance that are expressly

assumed away in current accounts of justification. First, once we take into account the

participation of non-state actors, we find that governance in many societies is shared,

issue by issue and place by place, among many different actors, some of which are

state institutions and some of which are NGOs, corporations, or other non-state actors.

Even on a single issue in a single place, governance is often shared among many

different actors, who often do not coordinate their actions with each other. There is

therefore no single site of decision-making, no single agenda or decision-making

process that can be made subject to democratic control. Justification in cases like this

must therefore be similarly disaggregated and similarly decentered. This in turn

requires rethinking the concept of society we find in Rawls’s theory, where a society is

defined as a group of people who share a single basic structure and, therefore, a single

level of legitimacy or illegitimacy. Once we take into account non-state power’s

diverse impacts on different people, we will find in many cases, within what is still

recognizably a single society, multiple different systems of rule rather than a single

unified one. Methods of democratic accountability and participation, which are crucial

for the justification of state institutions, must be rethought for cases of non-state

governance as well. The different types of non-state actors that are involved in

governance will each likely have different ranges of possible ways that people can

participate in the rule-making processes. Together, these changes amount to a revised

account of public justification as a process: who must provide the justification, who is

entitled to demand justification, and how we as observers are to tell when a

justification is successful.

   

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The idea that non-state governance raises questions of legitimacy would not, of

course, surprise the many activists and practitioners working towards real governance

reform, including, for example, development workers seeking to create more

participatory development aid programs and Europeans seeking to democratize EU

governance.26 I will draw on these practical efforts, but my main goal is to make a

contribution through a theoretical critique and reconstruction of the liberal

understanding of legitimacy. Liberal theories of public justification are already able to

offer an account of legitimate state power that is both practically useful, as discussed

above, and normatively attractive. This project seeks to develop a similarly useful and

compelling account of legitimate non-state power. In this way, the goal of the project

is to add to the set of tools available to liberal political theory, to re-examine a

currently useful conceptual tool and seek ways to apply it in a new setting. If

successful, this can contribute to the overall liberal project of making the power that

helps shape people’s lives accessible to them in the two senses described above. The

motivating intuition, which will be substantiated and defended in the project, is that

because non-state power is deeply important for the lives of people around the world,

it is important to expand our theory to take this more fully into account.

1.6 Governance and legitimacy

If a society is, following Rawls, understood as a system of social cooperation

persisting over time, then governance is the power of making, enforcing, and changing

26 On efforts to democratize development aid, see, for example, the World Bank’s “Participation and Civic Engagement” guidelines. World Bank (2010). On efforts to democratize European Union governance, see Cohen and Sabel (1997), Cohen and Sabel (2005), and Moravscik (2004).

   

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the “terms of social cooperation between citizens.”27 I begin here from the core liberal

supposition, which I will not defend independently, that we have good reason to want

the terms of social cooperation that define our societies to be consistent with the idea

that the members of society are free and equal citizens. This is the basic reason that

judgments about the legitimacy of a society’s governance are important. Key

questions for this project will be how we can recognize governance when we see it and

how we can reliably differentiate it from the other forms of power. It will be, at this

point, useful to clarify several points about governance as I use the term here. First, I

will understand governance prospectively in this project. I will understand a particular

agent as having governing power (over a specified set of people on a specified set of

issues) if and only if the agent has some independent ability to change the terms of

cooperation that regulate those people’s actions and interactions on those issues.

Several points about this definition need to be clarified. First, the fact that actor x has

the power of governance over individual y tells us nothing else about the form of the

relationship between x and y, and conversely we cannot infer from any particular form

of relationship between x and y that x has the power of governance over y. For

essentially any relationship between x and y⎯state and citizen, employer and

employee, religious leader and adherent⎯there can be cases in which the former

governs the latter and cases in which there is no governance. Thus the United States

government has the power of governance over me, an American citizen, but the mostly

phantom government of Somalia has no power of governance over a resident of an

outlying region. Whether a particular case counts as governance depends entirely on

27 Rawls (1993), 4.

   

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the content of the relationship. Moreover, the question of whether the governor has a

right to govern, that is, the authority to govern, is entirely separate from the question

of whether it does in fact govern. The former is a normative question, and the latter is

an empirical question. We might think that the internationally recognized government

of Somalia has the authority to govern Somali citizens, but this does not tell us

whether it really does govern them.

Second, I have deliberately left the subject matter of governance open, because

the subject matter of the terms of social cooperation that a person lives by will vary

from person to person. Some kinds of rules, like property rights, or freedom of speech

or lack thereof, are part of the systems of social cooperation that everyone, or almost

everyone, lives by. Other rules, like the requirements for becoming a lawyer, only play

this role in some people’s lives. It would be unnecessary, and probably impossible, to

set a general threshold for what types of rules are considered governance. The system

of social cooperation that a person lives by necessarily depends on particular facts

about that person. Put another way, particular facts about each person will determine

what relationships with power-holders they experience as governance. The fact that I

live in the United States means that I am governed by the United States government on

a host of issues, and the fact that I have no interest in becoming a lawyer means that I

am not governed by the State Bar.

Thus the question of when governance exists has an inevitably subjective

element, but the reasons we care about the quality of governance are also subjective.

Governance is a relationship between one person and another person or institution (a

relationship defined, as was discussed above, by its content, not its form), and we care

   

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about this relationship because of its impact on people’s lives. Thus if Alice wants to

devote her life to being a lawyer, then the policies of the State Bar will have a

significant impact on whether Alice is, in her society, a free and equal citizen. If Bob

doesn’t care about being a lawyer, then the State Bar rules will not be part of the

system of social cooperation that Bob lives by. This is true even though the State Bar’s

rules would apply equally to both Alice and Bob. A slightly different way to put the

point would be to say that we would have no reason to care particularly about the

quality of the relationship between Bob and the State Bar because the importance of

this relationship to Bob’s life as a free and equal citizen of his society is nil. Thus

when we ask what actors have the power of governance over a particular person, we

are asking what actors have the ability to change the rules and terms of social

cooperation that this particular person does as a matter of fact live by.

This question, whether we ask it about ourselves or about others, will in

general not make for definitive, bright-line answers. (Exactly how much does Alice

have to want to be a lawyer before we would say that the State Bar’s policies are part

of her system of social cooperation?) Any answer inevitably simplifies some of the

detail and messiness of real people’s experiences. This is not, however, particularly

troublesome, because, as is discussed in more detail below, the point of empirically

identifying and normatively evaluating governance is to contribute to an overall

project of seeking to replace illegitimate power in people’s lives with legitimate

power, based in turn on the core liberal commitment to the idea that people’s status as

free and equal citizens is undermined by illegitimate power. Thus the extent to which

we should care about normatively evaluating the State Bar’s power over Alice

   

18  

depends on the extent to which, based on facts about Alice, the State Bar’s rules are

implicated in Alice’s status as a free and equal member of her society. Because the

importance of governance varies proportionately, then, we do not need to have a bright

line about where governance ‘begins.’

The Westphalian understanding of governance, discussed in more detail in the

next chapter, both assumes and obscures these aspects of the governance relationship.

The Westphalian view of governance assumes that as a matter of fact each person is

governed by, and only governed by, the formal institutions of his or her state. This

assumption is, like any other answer to the question of who has the power of

governance over a particular person, a simplification, but I will argue in this project

that it is often an oversimplification and one that can lead us to miss crucial aspects of

many systems of social cooperation. It will lead us to miss, in other words, some of

the sets of rules that are important for people’s lives. The Westphalian view of

governance assumes that the set of rules by which a person lives is coextensive with

the set of rules promulgated and enforced by his or her state government. This view

assumes that, when non-state agents have power over people, this power is either

mediated through the state, as in the case of international organizations, or limited by

the state, as is the case of an employer’s power over its employees. My goal here, in

contrast, is to investigate cases where non-state actors have independent power over

people, when non-state actors set (some of) the terms of social cooperation in a society

in a way that is not mediated or constrained by states.

In this project I focus primarily on legitimacy rather than justice as a threshold

of evaluation. Different authors within the liberal tradition use these terms differently,

   

19  

and it is important to be clear from the outset on this point. Legitimate power, in

Rawls’s formulation, which is the basis of my project here, is power for which there is

a justification that those subject to it can reasonably be expected reasonably to

accept.28 Thus a judgment about the legitimacy of power is a judgment about whether

there exist justifications for the power that meet this threshold. In contrast, just power

is power that fully conforms to principles of justice, and principles of justice are

propositions about what justifications of power are, all things considered, best. Thus

much more, and much deeper, agreement is necessary for two observers to agree that a

system of power is fully just than for the observers to agree that it is legitimate. Rawls,

for instance, sees “a family of reasonably liberal conceptions of justice,” including,

say, the principles of classical liberalism as, in addition to his own theory of justice as

fairness, as justifications of power that free and equal citizens could reasonably be

expected reasonably to accept.29 In his view, in other words, a system of social

cooperation defined by the principles of classical liberalism would meet the threshold

of legitimacy, even though it would not be fully just. A divine right monarchy, on the

other hand, would not meet the threshold of legitimacy because it simply cannot be

squared with the idea that the monarch’s subjects are free and equal citizens. More

generally, Rawls sees a fairly broad family of liberal doctrines as meeting the

threshold of legitimacy even though he thinks that his particular principles of justice

are, all things considered, the best. Legitimacy is the threshold at which justification of

power become plausible, while full justice would be the point at which the

justifications are, again all things considered, correct. Power that does not meet the

28 Rawls (1993), 137. 29 Rawls (1993), xlvii.

   

20  

threshold of legitimacy is power that we judge, again from this admittedly particular

liberal point of view, to be mere brute force. Thus just power is, in this view, a subset

of legitimate power. My argument here that legitimacy is a conceptually and

normatively important threshold is, I want to emphasize, not meant to diminish the

importance of full justice as a goal for our political systems. It is important to know

whether there are plausible justifications for a system of social cooperation, but it is

also important to know whether the justifications are, all things considered, correct.

I focus on legitimacy here rather than justice for several reasons. First, I will

argue in detail in the following chapters that the reasons that liberalism lacks the

resources to normatively evaluate non-state governance are to be found at the level of

liberal ideas of legitimacy⎯what forms of power it would be reasonable to expect

people reasonably to accept⎯rather than any particular liberal principle of justice. In

other words, I see the problem of the lack of theoretical resources to normatively

evaluate non-state governance as a problem for liberals generally, and it makes sense

therefore to try to solve it at that level. Relatedly, focusing on legitimacy rather than

justice makes the argument more widely applicable. In Political Liberalism, Rawls

focuses on the question of how a democratic society can be stable given conditions of

reasonably pluralism, broad agreement about what constitutes legitimate power but

disagreement about exactly what principles of justice are, all thing considered, best.

As the reference to the illegitimacy of divine right monarchy indicates, in this project I

will remain broadly within the outlines of modern liberal (largely but not exclusively

Rawlsian) political theory, and it is not my ambition to offer a full defense of

liberalism here. I will thus not offer a full defense of why divine right monarchy

   

21  

would not be a legitimate system of governance. My goal is rather to begin from

already existing and widely shared liberal intuitions about the threshold of legitimacy

and investigate how this threshold should be understood and applied in what I will

argue is a previously understudied set of circumstances, cases of non-state governance.

1.7 Outline of the project

The first part of the project sets up in more detail the question of how to assess

the legitimacy of non-state governance and examines the tools liberal political theory

currently has available to answer it. In Chapter 2, I argue that we should require public

justification of non-state power when this power is in the form of governance. This

chapter discusses Rawls’s argument that the basic structure of a society should be

primary subject of a theory of justice and should be subject to demands for public

justification. In contrast to other theorists seeking to understand global and non-state

power who have criticized Rawls’s focus on the basic structure, I will defend Rawls’s

focus on the basic structure as standing in special need of justification but argue that

this focus is best understood as applying to whatever actors in fact play the roles cited

by Rawls in his discussion of the basic structure rather than necessarily referring to a

society’s sovereign government. I also show that the core distinguishing function of

the basic structure is one of governance, and thus evaluating the basic structure means

evaluating a society’s governing actors. This sets up the fundamentally empirical

question of determining how governance works in particular societies. Based on this,

Chapter 3 presents empirical evidence that non-state actors do play the roles cited in

the definition of the basic structure in a wide variety of situations around the world. If

   

22  

this is right, then we are in a position to say that we should demand public justification

from these non-state actors in order for their power to be legitimate. Chapter 4 argues

that, while the preliminary answer to my original question is that we should demand

public justification from non-state governing actors, liberal political theory is not well-

equipped to do this because of what I will call Westphalian assumptions built into

liberal theories of legitimation through justification. Liberal understandings of society,

citizenship, and participation, all of which are important for justification, similarly

assume that power is state or state-like. The challenge is then to revise these concepts

in ways that are in line with basic liberal values but allow for the evaluation of non-

state power. I seek to do this in the latter, reconstructive part of the project, Chapters 5

and 6. Chapter 5 offers a version of the concept of legitimacy that can accommodate

the possibility of non-state governance. The goal of this chapter is, in effect, to offer a

general account of when the demand for justification is triggered as a way of

evaluating legitimacy and to whom this justification is owed. I argue that the system of

rules by which a person is governed should be considered legitimacy if and only if (1)

there is a justification for her specific, potentially local basic structure that she can be

reasonably expected to endorse, and if (2) there is a justification for the relationships

within her society between different groups with different basic structures that she can

be reasonably expected to endorse. In Chapter 6, I look in more detail at different

possible conceptions of legitimacy, answers to the question of what justifications for

power a person can be expected reasonably to accept. This chapter discusses three

possible sources of legitimacy, that is, three types of justification for governance.

These are democratic accountability, protection of basic rights, and relative equality in

   

23  

the distribution of primary goods. This chapter also shows how this understanding of

legitimacy can be applied to some of the examples of non-state governance discussed

earlier in the project and that this gives us a coherent and compelling account of

normatively desirable non-state governance. Chapter 7 concludes with implications for

future research on the role of non-state power in societies.

   

24  

Works Cited: Arendt, Hannah. 1969. Crises of the Republic. New York: Harcourt Brace Jovanovich. Abizadeh, Arash. 2007. “Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice.” Philosophy & Public Affairs: 35:4, pp. 318-58. Bachrach, Peter and Morton Baratz. 1962. “Two Faces of Power.” American Political Science Review: 56:4, pp. 947-52. Beitz, Charles. 1975. “Justice and International Relations.” Philosophy & Public

Affairs: 4:4, pp. 360-89. Buchanan, Allen. 2000. “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World.” Ethics, 110, pp. 697-721. Chambers, Simone. 2010. “Theories of Political Justification.” Philosophy Compass: 5:11, pp. 893-903. Chambers, Simone. 2012. “Reason, Reasons, and Reasoning: Three Faces of Public Justification.” Presentation at Stanford Political Theory Workshop. January 27, 2012. Cohen, Joshua and Charles Sabel. 1997. “Directly-deliberative Polyarchy.” European Law Journal, 3:4, pp. 314-42. Cohen, Joshua and Charles Sabel. 2005. “Global Democracy?” International Law and Politics, 37, 763-97. Dahl, Robert. 1957. “The Concept of Power.” Behavioral Science: 2:3, pp. 201-15. De Bres, Helena. 2012. “The Many, Not the Few: Pluralism about Global Distributive Justice.” Journal of Political Philosophy, 20:3, pp. 314-340. Habermas, Jürgen. 1996. Between Facts and Norms. Trans. William Rehg. Cambridge: MIT Press. James, Aaron. 2005. “Distributive Justice without Sovereign Rule: The Case of Trade.” Social Theory and Practice, 31:4, pp. 1-27. Larmore, Charles. 2002. “Public Reason,” in The Cambridge Companion to Rawls. Ed. Samuel Freeman. Cambridge: Cambridge University Press. Lukes, Steven. 1974. Power: A Radical View. London: Macmillian Press.

   

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Moravcsik. Andrew. 2004. “Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis.” Government and Opposition, 39:2, 336-63. Nagel, Thomas. 2005. “The Problem of Global Justice.” Philosophy & Public Affairs, 33:2, pp. 113-47. Rawls, John. 1973. A Theory of Justice. Cambridge: Belknap Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999. The Law of Peoples. Cambridge: Harvard University Press. Rhodes, R. A. W. 1996. “The New Governance: Governing without Government.”

Political Studies: 42, pp. 652-67. Risse, Thomas. 2010. “Governance Under Limited Sovereignty,” in Back to Basics: Rethinking Power in the Contemporary World. Ed. Judith Goldstein. Forthcoming. Risse, Thomas. 2011. “Introduction and Overview,” in Governance Without a State? Ed. Ursula Lehmkuhl and Thomas Risse. New York: Columbia University Press. Sending, Ole and Iver Neumann. 2006. “Governance to Governmentality: Analyzing NGOs, States, and Power.” International Studies Quarterly, 50: 651-72. Simmons, John. 1999. “Justification and Legitimacy.” Ethics, 109:4, pp. 739-71. Waldron, Jeremy. 1993. “Theoretical Foundations of Liberalism,” in Liberal Rights. Ed. Jeremy Waldron. Cambridge: Cambridge University Press: pp. 35-63. Weber, Max. 1919. “Politics as a Vocation,” in The Vocation Lectures. Owen, David and Tracy B. Strong, trans. 2004. Indianapolis: Hackett Publishing Company. World Bank. 2010. “Participation and Civic Engagement.” http://go.worldbank.org/FMRAMWVYV0.

   

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Chapter 2: Evaluating non-state power through public justification 2.1 Introduction

As I acknowledged in the previous chapter, the idea that non-state actors play

significant roles in governance in societies around the world is not new or

controversial on its own. My overall focus in this chapter is, rather, the question of

how liberal political theory should evaluate the legitimacy of this kind of power. I will

argue in this chapter that public justification is, contrary to what is now the usual

approach, the best way to do so. This chapter takes as a starting point a dominant

liberal approach on the relationship between state and non-state power, Rawls’s.

Rawls’s approach to this subject centers on what can be called “the basic structure

thesis,” the claim that the basic structure of a society, “the way the institutions fit

together into one system, and how they assign fundamental rights and duties and shape

the division of advantages that arises through social cooperation” should be the

primary subject of a theory of justice, that is, the primary target of demands for public

justification.30 According to this view, the proper way to evaluate the legitimacy of the

institutions that make up the basic structure is to require that there be an acceptable

public justification of this power to those subject to it, and it is principles of justice

that in turn assess what justifications are acceptable. In contrast, the way to evaluate

the legitimacy of the power exercised by institutions not part of the basic structure is,

according to this view, to ask whether their actions follow the rules set out by a

reasonably just basic structure. These institutions not part of the basic structure are

therefore not subjects of a theory of justice. The basic structure thesis has been 30 Rawls (1993), 258. See also De Bres (2012), 320-2.

   

27  

challenged by many critics, including Charles Beitz, Thomas Pogge, and Arash

Abizadeh, who argue that institutions, particularly global ones, that are outside

Rawls’s definition of the basic structure should also be subjects of principles of

justice.

The non-state governing actors that are my focus here are outside the standard

definition of the basic structure, and so my claim that their power requires justification

to those subject to it fits in with this line of criticism. However, I will argue that this

idea is best understood not as in opposition to Rawls’s position but rather as the

consequence of relaxing some of the restrictive assumptions he makes about how

power is exercised in the societies being discussed. A useful way to understand

Rawls’s position, and the debate between him and these critics, who could be called

global basic structure theorists, is to split Rawls’s basic structure thesis into two parts:

(1) the idea that the basic structure, as the category of institutions defined above,

exercising a particular kind of power, is the only appropriate target for demands for

public justification, and (2) the claim that a particular set of institutions in fact play

these roles. The criticisms of Rawls’s position made by the global basic structure

theorists are best understood as directed against (2), which I will call the “Westphalian

basic structure thesis.” The global basic structure theorists’ arguments for the most

part do not challenge (1) and indeed rely on it. Separating the two theses allows us to

admit the need to engage with political power as it actually exists in different and

evolving forms in societies around the world without abandoning the importance of

the particular form of power exercised by the basic structure. It also brings into focus

the question of how we should understand the basic structure thesis in the absence of

   

28  

Rawls’s Westphalian assumptions. How should we find the institutions that “assign

fundamental rights and duties and shape the division of advantages that arise through

social cooperation?” I will argue here that, if we drop the counterfactual assumptions

that underlie the Westphalian basic structure thesis, we end up with a view of the

power exercised by the basic structure that is best understood as governance. Put

another way, without these Westphalian assumptions, the basic structure thesis proper

points towards governance, rather than sovereignty or influence more generally, as the

form of power that triggers the requirement for public justification. Thus the overall

aim of this chapter is to set up the central empirical and theoretical questions of the

rest of the project: what types of actors and institutions in fact have this form of

power? If, as I will argue, non-state actors have this form of power, what revisions to

standard liberal theories of public justification are necessary to allow these theories to

make sense of these cases?

2.2 The basic structure thesis and the relationship between state and non-state power

Rawls’s approach to the relationship between state and non-state power forms

a crucial starting point in modern liberalism, even among theorists who specifically

reject it. In A Theory of Justice, Rawls’s declared aim is to find principles of justice

with which to assess a particular form of power: the power exercised by the basic

structure of a society over the members of that society. As was discussed in the

previous chapter, the idea of public justification is one way of evaluating the

legitimacy of power. To require public justification of power is to say that there must

be reasons for that power that are (at least ideally) acceptable to those subject to that

   

29  

power. The goal of principles of justice in turn is to show which reasons are

successfully legitimating and which are not. Thus, principles of justice are one way of

evaluating the legitimacy of a particular form of power.31

My question here is what forms of real power in the world should be evaluated

using public justification.32 Rawls’s answer is that the power of the basic structure of

society should be evaluated this way. Rawls defines the basic structure of a society as,

“the way in which the major social institutions fit together into one system, and how

they assign fundamental right and duties and shape the division of advantages that

arises through social cooperation. Thus the political constitution, the legally

recognized forms of property, and the organization of the economy, and the nature of

the family, all belong to the basic structure.”33 One of my aims in this chapter is to

show that the definition of the basic structure cited above can be understood in two

distinct parts: Rawls’s definition of the basic structure as a category and a claim about

which actors and institutions fall into this category. Analogously, the basic structure

thesis can be understood as two separate theses. The first, what could be called the

31 Within the category of principles of justice, we can also distinguish between distributive and procedural principles. Principles of distributive justice assess the justifiability of power according to the distribution of gains and losses resulting from the exercise of power, or, in Rawls’s terms, “the benefits and burdens of social cooperation.” Principles of procedural justice, in contrast, assess the justifiability of power by reference to the way the power operates, the process of decision-making that leads to it. In the development and application of a theory of justice, these different kinds of principles of justice raise different issues, but these differences are for the most part not central here because my focus, the question of what actors and institutions should be evaluated according to any principles of justice at all, is upstream. Only once we find an answer to the question of what forms of power should be evaluated according to principles of justice do we need to determine what those principles are, including whether to focus on distributive or procedural principles. 32 One way to describe my question, borrowing a distinction drawn by Abizadeh (2007), is that it is asking what forms of power are within the ‘scope’ of principles of justice. An alternative way of using principles of justice is to ask, given certain principles of justice, what could be the ‘site’ of their realization. In other words, a question about site can start from principles of justice and asks what institutions, potentially including new ones, are necessary for their realization. I do not take up this question here and will focus on using principles of justice to evaluate the legitimacy of already existing forms of power. On the distinction between ‘site’ and ‘scope’ see Abizadeh (2007), 320-1. 33 Rawls (1993), 258.

   

30  

basic structure thesis proper, is that the institutions that play this particular role within

a society should be the primary subjects of a theory of justice. The second, what I will

call the Westphalian basic structure thesis, is that a particular and unified set of

institutions, the political constitution, the recognized forms of property, etc., play these

roles and therefore are the proper primary subjects of a theory of justice.

The basic structure thesis proper claims that the institutions that play this role

are the primary ones whose power should be evaluated by requiring direct public

justification, in other words that this set of institutions should be the primary subject

of a theory of justice. Thus Rawls’s well-known principles of justice, developed in TJ

and elsewhere, propose characteristics the basic structure must have in order to be

justifiable to members of the society in question. Rawls’s specific principles of justice

are not my central concern here; my focus is instead on the relationship between state

and non-state power envisioned by the basic structure thesis. The basic structure thesis

entails what Rawls calls an “institutional division of labor,” a division both in the

responsibility different institutions have for furthering the goal of a just society and in

the way we as observers should evaluate different institutions.34 The institutions that

make up the basic structure, according to this view, are the ones whose conduct is

supposed to be directly regulated by principles of justice, the ones that observers are

supposed to evaluate according to these principles. Other institutions in society, in this

view, are from the point of view of justice primarily responsible for following the

rules established by the just basic structure, and the way to evaluate the legitimacy of

the power of institutions not part of the basic structure is to see whether they follow

these rules. 34 Rawls, (1993), 268.

   

31  

As will be discussed below, this division has been controversial. At issue in the

debate about the basic structure thesis is whether the difference between the basic

structure and other powerful institutions sufficiently motivates the difference in

evaluation in Rawls’s theory. Why should we evaluate the institutions of the basic

structure one way and the institutions not part of the basic structure another way?

Rawls offers several reasons for thinking that the type of power described in his

definition of the basic structure, the power of assigning fundamental rights and duties

and shaping the division of advantages that arise through cooperation, is particularly

important and that public justification is uniquely suited to evaluating this form of

power. It is important to note here that the claim is not a quantitative or scalar claim

about the relative strength of the power of the basic structure and other forms of

power. To use an example from the previous chapter, an employer often has

significant power over its employees in the form of choices about hiring, firing, and

promotions, and it is entirely possible that this choice would have a larger and more

direct impact on people’s lives than changes to, say, the tax code. Nevertheless, the tax

code is part of the basic structure of a society, and hiring decisions are not.

Rawls’s point is that the power of the basic structure is qualitatively different

and that the institutions of the basic structure play a unique role in people’s lives. It

does this in several ways. First, the basic structure shapes the possibilities for other

exercises of power among individuals and associations. Rawls writes that, “The role of

the institutions that belong to the basic structure is to secure just background

conditions against which the actions of individuals and associations can take place.”35

Before any other particular interaction occurs, the basic structure is already there and 35 Rawls (1993), 266.

   

32  

already shaping even the possibilities of these other interactions. This is of course not

to say that the rule systems that make up the basic structure minutely regulate every

action and interaction, but they do shape the broad outlines of what is possible.

Because of this, just background conditions help ensure that even well-intentioned

day-to-day interactions do not lead, over time, to an unjustifiable society.36 In

addition, the institutions of the basic structure also directly affect people’s lives in

deep and pervasive ways. The basic structure, Rawls writes, “shapes the way the

social system produces and reproduces over time a certain form of culture shared by

persons with certain conceptions of the good.”37 A fair basic structure prevents

necessary inequalities in other associations and institutions in society from damaging

citizens’ self-respect.38 The unifying idea is that for this kind of power to be

normatively legitimate, to be consistent with the idea that the people subject to it are

free and equal citizens, it must be directly justifiable to those subject to it. Because the

basic structure is the basis of society’s more particular laws and policies, it would be

circular, and therefore useless, to say that an aspect of the basic structure is acceptable

because it comports with these laws. Thus the basic structure can be justified only with

reference to more abstract commitments about human freedom and dignity, the task

for which Rawls develops the idea of the original position.

Rawls also argues that evaluating only the institutions of the basic structure

according to principles of justice serves to prevent the demands of justice on

individuals and associations from becoming excessively demanding. Individuals,

acting on their own or organized in associations, do not have to determine whether 36 Rawls (1993) emphasizes this point in his critique of libertarianism. 262-5. 37 Rawls (1993), 269. 38 Rawls (1993), 270.

   

33  

each of their actions further the cause of justice; they need only ask the much easier

question of whether their actions are in accord with their society’s (reasonably just)

rules. Thus the basic structure thesis does not write off actions and institutions not

belonging to the basic structure as unimportant; the overall idea is rather that, by

focusing on the basic structure, we are able to indirectly address other sources of

power as well, because these other sources of power operate within the framework of

rules established by the basic structure. In addition, by calling the basic structure the

“primary subject of justice,” Rawls means that principles worked out for this subject

will have what he calls “a certain regulative primacy with respect to the principles and

standards appropriate for other cases,” meaning that having these principles in hand

will help us find principles with which to evaluate other forms of power.39 This is the

approach Rawls himself takes with the problem of finding principles of justice to

regulate international relations: the principles worked for the basic structure of a

liberal society serve as guideposts toward a solution to the problem of justice between

liberal societies.40 If it turned out that we needed specific principles of justice for non-

state governance, we could, according to this approach, use Rawls’s initial principles

in the same way.

2.3 The Westphalian basic structure thesis

If we accept the claim that the basic structure, due to the special importance of

this form of power, should be the primary subject of principles of justice, it would be

natural to think that the question to ask next would be: in a particular society, what

39 Rawls, (1993), 257-8. 40 Rawls (1999), 3-10.

   

34  

institutions in fact make up the basic structure and have this especially important form

of power? If we are convinced by Rawls’s argument that the way to ensure stable and

effective justice in society X is to require public justification from the institutions that

“assign fundamental rights and duties and shape the division of advantages that arise

from social cooperation,” then presumably we would need to ask what institutions in

X in fact do this. This is fundamentally a complex empirical question, one that

occupies a central place in this project, but for Rawls it does not arise. It does not arise

because Rawls focuses primarily in finding principles of justice with which to assess

the legitimacy of the basic structure in a particular kind of society, one in which the

actors that play the role of the basic structure are, by assumption, “the political

constitution, the legally recognized forms of property, and the organization of the

economy, and the nature of the family” and in which these institutions fit together into

a single, unified, state-based system. The first two institutions Rawls lists are, it is

clear, state economic and political institutions. In contrast, the organization of the

economy could, in principle, refer to the involvement of non-state actors in a society’s

economic system and, of course, the family is not a state institution at all. On these last

two points however, Rawls understands them to be defined at the level of the society

and to vary from one society to another, but, by definition, not within a society. In a

particular society, there is understood to be a single way in which the family is

organized, and a single way in which the economy is organized. Thus even the aspects

of the basic structure that do not necessarily refer to state institutions are understood in

a way that locates the power to be evaluated according to principles of justice at the

level of the society.41 Overall, the society these institutions govern is understood as a 41 For Rawls’s discussion of the role of the family, see Rawls (1973), 467-72.

   

35  

territorially bounded, self-sufficient sovereign state, one that more or less meets what

has been called the “Westphalian ideal” of sovereignty.42 In other words, Rawls is

creating principles of justice for a society in which the set of institutions that play the

role of the basic structure are, by assumption, state, or at least state-level, institutions.

The non-state actors I am interested in here are, by assumption, not part of the basic

structure and therefore should be evaluated only according to whether the follow the

rules of the basic structure, rather than facing direct demands for public justification of

their actions. These assumptions form what I have been calling the Westphalian basic

structure thesis.

2.4 Beyond the basic structure?

Even among liberal theorists sympathetic to, and using as their starting point,

Rawls’s overall project, the basic structure thesis has been controversial. In particular,

critics have challenged the move Rawls makes from the basic structure thesis proper to

the Westphalian basic structure thesis. In other words, critics have questioned whether

there is a principled way we can understand the definition of the basic structure as a

category such that only the institutions Rawls names as belonging to the basic

structure fit into this category. This line of criticism has to a great extent centered on

the question of whether international economic and political institutions should be

counted as part of the basic structure and as subjects of theories of justice. The other

kinds of non-state actors I am interested in here, such as NGOs and for-profit

corporations, have not been as prominent in the debate, but the issues of whether and

how governing actors beyond those that Rawls himself identifies as belonging to the 42 Held (1995), 78. I discuss this point in more detail in the following chapter.

   

36  

basic structure should be subject to demands for public justification are common to all

non-state actors.

In his response to Rawls’s limited focus on international justice, Charles Beitz

focuses on the tension between Rawls’s claim that questions of justice do not arise

across borders and his claim that it is the division of advantages arising through

cooperation that creates claims of justice. As Beitz points out, these two claims can

only be reconciled if we assume, as Rawls does, that societies are fully self-sufficient,

thus that there is no cooperation across borders.43 Beitz shows that this assumption is

clearly not met in the real world, and it is clear that cooperation across national

boundaries has increased since then.44 Even though the assumption is, for Rawls,

explicitly counterfactual, as it gets farther from reality, it seems that it should face a

higher burden of justification, and for Beitz, this burden is not met. Other global basic

structure theorists discuss different possible triggers for evaluation according to

principles of justice. Thomas Pogge argues that, rather than looking for cooperation,

the pervasive impact that what he calls the “global economic order” has on people’s

lives means that issues of distributive justice arise.45 Defending the focus on state

institutions, Thomas Nagel and Michael Blake argue in different ways that coercion is

the proper trigger for evaluation according to principles of justice and that coercion,

properly understood, exists only within borders and not across them, in other words

that the only form of coercion that gives rise to concerns of justice is the power that

43 Beitz (1979) also argues that, even if we make this assumption, the random distribution of natural resources gives rise to questions of justice anyway, but this is not my focus here, p. 369. 44 See Chapter 3 for the empirical evidence on this point. 45 Pogge (1994), 222. Pogge elsewhere cites the ability of governments to borrow in their country’s names (the borrowing privilege) and control the disposition of their country’s natural resources (the resource privilege) as examples. Pogge (2008), 29-30.

   

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state institutions exercise over their own citizens.46 Arash Abizadeh, however, points

out that, even if we adopt the view that coercion is what gives rise to concerns of

legitimacy and justice, borders themselves are coercively enforced and argues that any

understanding of coercion that ignores this is “perverse.”47

Abizadeh draws the conclusion that the basic structure thesis fails, that,

whatever criterion we adopt as the trigger for evaluation according to principles of

justice, we will find it beyond the basic structure as Rawls understands it, and the

other critics discussed above come to the same position.48 Several things must be

noticed about this position, however. First, even if we accept the argument offered by

the global basic structure theorists that non- or supra-state actors should not be

automatically excluded from our understanding of the basic structure, this does not

necessarily get us much closer to a full determination of what institutions should be

evaluated according to principles of justice. Each of these critics argues for the

inclusion of specific institutions within the scope of justice⎯the global economic

order, the resource and borrowing privileges, border coercion, and others⎯but it is left

open what else, if anything, would also count. To say that the basic structure is “global

in scope,” as Abizadeh contends, or that it should include aspects of the global

economic order, as Beitz argues, is not yet to settle the question of what institutions

meet these expanded criteria. Quite the opposite, because dropping Rawls’s restrictive

assumptions about the definition of the basic structure dramatically opens what was,

46 Nagel (2005) and Blake (2001). 47 Abizadeh (2007), 321. 48 Each of these three criteria⎯pervasive impact, cooperation, and coercion⎯seems plausible on its face, and at different times Rawls seems to endorse each one of them. The institutions that Rawls identifies as part of the basic structure seem to meet each of these criteria equally well. Thus the political constitution of a society has a pervasive impact on people’s lives, represents cooperation among members of society over time, and is coercively enforced.

   

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with the assumptions, a settled question. Thus the moves these critics make set up the

task, which is a major part of my project here, of determining empirically, rather than

by assumption, what actors and institutions in fact make up the basic structure in a

particular time and place.

Second, and relatedly, by confronting the basic structure thesis with empirical

data about how real power operates, the global basic structure theorists are embarking

on a project importantly different from Rawls’s. Rawls makes explicitly counterfactual

assumptions about how power operates in order to arrive at a simplified, schematic

model of society that will be clear enough to allow the development of relatively

straightforward principles of justice. By invoking the real complexities and messiness

of power, the global basic structure critics are moving in a different direction. Or, put

another way, they are seeking to make different simplifying assumptions about power

(some simplifying assumptions are of course always necessary) that, unlike Rawls’s,

do not automatically exclude non-state actors. Third, the criticisms of Abizadeh and

others are directed almost exclusively at the second part of Rawls’s understanding of

the basic structure, its identification with particular⎯state-focused⎯institutions. The

critics’ arguments not only do not oppose the basic structure thesis proper; they

presuppose it. They for the most part agree that Rawls is right to focus on a particular

kind of power as triggering concerns of justice; they disagree about where we find this

kind of power.

This is where the two halves of Rawls’s definition potentially come apart. To

be clear, I do not mean that Rawls himself meant the basic structure thesis to be

divided, rather that, by making this division, we can see which parts of the thesis the

   

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criticisms discussed above are targeting. As discussed above, the basic structure can

also be understood as a category of institutions united by the roles they play in a

society, rather than the list of institutions cited by Rawls. The basic structure is, as a

category, “the way in which the major social institutions fit together into one system,

and how they assign fundamental right and duties and shape the division of advantages

that arises through social cooperation.” The argument of the global basic structure

theorists is not that institutions other than the basic structure should be thought of as

within the scope of justice or that the basic structure is not the appropriate target of

principles of justice but rather that institutions that Rawls himself did not consider to

be part of the basic structure of society are (with different and less restrictive

simplifying assumptions) part of the basic structure of many real societies.

The second part of Rawls’s definition, quoted above, enumerating the

institutions that count as part of the basic structure, is a claim that, in the cases he was

considering and using his particular simplifying assumptions, these particular

institutions were the ones that assigned fundamental rights and duties and set the rules

for the division of advantages arising through social cooperation.49 It is really more of

an assumption than a claim. In other words, we get from the basic structure thesis

proper to the Westphalian basic structure thesis only by making particular, explicitly

counterfactual assumptions. This way of reading Rawls’s argument has the virtue of

allowing the theory to be more flexible. There is, after all, no reason that we should

think that, in all times and places, or even in all societies that are within what Rawls

calls the “circumstances of justice,” it would be the case that the same types of actors 49 Abizadeh (2007) acknowledges this possibility when he writes that, at least sometimes, “Rawls presented his anticosmopolitanism merely as a provisional but methodologically useful assumption.” p. 319. As Abizadeh and others have emphasized, however, Rawls himself is ambiguous on this point.

   

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and institutions would be the ones that assign fundamental rights and duties.50 The

criticisms of the global basic structure theorists can then be seen as calling into

question, not the basic structure thesis itself, but Rawls’s identification of a limited

and particular set of institutions with the basic structure.

2.5 Why Westphalian assumptions?

If the global basic structure theorists are right that Rawls’s simplifying

assumptions both produce a skewed view of real power and obscure power that

liberalism’s basic commitments should otherwise make us see as very important, then

the key question becomes what the basic structure would look like in the absence of

these particular assumptions. In the remainder of this chapter, I will argue that the

arguments for applying demands for public justification to the basic structure would

apply to governing actors, whether they are state institutions or non-state actors. I will

argue, in other words, that Rawls’s arguments for requiring public justification of the

basic structure are fundamentally arguments for requiring public justification of

governance. It is only the simplifying assumptions discussed above, criticisms of

which have already been discussed, that limit the reach of Rawls’s arguments to state

institutions. These assumptions appear throughout Rawls’s discussion of the basic

structure as the primary subject of justice. The assumption that societies are self-

sufficient, which rules out not only cooperation, but also coercion and pervasive

impact, across borders, has already been discussed. In addition, Rawls assumes that

individuals enter societies only at birth and leave only at death,51 and that individuals

50 Rawls (1973), 126. 51 Rawls (1993), 135-6.

   

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and associations follow the rules set by the basic structure more or less all the time.52

This last assumption rules out both the possibility of individuals and associations

breaking the rules set by the basic structure and the possibility that they will contribute

to the creation and change of these rules. It assumes a stable and well-defined division

between the institutions of the basic structure and actors that operate within the rules

established by the basic structure.

For a society that really did meet these conditions, it is indeed plausible that

the “benefits and burdens of cooperation and the distribution of rights and duties” for

members of that society really would be largely determined by, and only by, the state

and state-level institutions Rawls cites. The assumption of self-sufficiency, which

Rawls later strengthens by defining a society as “a closed system isolated from other

societies,” means that foreign states and corporations, international institutions, and

formal and informal social movements and NGOs would only affect the lives of

individuals within the framework or background of the rules established by

Westphalian basic structure.53 The assumption that individuals live their entire lives in

one society furthers the self-sufficiency assumption and avoids the possibility that a

person’s life prospects are shaped partly by one society’s basic structure and partly by

another’s. The rule-following assumption ensures that there is no significant gap

between the formal rules that govern the institutions of the basic structure and the

actual workings of society and rules out informal governance and informal economies

as parts of what defines and redefines society’s rules. Again, it is on its own no

criticism of Rawls to say that, in real societies, these conditions are not met. Some

52 Rawls (1973), 454-5. 53 Rawls (1973), 8.

   

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simplifying assumptions are of course always necessary, and Rawls is explicit in

acknowledging that these assumptions abstract away from the messiness of real

power. However, the criticisms of the global basic structure theorists, who have

pointed out just how much these assumptions cause us to miss, and the underlying

logic of the liberal principle of legitimacy, whose force comes ultimately from concern

about the real institutional factors influencing people’s lives, should lead us to at least

investigate what happens if we relax these assumptions.

2.6 Sovereignty, governance, and influence

How should we understand the idea of the basic structure in the absence of

Rawls’s simplifying assumptions about the actors and institutions that make it up? I

will argue here that the arguments for requiring public justification as a condition of

legitimacy apply fundamentally to governing actors, whether they are state institutions

or non-state actors. As was discussed in Chapter 1, the term ‘governance’ is used

primarily in the empirical literature on the operations of social, economic, and political

systems, and refers to the actual role of an actor or institution in establishing,

maintaining or changing the rules of interaction in a given geographic or issue domain.

More formally, Koenig-Archibugi (2006) defines governance as “the creation and

implementation of rule systems that facilitate the coordination and cooperation of

social actors and determine the distribution of the costs and benefits of collective

action.”54 To return to a point made in the previous chapter, governance occupies an

intermediate position in the range of different forms of power identified by Lukes and

others. The concept of governance picks out a more limited category of power than 54 Koenig-Archibugi (2006), 3, quoted in de Bres (2012b), 3.

   

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influence or impact. Many cases where one individual or institution has power over

another, such as the example of hiring decisions discussed above, do not count as

governance. At the same time, identifying governance as the form of power that

requires public justification makes this requirement much more expansive than would

a focus on sovereign power. My goal in this section is to show that governance is the

best way to interpret the power exercised by the basic structure, rather than a more

restrictive interpretation of this power as sovereignty or a less restrictive interpretation

of this power as generalized influence. Rawls’s own arguments for focusing on the

power of the basic structure in the first place point in this direction.

Both sovereignty and governance seem could be plausible ways of

understanding the form of power picked out by the idea that the proper target of

demands for public justification is the set of institutions that distribute the benefits and

burdens of cooperation and assign rights and duties to members of society.

Sovereignty refers to the status of being the recognized final arbiter or decision-maker

on the rules of interaction within a given territory, backed up by, in Weber’s classic

definition, a monopoly on legitimate force.55 While governance is a term primarily of

the empirical literature, sovereignty is to a great extent a theoretical construct. The

international state system is based on the idea that “the world consists of, and is

divided by, sovereign states which recognize no superior authority.”56 These form a

society of sovereign states who are equally recognized by each other individually, and

collectively through the operations of the United Nations, as having supreme authority

55 Weber, Max (1919) [2004], 38. 56 Held (1995), 78.

   

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over, and responsibility for, the rules of interaction within their territory.57

Sovereign⎯that is, state⎯authorities are recognized as having the final authority over

rights, burdens, and benefits within their territories. Governance refers to the actual

carrying out of this function, with less attention paid to where the officially recognized

authority lies. For Rawls, the question of whether it is sovereignty or governance to

which the arguments of the basic structure thesis refer is settled by the Westphalian

assumptions discussed above. If, however, we remove these assumptions, the question

is reopened. How then should we choose between these two possibilities? Cases where

there is a disjuncture between sovereignty and governance are useful here.58 The

question of who holds sovereignty over a given territory is a matter of mutual

international recognition, of convention, whereas the question of who exercises

governance is an empirical question. Sovereignty can be de jure; governance is always

de facto. If an institution possesses sovereignty but does not exercise governance,

should we require public justification? What about a case where an institution

exercises governance but does not possess sovereignty? I will argue here that there are

compelling reasons to think of the case of governance without sovereignty as

triggering the requirement of public justification but not the case of sovereignty

without governance.

It is not difficult to find real cases that fall into each of these categories. Today

there are a number of cases of sovereignty without governance: the internationally

recognized governments of many war-torn or underdeveloped countries which, while

57 See, among many accounts of the system of sovereignty, Walzer (1977), 58-63 and Krasner (1999). 58 Part of what Held calls the “discourse of sovereignty” is of course that holders of sovereignty also exercise governance, but even the staunchest defender of the importance of formal sovereignty would admit that this is not always true in practice. Held (1995), 73.

   

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they enjoy official recognition including, for example, a seat in the United Nations

General Assembly, do not actually control⎯that is, set the basic rules of interaction

in⎯their recognized territory. Somalia is perhaps the most famous, and extreme,

example of this.59 To see an extreme case of governance without sovereignty, we

could look to areas where a single non-state actor is effectively responsible for

governance in a certain territory, even though it is not a sovereign state, for example

foreign oil companies, particularly Shell Oil, in the Niger Delta.60 Rawls’s arguments

for using public justification to evaluate the legitimacy of the institutions of the basic

structure are, again, that the basic structure shapes the other power-laden interactions

possible among individuals and associations, that the rules set by the basic structure

directly influence the lives of members of society in a particularly important way,

including their self-respect, that this division of labor ensures that principles of justice

are relatively easy to develop and apply and that it prevents the demands of justice on

individuals from being excessive. The question then is whether these arguments apply

more to a case like Shell Oil or a case like Somalia.

Because these are arguments about the role that this kind of power plays in

people’s lives, these arguments must apply fundamentally to the institutions that in

fact play these cited roles in the lives of the individuals in question. To automatically

assume that state institutions play this role because our state system assigns sovereign

institutions the right, and sometimes the responsibility, to do so is a mistake. Nagel’s

(2005) argument that sovereignty alone triggers questions of justice seems to make

this mistake. Nagel, following Hobbes, argues that “Justice as a property of the 59 On Somalia and other states that are officially recognized as sovereign but do not govern, sometimes called failed states or phantom states, see Gros (1996). 60 On Shell’s governance in the Niger Delta, see Zimmer (2010), cited in Risse (2010), p. 10.

   

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relations among human beings … requires government as an enabling condition.”61

Certainly, justice and injustice cannot be ascribed to isolated individuals, but Nagel

goes on to elaborate this “enabling condition” as requiring sovereignty rather than

governance. He argues that, because citizens who share a common sovereign share a

system of legitimate coercion, they have unique claims to make on how they, through

the mechanisms of democratic government, coerce each other. It is true that one virtue

of the current international state system is that it establishes a clear chain of

responsibility for the systems of rule in a given territory and thus gives individuals a

clear place to which they can address their demands for legitimacy. Sovereign

governments are, at least in the ideal definition of sovereignty, both unaccountable to

any higher body and the final place of accountability for actors within their territory.62

In theory, the buck inevitably ends up there and then can go no further, and so it could

be argued that demands for public justification should be addressed to sovereign

powers because our system, whatever its other defects, assigns to them responsibility

for the rules. If in fact they do not set the rules within their territory, so this line of

argument could go, it is still a failing on their part if the rules do not meet standards of

legitimacy.

The trouble with using an argument like Nagel’s to justify a focus on

sovereignty as the trigger for questions of legitimacy is that it only truly works in

cases where sovereign governments also exercise effective governance. It

emphatically does not work for a phantom state like Somalia. In cases where the

61 Nagel (2005), 114. 62 Developments in international law have qualified this, but, as is discussed below, sovereign governments are typically at pains to reserve claims to sovereignty even when they are in fact accepting arrangements that seem to share it with international bodies.

   

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theoretical claims of sovereignty are met, sovereignty and governance coincide. When

states are not the (only) governors in their territories, to demand legitimacy of them

and only of them is to miss some or all of the sites where the setting of rules and the

exercise of power really happens. The focus should be on the empirical question of

how governance takes place and who is governing, not fundamentally the question of

who has the internationally recognized right and responsibility to govern. If what we

care about is that individuals live under legitimate rule systems and that, if they do not,

liberal political theory offers the conceptual resources to critique this as a failure, what

do we achieve by telling, say, a citizen of Somalia in a part of the country not

controlled by the internationally recognized government that he should appeal to the

officially sovereign government? He would gain nothing by this appeal, however it

were answered. The same point applies to the case of governance without sovereignty,

as in the case of Shell Oil in the Niger Delta. If a resident of this area has a complaint

about the legitimacy of the rules that govern her life, this complaint should be

addressed to Shell, because it is Shell that in fact sets the rules under which she lives.

If she addresses her complaint exclusively to the central government, nothing is

accomplished. Likewise, we cannot evaluate the legitimacy of Shell’s actions

according to whether they follow the rules of Nigeria’s basic structure because the

point of this example is precisely that Shell sets the rules for the area in which it

operates. One possible response to this example is that Shell is an easy case, one that

does not prove anything about non-state actors in general. Shell’s power is such that,

this objection could go, it is effectively a state. Certainly it is unusual that a single

non-state actor has so much governing power, but if Shell’s power in the Niger Delta

   

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were split instead among two, a dozen, or a hundred non-state actors, with the same

minimal role for the sovereign government, my point that we should care about the

governing actors rather than the sovereign would apply in essentially the same way.

Caporaso (2000) offers a concrete example of the relationship between

sovereignty and governance in the case of the United Kingdom’s relationship with the

European Union.63 While the U.K. is of course a highly functioning state, the British

government has, in the decades since it joined the European Union, agreed to abide by

E.U. rules and rulings in various issue areas, including the main example Caporaso

uses, measures to ensure gender equality. The measures, or lack thereof, that a society

adopts to ensure gender equality surely count as part of the basic structure, by any

definition. Caporaso argues that, because the U.K. has bound itself to accept E.U.

rulings on what measures are necessary to ensure gender equality and has always

followed these rulings, it makes sense to think of the E.U. as governing, setting the

background conditions, on this issue, rather than the British government. The British

government however is still legally sovereign and in its ratification of the E.U. treaties

avoided any hint of relinquishing sovereignty. Given this apparent disjuncture between

sovereignty and governance, to whom then should we address questions or demands

regarding whether there really is gender equality in the U.K.? As Caporaso points out,

to address these demands to, and only to, the British government rather than the E.U.

on the grounds that the U.K. is legally sovereign is to miss the point. The site where

the crucial decisions on the rules that individuals must live by, rules that shape their

life chances and, quite possibly, their self-respect, are made on this issue is the E.U.,

and it is these decisions that are what we care about when we talk about the legitimacy 63 Caporaso (2000), 17-21. See also Caporaso (1996).

   

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of political power. It is true that the British government freely agreed to this

arrangement and that it could revoke it if it chose, but unless this happens, the rules on

this issue are set by the E.U. Caporaso goes on to discuss how situations like these

have led to complicated debates about whether the U.K. has signed away its

sovereignty or whether sovereignty is pooled, shared, or otherwise split. The focus on

sovereignty per se here obscures the important empirical question of where decisions

affecting people’s lives are really being made. When sovereign institutions play this

role, it is because governance often, and in cases where practice matches our theory,

goes along with it. When sovereignty and governance diverge, governance takes with

it what, from the point of view of legitimacy, we care most about.

It could be pointed out here that the preceding argument against considering

sovereignty to be the defining feature of the basic structure seems to put pressure on

the institutional division of labor overall. I have argued here that to focus on

sovereignty per se is to miss the point of why we ask questions about the legitimacy of

power in the first place, that the focus of normative evaluation should be on the

constraints that people really face in their lives, the rules that shape what is possible

for them on a day-to-day basis and over a lifetime. Why then, it may be asked, is it

governance that is important, and not power or influence more generally? If changes

to the tax code raise questions of legitimacy that ought to be answered through a

requirement of public justification, why do a corporation’s decisions about hiring and

firing people not raise these same questions? If my arguments here against taking

sovereignty as the signature of the basic structure are accepted, why do these same

arguments not undermine the focus on the basics structure as a special category in the

   

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first place? If the proper target of concerns about legitimacy is, as I have argued, the

constraints people actually face in their lives, it might seem that we should require

public justification anywhere one agent or institution has a “pervasive impact” on

other people’s lives, regardless of whether that impact is in the form of governance.

As a first response, it is important to note that in some ways governance and

impact are not as far apart as they may seem. This is because governance, unlike

sovereignty, is already in essence an empirical concept. To say that a certain agent is

governing is to say that it in fact has the power to create, maintain, and change

systems of rights and obligations. A governing actor whose actions, for whatever

reason, cease to have an impact on people is no longer engaging in governance. But

why not expand the requirement of public justification to cases of pervasive impact

that do not amount to governance, like hiring and firing? An important part of the

answer comes from Rawls’s concern for keeping the targets of demands for public

justification to a minimum. In developing the idea of the institutional division of labor,

Rawls argued that requiring public justification of only a relatively small number of

institutions will make it much easier to develop and apply principles of justice. In

addition, ensuring that individuals (and associations) do not, in general, have to

regulate their day-to-day actions with direct reference to principles of justice is

supposed to both make it easier for them to know that they are acting justly and to

preserve a relatively large sphere of personal action for which people do not owe

justification to anyone. At the same time, because the system of rights and obligations

of society shapes the broad outlines of what day-to-day actions are allowed, even

personal actions are indirectly regulated by principles of justice when these principles

   

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are applied to the rule system of society as a whole. My argument here is that the

category of governing actors is the smallest category of actors and institutions from

whom we can require public justification while still capturing, albeit indirectly,

everything that shapes the course of people’s lives. Thus we should not directly

require public justification of a corporation’s hiring decisions because it is not

necessary to do so; these decisions take place against the background of a system of,

in this case, labor rules and what Rawls calls “the organization of the economy.”64 It is

of course true that these rules might be informal, unsystematic, and divorced from the

formal system of laws in a particular place and time, and indeed this is exactly the sort

of possibility that the focus on governance, rather than sovereignty, is meant to allow

us to capture. Whatever their source, the rules governing employer-employee

interactions are necessarily part of a full description of the system of rights and

obligations in a particular time and place. Governance cannot be meaningfully

evaluated by whether it follows a society’s rules, because governance is the power of

making and unmaking these very rules. Interpreting the power of the basic structure,

and the trigger for the requirement of public justification, as governance, rather than

sovereignty or influence more generally, allows us to capture all⎯and only⎯the

power that cannot be successfully evaluated otherwise.

2.7 Two objections

64 What of coercion unconstrained by rules, where one person is fully in the power of another? It would of course be absurd if the lack of rules meant that power was out of normative reach. The lack of rules is itself a “distribution of rights and obligations,” one in which one person has all the rights and the other has none at all. Thus even power apparently ungoverned by rules would, according to my definition here, require public justification in order to be legitimate. Such a case could, of course, never be justified is therefore illegitimate.

   

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I want to conclude this chapter by considering two objections to the

governance view. The first objection is that, because non-state actors do not have a

monopoly on the use of organized coercive force, or often any capacity to use force at

all, it is not possible for them to independently play a role in governance. According to

this view, even if, say, a non-profit organization helped set the rules of a society in a

way that would otherwise lead us to consider it part of the basic structure, its

contribution to the rules of society could only be enforced and made effective if the

state enforced it through its monopoly on coercion, and therefore concerns about

political legitimacy would still apply only to the state. As Wolf puts it, “The capability

of private actors to take binding decisions and to enforce rules is frequently questioned

with the argument that they cannot fall back upon the use of force which is essential

and which only national governments have at their disposal.” 65 This objection, by

equating power with overwhelming coercive force, takes an implausibly narrow view

of power, ignoring what Lukes, as discussed in Chapter 1, calls the second and third

dimensions of power.66 Governance, setting the background conditions against which

other interactions occur, can be effective through all the other ways that human

behavior is shaped as well. Thus effects on norms, if strong enough, can amount to

participation in governance, as can gifts or aid, or actions in the market. It is worth

noting that even governments very seldom actually resort to use of their monopoly of

violence to get compliance with rules they establish. Governing actors, both state and

non-state, can “persuade with normative or utilitarian arguments, exert moral pressure,

65 Wolf (2006), 213. I leave out here cases where a “non-state actor,” say a militia, gains a monopoly on the use of force because then it is a state, effectively if not legally. 66 Lukes (1974), 28-9.

   

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mobilize pubic opinion, or instrumentalise market forces.”67 Non-state governing

actors can and do have real power in society, and it should be this power that makes

triggers the requirement of public justification.

A second and related objection is that evaluating non-state governing actors

according to principles of political legitimacy presupposes that it is indeed possible for

non-state actors to govern legitimately in the first place. In other words, it ignores the

possibility that a legitimate non-state governing actor is a contradiction in terms. A

case like Shell Oil’s involvement in the Niger Delta might be, according to this view,

inevitably and automatically illegitimate simply by virtue of its being a for-profit

corporation exercising governing power over large numbers of people in a foreign

country. To even address this situation according to standards of political legitimacy

would, according to this objection, be to wrongly concede, or at least tendentiously

assume, the possibility of Shell’s acting legitimately in this situation. As a first

response, raising the question of political legitimacy with respect to the governing

power of non-state actors does not imply that these actors can or do act legitimately.

For reasons that are discussed in more detail in the later chapters of this project, the

idea that it is extremely difficult for non-state actors to meet standards of political

legitimacy is quite persuasive, and, at least for the moment, I wish to leave open the

possibility that it is nearly or actually impossible. Secondly, even someone holding the

view that legitimate non-state governance is impossible should still, I think, accept

that there may be more and less illegitimate ways in which non-state actors can

govern. In the next chapter, I will offer empirical evidence that non-state governance

is already prevalent throughout the world and, if anything, likely to become more 67 Wolf (2006), 213.

   

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widespread in the future, and, even if it is true that this is overall a bad thing,

evaluating this institutional reality according to standards of legitimacy will allow us

to make useful distinctions between bad and worse.

2.8 Conclusion

I have tried to show in this chapter that the idea of public justification is,

contrary to the current standard approach in liberal theory, the best way to evaluate the

legitimacy of the power non-state actors have when they participate in governance.

The debate between Rawls and the global basic structure theorists, as I have

interpreted it here, points in this direction. Separating the basic structure thesis proper

and the Westphalian basic structure thesis allows us to interpret the challenges of the

global basic structure theorists as challenges to the Westphalian basic structure thesis.

Their arguments do not attack the claim that the institutions that shape the division of

advantages arising from cooperation should be the primary subject of justice; rather,

they attack Rawls’s exclusive identification of state institutions as the ones that play

these roles. In fact, because the form of these arguments is to argue that institutions

beyond the Westphalian basic structure play the roles of the basic structure and that

these institutions do raise questions of justice, their arguments are based on an

acceptance of the basic structure thesis proper. What the arguments of the global basic

structure theorists do is call into question the need for the restrictive assumptions

Rawls makes about how power is exercised in societies, by pointing out how far these

assumptions take us from empirical reality and how these assumptions screen out facts

about the world that the basic commitments of liberal political theory would otherwise

   

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mean we should take to be very important. If, as these critics suggest, we remove these

assumptions, then we are left with a picture of the basic structure as the set of

governing actors in a particular place and on a particular issue, whether or not they are

state institutions. Removing the Westphalian assumptions turns the question of what

institutions make up the basic structure into a fundamentally empirical question: what

institutions play this role, assigning rights and duties and the benefits and burdens of

cooperation? The next chapter looks at some of the empirical evidence on this

question and seeks to show that, in fact, non-state actors do play these roles in many

societies around the world.

   

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Works Cited: Abizadeh, Arash. 2007. “Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice.” Philosophy & Public Affairs, 35:4, pp. 318-58. Beitz, Charles. 1979. Political Theory and International Relations. Princeton: Princeton University Press. Blake, Michael. 2001. “Justice, State Coercion, and Autonomy.” Philosophy & Public Affairs, 30:3, pp. 257-96. Caporaso, James. 1996. “The European Union and Forms of State: Westphalian, Regulatory or Post-Modern?” Journal of Common Market Studies: 34:1, 29-52. Caporaso, James. 2000. “Changes in the Westphalian Order: Territory, Public Authority, and Sovereignty.” International Studies Review, 2:2, pp. 1-28. Cohen, G. A. 1997. “Where the Action is: On the Site of Distributive Justice.” Philosophy & Public Affairs, 26:1, pp. 3-30. De Bres, Helena. 2012. “The Many, Not the Few: Pluralism about Global Distributive Justice.” Journal of Political Philosophy, 20:3, pp. 314-340. De Bres, Helena. 2012b. “Justice in Transnational Governance.” Forthcoming. Gros, Jean-Germain. 1996. “Towards a Taxonomy of Failed States in the New World Order.” Third World Quarterly, 17:3, pp. 455-72. Held, David. 1995. Democracy and the Global Order. Stanford: Stanford University Press. Koenig-Archibugi, Matthias. 2006. “Introduction: Institutional diversity in global governance.” In: Koenig-Archibugi, M. and Zurn, M. (eds) New Modes of Governance in the Global System: Exploring publicness, delegation and inclusiveness. New York: Palgrave Macmillan Press. Krasner, Stephen. 1999. Sovereignty: Organized Hypocrisy. Princeton: Princeton University Press. Lukes, Steven. 1974. Power: A Radical View. London: Macmillian Press. Nagel, Thomas. 2005. “The Problem of Global Justice.” Philosophy & Public Affairs, 33:2, pp. 113-47. Pogge, Thomas. 1994. “An Egalitarian Law of Peoples.” Philosophy & Public Affairs, 23:3, pp. 195-224.

   

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Pogge, Thomas. 2008. World Poverty and Human Rights. Cambridge: Polity Press. Rawls, John. 1973. A Theory of Justice. Cambridge: Belknap Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999. The Law of Peoples. Cambridge: Harvard University Press. Risse, Thomas. 2010. “Governance Under Limited Sovereignty,” in Back to Basics: Rethinking Power in the Contemporary World. Ed. Judith Goldstein. Forthcoming. Rousseau, Jean-Jacques. 1762. The Social Contract. Trans. Maurice Cranston. 1968.

New York: Penguin Classics. Walzer, Michael. 1977. Just and Unjust Wars. New York: Basic Books. Weber, Max. 1919. “Politics as a Vocation,” in The Vocation Lectures. Owen, David and Tracy B. Strong, trans. 2004. Indianapolis: Hackett Publishing Company. Wolf, Klaus Dieter. 2006. “Private Actors and the Legitimacy of Governance Beyond the State,” in Governance and Democratic Legitimacy: Transnational, European, and Multi-Level Issues. Eds. Benz, Arthur and Ioannis Papadopoulos. London: Routledge, pp. 200-27. Zimmer, Melanie. 2010. “Oil Companies in Nigeria: Emerging Good Practice or Still Fueling Conflict?” in Corporate Security Responsibility? Corporate Governance Contributions to Peace and Secuity in Zones of Conflict, eds. Deitelhoff, Nicole and Klaus Dieter Wolf. Houndmills: Palgrave Macmillan, pp. 58-84.

   

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Chapter 3: Where is the basic structure? Empirical evidence of participation in governance by non-state actors 3.1 Introduction

In the previous chapter, I argued that, while the basic structure is typically

thought of as composed of state and state-level institutions, the arguments for thinking

that the power of the basic structure requires public justification apply to all governing

actors, whether they are state institutions or non-state actors. If this is right, then the

question of what institutions do distribute the benefits and burdens of social

cooperation, which Rawls settles with his implicit and explicit Westphalian

assumptions, is then reopened as a fundamentally empirical question, one that needs to

be addressed in advance in order to actually make judgments about the legitimacy of

this kind of power.

The primary goal of this chapter is to examine some of the empirical evidence

on this question. I use the word ‘some’ deliberately here, for several reasons. First, the

empirical data on governance is huge and constantly growing, and only a summary is

possible. Second, this is a task that ideally should be done case by case and society by

society. As noted in the previous chapter, there is no reason to think that, in every

society, it would be the same set of institutions that make up the basic structure, that

assign rights and duties and shape the distribution of advantages arising from

cooperation. Although I gave reasons in the previous chapter to think that it is unlikely

that, in most real societies, the basic structure is made up solely of the institutions

Rawls discusses⎯in other words that the Westphalian basic structure thesis is not just

an assumption but fits empirical reality⎯this is not a claim on which I need or want to

   

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insist. My overall project here is to reexamine how public justification as a method of

normatively evaluating governance can work in cases in which non-state actors

participate in governance. This project is useful if, at minimum, there is enough real-

world participation in governance by non-state actors that we cannot simply dismiss it

as a quirk of a few atypical situations. The goals of this chapter are therefore (1) to

offer empirical evidence that this modest threshold is met, that there is enough non-

state governance in the world that it is an issue worth understanding, (2) to canvass

some of the data on different settings in which non-state actors participate in

governance, and (3) to identify in the empirical data some common features of cases

of non-state governance, features that must be accounted for in any understanding of

public justification that is to be useful for evaluating this form of power.

3.2 Governance and government

A useful place to start is with the relationship between governance and

government. A definition of governance has already been given: “the creation and

implementation of rule systems that facilitate the coordination and cooperation of

social actors and determine the distribution of the costs and benefits of collective

action.”68 Governance is the power to make, with at least some degree of

independence, the rules by which other members of society have to live. Government,

in contrast, is the activities of formal state (local, regional, or national) institutions.69

This project is based on the idea that governance and government are separate, or at

68 Koenig-Archibugi (2003), 3, quoted in de Bres (2012), 3. 69 These definitions of governance and government are common. See, for example, Milward and Provan (2000), 360. Keohane (2002) defines governance as “the making and implementation of rules, and the exercise of power, within a given domain of activity,” p. 3.

   

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least separable, both as concepts and as real-world activities. It is thus in opposition to

one traditional view of the relationship between government and governance,

variously referred to as the ‘statist’ or ‘Westphalian’ view, that it is exclusively

governments that carry out governance. This view has both a normative

aspect⎯governance is properly the province only of government⎯and a definitional

aspect—governance is defined as the actions of the government, and thus non-state

governance is a contradiction in terms. 70 When Robert Dahl (1961), for example, in

his classic study of power in New Haven, asks “who governs?” he is asking who is in

control of the operation of the formal institutions that make up the city’s local

government.71

Along with the international recognition of independence and the effective

exclusion of other states from its territory, the ability of a government to carry out

governance within its territory figures prominently in standard definitions of state

sovereignty.72 Simon Caney (2005) emphasizes the related idea of

“comprehensiveness,” the idea that the government, unlike other powerful social or

economic institutions, has power over rules across many different issues, as an aspect

of traditional views of state sovereignty.73 As has already been emphasized, the statist

or Westphalian view of governance is not that governments are or should be all-

powerful or control in detail the lives and destinies of individual citizens. It is rather

70 The fact that the verb forms of both “governance” and “government” are “governing” can make this identification appear more inevitable than it really is. For a description and criticism of this view, see Avant, Finnemore, and Sell (2010), Chapter 1, as well as Milner (1991). For a historical analysis of this point, see Spruyt (1994). 71 Dahl (1961). 72 Krasner (1999) distinguishes four different kinds of sovereignty, one of which, “Westphalian sovereignty” is control over rule-making power, pp. 25-8. The identification of governance and government is also called, in the British context, the “Westminster model.” Stoker (1998), 19. 73 Caney (2006), 150.

   

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the idea that no actor but the government has the special power of making and

enforcing binding rules. Non-state actors, both individuals and associations, are

understood to make choices, interact, and sometimes exercise power over each other,

but they are understood to do this within the framework established by the state’s

rules. As will be discussed in more detail in the following chapters, one powerful

attraction of the Westphalian model of governance is of course that, when it is

combined with robust democracy, the people really do have control over the rules that

shape their lives.

Until relatively recently, the influence of this standard model of sovereignty

meant that the term “governance” was simply synonymous with “what the government

does.” According to Rhodes (1996), “governance” as a separate phenomenon was not

widely studied until the 1980s.74 This is of course not to say that this ideal was met in

real world situations, but rather that the conceptual identification of governance with

government meant that evidence of non-state governance was for the most part neither

looked for nor found. The idea that governance is a phenomenon at least potentially

separate from government and should be studied as such has been called the

“governance perspective.”75 As Stoker (1998) emphasizes, the governance perspective

is not fundamentally a claim about the causes or effects of non-state governance, or a

normative claim that non-state governance is to be preferred, but instead an

“organizing framework” that allows for new questions to be asked and data already

available to be interpreted in new ways.76 The central idea of the governance

perspective is to avoid preconceptions about where the power of making rules will be 74 Rhodes (1996), 653. 75 Stoker (1998), 18. 76 Stoker (1998), 18.

   

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found and what form these rules will take. Every society⎯indeed every case of

complex human interaction⎯has systems of rules, rights, and obligations, and the

governance perspective means asking what these rules are, with the understanding that

it is an open question what institutions in a particular society have the power of

making them. It is of course true that the subject of this project, non-state governance,

is only legible from the governance perspective. From the empirical statist perspective,

non-state governance is something that does not exist, a contradiction in terms, and,

from the normative statist perspective, it would be automatically illegitimate if it did.77

The governance perspective has been common in the empirical literature since the

1990s, but acceptance of it is by no means unanimous, and the emphasis on

governance has been criticized for obscuring the enduring importance of the state.78

The following section discusses three contexts, weak states, hollow states, and global

governance, in which the disconnect between governance and government has become

particularly salient and which therefore provide particularly important cases of non-

state governance. Part of my goal here is to show that the governance perspective is, at

minimum, a useful lens through which to observe and evaluate these cases. Without

the governance perspective, the most that could be said in each case would be that the

state is failing to carry out (some of) its proper roles, and much of what makes each

case unique would be obscured. These are, I hope to show, interesting and important

cases, and the governance perspective offers the chance to make sense of them.

77 The objection raised by the normative statist view, that if non-state governance did exist, it would automatically be illegitimate, is discussed at the end of this chapter. 78 Hill and Lynn (1995) reported that “’governance’ fever is catching,” p. 173. More recently, Dingwerth and Pattberg (2006) argue that the term has become so widespread as to lose a focused meaning, p. 185.

   

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3.3 Three contexts of non-state governance

Weak states

The weakness of state institutions in many developing countries, along with

related humanitarian, political, and military upheavals, has focused attention on the

fact that the highly organized, well-functioning state capable of comprehensive

governance is the historical and geographic exception rather than the rule, confined for

the most part to wealthy countries in relatively recent times.79 In a review of the

literature on governance in areas of state weakness, Risse (2010) reports that,

“According to the Bertelsmann Transformation Index, only 44 out of 129 transition

countries (34%) enjoy a full monopoly of the means of violence (9 or 10 points on a

ten-point scale), while only 28 out of 129 countries (22%) possess fully effective

administrative structures.”80 If we identify “effective administrative structures” with

the kind of full governance envisioned by the Westphalian model, then in 101

countries, state institutions do not have the capacity to govern fully. In another

measure of the prevalence of weak state institutions, Sacks and Levi (2010) found that

the rate at which citizens experience food insecurity correlates strongly with the

effectiveness of a government’s activities more generally, including “government

performance in providing and maintaining infrastructure, reliable bureaucracies, and

law and order, controlling for income, rainfall levels, the competitiveness of elections,

and the presence of civil liberties and political rights.”81 According to the Food and

79 See, for example, Rotberg (2004), Eriksen (2011) and Collier (2009) for recent discussions of state failure. 80 Risse (2010), 6. 81 Sacks (2012), 13.

   

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Agriculture Organization of the United Nations, 870 million people worldwide

experienced food insecurity in 2010, suggesting, as a very rough estimate, that at least

this many people live in countries with weak state institutions.82

The weakness of state institutions is of course fully visible from the statist

perspective as well, and indeed the link between food insecurity and weak state

institutions seems to confirm the idea that it is a good thing for governments to carry

out governance, but looking at state weakness from the governance perspective offers

several key insights. First, the governance perspective enables us to go beyond looking

at these cases solely in terms of how far they are from the (apparently rather rare)

Westphalian ideal of unified state governance. There are important differences in

governance even among countries equally far from the ideal model. Risse writes that

“The social science debate on [the importance of] governance implicitly or explicitly

remains wedded to an ideal type of modern statehood⎯with full domestic sovereignty

and the capacity to make, implement, and enforce decisions.”83 The focus on this ideal

type of statehood as a standard can obscure the myriad differences among countries

where state institutions do not meet this standard. What sorts of actors govern in place

of the state? How do they relate to one another? Are they local or from other

countries? Each of these questions is crucial for understanding what kind of rules

people live by and whether these rules should be considered acceptable, and none of

these questions is settled by knowing how far a society is from the Westphalian ideal

model. Second, and relatedly, from the governance perspective, the absence of

government is not equivalent to the absence of governance. Human societies always

82 Food and Agriculture Organization (2012). 83 Risse (2010), 2.

   

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have rules of interaction, even if, as is often the case in countries without strong state

institutions, these rules are informal, unfair, and/or inefficient. To use Rawls’s terms,

there is always some distribution of the benefits and burdens of cooperation in a

society, even if state institutions are too weak to do the division. Totally chaotic

conditions, in which there are no background rules governing human interactions, are

surely even more rare than pure state governance. In the absence of governance by the

state, other actors and institutions fill this gap, whether intentionally or by default. The

governance perspective has focused attention on the non-state forms of governance in

these countries as independent phenomena and not simply as deviations from the ideal

model of full state governance. Third, the governance perspective avoids the

assumption that full state governance is both normatively preferable and practically

optimal. In many cases state governance does work best, as the link between food

insecurity and weakness of state institutions suggests, and, at least in democracies,

state governance can be the most effective way of achieving popular control over

governance, but neither of these patterns is universal and there is no reason to assume

either one prima facie.

Who governs in these countries with weak state institutions? In some cases,

informal rule systems take the place of formal state-administered rules. For example,

in developed countries, governments typically enact rules for, and provide official

recognition of, property rights. In places with weak state institutions, property rights

are not absent, but secured and enforced differently. Lanjouw and Levy (2002) find

that in low-income areas of Guayaquil, Ecuador, only 8 percent of newly occupied

residential property is formally registered to its effective owners, with the property

   

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rights of the other 92 percent depending on informal systems.84 They report that the

communities of untitled property holders typically begin with occupations of

previously vacant land by large groups of squatters. Members of these groups, which

are generally organized by local leaders, all recognize each other’s claims to particular

plots of land, and this critical mass of recognition is sufficient to give people most of

the rights associated with formal title, including the ability to use the property as

collateral for loans and rent the property to others.85 Schneider (2002) estimates that in

developing countries, the “informal economy,” business enterprises that are not

necessarily illegal but operate outside of state regulations, is on average 41 percent of

all economic activity.86 In each case, informal but widely recognized rules define, in

the absence of governance by the state, rights and obligations.

Formally organized non-state actors also frequently participate in governance in

areas with weak state institutions. The prevalence of poverty and insecurity of basic

needs in many of these countries means that many weak states are the recipients of

large amounts of foreign aid, both for short-term emergency relief and long-term

development. In cases where aid is the only option for obtaining food or other basic

needs, the administration of aid programs is a particularly important form of

governance. Aid providers inevitably make choices about, for example, who is eligible

for aid, how it will be distributed (for example, directly to individuals or through local

leaders), and whether it will be given for free or sold on the market. Each of these

decisions contributes to the system of rights and benefits of people in aid-dependent

societies. In a recent review of the data, Sacks (2012) cites evidence from Van de 84 Lanjouw and Levy (2002), 991. 85 Lanjouw and Levy (2002), 992. 86 Schneider (2002), 6-9.

   

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Walle (2001) and others showing that, across developing countries in Africa, as much

as two-thirds of all education and healthcare spending comes from NGOs without any

involvement of state authorities.87 In many countries the size of the NGO sector, many

of whose members provide, and set the rules for provision of, crucial goods and

services, approaches or exceeds the size of the government. In Burkina Faso, for

instance, the size of the aid sector is 10 percent larger than the government budget and

comprises 12.8 percent of the entire economy.88 A few developing countries have

specific legal provisions designed to prevent donors and donor-financed NGOs from

independently engaging in governance. In Botswana, laws require that all aid and

NGO activities be integrated into the national planning and budgeting process.89 This

case is unusual and is partly driven by the fact that Botswana, while poor, has

relatively well-functioning state institutions. When the state is weak enough that

emergency aid is needed, it is often too weak to exercise any power over how the aid

is administered. Aid is also directly administered by donor countries, sometimes by

the military, and in these cases, the state institutions of the donor country may end up

participating in governance in the recipient country, a case of state, but not

Westphalian, governance.90

Hollow states

87 Van de Walle (2001), 100 cited in Sacks (2012), 6. 88 World Bank (2007). Loevinsohn’s (2000) case study of healthcare provision by NGOs in Cambodia also illustrates this point. 89 Sacks (2012), 8. See also Van de Walle (2001), 205-6. 90 For a review of the difference between private aid (originating from NGOs) and public aid (originating from states), see Buthe et. al. (2012). See also Berrios (2000) on the role of contractors in American foreign aid.

   

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In contrast to weak state institutions, the ‘hollow state’ is studied as a

phenomenon primarily of developed countries with well-functioning state institutions.

This term refers to the transfer of what were otherwise state activities and functions to

non-state actors, either through contracting or outsourcing arrangements or because

the state simply ceases certain activities and leaves them to the private sector.91 The

term “hollow state” is often used pejoratively, but it is also, in a sense that can either

be positive or negative, meant to evoke the image of the state acting in these cases as a

coordinating agent setting overall goals and policies, with the inside details of

particular functions and programs being worked out by contractors. Unlike the cases

where non-state actors end up participating in governance informally or by default in

countries with weak or failing state institutions, the contracting out of state functions

is more often a deliberate policy undertaken by governments for a variety of reasons,

including fiscal pressures, the belief that non-state actors will deliver services more

efficiently, or a belief that the overall role of the government in society should be

reduced.92 It is of course true that not all involvement of non-state actors in

implementing government policy amounts to involvement in governance, just as most

individuals whose job it is to administer state policies are not themselves governors.

Some contracting relationships between the state and third parties are (and still others

are intended to be) strict principal-agent relationships, where a public agency contracts

out to a private agency to implement a public program according to rules and

91 The term comes from the work of Milward and Provan (1993) and refers to an earlier use of the term to describe business outsourcing, 222. 92 See Mosher (1981) and Salamon (1981) for early and influential analyses of the reasons for the privatization of state functions. A 2002 survey of state officials found the most commonly cited reasons for privatization to be “lack of state personnel or expertise” and “cost savings.” Chi, Arnold, and Perkins (2003), 14.

   

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procedures established by the government.93 In some cases, however, the state

explicitly outsources its rule-making powers. As an example of this phenomenon,

Kettl (1993) discusses the Environmental Protection Agency’s Superfund program for

cleaning up severe pollution. According to Kettl, “Contractors were involved not only

in the actual business of cleanup, but in the minutiae of EPA management and

policymaking.”94 (emphasis added) In a more recent analysis of the same case,

Goodsell (2004) writes that contractors also “drafted regulations and

memos…responded to Congressional inquiries, and wrote annual reports.”95 This

involvement of contractors in management and policymaking is what makes this a

case of non-state governance rather than a simple principal-agent relationship. In other

cases, even though it is provision of certain goods rather than rule-making power that

is explicitly outsourced, the choices that must be made in the provision of these goods

brings rule-making power with it, as was the case with the aid programs discussed in

the previous section.

Contractors operate “in the name of the state,” but, if the argument of the

previous chapter is accepted, this does not mean that only the state’s actions, in this

case the contracting out of the state functions, require public justification.96

Organizations with contracts to administer government-funded programs in many

cases end up not just implementing existing policies, but actually creating policies of

their own and exercising power in their own right. This is emphasized by Milward and

93 See, for example, Broadbent et. al. (1996). 94 Kettl (1993), 111-12, cited in Milward and Provan (1993). 95 Goodsell (2004), 147, cited in Verkuil (2007), 45. See also Shapiro’s (2003) discussion of the outsourcing of airport security administration and policymaking to airlines and private security companies. 96 Milward and Provan (2000), 359. See also Heinrich et. al., (2010).

   

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Provan (2000) in their analysis of the provision of social services in Texas. They find

that four layers of contracting organizations are intermediaries between the state,

which funds the programs, and the individuals receiving mental health services.97

Milward and Provan find that, at each step along that chain, decisions are made about

priorities, about who is eligible for services, and how these services will be provided,

and that, even though each actor in the chain operates in the name of the state, the

decisions they make amount to independent rule-making power.

Evidence seems to show that government contracting in the United States is

increasingly common, and in many cases this has been explicit government policy.

The “Thousand Points of Light” initiative in the United States in the late 1980s was an

explicit plan to shift responsibility for some aspects of the social safety net away from

the government and on to non-profit organizations. 98 Studies of privatization in the

United States have shown a relatively trend on the part of state and local governments

of switching, in their contracting out of government services, away from regularly

renewed detailed contracts in favor of specified cost and performance targets, an

arrangement that leaves more decisions about policies to the nonprofits getting the

contracts.99 This makes it more likely that contractors will be engaging in more

independent governance, rather than simply implementing state policies. Public

private partnerships have become increasingly common in both developed and

developing countries. Even providing physical security, often considered the

paradigmatic activity of states, has increasingly become the domain of non-state

97 Milward and Provan (2000), 370-2. 98 See Knauer (1997). 99 Boris and Steuerly (2005), 227.

   

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actors, some contracted by the state itself and some employed by businesses,

neighborhood associations, and other non-state actors.100

This trend of transferring governance away from central state institutions,

which has also been called “de-governmentalisation,” seems likely to continue due to

ongoing budget pressures in many countries and the widespread perception that

services are provided more efficiently by the private sector.101 Two points should be

emphasized here about governance in the hollow state. One is that, even if the

contracting organizations exercise the kind of rule-making power that the previous

chapter argued should be evaluated using public justification, it can certainly also be

the case that this rule-making power raises issues of justification for the state. The

hollow or partially privatized state is typically a situation of shared governance

between state institutions and the non-state entities that in part take over state

functions. This is particularly the case if the state’s decision to contract out a particular

activity itself changes the rules of society. The second point is that the idea that

contracting out state activities often leads to non-state governance does not require an

inevitably arbitrary standard of what activities ought by default to be state functions.

The idea is rather that cases where the state transfers functions to non-state actors are

often contexts in which non-state actors end up participating in governance of their

societies. As was emphasized above, it is a separate question what functions, for

normative and practical reasons, ought to be reserved to the state. 100 On public private partnerships, see Borzel and Risse (2005) and, for a discussion of public private partnerships in developing countries, Liese and Beisheim (2011). Abrahamsen and Williams (2011) estimate that in the United States there are approximately three times as many private security personnel as public police, p. 21. For a similar, earlier estimate, see also Avant (2005) and Swol (1998), cited in Shearing and Wood (2003). 101 Wolf (2001), 1. See also Chi, Arnold, and Perkins (2003), 17-18. Verkuil (2007), while highly critical of privatization, argues that it will likely continue in advanced countries in the near future, pp. 187-98. Feigenbaum et. al. (1998) discuss the role of political ideology in state outsourcing.

   

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Global governance for global issues

The Westphalian model of sovereignty discussed above does not rule out the

possibility of international cooperation, agreement, or action, but global governance is

understood, from the perspective of the Westphalian model, as fundamentally

interstate action. In a world composed of sovereign states, global governance is

understood as the sum of the actions and interactions of the world’s states. Anything

more, anything not fully reducible to the actions of individual states, would, according

to a model that identifies governance with the activities of states, require something

like a world state. Today there is, of course, no world state or world government, but

the governance perspective has focused attention on international regimes⎯systems of

widely accepted rules on particular issues⎯that cannot be explained solely in terms of

the world’s sovereign states acting in concert.102 Even in countries that do have well-

functioning state institutions, it is not always the case that the background rules of

interaction are set solely from within its borders, either by the state or non-state actors.

International regimes, on issues as diverse as climate change, human rights, and trade,

make up part of the basic structure for most people around the world.

As Risse (2010) points out, it is important to distinguish between geographic

areas of limited state governance and issue areas of limited state governance.103 Many

of the most important global issues are areas of limited state governance not because

of weakness on the part of individual states but because the nature of these issues is

such that the distribution of benefits and burdens is inevitably set at the global level.

102 See Krasner (1983), Held et. al. (1999), Cohen and Sabel (2005), 764. 103 Risse (2010), 6.

   

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Climate change, both the problem itself and potential responses to it, is a striking

example of this phenomenon. From the governance perspective, the key question to

ask is what actors shape the distribution of rights and obligations, benefits and burdens

that individuals have on the issue of climate. Under the current system, individuals and

associations all over the world have the right to emit greenhouse gasses (GHGs) more

or less without limit into the atmosphere and benefit from the economic activity this

enables, and everyone in the world ends up paying the cost of these emissions in the

form of environmental damage from climate change. Both the costs and benefits are,

however, distributed unevenly. GHG emissions from the United States were 22.22

metric tonnes per capita, while the Republic of the Congo emitted .68 tonnes per

capita.104 While it is of course true that not all GHG emissions benefit the people in

the country where they occur, differences in wealth between developed and

developing countries are at least partly attributable to the industrial activity associated

with GHG emissions.105 The costs of climate change are likewise unevenly distributed.

Inhabitants of low-lying coastal areas in countries that do not have the resources to

adequately prepare for rising sea levels will face major disruptions. Other people will

see little or no change, and inhabitants of some areas may even benefit, for example in

the form of longer growing seasons. Tol (2009) reviews recent estimates of the

economic impact of climate change on different areas of the world. Most studies found

that Sub-Saharan Africa would fare worst and Eastern Europe would, by achieving a

104 United Nations Statistics Division (2010). 105 Cooper (2008) provides an overview of the link between economic activity and GHG emissions.

   

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small benefit, fare best.106 This current distribution of benefits and burdens is widely

believed to be both unfair and unsustainable in even the medium term.107

Potential remedies under discussion are for the most part proposals to shift the

distribution of benefits and burdens from GHG emissions and create new rights and

create new obligations. One of the most widely discussed solutions is a global cap and

trade system for GHG emissions, under which power plants, factories, and other large

sources of GHG emissions would be obligated to buy permits to do so. The total

amount of GHG emissions could then be fixed at a manageable level, and a market for

permits would help allocate them efficiently.108 From the governance perspective, it is

clear that, for any particular individual, the policies of her own government cannot be

the only ones shaping the benefits and burdens she obtains from responses to climate

change. Under the current system, an inhabitant of Bangladesh is obligated to bear the

cost of GHG emissions in, for example, China, in the form of climate change. This

would continue to be the case even if Bangladesh itself were to adopt a cap and trade

system or any other particular response to climate change. If, in contrast, most major

countries adopted a cap and trade system, then an inhabitant of Bangladesh would no

longer have this obligation, again regardless of what the Bangladeshi government

itself did. The impacts of one’s own government’s actions, whatever they are, are at

minimum shaped by, and sometimes swamped by, the actions of other states and non-

106 Tol (2009), 31. In his own study, Tol (2002) estimates that 1 degree Celsius of warming would reduce Sub-Saharan Africa’s GDP by 4.1 percent and increase Western Europe’s by 3.7 percent. 107 See, for example, Broome (2012) for arguments that the current system of rights and obligations on climate is unjust. See Posner and Sunstein (2007) for an opposing view. 108 See Betsill and Hoffmann (2011) for an overview of the mechanics and political possibility of cap and trade proposals.

   

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state actors.109 Efforts to create a global cap and trade system are efforts by states, and

interstate action and cooperation are major parts of the Westphalian model of

sovereignty, but again, the nature of climate change as an issue means that it is

impossible for a country to decide not to have the rights and obligations of its citizens

influenced by choices outside its borders. This is importantly distinct from the fact,

certainly familiar from the Westphalian perspective, that large, powerful countries

tend to get their way at the expense of small, weaker countries. The nature of climate

change as an issue means that full Westphalian governance, the setting of people’s

rights and obligations by, and only by, their own government, is essentially

impossible. To look for the forces that shape people’s rights and obligations on

climate change, we must look outside the borders of individual states.

In a review of the state of global politics, Cohen and Sabel (2005) argue that

“there is something new happening politically beyond the borders of individual states

and irreducible to their voluntary interactions.”110 This last point about global politics

being irreducible to the voluntary interactions of states is the sign of true global

governance rather than traditional interstate politics. It means that global governance

independently raises questions of legitimacy that cannot be answered only by asking

about the legitimacy of the state governments involved. As has already been

emphasized, this would amount to non-Westphalian governance even if it were only

states other than one’s own involved in the governance of one’s society, but non-state

actors are strongly involved as well. NGOs, for example, are intimately involved in

global governance on a number of key issues including environmental and labor 109 See Eckersley (2004) for a summary of attempted, and mostly failed, multilateral environmental agreements, pp. 211-7. 110 Cohen and Sabel (2005), 763. See also Büthe (2004).

   

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regulations and the gradual development of a global human rights regime.111 Most

observers agree that global social, economic, and political integration will continue to

increase.112 I leave aside the very large question of whether this is on balance a good

thing. What seems clear is that this integration is both increasing the salience of issues

that, like climate change, cannot be fit into the Westphalian paradigm of governance

and leading to the transformation of what were formerly securely state-governed issue

areas, like economic policy, into truly global issues. On both ways, globalization

brings non-Westphalian governance along with it.

3.4 Features of non-Westphalian governance

In each of these contexts, weak states, hollow states, and global issues, non-

state governance has now been widely recognized and studied. In each one,

institutions other than the state have substantial independent rule-making power. The

goal of this last section is to identify some common structural features of non-

Westphalian governance that will need to be accounted for in any understanding of

public justification that is to be used to evaluate this type of power.

Shared governance

One of the most important trends that the empirical data shows is the

prevalence of shared or network governance. I have been using the phrase “non-state

111 See for example Hassel (2008) on the way labor rules are “internationalizing rapidly,” p. 231, Carpenter (2010) on the NGO-based international human rights regime, and Kolk and Pinkse (2007) on the increasingly important role of NGOs and multinational for-profit corporations in the climate change debate. 112 This is also true among those who think globalization is causing more harm than good. For a critical take on globalization, see Rodrik (2011).

   

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governance,” but a more accurate term would be “non-Westphalian governance,”

because state institutions are seldom entirely absent from governance. It is in most

cases this sharing of governance among state and non-state actors that moves these

cases away from the standard Westphalian model of governance, rather than a

wholesale removal of the state from the activity of governance. While I have sought

here to challenge the pre-eminence assumed for the state in governance by traditional

models of sovereignty, state institutions in many cases at least participate in

governance alongside other the actors identified here. Even when states are not fully

governing, they do often meet or approach Weber’s classic definition of having a

monopoly on the legitimate use of organized violence.113

States do, however, often govern as part of complex networks of state and non-

state governing actors. On non-Westphalian governance, Risse writes that “In most

cases, it is ‘multi-level governance,’ since it systematically involves a combination of

local, national, as well as international and transnational actors including foreign

governments, IOs, multinational companies, and NGOs…Governance in areas of

limited statehood is multi-level governance linking inter- and transnational actors to

local ones in a variety of rule and authority structures.”114 State institutions are almost

never comprehensive in Caney’s sense of governing on all issues within a territory,

and comprehensiveness is even rarer among non-state governing actors. To describe

this pattern of governance shared among many different state and non-state actors,

Shearing and Wood (2003) suggest the term “nodal governance.” On a given issue in a

given territory, there are a series of governing actors⎯nodes⎯that help establish the

113 Weber, (1919) [2004], “Politics as a Vocation.” 114 Risse (2010), 2.

   

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rules of interactions.115 Some nodes are state institutions and others are non-state

actors. They argue that we should not conceptually privilege state nodes. Similarly,

because the term ‘citizen’ refers to membership in a political community understood

as a unitary sovereign state, they propose that “the term ‘denizen’ be defined as a

person within the regulatory domain of a governmental node.”116 Individuals are

denizens of many different nodes at the same time, and each person’s denizenships

would change over time in response to changing circumstances. Shearing and Wood

have identified an important problem, that much of the vocabulary and set of concepts

we have for understanding governance was developed for Westphalian models and

retains this focus, at least implicitly. In addition to states, other common types of

governing actors include for-profit corporations, international institutions, and

organizations in the diverse category variously called non-profits, NGOs, and civil

society organizations.117 As will be discussed in more detail in the later chapters, each

of these kinds of organizations raises distinct issues relating to accountability,

representation, and democratic control. Ways of understanding, and normatively

evaluating, non-state governance will need to take these differences into account.

Emergent governance

Governance, in the sense of the full system of rules on a particular issue that

bind a particular group of people, is often an emergent pattern rather than a

deliberately designed system. The use of the term ‘network governance’ above to

115 Shearing and Wood (2003), 404. 116 Shearing and Wood (2003), 408. 117 Watts (2004) refers to the shared governance structure in the Niger Delta involving the state, oil companies, and informal local authorities as the “oil complex,” p. 54.

   

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describe the sharing of governance power among different actors does not at all imply

that the members of these networks deliberately coordinate their actions with each

other. Certainly they often respond to each other’s actions, but it is often the case that

they are not all working together.118 The resulting set of rules, considered as a whole,

is very often something that no one specifically intended. The different governing

actors discussed in this chapter often do not coordinate with each other to set goals or

make plans, and sometimes they actively seek to thwart one another. Consider, for

example, a society with weak formal state institutions in which, on a given issue, there

are three possible rules: A, B, and C. Two different non-state actors, an NGO and a

powerful corporation, have enough power to influence the resulting rule. If the NGO

wants to rule out A but is indifferent between B and C, and the corporation wants to

rule out B but is indifferent between A and C, the actual rule in the society is likely to

be C, even though no one specifically set out to make this happen. A, B, and C can

also be, rather than individual rules, overall distributions of benefits and burdens of

social cooperation, and the point is the same. Governance, as the total outcome of

these interactions, cannot be assumed to be a planned or desired outcome. As will be

discussed in later chapters, this complicates questions of how best to evaluate the

legitimacy of governance by leaving it unclear both what the total system of rules is

and how responsibility should be apportioned among different governing actors for

these rules. The contrast with constitutionalism is useful here. The ideal of

Westphalian governance typically assumes that states have a (written or unwritten)

constitution that defines the parameters of what more specific laws and policies are

118 Keohane (2003) describes global governance as involving “strategic interaction among entities that are not arranged in formal hierarchies,” p. 3.

   

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permissible, as well as lays out processes by which laws and policies are made. Thus

in a case of unified state governance, we can learn a lot about the society’s basic

structure by looking at the constitution. This strategy is not available in a case like the

Niger Delta, where the basic structure, the result of the actions and reactions of the

Nigerian government and the oil companies, is not defined or limited in any preset

way. Investigating and defining the basic structure in a case like this has to start

instead by looking at the constraints and opportunities individuals actually face.

Overlapping boundaries of issues, institutions, and societies

One aspect of the traditional Westphalian view of sovereignty is that the

boundaries of issue areas, the boundaries of human collectivities, and the boundaries

of rule systems and institutions are always congruent. In this view, a group of people

is ruled by (or, in a democracy, rules itself through) a particular set of political

institutions. The set of rule systems that these institutions have power over is

coterminous with the set of rule systems to which the people are subject. This

congruence is an important feature of Rawls’s definition of a society. For Rawls, a

society by definition has a single distribution of benefits and burdens of social

cooperation.119 The empirical evidence canvassed here shows that, even within what is

recognizably a single society, there will be different actors governing on different

issues or even cases where, on the same issue, different individuals within the same

119 Rawls (1973), 4, 453-62. This is of course not to say that each individual gets the same benefits and burdens. It is rather to say that there is assumed to be a single scheme of benefits and burdens for the society. Rawls’s assumptions that societies are more or less closed off from each other and that individuals spend their entire lives in the same society serve to shore up this congruence. These assumptions are discussed in more detail in Chapter 2.

   

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society are subject to different rules. To use Shearing and Wood’s terms, people

within the same society are often denizens of different governing actors. When seen

from the governance perspective, societies often do not have a single center from

which power is exercised. As will be discussed in more detail in the next chapter, this

lack of congruence complicates standard liberal theories of how public justification

works.

3.5 Conclusion

As I stated at the outset of the chapter, this summary of empirical evidence is

inevitably incomplete. However, several things can clearly be concluded. There is a

significant amount of participation in governance by non-state actors worldwide. In

this chapter I have highlighted three contexts in which non-state governance is

especially common and has received significant attention: weak states, hollow states,

and global issues. These are certainly not categories with rigid boundaries. A weak

state may, for example, outsource core functions to an international NGO. In addition,

the precise point at which the involvement of a non-state actor in implementing

government policy or advocacy for an actor’s preferred policy shades into independent

participation in governance is open to dispute, and it is a question that likely cannot be

decisively settled in the abstract. This is, again, why the question of “Who governs?”

when asked from the governance perspective, can best be answered case by case, at

the level of individual issues for specific groups of people. The goal of this chapter has

been to take a preliminary look into what types of answers we are likely to get if do

ask this question. The evidence shows that non-state actors participate in governance

   

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in a wide variety of situations, in both developed and developing countries, enough

that this participation cannot simply be considered a quirk or atypical enough not to

merit independent attention. The features of non-Westphalian governance discussed

here are important because they are at odds with the understanding of power implicit

and explicit in standards liberal theories of public justification. As will be discussed in

the next chapter, liberal theories of public justification as they now stand cannot be

used to evaluate power that has these features. Because my focus here is on evaluating

currently existing systems of governance, I have emphasized the non-Westphalian

character of many contemporary systems of governance, but it is worth noting that

systems of social cooperation not defined by and through a sovereign state have a

history as old as governance itself. To take one of many examples, Milgrom, North,

and Weingast (1990) show that, in Medieval Europe, a system of rule called the Law

Merchant governed interactions among a widely dispersed network of traders

throughout western Europe. Although there was no coercive mechanism for enforcing

judgments, and certainly nothing like a monopoly on organized violence associated

with it, the Law Merchant was structured so that traders found it in their interest to

comply with it, even when complying in particular instances was costly.120

In the previous chapter, I presented an independent argument that the

legitimacy of non-state governance should be evaluated using public justification,

independent in the sense that the argument does not depend on how much non-state

governance actually exists in the world. Even if none did, it could have been an

argument for evaluating what would then be a hypothetical form of power that way,

albeit not a very interesting one. This chapter has offered evidence that non-state 120 Milgrom, North, and Weingast (1990), 6-14.

   

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governance is actually quite prevalent in the real world. This evidence not only shows

that the argument of the previous chapter is not merely hypothetical; this empirical

evidence can in several ways offer further support to the theoretical claims of the

previous chapter. First, if non-state governance is anywhere near as common as this

chapter has suggested, the idea that public justification should only apply to state

institutions would seem would seem to unappealingly limit the reach of public

justification to a rare, pure type of state governance. Second, the evidence here shows

that in many cases non-state actors perform some of the exact roles traditionally

ascribed to the state⎯setting the terms of distribution for vital goods, issuing binding

regulations, even providing physical security. The view that only state actions require

direct public justification seems on its face more plausible if there is in fact a well-

defined category of things that only states do, and the evidence seems to show that this

is not the case. The outsourcing cases are clear examples of this. If a state’s rules for

provision of healthcare are in need of justification, why, if the state outsources this

power to a third party, should the very same power no longer require public

justification? Lastly, the evidence I have offered here casts doubt on the viability of

one of the main alternative strategies for evaluating the actions of powerful non-state

actors: looking at whether these actors comply with the rules of the state in which they

operate. The evidence in this chapter shows that these rules are often themselves the

outcome of actions and choices by non-state actors, and therefore simply to ask

whether non-state actors follow these rules would seem to be of little use. The next

chapter discusses the unique challenges this sort of power poses to standard liberal

ideas of public justification due to the features of non-state governance discussed here.

   

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I will argue that, analogous to Risse’s criticism of earlier social science literature,

these standard theories of public justification “remain wedded to” the traditional, ideal

model of government and governance as synonymous.

   

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Chapter 4: Non-state governance and the limits of public justification

4.1 Introduction

So far I have argued that the requirement of public justification should be

applied equally to state and non-state governance. In Chapter 2, I endorsed Rawls’s

core claim that the power of the basic structure, understood as the distribution of

benefits, burdens, rights and obligations arising from social cooperation among a

particular group of people, is the specific kind of power whose legitimacy should be

evaluated using public justification. My claim was that this is still the case even if,

unlike in the cases Rawls himself considered, it is actors other than (or in addition to)

state institutions that have this power, and in Chapter 3 I offered evidence that in the

modern world this is a common occurrence. If these claims are right, then there is, so

to speak, a large amount of new territory for public justification to move into, and the

last chapter attempted to provide a map of this new territory and identify some of what

might be found there.

This chapter explores what happens as we move theories of public justification

into this new terrain. After all, the claim that are good reasons to apply public

justification to non-state governance, even if correct, might be either a quick matter of

turning existing tools on a new target or a dead end. If existing understandings of

public justification can simply be moved, as they are, onto this new subject matter,

then all the important work is already done. Alternatively, if there is no way

whatsoever to apply these theories to non-state governance, then an entirely new

theory would be needed. In this chapter I will show that theories of public justification

   

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in their current form cannot reach meaningful judgments about legitimacy if we try to

apply them to cases where the basic structure does not fit the standard Westphalian

model, just as a mathematical function will give nonsensical results if it is applied

outside its proper domain. However, with more or less modest revisions, we can

develop a theory of public justification that avoids these problems while remaining

faithful to the core ideas and values of the liberal idea of legitimacy. This chapter aims

to define the problems that these revisions will need to address and thus set the agenda

for the rest of the project.

Existing theories of public justification focus on a specifically Westphalian

version of the basic structure, the power of a territorially defined, unified system of

state and state-level institutions. As was discussed in Chapter 2, it is not that these

theories reject non-Westphalian governance as a subject. Instead, they for the most

part do not consider the question of whether the requirement of justification should

apply in these cases. This Westphalian focus is, however, built deeply into the most

common liberal understandings of public justification. The first section of this chapter

discusses public justification in more detail and the second shows that problems crop

up as soon as we try to apply these theories to non-state governance. In the previous

chapter, I identified three salient characteristics of non-Westphalian governance.

These are that it is shared among many different actors, often both state institutions

and non-state actors; that as a total system of rules it is emergent rather than planned;

and that the boundaries of the authority of institutions, groups of people recognizable

as societies, and the reach of issues that affect these people do not coincide. I will

show that each of these characteristics of non-Westphalian governance raise problems

   

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for public justification, either preventing us from getting an answer to the question of

whether this is legitimate power or giving us unhelpful answers. Overall, this chapter

will set the stage for the next two chapters, the reconstructive part of the project,

which will make the revisions needed to the existing theory of hypothetical public

justification so that, while remaining within the liberal tradition in the most important

respects, it can be used to evaluate non-Westphalian governance.

4.2 Public justification as a procedure

This chapter approaches public justification as a useful conceptual tool. The

liberal idea of public justification is, in the sense I am interested in here, a procedure

that participants or outside observers can use to evaluate the legitimacy of actually

existing forms of power. Stated in its most general form, the idea is, in Rawls’s

formulation, that we are to ask whether there is a justification for the system of power

that “those subject to it could reasonably be expected reasonably to endorse.”121 Power

is legitimate if there is such a justification and illegitimate otherwise, giving us, at

least ideally, a clear way to test the legitimacy of power. Two things can be noticed

right away about this idea of legitimacy. First, as was mentioned in Chapter 1,

legitimate power on this view is not the same as fully or ideally just power. To say

power is legitimate is to say that there is a reasonable justification for it, not that it

fully conforms to ideal principles of justice or even that the justification is

unquestionably right.122 Second, my focus here is primarily hypothetical justification.

121 As is discussed in more detail below, this is Rawls’s (1993) formulation of the “liberal principle of legitimacy,” p. 136. 122 For a discussion of this view of the relationship between justice and legitimacy, see Simmons (1999). This somewhat lower threshold than ideal justice can be used to ground the obligations of citizens to obey laws, although different people will put this line, and the grounds for an obligation to obey the law, in different places. See Rawls (1973), 350-5.

   

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Some theorists, notably Habermas, argue that only an actual process of deliberative

justification can ensure that power is legitimately exercised, but these theories are not

my main focus here.123 Justification of the kind I am interested in here is public in the

sense that the reasons it consists of are meant to be acceptable, at least ideally, to the

public, those subject to the power in question, not God, an abstract Reason, or the

authority’s own conscience.124

This description of public justification is of course highly schematic and needs

to be fleshed out in important ways in order to be used. How do we know what

justifications people can be expected to reasonably accept? How exactly do we know

exactly what it means to be subject to power in the relevant sense? In other words, to

whom is justification owed, and for what? For Rawls, we can answer the question of

what we could reasonably expect people to endorse as a justification for power by

using the thought experiment that he calls the original position. A person in the

original position would know the basics of human knowledge⎯principles of science,

economics, psychology and so on⎯but would not know any personal characteristics

about him- or herself. She would know that she wants the things that all people want,

what Rawls calls “primary goods,” including health, shelter, freedom, and self-respect,

but would not know any of her particular interests, beliefs, or life plans.125 In

particular, a person in the original position does not know what position she would

occupy in society.126 According to Rawls, the best way for us as observers to

123 See Habermas (1996), Ch. 2. Fully deliberative justification of the kind Habermas discusses is an importantly different project. 124 Chambers (2012) discusses this distinction. (10) See also Chambers (2010), 893 and Simmons (1999), 759-60. 125 Rawls (1973), 62. 126 Rawls (1973), 18.

   

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determine whether a system of power should be acceptable to people actually subject

to it is to ask whether someone in the original position, who is of course never

anything other than hypothetical, could accept it. If someone did not know what

position (that is, the most-favored, middle, least-favored, etc.) they would occupy

within the system of rules, rights, and obligations, would they accept it? Rawls argues

that someone facing this question would, given the uncertainty and the very high

stakes, be able to accept a power structure overall only if he or she would be willing to

accept being the worst-off person within the system of power.

For Rawls, a system of rules that could be endorsed by someone in the original

position is one that we can reasonably expect actual people to accept and that therefore

passes the test of legitimacy. The reason is that the original position is supposed to

screen out considerations that, based on the core commitments of liberal political

theory, ought not be used in deciding whether the exercise of power is acceptable. For

example, if I know that I am to be in the most-favored position in the proposed system

(or if I am in fact in the most-favored position of an already existing system), I might

very well accept a system of rules that grants unfair advantages to those at the top. My

actual acceptance of the rule system therefore cannot tell us anything about its

legitimacy, because my acceptance of it shows nothing about whether it should be

acceptable to all those subject to it. Because they are not shared, the very advantages

that make me accept the system make it unacceptable to others. Asking whether I

would accept the system if I did not know what position I were to occupy is supposed

to avoid these kinds of biased decisions.

   

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As is discussed in more detail below, using hypothetical rather than actual

justification avoids this problem of potentially biased decisions but introduces new

difficulties. Rawls makes the case in A Theory of Justice that, if we use the original

position as our method of evaluating the legitimacy of a society’s basic principles, his

two principles of justice, the Liberty Principle and the Difference Principle, will be

uniquely well suited to pass this test.127 These principles themselves are not my main

focus here, and it is possible to use Rawls’s method to argue for other principles of

justice, as other theorists have done.128 This kind of evaluation of the legitimacy of

power is, of course, not meant to replace the democratic process. For one thing, we

cannot use the original position to create political or social principles from scratch; it

can only be used to test already-developed principles.129 The point of this procedure,

the reason for going through these steps in the first place, is that our considered

judgments of the legitimacy of power are an important part of the political process. I

have described the evaluation of the legitimacy of power here as a process. The last

step of the process is the impact that these judgments of the legitimacy of a political

order’s core set of rights and obligations have on the political process as a whole. An

ideal of fully legitimate power can, as was discussed in Chapter 1, serve to illuminate

flaws in current rules and institutions and guide attempts to remedy them. Both

legislators and citizens can use this process as a way to think about, and debate,

potential changes to their society’s system of rights and obligations.

127 Rawls (1973), 60. 128 For example, G. A. Cohen (1997) argues that significantly more equality is required than Rawls believes. 129 Thus Rawls (1973) suggests testing “a short list of traditional conceptions of justice” using the original position. (122) An iterative process can also be used here; if a particular set of principles fails the test, they can be refined and retested.

   

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4.3 The limits of hypothetical justification

If, as I argued in the preceding chapters, non-state governance raises the same

issues of legitimacy as does state governance, can the standard method described in

the previous section be used to evaluate the legitimacy of non-state governance as

well? It is important to emphasize that I am not asking whether we can use Rawls’s

two principles of justice (or any other particular liberal principles) to evaluate non-

state governance but rather this procedure of finding and applying principles in the

first place. Rawls makes no claim that his particular principles apply outside of the

particular context he is focused on, a liberal society that meets the specifically

Westphalian model described in Chapter 2. De Bres (2012) calls Rawls a “multi-

pluralist” on this point, meaning that his theory is open to there being different

principles of justice applicable to different contexts.130 Another way to put this point is

that Rawls sees the liberal principle of legitimacy itself, that power must be justifiable

to those over whom it is exercised in order to be proper, as more or less universal, but

he also accepts that there will be different justifications for different forms of power.

Rawls himself creates different principles for international relations among liberal

peoples and suggests that the same procedure can be used for other contexts in which

questions of legitimacy and justice arise.131

Is a basic structure composed at least partly of non-state actors a context for

which this same method of determining whether power is justifiable can be used? As I

130 De Bres (2012), 315-6. 131 See Rawls (1999), Introduction. Rawls (1993) writes that the principles of justice worked out for the basic structure are to have a “certain regulative primacy with respect to the principles and standards appropriate for other cases.” (257)

   

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indicated at the start of this chapter, my answer will be a qualified no, that the standard

method of assessing the legitimacy of governance does not work in its current form

with non-state governance but that some modest revisions to allow it to work in these

new cases are possible. In the previous chapter, I identified three common

characteristics of these cases of non-state governance, reviewed above. My goal in this

section is to bring out some of the difficulties that these features create for the

procedure of public justification as described above, and the concrete examples of

non-Westphalian governance discussed in the previous chapters are perhaps the best

place to start. In Chapter 2, I discussed Shell Oil’s involvement in governance in the

Niger Delta. Even though Shell’s presence and activities in Nigeria are legally

recognized through agreements with the Nigerian government, the evidence shows

that Shell has independent authority to participate in setting the rules by which citizens

of the Niger Delta must live. To offer just a few specific examples, Shell has led a

reorganization of the terms of land ownership in the Delta, leading to a shift from

informal, communal ownership to more regularized, individual ownership rights and

has negotiated agreements directly with local rulers, bolstering their power and

reducing the authority of the central government.132 Shell has also participated

significantly in providing public goods (in part as a result of international censure for

its other actions) in the Delta, including schooling, healthcare, and armed security

forces to enforce the rules as it understands them.133 The provision of crucial public

132 Obi (2001) discusses power in the Niger Delta in terms of shared governance between “the multi-national oil corporations (MNOCs); the Nigerian state; local leaders, organizations, and movements; and international non-governmental organizations (INGOs).” (173) See also Frynas (2001) on the competing and contradictory responses of Shell and the Nigerian government to discontent among residents of the Niger Delta. 133 On Shell’s participation in public goods provision see Banfield et. al. (2002), Zimmer (2010) cited in Risse (2010), and Watts (2004).

   

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goods involves decisions about priorities, methods, and goals that shape a society’s

system of rights and obligations and the provision of public goods by private actors is

widely recognized to influence people’s relationship with their formal government.134

This case has each of the three features ascribed in the previous chapter to non-

Westphalian governance. Governance is shared between Shell and the formal Nigerian

government, and each has independent rule-setting power.135 The actual system of

governance under which a particular person in the Niger Delta lives is emergent rather

than planned in that it will exactly match neither the formal system of rights, burdens,

and obligations laid out by Nigerian law nor the official set of policies that Shell sets

out to enforce. The actual set of rules by which a particular person must abide⎯the

contours of the power to which she is subject⎯will be some combination of the two,

the balance of which will depend in complex and unpredictable ways on factors like

the location of her home, the current state of the ongoing negotiations between Shell

and the formal government, and the actions of other local authorities. Finally, if it is

right that the rule system one must live by in a case like this depends on constantly

changing local conditions, it is clear that all the people of Nigeria, or even of the Niger

Delta, do not share a single set of rules, or, to use Rawls’s terms, a single unified basic

structure. Shell’s power predominates on some issues and the formal government’s on

others. In a standard model of the basic structure, a society shares, by assumption, a

single set of rules and institutions and, again by assumption, actions of other agents

134 See Timmons (2005) for an influential version of the “fiscal contract” argument. 135 I have been saying that this description of governance dispenses with some of the stylization we see in Rawls’s description of the basic structure, but it inevitably does not abandon all simplification. To take but one example, a full account of power in the case of the Niger Delta would, as Obi (2001) emphasizes, need to take account not just of the formal government and Shell Oil but also the many informal and/or traditional systems of power that have influence there.

   

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outside their society do not affect them much. In a Westphalian case, a group of

people organized as a society share not only a unified set of rules but also what

Habermas calls a unified “domain of common concern,” the set of issues that impact

them and the reach of decisions on these issues.136 In the case of the Niger Delta, there

is instead no neat coincidence of boundaries of rule systems, groups of people

recognizable as societies, and issues of common concern.

This system of power has exactly the function of the basic structure as Rawls

describes it. It plays the roles in people’s lives that the Rawlsian basic structure

does⎯shaping their prospects for self-respect and regulating the permissible

interactions among individuals and associations⎯but it has a much different form. As

was discussed in Chapter 2, Rawls defines the basic structure of a society as “the way

in which the major social institutions fit together into one system.”137 The basic

structure in the Niger Delta is a case in which the major social institutions do not fit

together into one unified system. Shell Oil and the Nigerian government certainly

respond to each other’s actions, sometimes cooperatively and sometimes in conflict,

but they and their actions do not form a single entity. The basic structure of the Niger

Delta, the set of rights and obligations of each resident, can best be described as the

emergent outcome of the actions of the two governing actors and their interactions

with each other.

This lack of a unified structure of power complicates the first step of the

process discussed above: defining the system of rights and obligations whose

legitimacy is to be assessed. In the Westphalian understanding of power, again, each

136 Habermas (1991), 36. 137 Rawls (1993), 258.

   

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society has a unified structure of power. The basic structure of the United States, for

example, is also composed of a large number of institutions, but these institutions

cohere in a way that means that agency can meaningfully be assigned to the basic

structure of the United States as a whole, that we can say that the United States

government as a whole has done a particular thing or has imposed a particular rule on

particular people. It would certainly still be a complex and difficult task to determine

the full set of rights and obligations of a particular American, or a member of any

other Westphalian society, but it is at least a question with a definitive answer. (This

was less of a problem for Rawls himself, because he was more concerned with

approaching the problem from the other direction, investigating what constitutional

principles could meet the test of legitimacy. Determining the constitutional principles

on which a real society is based was thus not necessary for his objective.) The

American system admits of being simplified in ways that make this task more

tractable. The country’s vast number of administrative regulations are made within the

scope of a smaller, but still huge, number of laws, which are in turn required to

conform to the limits established by the U. S. Constitution. Thus when we ask what

the “constitutional essentials” of the American basic structure are, there is a relatively

clear way to answer this question. Moreover, when there is a conflict about what the

rights and obligations of Americans are, there is a more or less orderly process of

litigation by which the question can be answered and, in the United States Supreme

Court, a recognized end point to the process. In short it is possible to give a fairly

stable account of what the American system of rights and obligations is. I do not mean

to say that the United States (or any other country) fully meets the Westphalian ideal

   

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of sovereignty, and in Chapter 3 I sought to show that the trend of outsourcing

government functions is moving the United States and many other developed countries

farther away from this model. However, the United States is, it seems, still close

enough to the ideal model that we can analyze and evaluate it using Westphalian the

model as a frame. It is possible to ascribe unified agency to the governance system in a

case like this, and it makes sense to say that a certain right is or is not guaranteed by

the United States government.

This is not the case in the Niger Delta. In the Delta, where the system of rules

that a given person is subject to varies depending on the balance of power between

Shell and the formal government in her particular place and time, what is the total

system of rules to be evaluated? Is there any relatively clear list of essential principles

by which this total system of power, ramshackle and unplanned as it appears to be, can

be said to operate?138 It is quite likely that no such list could be developed, and as we

move to a description of the system of power that is more and more detailed (even the

description that I have given here is quite stylized), the likelihood of being able to

define the essential principles of the structure of power in any really acceptable way

diminishes.

Let us suppose, however, that we could define the system of power and the set

of rules and obligations well enough to move on to asking whether it is one that we

can reasonably expect those subject to it to endorse. This sets up the next difficult

question: who exactly are the people subject to this power structure? Put another way,

what are the possible positions in which people subject to this power find themselves?

In order to use the idea of the original position to ask whether someone behind the veil 138 Rawls (1993) uses the term “constitutional essentials” for this. (227)

   

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of ignorance would be willing to accept the system of power not knowing what

position she would be in, we need to know what these positions are. In particular, if

we accept Rawls’s claim that the best way to answer this question is to ask whether

someone in the original position would be willing to accept being in the worst-off

possible position, we would need to know what the worst-off position in this power

structure is.139 In cases where there are not crisp boundaries between different groups

of people subject to different systems of rules, cases where each individual is subject

to the rules of many different structures of power, it is quite likely to be impossible to

develop any concrete list of the positions available within a given society and also

difficult to identify the worst-off individual or class of individuals. Even if we find

some way of defining the overall system of rules in a non-Westphalian case, it seems

we would be unable to clearly formulate the question of whether this system would be

acceptable to someone in the appropriately defined original position and thus whether

we can say that actual people can be reasonably expected to endorse it.

Finally, if it were possible to come to a judgment about the legitimacy of this

fractured and diffuse system of power, could this judgment be a useful part of the

political process in the way that judgments of legitimacy can with a standard basic

structure? It is at least not clear that it could be useful in the same way that a judgment

of the legitimacy of a standard basic structure is useful. If some aspect of people’s

rights and obligations in the Niger Delta were judged illegitimate, the complex

interaction of the two governing actors in this case would mean that the source of the

illegitimacy, and the focus of attempts to remedy it, would be unclear. Even if we

succeed in making judgments about the legitimacy of this system of power, the overall 139 Rawls (1973) calls this the “maximin” rule. (152-7)

   

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system of power has no single address to which potential complaints can be sent.

Because the American political system can be thought of as an agent in a meaningful

way, it can be held responsible for the rights and obligations that people subject to its

power have or do not have. It is of course not easy to turn judgments about the

legitimacy of a political system into changes to that system or even concrete

proposals, but there is at least a place where decisions are made, an agenda and a

series of decision points which can in principle be influenced. In an emergent basic

structure like that of the Niger Delta, there is no overall agenda or decision-making

process, because outcomes⎯the rights and obligations that people have⎯are the

result of uncoordinated actions by the various governing actors. Thus even if we leave

aside the problems discussed above with determining whether the kind of basic

structure we see in the Niger Delta is legitimate or not, we would be unable to make

use of the answer to this question. If we decided that, for example, this system of

rights and obligations needs to be different in order to be legitimate, to, say, guarantee

additional rights, a non-Westphalian basic structure is not something that can take

action as a whole. There are only the governing actors that are its constituent parts,

and, as was discussed above, it is not always clear what the results of actions by each

one will be. If the Nigerian government, for example, passes a law guaranteeing its

citizens a new right, whether people actually have this right will also depend on the

actions of Shell Oil.

At each stage of the procedure of hypothetical justification, we seem likely to

run into difficult and potentially unsolvable problems in cases such as Shell Oil in

Nigeria, even though this case as I have described it here is still quite simplified. It is

   

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important to emphasize that by saying it would be difficult to answer these questions, I

do not mean it would be complex or burdensome to do so. I mean that, for this kind of

power structure, these questions (what is the system of rights and obligations to be

evaluated, and can people be reasonably expected to endorse it?) will not have

definitive answers. Hypothetical public justification as it now stands is unable to reach

an answer to the question of whether this example of non-state power is legitimate. In

the previous chapters I argued that it is not making a category mistake to speak of

legitimacy in cases of non-state governance, in other words that, even if we are not yet

able to get an answer to this question, there is in principle an answer. I also argued that

the failure of our current way of assessing legitimacy to apply to this type of power

should not be taken to be proof that it is illegitimate. It is rather that we do not know if

this power is legitimate or not. Cases of non-Westphalian governance are cases where,

at a fundamental level, there is not one single system that fully fits together. We see,

instead, numerous overlapping systems of rules and institutions of various kinds

interacting with individuals and each other in complex ways. There are, as I argued in

the previous chapters, fundamental rights and duties⎯terms of social cooperation⎯in

all real situations. Cases of non-Westphalian governance are cases where these

fundamental rights and duties cannot be described and evaluated in terms of a single

system of institutions that fit together in a clear way.

It should be emphasized here that, even in what seem like paradigmatic cases

of Westphalian governance⎯well-functioning Western states⎯understanding the

basic structure as a fully unified system is a significant, and sometimes misleading,

simplification. What does it mean, for example, to describe the United States as

   

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having a single basic structure that can be described and evaluated using the

Westphalian model? The power of governance in the United States is in fact

distributed across a wide variety of institutions: not only the legislative, executive, and

judicial branches of government but also, crucially, the administrative agencies that

elaborate, interpret, and enforce, often with significant independence, the rules that

Congress makes.140 Moreover, because the United States has a federal system, this

division between elected and administrative agencies is repeated at the national, state,

and local levels. Why not then say that the United States is, like the Niger Delta,

characterized by a system of shared governance? To say that the basic structure of the

United States can nevertheless be described according to the standard Westphalian

model is to say that we can simplify the actual, messy state of affairs in a reasonable

way in order to arrive at a model of a single system that is a reasonably close

approximation of reality and does not assume away key features of the system. In a

case like the United States, this is, at minimum, not an untenable claim to make. Even

though the basic structure of the United States is highly complex, there is still a clear

set of constitutional essentials and a recognized procedure for determining these

essentials when they are in dispute. The Westphalian model of public justification is

one in which the basic structure is assumed to cohere into a single system with definite

rules and which can be meaningfully described as having unified agency. Despite the

complications raised by the autonomy of the administrative agencies, it is meaningful

140 Stewart (1975) criticized what he called the traditional “transmission belt” theory of administrative action, in which administrative agencies are sufficiently constrained by the elected branches of government that the democratic legitimacy of the elected branches is transmitted to the administrative agencies, pp. 1675-6. Stewart (2003) argued that the United States has since moved even farther from the idea envisioned by the transmission belt model. See also Cohen and Sabel’s (2005) discussion of the emergence of global administrative law.

   

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to say that “the United States” as a system of social cooperation enforces or does not

enforce a particular policy. Moreover, from the point of view of an American citizen

with a complaint about an aspect of the system, there is a more or less clear process of

adjudication through the courts and, in the United States Supreme Court, a recognized

final arbiter for disputes about what the rules are or whether a particular rule is

constitutional. Fitting the Niger Delta’s basic structure into the Westphalian model

would mean ascribing similarly unified agency to it. If we do this, however, to whom

would a resident of the Delta address a complaint about his system of rights and

obligations? He could perhaps address this complaint to the officially sovereign

government of Nigeria, but, as was discussed in Chapter 2, such a complaint, however

it was answered, would not get him anywhere if it ignored Shell’s independent

authority. Again, this is not to say that the United States, or any other state, perfectly

fits the Westphalian model; in fact it is likely that no real state does. Real basic

structures could be placed along a continuum, with one end the hypothetical, purely

Westphalian state and, at the other end, cases of completely shared governance. My

goal in this project so far has been to make the case that there is a need for a model

applicable to cases toward the latter end of the continuum, a model that I will develop

in the coming chapters. Thus it is a burden of this project to show that there is a need

for this new model, but the question of which model best fits a particular case is one

that I can leave open. It may turn out, for example, that the autonomy of

administrative agencies in what otherwise looks like a Westphalian state is such that

the shared governance model fits better.141

141 This is an approach suggested by the literature on the “hollow state” discussed in Chapter 3.

   

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Rawls’s and other liberal understandings of legitimacy assume that the systems

of social cooperation in all (modern, liberal) societies can be described using the

Westphalian model, that the kind of power that sets the rules for society as a whole is

on some level concentrated in one place. Habermas, for example, uses the imagery of

a siege to describe the relationship between citizens and their government.142 The term

invokes the image of governing power inside a fortified wall, a clear separation of

government from society, with those outside being subject to the power of the

authority inside. The siege model includes as core features both the separation of the

sources of power from those subject to it and the concentration of power in a single

complex of institutions.143 The quest for legitimacy and democratic control is, in this

model, the attempt by those outside the castle wall to control what goes on inside,

through a siege if necessary. In cases of a non-Westphalian basic structure, there are

many different centers of power, ‘nodes’ in Shearing and Wood’s terminology, from

which power is exercised. These different centers can cooperate, compete, or ignore

each other, but there is in any case neither a single center of power to evaluate nor,

from the point of view of democratization, a single center of power that can be seized

and controlled by the people.144

142 Habermas (1996), 486. See also Fraser (2007) on this point. 143 For Habermas, (1991) the public, even when understood as a unified public sphere of communication, cannot act on its own and therefore needs the state, “the sphere of public authority,” in order to put public opinion into effect. (30) 144 These problems⎯the lack of a single set of policies to assess and the lack of a unified set of people subject to them⎯would of course be magnified if we move from Rawls’s hypothetical understanding of justification to Habermas’s requirement of actual deliberation. Habermas’s understanding of legitimacy requires not just that there be a unified set of people subject to power, a public, and a unified source of power, the sphere of public authority, but that these be able to engage in the ongoing deliberation that, in his view, is the source of legitimacy. The public must be able to deliberate, through the operation of the public sphere, and develop at least a broad consensus that it then, through the mechanism of elections, delivers to the government to carry out. For this reason, Habermas (2001) is even skeptical of whether this kind of legitimacy can be achieved in a “society,” such as Europe as a whole, that does not have a single common language. (103)

   

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I have tried to show in this section that Rawls’s method of evaluating the

legitimacy of power cannot be used for cases of non-state governance but, as has

already been emphasized, I do not mean this as a criticism. The evaluation of non-state

governance is not an enterprise that Rawls attempts in his work. My point here is

rather that, if we do intend to evaluate non-state governance, the standard Rawlsian

method does not seem to work. In these cases, it cannot do the things we want a theory

of legitimacy to do. Applied to the Shell Oil case, the standard Rawlsian method of

evaluating legitimacy seems unable to provide any answer at all. Or, if we interpret

this failure to mean that there is no justification for non-state power and that all non-

state power is therefore illegitimate, our theory of legitimacy has no ability to

distinguish between different cases. I argued in Chapter 2 that even if it turns out that a

Westphalian state is the best way to ensure the legitimacy of power and that much

non-state governance is in fact illegitimate, it still makes sense to want to be able to

adjudicate between better and worse (or bad and worse) non-Westphalian governance.

A theory that, for example, finds that the involvement of an anti-poverty NGO in

governance is just as bad as the involvement of a mafia does not just conflict with

fairly basic intuitions. It fails to have any explanatory value at all in the large and

varied range of cases where non-state actors participate in governance. Whatever one

thinks is the right standard of legitimacy, the point of making these evaluations of

legitimacy is the possibility that they can provide a blueprint for legitimate power,

expose illegitimate power, and illuminate possible paths from the latter to the former.

4.4 Conclusion

   

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The prevalence of non-Westphalian governance thus creates a problem for

current theories of hypothetical justification. Non-Westphalian governance is a fact of

life for many, perhaps even most, people around the world, and the standard Rawlsian

version of hypothetical public justification is of little use in evaluating this type of

power. To return to the terms in which I posed the question at the start of this chapter,

we cannot simply map existing theories of public justification into the new territory of

non-state governance. I will argue in the next chapter, however, that it is not necessary

to develop an entirely new theory of legitimacy. The next chapter will seek to make

revisions to the existing theory that address these problems but are still a way of

instantiating the core ideas underlying the liberal theory of legitimacy. These core

ideas are, as Rawls emphasized, that people be subject to laws that, at least ideally,

they could accept, an acceptance of the diversity of people’s views of the good life,

and the idea that a society should be understood as an ongoing, rule-governed system

of mutual cooperation.145 A reassessment and revision of current theories of public

justification in light of developments that have rendered the Westphalian model of

power, if not obsolete, at least no longer something we can assume, must return to

these core values. These revisions will be successful if, most basically, they allow a

theory of justification to be usefully applied to cases of non-Westphalian governance.

Applying a theory of justification to the messy realities of governance will

always involve some simplification, but a theory of justification that can work in non-

Westphalian cases is one that does not require us to assume away their core

distinguishing features. A useful non-Westphalian theory of justification will have to

be able to evaluate the legitimacy of these cases, and it will have to differentiate 145 On this understanding of a society, see Rawls (1973), 4.

   

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between more and less legitimate governance in ways that at least broadly track our

intuitions. In addition, it has to be, as a procedure, simple enough that it is relatively

practical to apply.146 I have tried in this chapter to isolate some of the particular

aspects of the current liberal approach to public justification that make it inapplicable

to cases of non-state governance. In cases of non-Westphalian governance, we do not

see the sharp and clear division between public and private power, the power to make

rules and power within the rules. In a society closer to the standard Westphalian

model, this makes it relatively easy to define the total system of rights and obligations,

a definition that is necessary for the current approach. Public justification as it now

stands also requires a clear definition of who is subject to what set of rules and what

positions are available within those systems, questions that are difficult if not

impossible to answer in non-Westphalian cases. Without good answers to these

questions, we are unable to get to an evaluation of the legitimacy of power in the cases

I am interested in here. The dispersal and disaggregation of power is a phenomenon

that, while not new, is now widespread enough that the Westphalian assumptions of

existing models no longer even approximate reality for many people. These aspects of

our current theory that make it inapplicable to non-Westphalian governance can form

an agenda for revisions. The next chapters seek to build an account of public

justification that, while in the spirit of modern liberal political theory and building on

its core commitments, dispenses with these Westphalian assumptions and can be

applied to non-Westphalian power.

146 Rawls (1993) makes this point, in among other places, his critique of libertarianism. (266)

   

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Works Cited: Banfield, Jessica, Damian Lilly, and Virginia Haufler. 2002. Transnational Corporations in Conflict-Prone Zones: Public Policy Responses and a Framework for Action. London: International Alert. Buchanan, Allen. 2002. “Political Legitimacy and Democracy.” Ethics: 112:4, pp. 689-719. Chambers, Simone. 2010. “Theories of Political Justification.” Philosophy Compass: 5:11, pp. 893-903. Chambers, Simone. 2012. “Reason, Reasons, and Reasoning: Three Faces of Public Justification.” Presentation at Stanford Political Theory Workshop. January 27, 2012. Cohen, G. A. 1997. “Where the Action is: On the Site of Distributive Justice.” Philosophy & Public Affairs, 26:1, pp. 3-30. Cohen, Joshua and Charles Sabel. 2005. “Global Democracy?” International Law and Politics, 37, 763-97. De Bres, Helena. 2012. “The Many, Not the Few: Pluralism about Global Distributive Justice.” Journal of Political Philosophy, 20:3, pp. 314-340. Fraser, Nancy. 2007. “Transnationalizing the Public Sphere.” Theory, Culture &

Society. Vol. 24(4): 7–30. Frynas, Jedrzej. 2001. “Corporate and State Responses to Anti-Oil Protests in the Niger Delta.” African Affairs, 100, pp. 27-54. Habermas, Jürgen. 1991. The Structural Transformation of the Public Sphere: An

Inquiry Into a Category of Bourgeois Society. Trans. Thomas Burger. Cambridge, MIT Press.

Obi, Cyril. 2001. “Global, State, and Local Intersections: power, authority, and

conflict in the Niger delta oil communities,” in T. G Callaghy, R Kassimir, and R. Latham, eds., Intervention and Transnationalism in Africa: Local-Global Networks of Power. Cambridge: Cambridge University Press.

Rawls, John. 1973. A Theory of Justice. Cambridge: Belknap Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999. The Law of Peoples. Cambridge: Harvard University Press.

   

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Risse, Thomas. 2010. “Governance Under Limited Sovereignty,” in Back to Basics: Rethinking Power in the Contemporary World. Ed. Judith Goldstein. Forthcoming. Simmons, John. 1979. Moral Principles and Political Obligations. Princeton: Princeton University Press. Simmons, John. 1999. “Justification and Legitimacy.” Ethics, 109:4, pp. 739-71. Stewart, Richard. 1975. “The Reformation of American Administrative Law.” Harvard Law Review: 88:8, pp. 1667-1813. Stewart, Richard. 2003. “Administrative Law in the Twenty-First Century.” New York University Law Review: 78:2, pp. 437-60. Timmons, Jeffrey. 2005. “The Fiscal Contract: States, Taxes and Public Services.”

World Politics 57 (4). Zimmer, Melanie. 2010. “Oil Companies in Nigeria: Emerging Good Practice or Still Fueling Conflict?” in Corporate Security Responsibility? Corporate Governance Contributions to Peace and Secuity in Zones of Conflict, eds. Deitelhoff, Nicole and Klaus Dieter Wolf. Houndmills: Palgrave Macmillan, pp. 58-84.

   

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Chapter 5: A concept of legitimacy for non-state governance 5.1 Introduction

Thus far, much of this project has been critical. I argued in Chapter 2 that,

contrary to what is now standard practice in liberal political theory, the best way to

assess the legitimacy of non-state governance is through a requirement of public

justification. When non-state, “private” actors participate in setting the rules by which

people must live, it is not enough to ask whether these non-state actors are following

reasonably just laws. Because they are taking part in governance, their actions are no

longer truly private and raise inherently public questions of political legitimacy. After

providing evidence in Chapter 3 that this kind of non-state governance is widespread, I

argued in Chapter 4 that current liberal theories of public justification, understood as

procedures for evaluating the legitimacy of this kind of power, cannot be usefully

applied to these cases. By isolating the particular aspects of standard liberal theories of

public justification that are problematic for these cases, however, I tried to set an

agenda for this and the following chapter, the reconstructive parts of the project. The

goal of this chapter is to develop a revised concept of legitimacy through justification

that addresses these problems and therefore can be used to evaluate non-state

governing power. By a concept of legitimacy, I mean an answer to the following

questions: to whom is public justification owed, for what, and what method should we

use to determine whether these justifications are successful? Chapter 6 will in turn use

this method to discuss what justifications of non-state governance should be

considered acceptable.

   

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This chapter then is the first half of the reconstructive part of the project, and a

brief review of what has come before will be useful here. My project begins from the

core liberal idea of legitimacy, that each person is owed a justification of the system of

rights and obligations by which he or she must live, that is, his or her basic

structure.147 In cases of governance meeting or approaching the Westphalian model,

this basic structure can be meaningfully described as fitting together into a single

system, which enforces a coherent, definable set of policies, can offer justifications for

the policies it enforces or be the subject of hypothetical justifications, can in principle

either respond to criticism of these policies or be compelled to do so (that is, offers a

target for democratization), and governs the members of one, and only one, society.148

In contrast, in the cases of non-state governance that are my focus here, the systems of

rules by which people live cannot be described as fitting together into single systems.

In each case, a number of different agents, some state and some non-state actors,

share, each with some degree of independence, the power of governance: the power of

setting and enforcing binding rules. Thus in contrast to the standard basic structure

described above, a non-Westphalian basic structure does not typically enforce a

coherent, well-defined set of rules, because a non-Westphalian basic structure is often

emergent rather than planned, cannot itself offer justifications because it is not a

unified agent and has no single “voice,” cannot as a whole be a target for

democratization because it has no central agenda or decision-making process, and

does not correspond to a single society.

147 As has been discussed in more detail earlier in the project, this formulation comes from Rawls (1993), 137. 148 See Rawls’s (1993) definition of the basic structure, pp. 257-8. These characteristics of the Westphalian basic structure were also discussed in Chapter 3.

   

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I argued that these cases of non-Westphalian governance raise the same issues

of legitimacy as cases of Westphalian governance but that we do not have the

resources to determine whether this type of power is justifiable to those subject to it.

Each of the characteristics of non-Westphalian systems of governance just cited raises

problems for the standard liberal method of determining whether power is justifiable

to those subject to it. First, there is no practical way to define many non-Westphalian

basic structures, because they are emergent, uncoordinated, and informal. Moreover,

because the composition of the basic structure varies for different people in the same

society, there is often no single, society-wide answer to the question of who governs

and what rules are in force. Second, the original position, Rawls’s method of

determining what basic structures should be considered justifiable to the governed,

only works for groups of people who fully share a basic structure. Third, standard

sources of legitimacy, such as democratic control, are not easily available for non-state

governing actors or emergent systems of rule of which they may be part.149

In this chapter I propose three revisions to the standard concept of legitimacy

to address these problems. The first is an answer to the questions “justification of

what?” and “justification to whom?” The sets of rights and obligations that people

actually have to live by are what must be justified, and each person is owed a

justification for his or her set of rights and obligations, that is, his or her basic

structure. This is not at all a radical point, but it means that, when different sets of

state and non-state rules interact, what requires justification should be the resulting

rules that people must live by, rather than the official policies set out by different

governing actors. In other words, the basic structure is fundamentally the system of 149 This issue is the main focus of Chapter 6.

   

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rules that people actually have to live by, not in the first instance the sets of rules that

governing actors set out to enforce. The other two points of this chapter are about how

to determine whether a justification of power in non-Westphalian cases should be

considered successful. In many cases of non-state governance, all the members of a

society will not share a unified system of governance. Thus, as was discussed in the

previous chapter, it will not be possible to find, much less evaluate, a basic structure at

the level of an entire society. This problem can, I will argue here, be addressed by

shifting the focus from the level of the society as a whole to smaller groups, who can

be described as sharing a unified system of rule. The goal in these cases should be to

identify groups smaller than the society that do share a basic structure, groups for

which it is possible to identify a coherent basic structure and use the original position

to evaluate it.

This will solve some of the problems identified in the last chapter, but I will

also argue here that a concept of legitimacy that focused only on these smaller groups,

with no room for the idea of the larger society, would be incomplete. This will suggest

a need for a second stage of evaluation in a determination of the legitimacy of power,

to compare the basic structures of different groups within a larger society. I will argue

that, in non-Westphalian cases, we should consider a person’s basic structure fully

legitimate only if there is both a successful justification for her particular basic

structure and a successful justification for the division of her society as a whole into

smaller groups with their own basic structures. Overall, this chapter seeks to offer a

structure for the question of legitimacy in non-Westphalian cases. This will in turn set

   

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the stage for the next chapter, which will use this structure to investigate what forms

of non-state power might in fact be endorsable by the governed.

5.2 Justification of what?

Fundamentally, each person is owed a justification for his or her basic

structure. Because I am focused on hypothetical justification, this means more

precisely that each person has the right to have a basic structure for which there exists

a justification that she can reasonably be expected to accept. This most basic form of

the idea of legitimate power applies equally to all situations, but on its own it tells us

very little. It will be helpful here to return to the example of shared state and corporate

governance in the Niger Delta, discussed in the earlier chapters. A resident of the

Delta has, I tried to show, a basic structure that is partly determined by the actions of

Shell Oil and partly determined by the actions of the Nigerian government. Evaluating

this basic structure therefore means evaluating the actual constraints and opportunities

a particular Delta resident has, a set of rules that exist at the intersection of the policies

of each of the governing actors. The goal is not to evaluate either set of policies

independently, because none of the people in the Delta are subject to either set of rules

on its own, but rather the set of rights and obligations that results from the interaction

of each governor’s actions.

Frynas’s (2001) analysis of the policies of oil companies and the Nigerian

government regarding compensation for land damaged by oil extraction is a useful

example here. For residents of the oil-producing regions of the Niger Delta, the

question of how and at what rate compensation is paid to them when oil drilling, as a

   

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result of spills and other problems, damages their land, crops, or homes is a key part of

how they are governed, because it is a major aspect of their ownership rights. Frynas

shows that the Nigerian government and the oil companies themselves have different,

and contradictory, policies on compensation. The Nigerian government, based on a

1978 land law that declared formerly communal village lands to be the property of

state governments, requires oil companies to pay specified amounts of compensation

for damages to farm land to the governments of the states where the incident occurs,

and the state governments are in turn supposed to use the money for compensatory

development projects and social services in the affected areas.150 Under the law,

individual landowners can sue for additional, individual compensation only if they can

prove that the damage was the result of illegal or grossly negligent activity on the

company’s part.151 The amount of compensation prescribed by the government is

extremely low and, both because of corruption and because the money is meant to be

spent on communal projects, does not meaningfully compensate individual property

owners for their losses. This has been a major contributing factor to the anti-oil

protests that have occurred frequently in the Delta since the 1980s.152 In an attempt to

defuse these protests (and stanch some international criticism), oil companies

operating in Nigeria, led by Shell Oil, have begun, in addition to the required

payments to the state governments, paying compensation for damaged land directly to

landowners at a significantly higher rate than they pay to the state governments,

provided the landowners agree to drop any potential claims for additional

150 Frynas (2001), 39-41. See also Human Rights Watch (1999), 68-74. 151 Frynas (2001), 35. 152 Frynas (2001). See also Ikelegbe (2001) and Ukiwo (2007) for background on anti-oil protests in the Delta.

   

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compensation.153 Frynas reports that many farmers whose land is damaged consider

even this higher compensation rate inadequate but accept the offers out of fear of

retaliation or because they lack the resources to file a lawsuit anyway. Of lawsuits for

additional damages that are initiated, very few succeed.154 Farmers in the Delta thus in

practice have some rights beyond what they are guaranteed by the formal government

(individual compensation) and in practice lack some rights they are officially

guaranteed (the right to sue in cases of negligence).

The actual sets of rights and obligations that people have on this issue, the

terms on which they own their land, result from the interactions of the policies of both

Nigerian state institutions and the oil companies and, of course, the balance of power

between them. My approach here, however, is to determine and evaluate basic

structures from the point of view of those subject to them, not from the point of view

of the governing actors themselves. In other words, the key question in this case

should be what rights and obligations residents of the Niger Delta actually have, not

what policies the Nigerian government and the oil companies set out to enforce. This

approach is necessary because, in a case of shared, emergent governance like this, the

basic structure that results from the interactions of multiple governors’ policies could

not be determined by looking at each set of policies in isolation, any more than the

final score of a game of tennis could be derived from looking at each player’s actions

in isolation.

In the Niger Delta case, there is no need to evaluate the policies of either the

government or the oil companies independently, because no one is governed by either 153 In 1997, oil companies paid 15,860 Naira for a hectare of rice destroyed by oil production, compared to an officially required compensation rate of only 1,924 Naira per hectare. Frynas (2001), 40. 154 Frynas (2001), 41.

   

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set of policies in isolation.155 The actual set of rules that results from the interaction of

the two sets of policies is the basic structure that residents of the Delta live by and

should therefore be the target of evaluation through a requirement of public

justification. This is not a radical proposal⎯it follows directly from the core claim

that the actual basic structure is what must be justifiable to people⎯but it does have

important implications for the way in which we evaluate the legitimacy of power.

There may, for instance, be cases of shared governance in which each set of rules,

investigated independently, would seem to be endorsable by the governed but in which

their interaction produces a system of rights and obligations that cannot be endorsed

by the governed. This would be a particular problem for a Westphalian theory of

legitimacy that took into account only the policies of state governors. Thus my

proposal is to shift the question we ask of governors in a subtle but important way.

Rather than simply asking whether governors’ policies are, considered on their own,

justifiable, it is necessary to ask, in cases like these, whether the system of governance

that they contribute to is justifiable. This latter version is in many ways a more

demanding standard, since it looks at effects on governance, not only intentions. There

will, after all, be many cases in which governors would prefer not to be governing at

all, as may be the case with some of the oil companies in Nigeria. Nevertheless, if the

oil companies have the ability to change the rules the people of the Delta live by, then

we should hold the oil companies responsible if we determine that the rules the people

of the Delta live by are unjustifiable.

155 As will be discussed later in this chapter, however, the residents of the rest of Nigeria are governed by the state on its own.

   

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5.3 Evaluating non-Westphalian systems of governance

If it is right that the basic structure is the system of rules that people actually

live by, then an attempt to work out how to evaluate non-Westphalian basic structures

must take account of the fact that many societies will not have one overall, unified

basic structure. In the previous section, I focused on a particular sliver of the basic

structure, the definition of property rights, and showed that in the Niger Delta this

power is shared between the oil companies and the Nigerian government. This

arrangement does not extend to the entire country. In the non-oil producing regions of

Nigeria, the power of defining property rights rests wholly with the government. There

is thus no consistent way to describe a basic structure for all of Nigeria. What Rawls

calls the “constitutional essentials” of each part of the country are fundamentally

different depending on whether the state governs on its own or shares this power with

the oil companies.156

This is what differentiates a case like the Niger Delta from a federal system of

rule like the United States. In the American federal system, a resident of California has

a different system of rules to live by than a resident of New York, and of course there

are different local laws by town and city as well, but does it make sense to describe the

United States as a whole as having a unified basic structure? It seems fairly clear that

it does. The different laws and California and New York exist within the framework of

the United States Constitution, and there is a recognized arbiter⎯the United States

Supreme Court⎯with the power to decide whether the laws of any state are within the

bounds set by the Constitution, whether they are in line with the country’s overall

156 Rawls (1993), 227.

   

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constitutional essentials. The same point applies to the local laws of municipalities

within states. In the Niger Delta, there is no such structure uniting the different

systems of rule, only the ongoing negotiations between Shell and the Nigerian

government and the relative strength of each. The question of where the boundaries lie

between different basic structures, and whether a particular society contains one basic

structure or more, will necessarily be a contestable one, because it is a question of how

best to analyze and interpret messy and complex phenomena in the real world. The

goal here is to provide a way to think about cases where it is clear that an entire

country does not share a basic structure. These are cases where describing an entire

country as sharing a basic structure, and analyzing its legitimacy based on that

description, would mean missing fundamental features of the rule systems that people

live by. I have argued here that Nigeria is such a case, that describing the rules by

which all Nigerians live as fitting together into a single system would miss the fact of

division between the different parts of the country that comes from the involvement of

oil companies in governance in some parts of the country.

While individual cases can, again, be contested, this division is a common

consequence of non-state governance, and, as I showed in Chapter 4, it is impossible

to use the standard original position in a case like this. My proposal here is that, to

address this problem in cases like this, we should drop the attempt to find a description

of the basic structure for the entire society and instead find a description that fits a

smaller group. Thus in the case of Nigeria as I have described it here, it might make

most sense to think of the country as having two basic structures, one for the Delta,

where power is shared between the state and the oil companies, and one for the rest of

   

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the country, where the state governs on its own. While it will still be difficult to

develop a definition of a basic structure for the Delta, since an emergent basic

structure of this kind is, almost by definition, not codified, it is in principle possible.

The choice of the Delta as the right unit here is, of course, contingent on the facts on

the ground. If it turns out that, for example because of the involvement of other non-

state actors in governance, individual towns within the Delta have their own basic

structures, then the town would be the right unit. The right unit is the largest group of

people for whom we can meaningfully describe a shared, unified system of rights and

obligations. (A Westphalian case is one in which we can say this of all the citizens of a

particular country.) This change will make it possible to use the original position in

cases of non-state governance. In the Nigerian case as I have described it here, the

Delta has a single basic structure, and so it is possible to ask whether someone who

did not know what position she would occupy within this structure would be willing to

accept it. Because the Delta has a definite balance of power between the government

and its policies, on the one hand, and the oil companies and their policies, on the other

hand, the Delta, unlike the country as a whole, has a definable system of rules. The

rules regarding compensation for damages to land is an example of (a portion of) this

local basic structure. It is not my goal in this chapter to answer the question of what

would make this sort of local basic structure acceptable to someone situated behind the

veil of ignorance. My goal is rather to show that, for groups smaller than a whole

society in these cases, the question can be clearly formulated. Because the Delta has a

definable set of rules, it is possible to determine how different people are affected by

them and, in particular, what person or group is made worst off. This means that it is

   

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possible to use Rawls’s maximin strategy⎯asking whether someone behind the veil of

ignorance would be willing to accept the possibility of being the worst-off person in

the group.

5.4 The role of society in evaluating legitimacy

It may seem at first glance that this simple switch from Nigeria as a whole to

the Delta (or another group smaller than the society) solves many of the problems of

evaluating non-Westphalian governance identified in the previous chapter. Once we

have determined that a particular smaller group, rather than the entire society, shares a

basic structure, we can define the basic structure for this smaller group and use the

original position to determine whether someone who knew he was a member of this

group but did not know which one, or any other particular facts about himself, would

be willing to accept it. This solution on its own is, however, fundamentally

incomplete, because it has as yet no place for the role of society. I will discuss below

what a “society” in the relevant sense is, but consider how we would think about the

Nigeria case if it turned out that the residents of the Delta had a system of rights and

obligations vastly preferable to that of residents of the rest of the country. Even if each

group (residents of the Delta and residents of the rest of the country) was internally

egalitarian and we could say with confidence that any resident of the Delta would,

behind the veil of ignorance, happily accept the basic structure characterizing the

Delta and the same were true of the rest of the country, it seems that a great disparity

between the two groups could be deeply troubling. Moreover, it would be troubling in

   

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a way above and beyond the way in which the disparity between the basic structures of

Nigerians and, say, Swedes is troubling. In both A Theory of Justice and The Law of

Peoples, Rawls offers arguments that comparisons of advantages within a society are

important in a way that comparisons between societies are not. Rawls assumes, as was

discussed earlier, that each society has one unified basic structure, but this shared

basic structure does not exhaust the definition of a society.

I want to show here that it is thus possible for a group of people who do not

share a basic structure to still constitute a society in a particular important sense, and

that, when this is the case, the arguments Rawls offers for placing special weight on

comparisons among people within the same society still apply. A “society,” in the way

Rawls uses the term, is a group of people who, in the aggregate as well as individually,

play a set of crucial roles in each other’s lives. Much of what most people consider

core aspects of a flourishing, or even acceptable, human life are of course dependent

on the context of a society, and the roles that Rawls and others ascribe to a society

flow from basic intuitions about humankind’s social nature.157 Rawls focuses on two

core human capabilities: the ability to develop and pursue an “idea of the good” and

the ability to develop and use a “sense of justice.”158 A person’s idea of the good is his

or her own life plan and particular goals, and a sense of justice is “a skill in judging

things to be just or unjust, and in supporting these judgments by reasons.”159 Each of

these powers can only be exercised, can only really mean anything, in the context of a

society. As Rawls emphasizes, this is not merely the “trivial” point that a person who

157 Rawls (1973), 525. This idea, as Rawls recognizes, can be traced as far as Aristotle’s [1984] famous claim in the Politics that “Man is by nature a political animal.” 1:1253. 158 Rawls (1993), 19. 159 Rawls (1973), 46.

   

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somehow grew up in the absence of society, on a desert island, say, would for example

be unable to speak or even think in advanced concepts.160 Rather, it is the idea that a

society is a group of people who in a real sense share even their divergent goals. Even

if one person’s life plan involves pursuing science and another’s involves pursuing art,

the life plan of the scientist involves pursuing science in the context of a society in

which art exists because others are pursuing art, and vice versa.161 The idea is that

each individual’s goals are both formed and framed in the context of the society, the

larger group, in which he or she belongs. This is of course different from, as Rawls

emphasizes, the non-liberal idea that a society has its own independent ends and that

individual members of society ought to (or ought to be made to) serve those ends.162

The importance of society for people’s exercise of these two moral powers,

forming and pursuing a conception of the good life and developing and using one’s

sense of justice, is the reason both that the question of whether power is legitimate is

so important and that this question is generally asked at the level of a society. Subject

to illegitimate⎯unjustifiable⎯power, people’s moral powers are stunted. Subject,

especially since birth, to a system of rights and obligations that cannot be squared with

the idea of being a free and equal citizen, a person will not only often be prevented

from realizing any particular life plan, but she will have difficulty conceiving of

herself as someone who can have an expansive sense of the good and a plan to pursue

it in the first place. A developed sense of justice is, in this view, similarly dependent

on being treated with what can be recognized as justice.163 The ability to successfully

160 Rawls (1973), 522. 161 Rawls (1973), 523-5. Rawls also cites von Humboldt (1969), on this point, p. 16. 162 Rawls (1973), 527. 163 Rawls (1973), 440.

   

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develop and exercise these two “moral powers” is, fundamentally, what is at stake

when we ask whether the power someone is subject to is legitimate. Rawls argues that

the question of whether a person’s basic structure is such that she can develop and

exercise these moral powers has both an absolute and a relative dimension. In order to

develop these moral powers, a person needs sufficient primary goods, both rights and

opportunities and material things like food, shelter, and so on. Having sufficient

primary goods is, however, not enough. It also must be the case that her share of

primary goods, when compared to the other people with whom she would exercise

these powers, is not unequal in an objectionable way. To say that a group of people

constitute a society is to say that the relationships they have with each other mean that

comparisons between them matter in this way.

This is why Rawls argues that a fairly stringent evaluation of inequalities⎯the

Difference Principle⎯should be applied within the boundaries of a society but not

between members of different societies.164 This is, again, a standard liberal story about

the importance of society, and I accept it here. I depart from this standard account by

seeking to incorporate the idea that, for a society to play this crucially important role

in people’s lives, it is not necessary that it have a fully shared system of rules or be

organized as a single, unified and clearly bounded system of social cooperation.

Without the assumption that any group of people organized through shared political

institutions constitutes a society in this way, we can recognize a society by looking at

how people do indeed develop and exercise these powers. A person’s ideas of the

good life and her sense of justice are often influenced by, among other things, her

164 Rawls (1999), 30-4.

   

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language, religious and ethical traditions, the stories and historical memories she has,

the contemporary culture and exemplars of good and successful people to which she is

exposed and with which she identifies. None of these is individually necessary. In a

multicultural society like the United States, civic beliefs about, for example, individual

freedom and equality, help sustain social relationships despite deep cultural

differences.165 Societies understood in this way are also a matter of self-identification,

what Anderson (2006) calls “imagined communities, consisting in the interlocking

beliefs of their members.166 People in almost all cases have these links with, for

example, the whoever them as children, close friends and people with whom they

interact on a day-to-day basis.

Certainly many, perhaps even most, states are also societies understood in this

way. Shared political institutions are more likely to develop and endure when a group

of group antecedently have these links, and a shared system of governance can in turn

strengthen these social links, an outcome that governments often consciously seek.167

My claim here is that there can be cases in which the borders of society and

governance do not coincide. It is of course an empirical question, one that I cannot

fully answer here, whether the inhabitants of the Niger Delta and the rest of Nigeria do

play these roles in each other’s lives. A full answer to this question would involve

asking what links of culture and communication people share and how they

understand their own position, along with the positions of their neighbors, within a

165 See Habermas (1992), 3-5. 166 Anderson (2006), Chapter 1. 167 Anderson (2006), 37-46. Thus the creation of shared political systems in Germany and Italy in the 19th century was driven by the fact that societies, understood in this sense, already existed. French society was, in contrast, largely created through conscious state policy in the 17th through 19th centuries. See Weber (1976).

   

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(potential) society.168 Especially in a country with deep and problematic internal

divisions like Nigeria, it may after all be the case that different groups in the country

should be thought of as independent societies. Conversely, this idea also raises the

possibility of a society spread across many different states, for example a dispersed

ethnic minority group like the Kurds. The point is that, when a group of people do

make up a society in this special way, comparisons between them take on extra weight

for judgments about the legitimacy of power, whether or not they also share a basic

structure. If, as seems to be the case with at least some examples of non-Westphalian

governance, these roles are played by and among groups of people who do not share

the same basic structure, these groups are still, in this very real and important sense,

societies.169

This is a functional understanding of a society; a society is a group that fulfills

in the lives of its members the particular set of roles discussed above. In this way it

parallels the functional understanding of the power of the basic structure that I offered

in Chapter 2, that the basic structure should be understood as the set of agents that

have the specified form of power over people, not in the first instance a set of

institutions defined a priori. This definition of a society, of course, also applies to 168 See Anderson’s (2006) discussion of nations as “imagined communities,” existing in the interlocking beliefs of each member. 169 It is important to note here that this understanding of a society does not collapse a society into a (mere) association. Associations, like religious groups, clubs, or even the family, which can be considered a special type of association, are also hugely important to the development of the moral powers, and it is hard to imagine someone developing and pursuing a coherent life plan or a sense of justice without associational life. The distinction between an association and a society, and the reason that societies trigger concerns of legitimacy and justification that associations do not, is that associations, by definition, exist in the context of societies, whereas societies are for the most part the largest groupings individuals are parts of. Thus an association that was for some reason not in the context of a larger society, say a religious group on a desert island, could itself be considered a society. Associations are also, in ordinary circumstances, things that individuals can enter and leave throughout their lives, at much lower cost than they can with societies. Associational life is thus understood as the product of, or vehicle for, the achievement of one’s life plan, while a society is the precondition for a life plan. On this point see Rawls (1993), 40-3.

   

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societies fully meeting the ideal Westphalian model. In those cases, it is further true

that this group also shares a unified basic structure. When the assumptions of the

Westphalian model are fully met, the boundaries of the society and the boundaries of

the group governed by a single basic structure are the same. Societies with non-

Westphalian governance of the kind described in this project are cases in which a

group of people whose relationships mean that they constitute a society do not also

share a single unified basic structure.

A concept of legitimacy that did not take the society into account would thus

be fundamentally incomplete. Even if we use the original position at this smaller level

to determine that each inhabitant of a particular region of Nigeria would be willing to

accept that region’s basic structure without knowing what position in the local basic

structure she would occupy, we still need to ask whether the division of her society

(Nigeria as a whole) into multiple basic structures is one she can be expected to

endorse. My proposal is that we can accomplish this by using the original position a

second time. Would someone who knew about the division of the entire society into

smaller groups with their own basic structures, who knew the comparative status of

each group but not which one she were a member of, be willing to accept this system?

Earlier in the chapter I argued that it would seem intuitively troubling if each region,

considered as a unit, were highly egalitarian but the inhabitants of the Delta were

vastly better off than other Nigerians. The trouble with this state of affairs can now be

described as its failing the test of the second original position; the comparison between

the regions will likely not be justifiable to the inhabitants of the worse-off region.

   

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This two-step original position is similar to the strategy Rawls uses in The Law

of Peoples. There, he suggests a second original position to determine what relations

among liberal peoples are endorsable. Rawls uses the two-stage original position

based on the argument that it makes sense to think of the full range of power to which

a person is subject as having two components, her position within her (liberal) society,

and her society’s position within the “family” of other liberal societies.170 Similarly,

my idea here is that a resident of the Niger Delta’s total system of rules is best

understood as composed of two parts: her position within a region and her region’s

position within the set of groups that together make up the whole society. The point of

the two-stage original position in the cases of non-state governance I am considering

here is to make room for the fact that the boundaries of societies and the boundaries of

basic structures will not always coincide. One society can contain multiple basic

structures, as it seems to in the Nigerian case. This is meant to be a frame that we as

observers can use to analyze, and evaluate, power in these cases. The Westphalian

model, in which the boundaries of the state coincide with the boundaries of the society

and the reach of the basic structure, is another frame. It is necessary to look at the data

as we have it and decide what frame best fits a particular case. This will sometimes be

a difficult and contestable decision, but it is not arbitrary. My goal here has been to

provide a frame for cases that clearly do not fit well into the Westphalian model. In

Chapter 4, I described the standard liberal concept of legitimacy as a procedure for

evaluating power, and the revised concept of legitimacy I have proposed here is meant

to function in the same way. To summarize, to evaluate the legitimacy of person A’s

basic structure, my proposal is to: 170 Rawls (1999), 30-35.

   

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(1) identify the group with whom A shares a basic structure and, separately, the group

with whom A makes up a society;

(2) use the original position to ask whether A could reasonably be expected to endorse

her (local) basic structure;

(3) use the original position again to ask whether the division of A’s society into

smaller groups with their own basic structures, and the comparative relationships

between them, is such that A can be reasonably expected to endorse it.

If the answer to the questions in (2) and (3) are both ‘yes,’ then the power to

which A (and, by implication, the other people with whom she shares a basic

structure) is subject should be considered legitimate.

5.5 Conclusion

Thus breaking the question of legitimacy in a society with non-Westphalian

governance into smaller parts is a useful way of getting traction on the otherwise

impossible task of using public justification to answer it. I have not in this chapter

addressed the “non-stateness” of non-state actors, the difficult question of what steps

can be taken to ensure that governance by actors as diverse as for-profit companies,

NGOs, and international institutions can be legitimate. My focus here has been,

instead, a necessary first step: addressing the non-Westphalian character of this kind of

   

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governance. In standard liberal accounts, the idea that legitimate power is power that

those subject to it can reasonably be expected to endorse has relied on the assumption

that there is a one to one to one relationship between states, societies, and basic

structures. My goal in this chapter has been to develop a concept of legitimacy that

does not rely on this assumption, in order to better approach cases where this

assumption is clearly not met. To do so, I have proposed definitions of the basic

structure and of a society that, while in line with standard liberal (and specifically

Rawlsian) versions of these ideas, do not assume that they coincide with state

boundaries.

I proposed using the original position twice in these cases, a first time to ask

whether a person would be able to endorse the system of rules that characterizes this

smaller group and, a second time, to ask whether this division of a society into

multiple smaller groups with their own basic structures can be endorsed by the

members of the society. This second step is necessary because, even in a case where a

basic structure covers only a small group, people may have links with others outside

their basic structure that make them all part of the same society. I have proposed

thinking of a society as a group of people who play the roles identified for the society

by Rawls others: the group within which people develop and exercise their moral

powers and life plans. Again, this is in line with standard liberal arguments about why

the links that characterize a society are important for judgments of legitimacy and why

we should compare people’s welfare within a society in ways that we do not for the

entire world. People can play these roles in each other’s lives, I argued here, even if

they do not share a basic structure. The questions of what groups of people constitute a

   

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society, and where the boundaries of particular basic structures are, are inherently

empirical⎯and inherently contestable⎯questions. For example, England, Scotland,

Wales, and Northern Ireland make up one state, but it is a further question whether it

makes most sense to describe them as having one basic structure or four, and another

further question whether they are one society or four. My goal here has been to

propose an idea of endorsable⎯and therefore legitimate⎯power that works no matter

how we answer these questions. Even if the proposals sketched in this chapter are

useful, they only get us halfway. Fully formed conceptions of legitimacy,

determinations of exactly what forms of power should be considered justifiable and

what should not, are necessary as well. This is also the case with the standard principle

of legitimacy as offered by Rawls. There should be, in a view of how to understand

the idea of legitimacy, room to contest what counts as legitimate. The point of a theory

of legitimacy is to give a more or less clear forum for debating this very question. This

is what I have tried to do in this chapter for the particular cases I am interested in here.

The concept of legitimacy proposed here is a departure from standard liberal views of

legitimacy, but, by design, it departs only as far as is necessary. It is still a way to

instantiate, to look for, the core liberal values that underlie the goal of evaluating the

legitimacy of power. The next chapter discusses in more detail the question of what

justifications of this kind of power should be considered successful, in other words

what characteristics non-state, non-Westphalian power must have in order to be

considered legitimate.

   

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Works Cited: Anderson, Benedict. 2006. Imagined Communities: Reflections on the Origins and Spread of Nationalism. London: Verso. Aristotle. [1984]. The Politics. Ed. and trans. Carnes Lord. Chicago: University of Chicago Press. Beitz, Charles. 1975. “Justice and International Relations.” Philosophy & Public Affairs, 4:4, pp. 360-89. Frynas, Jedrzej. 2001. “Corporate and State Responses to Anti-Oil Protests in the Niger Delta.” African Affairs, 100, pp. 27-54. Habermas, Jurgen. 1992. “Citizenship and National Identity: Some Reflections on the Future of Europe.” Praxis International, 12:1, pp. 1-19. Human Rights Watch. 1999. “The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities.” http://www.hrw.org/reports/1999/nigeria/nigeria0199.pdf. Ikelegbe, Augustine. 2007. “Civil Society, Oil, and Conflict in the Niger Delta Region of Nigeria.” The Journal of Modern African Studies, 39:3, pp. 437-69. Obi, Cyril. 2009. “Nigeria’s Niger Delta: Understanding the Complex Drivers of Violent Oil- Related Conflict.” African Development, 34:2, pp. 103-28. Rawls, John. 1973. A Theory of Justice. Cambridge: Belknap Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Rawls, John. 1999. The Law of Peoples. Cambridge: Harvard University Press. Ukiwo, Ukoha. 2007. “From ‘Pirates’ to ‘Militants’: A Historical Perspective on Anti-State and Anti-Oil Company Mobilization among the Ijaw of Warri, Western Niger Delta.” African Affairs, 106: 425, pp. 587-610. Von Humboldt, Wilhelm. 1969. The Limits of State Action. Cambridge: Cambridge University Press. Weber, Eugen. 1976. Peasants into Frenchmen. Stanford: Stanford University Press.

   

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Chapter 6: From a concept to conceptions of legitimacy for non-Westphalian governance

6.1 Introduction

In the previous chapter, I proposed a version of the concept of legitimacy that,

unlike the standard version, can be applied to non-state, non-Westphalian governance.

This concept of legitimacy was meant to be a method of asking what exercises of

power by non-state actors should be considered legitimate, not yet an answer to this

question, but a necessary first step. The overall goal of this chapter is to move from

this concept to a fuller conception of legitimacy, to use the method proposed in the last

chapter to develop an answer to the question of when non-state power is legitimate. To

review, my proposed non-Westphalian concept of legitimacy was that the set of rights

and obligations that a particular person has should be considered legitimate if (1) there

is a justification for her specific, potentially local basic structure that she can be

reasonably expected to endorse, and if (2) there is a justification for the relationships

within her society between different groups with different basic structures that she can

be reasonably expected to endorse. As was discussed in the last chapter, this is not a

radical proposal; it is a generalization of the standard Rawlsian liberal principle of

legitimacy that allows for the possibility that societies, states, and basic structures do

not coincide.171 The idea was to find an understanding of the basic structure that

reflects how power operates when non-state actors are involved in governance. The

key question now is of course what basic structures⎯what systems of rights and

obligations⎯people can be reasonably expected to endorse. What features must basic

171 When, in cases meeting the standard Westphalian model of power, a society has a single, unified basic structure, this second part of the definition disappears, and this version collapses into Rawls’s standard version. See Rawls (1993), 137.

   

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structures, understood in the ways discussed here, have in order for us to say that those

governed by them can be reasonably expected to endorse them?

This question of legitimacy is, as I have emphasized throughout, different from

the question of what, all things considered, are the best principles of justice. There will

be, in other words, a set of justifications that all liberals could agree meet the threshold

of being reasonably endorsable, and it is then a further question which of these

justifications, in the form of a series of principles of justice, is the best. Even within

liberal political theory, there will be disagreement on this latter question. In this

chapter my goal is to answer the former question, to mark off the boundaries of

possible endorsability for liberal justifications of power. This is for two reasons. First,

governance arrangements involving non-state actors are of such variety that any theory

aiming to pick out the right principles of justice in these cases will likely have to be

what de Bres (2012) calls “pluralist,” accepting that there are different principles for

evaluating different kinds of situations and that these principles can be

institutionalized in different ways.172 There is also, again, the other sense of pluralism,

that there is room within liberalism for disagreement about what the best principles of

justice are. Both of these pluralisms, must, from a liberal point of view, have

boundaries, and I aim to define these boundaries here. If the threshold of liberal

legitimacy is a circle, then each particular liberal theory of justice would be a point

within the circle. My goal here is to describe this circle’s circumference rather than

choose a single preferred point within it. In other words, I do not think it is necessary

or desirable in this project to provide a single set of principles of justice for non-state

governance, but I will show here that all plausible liberal principles of justice for non- 172 De Bres (2012), 4.

   

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state governance will share certain key features. These key features mark off the

boundaries of the set of justifications that those subject to power could reasonably be

expected to endorse.

This chapter identifies and explores these key features. Specifically, any

justification of power that, from a liberal point of view, could be considered

reasonably endorsable by the governed must address the issues of democratic control,

guarantees for basic rights, and equality or inequality in the distribution of primary

goods.173 Non-state governance raises specific issues for each. To use democratic

control as an example, in the context of state governance, it is agreed within liberalism

that the people governed by a political order must have some measure of control over

the agenda and decision-making process in order for the political order as a whole to

have legitimacy. However, in a system of non-state governance characterized by

shared, emergent power, there is no single agenda or decision-making process, not to

mention no clearly defined demos, and thus the typical understanding of democratic

control cannot be applied here. If it turns out that there is no attractive and coherent

understanding of democratic control that can work in the context of non-state power,

then it might be that non-state power could not be legitimate at all. It might show, to

continue the metaphor of the previous paragraph, that the circle is empty. The

protection of basic rights and distribution of primary goods raise parallel issues, and

the main aim of this chapter is to show that there is a coherent account of each

available in the context of non-state governance.

173 In this I am broadly following Rawls’s claim that any liberal conception of justice must have three features: “a specification of certain basic rights, liberties, and opportunities…an assignment of special priority to those rights, liberties, and opportunities…[and] measures assuring to all citizens adequate all-purpose means to make effective use of their liberties and opportunities.” Rawls (1993), 6.

   

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Each of these three issues, democracy, rights, and distribution, is a source of

legitimacy, a way power can⎯potentially⎯be justified to the governed. People

subject to a political order can be reasonably expected to accept that order if they, as

part of the demos, have democratic control over it, if their basic rights are protected,

and if the distribution of primary goods fulfills some acceptable pattern. I will not

rigorously defend each of these as a source of liberal legitimacy, but a look at the

counterfactuals seems instructive. Could a wholly undemocratic regime, run even by a

benevolent and enlightened guardian, be considered legitimate from a liberal point of

view? Could a society that was both democratic and egalitarian but lacked any fixed

guarantees for the rights of its citizens be legitimate? Could outrageous inequalities

really never threaten the legitimacy of a society’s power structure? In each case, the

answer seems to be no. It is hard to imagine any plausible liberal conception of

legitimate power⎯state or non-state⎯that did not include some element of each.

Exactly how much democratic control is necessary, what basic rights are most

important, and how much material equality is necessary for legitimacy are questions

on which there can be a range of answers that fall within the boundaries of liberal

pluralism. There can be, in other words, disagreement among liberals about what is the

best answer to each question, but something close to agreement on the range of

answers meeting the threshold of reasonable endorsability by the governed.

These three sources of legitimacy can also be described using a specifically

Rawlsian framework, and each comes from the Rawlsian underpinnings of this

project. Rawls argues that a basic structure is maximally just if two conditions are

   

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fully met, the Liberty Principle and the Difference Principle.174 What Rawls calls the

Liberty Principle includes both democratic control and protection of basic rights.175 I

will treat these separately, because they raise different issues in the context of non-

Westphalian governance. The Difference Principle is about what distributions of

primary goods can be acceptable in a just society.176 I will not here defend either

Rawls’s specific principles or his choice of the subject matter of the principles.177 I

have tried to show, however, that Rawls’s argument for these principles, to the extent

that it is compelling in a context of pure state governance, is equally compelling in a

case of non-Westphalian governance. To put this point in Rawlsian terms, even if the

parties in the original position did not know whether their society would have a

Westphalian or non-Westphalian form of governance, they would still agree to the

same principles of justice.178 The challenge for this chapter is to show that, even

granting this last point, that there is a coherent way to understand and apply the liberal

ideals underlying each principle in non-Westphalian cases.

Thus the goal of this chapter is to show how each of these sources of

legitimacy should be understood in the context of non-state governance. This serves

two purposes. First, showing that there is a coherent and attractive way to understand

each source of legitimacy in the novel context of non-Westphalian governance is a

way of countering the argument, discussed in Chapter 2, that all non-state governance

174 The Liberty Principle is that “[E]ach person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.” Rawls (1973), 250. The Difference Principle is that “[S]ocial and economic inequalities are to be arranged so that they are (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.” Rawls (1973), 302. 175 Rawls (1973), 250. 176 Rawls (1973), 302. 177 Rawls (1973), 62. 178 This point is discussed in detail in Chapter 2.

   

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is necessarily illegitimate. If it were the case that, for example, there were no

convincing way to understand the protection of rights in a context of non-state

governance, then the argument that legitimate non-state governance is a contradiction

in terms might be convincing after all. I aim to show that this is not the case.179

Second, showing how each source of legitimacy can be understood in the context of

non-state governance shows how each source can be aimed at and achieved. As was

discussed earlier in this project, the goal of a theory of legitimacy, as I understand it

here, is to be a part of the project of replacing illegitimate power with legitimate

power. If coherent understandings of democracy, rights, and distribution under

conditions of non-state governance can be found, then these understandings can

provide the germ of a to-do list for non-state governing actors themselves, activists,

and others seeking to improve this type of governance. The following sections

investigate each source of legitimacy in more depth.

6.2 Democratic control of non-Westphalian power

In a modern society, democracy is a necessary condition for liberal

legitimacy.180 In standard definitions of democracy in state contexts, this means that

citizens, either directly or, more commonly, through representatives, must both have

opportunities to shape what gets on the agenda and to participate in the process of

179 In responding to this argument in Chapter 2, I argued only that the claim that non-state governance raises questions of legitimacy is not incompatible with the idea that all non-state governance is in fact illegitimate. 180 This is a point of essentially unanimous agreement in liberal political theory. See, for example, Dahl (1989) 52-64, Keohane (2003), 3, Buchanan (2002), 710-7, and Chambers (2010), 894-6 on this point. Rawls makes this point by including “political rights” as part of the first principle of justice. Rawls (1973), 221-8.

   

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choosing the final outcome.181 There are two key questions once outside the realm of

pure state governance: (1) how should a requirement of democratic control be

understood in cases of non-state governance in general? and (2) what should non-state

governing actors do (or, from the point of view of democratization, what should non-

state governing actors be made to do) to achieve this? A central issue here is that, in a

political order defined by shared, emergent power, there is no single agenda or

decision-making process. While this raises questions about what it means for the

governed to control policy in a case like this, it also raises a more basic question of

how control should be understood in the first place in the absence of a single agenda

and decision-making process. In many cases involving non-state governance, the

actual set of rules people live by is not one that any governing actor decided upon or

intended at all. In Chapter 5, I discussed the case of rules for compensation for farmers

in the Niger Delta whose land is damaged by oil drilling operations, and I tried to

show that the actual set of rights farmers have over their land is best understood as the

emergent outcome of the actions of the Nigerian government and the oil companies.182

The rules people live by on this issue are the outcome of the actions of the government

and the oil companies, but we need more than this in order to determine what

democratic control can mean here.

In Chapter 1 I argued that the best way to recognize governance on a particular

issue is by asking what agents would have the power to change the rules on that issue.

A useful aspect of this prospective understanding of governance is that it helps make

sense of what control means in cases in which there is no single agenda or decision- 181 See for example Dahl (1989), 225-31. 182 This example is discussed in more detail in Chapter 5, Section 2. See also Human Rights Watch (1999), 68-74.

   

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making process. In the case of land ownership rights in the Niger Delta, both the

Nigerian government and Shell could take actions that would change the rights Niger

Delta farmers have over their land. To review, Nigeria’s 1978 land law, vesting most

ownership rights in state governments rather than individuals, generally prevents

farmers from having standing to bring legal actions against oil companies that damage

their land except in cases where the farmers can prove criminal negligence on the part

of the oil companies. The law requires oil companies to compensate state

governments, rather than individual landholders, for damages. The standard practice of

the oil companies, seeking to counter international criticism and avoid these lawsuits,

is to offer individual farmers compensation anyway in exchange for waiving even

their limited legal rights and, because the law means the farmers have few other

options, farmers generally accept this compensation, even when they consider the

amount inadequate.

Viewed retrospectively, this system did not come about as the result of any

unified decision-making process. However, when we think about governance

prospectively, it is possible to identify ways each governing actor could change the set

of rights that farmers have in this case. The Nigerian government could change its land

laws to effectively grant farmers standing to file lawsuits to recover the full value of

damaged land even in cases where they are unable to prove criminal negligence.

Separately, the oil companies could increase the amount of compensation they offer

farmers in these cases, for example by publicly committing to compensate farmers for

the full value of any damaged land.183 Although neither the government nor the oil

companies is able to directly regulate the full set of rights and obligations of Niger 183 Human Rights Watch (1999) calls on the oil companies to do this.

   

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Delta farmers, either the government or the oil companies could take actions that

would lead to significant changes in the rules people live by on this issue. This set of

possibilities offers the best way to understand and locate control over (this aspect of)

the basic structure in a case like this, absent a single agenda with a single decision-

making process. The fact that the Nigerian government and the oil companies have the

ability to change the conditions of governance means that they have control over this

system of rules.

With this understanding of control in hand, it is possible to define specifically

democratic control in non-Westphalian cases. If control of an aspect of the basic

structure is the ability to make changes to it, then democratic control is the ability of

the people governed by that aspect of the basic structure to effect these changes.184

The outcome of interest is control of their actual set of rights and obligations, but this

control happens through control of the decision-making processes of individual

governing actors. Thus if the people of the Niger Delta had the effective ability to

change the 1978 land law through legislative or constitutional revisions, then it would

make sense to say that they had (some) democratic control over the system of land

ownership rights that they live by. It would also be the case that the people of the

Niger Delta had (some) democratic control over the system of land ownership rights if

they had the ability to effect changes in Shell’s policies on the matter, although this

control would of course have to be exercised through methods other than electoral

democracy, methods that are discussed in more detail below.

184 Throughout, I assume that the concept of “the people,” or the demos, is specified in a reasonable and inclusive way that excludes, for example, young children from the decision-making process.

   

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In a system of unified Westphalian governance, the power to make changes to

rules rests with the state, and thus it is clear what decision-making process the people

governed by that state would need to control for democracy to be achieved.

Habermas’s image of democratization as the siege of a castle illustrates this point.

There is no question of where the power in society is; it is inside the castle. The key

question is how the people outside the castle can take control of it.185 In a context of

non-state governance, it is first necessary to find out where the relevant power⎯the

ability to change rights and obligations⎯is to be found. Thus in order to determine

how the people governed by a particular rule could have democratic control over that

rule, we must first ask the empirical question of what would need to happen for the

effective rule to change.

This will often be a difficult question and not one with a general answer, but in

individual cases it is answerable. Democratic control of the basic structure is thus in

principle possible even in cases where there is no single decision-making process by

which the rules of the basic structure are made and unmade, and this democratic

control can be, if sufficiently robust, a source of legitimacy, a justification of the

power structure to the governed. How much democratic control should be required for

legitimacy? As I said at the outset, there should be both room for debate within liberal

political theory on this point and potentially different answers depending on the

situation, but I propose this minimal test as a boundary of pluralism on this point:

185 Habermas (1996), 486. See also Fraser (2007) on this point.

   

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A basic structure has democratic legitimacy to the extent that, should a

majority of the people governed by it consistently want to make a change to it, they

are able to make this change.186

This is, it should be clear, a familiar definition of democracy; a power structure

that failed this test would be one wholly out of reach of the governed.187 What I have

tried to show here is that there is still a way to make sense of this familiar definition in

the absence of a single unified decision-making process. It is possible for this standard

to be met in cases of non-state governance, and so if it is not met, there is a failure of

democratic legitimacy, a failure that could be remedied within the realm of non-state

governance.

How then can the decision-making processes of non-state actors be made

responsive to people governed by them? Democratic decision-making processes,

including an open agenda, deliberation, and a principle of majority rule, are all

available to actors other than the state. Dahl (1989) points out that his theory of the

democratic process could be applied to any “association” with a decision-making

process.188 A significant literature, for example, has examined how firms can be run

democratically rather than hierarchically.189 Even organizations meeting these goals

are, however, typically only internally democratic. If even a democratically run firm

186 This formulation, of course, depends on an acceptance of the principle of majority rule, which I cannot defend here. 187 See Rawls (1973), 222: “[I]n due course a firm majority of the electorate is able to achieve its aims, by constitutional amendment if necessary.” The version of the principle I suggest here could perhaps be called the “all-governed principle,” in contradistinction to the “all-affected principle,” which says that anyone (strongly) affected by a decision has a claim to participate in the decision-making process for that decision. See Goodin (2007) on the all-affected principle. 188 Dahl (1989), 107. 189 See, for example, Dahl (1985), Hansmann (1990), and Dow (2003). Ferreras and Landemore (2012) defend the analogy between the state and the firm, with the implication that requirements of democratic control on states should also apply to firms.

   

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governs people outside the firm, some form of what Keohane (2003) calls “external

accountability” to the people who are governed would be needed to establish

democratic control.190 Grant and Keohane (2005) examine different kinds of external

accountability possible for non-state actors and include, for example, “public

reputational accountability,” in which an organization is responsive to the demands or

judgments of other groups or organizations.191 A governing actor could be accountable

in this way to groups made up of the people it governs, offering a potential route to

democratic control. In the development field, where, as Chapter 3 showed, non-state

governance is common, many organizations have at least accepted the idea that the

people affected by their development projects ought to be involved in the decision-

making processes.192

It is undoubtedly difficult to achieve this level of control of non-state

governing actors, which generally have their own particular interests and very often

resist accountability to people outside (or even inside) their own organizations. It

should be noted, however, that this understanding of democratic control does not

necessarily require the democratization of every single governing actor in a particular

case. In the case of changing the system of compensation for land damaged by oil

drilling in the Niger Delta, if it is right that democratic control of either the policies of

the formal government or the oil companies would allow the residents of the Delta to

make changes to these rules overall, then it will suffice for democratic control to be

190 Keohane (2003), 15. 191 Grant and Keohane (2005), 36. See also Koenig-Archibugi (2004) and Gugerty and Prakash (2010) on non-electoral forms of accountability. 192 This has been driven in part by evidence that this leads to better outcomes for the project. See World Bank (2010).

   

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established of one of them.193 To take another example, the idea of corporatist

democracy is for major economic decisions at the level of the society to be made in

part through a consensus of a number of “peak organizations” like large labor unions.

Each peak organization is, even in the ideal model, only internally democratic, but if

all citizens belong to one of the peak organizations, then this would not be a

problem.194 It is worth noting that this is not far from a common-sense understanding

of how democracy works in the context of state governance. States are composed of a

large number of institutions and agencies, and, even in what is uncontroversially a

democratic political order, the governed do not have equally direct control over all of

them. Rather, our common sense understanding of democracy is that enough

democratic control of the right institutions within the political order means that the

entire system has democratic legitimacy. The question of which are the “right

institutions” is debatable and varies by context, but the interrelationships between the

different institutions mean that direct democratic control over each one is not

necessary. In a case of shared governance, democratic control of the decision-making

process of any one of the governing actors will offer some degree of democratic

control, and then the question becomes which would be the most effective to pursue.

Thus residents of the Niger Delta seeking to achieve democratic control over their

system of land rights could pursue either the ability to change or repeal the

government’s 1978 land law or could seek, perhaps working alongside outside

activists, influence over the oil companies’ policies on the issue. The question of

193 There may also be cases where a particular change to the basic structure could only be made through actions of multiple governing actors. If so, control of each of these by the demos would be necessary for this aspect of the basic structure to be democratically controlled. 194 See Lijphardt and Crepaz (1991) and Molina and Rhodes (2002) for overviews of this model of democracy.

   

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which avenue to pursue, or whether to pursue both, is a practical, political question,

not, fundamentally a theoretical one. However, having a theoretical understanding of

democratic control in this case that makes both avenues visible⎯from the

Westphalian point of view the only route to democratization would be to reform the

state⎯is an important advance that can help inform the practical question of how to

proceed.

6.3 Rights protection

No liberal political theory could accept as legitimate a political order in which

certain basic rights are not protected. Along with “political rights” to democracy as

part of the first principle of justice, Rawls identifies these basic rights as including

“freedom of speech and assembly; liberty of conscience and freedom of through;

freedom of the person along with the right to hold (personal) property; and freedom

from arbitrary arrest and seizure as defined by the concept of the rule of law.”195 There

is of course nothing unique to Rawls about either the idea of rights in general or this

particular set of key basic rights.196 The question I want to address here is whether

there is a convincing way that rights, and guarantees of rights, can be understood in

the context of non-Westphalian governance. If not, then rights-based legitimacy, and

perhaps legitimacy over all, would be out of reach. This is a difficult question because

the primary way rights have been protected in Westphalian cases⎯constitutional

195 Rawls (1973), 61. 196 See, among many others, Scanlon (1977), Dworkin (1984), Sumner (1987), and Tierney (1997).

   

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guarantees⎯is unavailable to non-Westphalian power structures.197 The goal of this

section is to show both that there is a coherent way to understand the idea of rights

apart from constitutional guarantees and that there are plausible ways these rights can

be guaranteed to people.

Non-Westphalian power structures are often cases in which there is no

formalized (either written or unwritten) definition of the law. Individual governing

actors of course have formal sets of policies, but when governance is shared, there is

generally no such formal set of policies for the basic structure as a whole. I argued in

Chapters 2 and 3 that, in order to make the rights and obligations of non-state

governance visible, a theory of legitimacy must investigate not just formal laws and

policies but rather the restrictions and opportunities people actually face in their lives.

In this context, rights are most simply interpreted as abilities with reference to

consequences. A person has the right to free speech to the extent that she is able to

speak freely without the risk of arrest, harassment, or other punishment. People have

the right to practice their religion to the extent that they are able to practice their

religion without similar fear of punishment. This is a standard definition of what it

means to have a right. It is consonant with, for example, Rawls’s (1973) statement that

“liberty can always be explained by a reference to three items: the agents who are free,

the restrictions or limitations which they are free from, and what it is that they are free

to do or not to do.”198 My goal here is to develop a definition of having a right that

does not rely as part of its definition upon there being a unified governing structure

197 See Dworkin (1977) and Barber (2010). See also Beetham (1989) on the demands for a written Bill of Rights in the United Kingdom made by the Charter 88 movement. 198 Rawls (1973), 202.

   

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that defines these rights and, conversely, accepts the possibility that restrictions on

people’s rights can come from sources other than a government.

Thus in contrast, Rawls points out that, when asking what liberties people

have, he is interested primarily in their being free from a specific kind of obstacle:

“constitutional and legal restrictions.”199 He does not focus in this context on whether

people are free from other kinds of obstacles. Based on the definition of governance I

have been working with throughout the project, my focus here will be on what people

are at liberty to do free from the obstacle of independent, binding rules to the contrary.

Rules backed by coercion and enforced by a state government (that is, constitutional

and legal restrictions) are one kind of binding rules, but, as was discussed earlier in the

project, there are others as well. Threats of ostracism, moral pressure, conditions

economic activities, aid, or exchanges in which one party has few other options, and

the threat of real but dispersed and informal coercion can also make rules binding.200

What unites these is that binding rules create the reasonable expectation that there will

be systematic and serious consequences for noncompliance.201 Non-state actors can

enforce binding rules through any of these methods as well as through more ordinary

organized coercion. As has already been discussed, my definition of governance here

refers to independent binding rules, meaning rules that are made in a way not

constrained by other rules. Thus when an employer establishes rules for its employees

199 Rawls (1973), 202. 200 Mill (1859) argues that social pressure can be just as significant as formal state-enforced rules. Dahl (1989) also mentions “an expectation of divine or magical sanctions” as a way rules can be made binding, p. 107. Wolf (2006) makes the point that, even in the Westphalian understanding of governance, states routinely influence each other through means other than armed coercion, p. 213. See also Milgrom, North, and Weingast’s (1990) discussion of the Law Merchant, the Medieval system of rules governing interactions among dispersed traders, which relied for enforcement on individual merchants’ concern for their reputations. 201 Rules in this sense should also be distinguished from the conditions of freely accepted contracts, which may also impose penalties for noncompliance.

   

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that the employees must follow as a condition of remaining employed there, these

rules are not independent if, as is often the case, these rules are circumscribed by state

labor laws.202 The content of the policies is limited, and someone with a complaint

about a company’s policies can appeal to state authorities. Independent governing

power is power that is not limited in this way. The set of binding rules that a particular

person faces, seen as obstacles to doing particular things, will often overlap with

“constitutional and legal restrictions,” but not always. For example, in a country with

very weak state institutions, a particular legal prohibition may not be binding because

it is not enforced. Conversely, people may lack a right which their state’s laws and

constitution formally grants them, because another governing actor prevents its free

exercise.203

It is then possible to say, in a way that accommodates non-state power, that a

person has a right to do something if she is able to do it without violating (and risking

the consequences for violating) independent, binding rules. If this is what it means to

have a right, however, what does it mean for that right to be guaranteed? There is a

difference, important for judgments of legitimacy, between simply having a right and

having that right guaranteed. To say that a right is guaranteed typically means that,

while there is now no obstacle to people’s exercising that right, there is also some

mechanism preventing a (specified kind of) obstacle from arising. In order for rights to

serve as a source of legitimacy for a political order, these rights must be guaranteed in 202 See Chapter 2. There are, of course, cases in which, for a variety of reasons, including the lack of real alternatives, employment with a particular firm may not be meaningfully voluntary and thus would be binding in the relevant sense. An employee has to follow the rules as a condition of continuing to work there, but he also the option of leaving the job. Buchanan (2002), 690 discusses this point with reference to prisons and mental hospitals. An example of this kind is discussed in more detail below. 203 It is sometimes the case that people are unable to exercise a right that their country’s constitution formally grants because another branch of the government prevents it, as when southern states prevented African-Americans from exercising their formally guaranteed right to vote.

   

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some strong way. When rights are guaranteed, people are able to plan their lives

assuming that they will continue to enjoy them, without having to take into account

the possibility that these rights could, like other laws and policies, be subject to

revision. Moreover, many rights⎯to free speech, association, and opinion, and so

on⎯are often specifically used to critique the existing power structure. For a

governing authority to credibly promise to respect rights even when they are used to

criticize or protest it, its hands must in some way be tied. Otherwise, a threat of

revoking rights used too exuberantly would be at least implicit. Rawls’s formulation of

the importance of guarantees for basic rights is that “Not only must it be permissible

for individuals to do or not to do something [for it to count as a guaranteed right], but

government and other persons must have a legal duty not to obstruct…”204 The legal

duty not to obstruct⎯as opposed to the mere absence of obstruction⎯is crucial here.

In practice in Westphalian cases, the difference between having a right and

having a right guaranteed is the difference between being able to do something

because it is not prohibited and being able to something because it is a right

specifically guaranteed by the constitution. Typically this means that it would be very

difficult for either the demos or its representatives to pass a law banning that action.

Constitutions can be amended, but the requirements, in terms of procedural hurdles,

supermajority approval, and potential veto points, for doing so, particularly to take

away previously guaranteed rights, are in general very demanding.

Without the option of constitutional provisions, is there a way guarantees of

rights can be understood in non-Westphalian cases? The idea of looking at nearby

204 Rawls (1973), 203.

   

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possible policies, discussed in the last section, offers a way to understand what a

guarantee would mean in these cases. In general, we can say that a right to X is

guaranteed when a person has the ability to X free from the obstacle of binding rules

and there is no nearby possible policy in which a binding rule against X is created. In

other words, there is something preventing a binding rule against X from being

created. This will inevitably be institutionalized differently in different contexts, and

the second part of this section will describe some real examples of this. What I have

tried to show so far is that guarantees of rights are, in the absence of a unified

constitutional system, still a coherent idea. Based on this definition, a minimal ground

for rights-based legitimacy in non-Westphalian cases can be developed:

A basic structure is legitimate if the people governed by it have, and are

guaranteed, a set of equal basic rights, free from binding rules to the contrary.

The question of exactly what basic rights are most important, and necessary for

this requirement to be met, is one on which there should be room to disagree within

the boundaries of the liberal pluralism discussed above. Rawls’s list, “freedom of

speech and assembly; liberty of conscience and freedom of thought; freedom of the

person along with the right to hold (personal) property; and freedom from arbitrary

arrest and seizure” is a useful starting point.205 Rawls’s Liberty Principle proposes that

a fully just basic structure is one that guarantees to each person the maximal scheme of

basic liberties compatible with similar basic liberties for all other people.206 That

would likely include more rights than are included in this list. The modest list of rights

cited here is perhaps best interpreted as the rights which, under any almost any

205 Rawls (1973), 61. 206 Rawls (1973), 250.

   

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conceivable circumstances, all people could be equally guaranteed and which there

could therefore not be a reasonable justification for denying.

There are already some non-state mechanisms for guaranteeing rights. The

Universal Declaration of Human Rights, adopted by the United Nations General

Assembly in 1948 and ratified by all United Nations members, is an attempt to prevent

states from denying their citizens certain basic rights. All states have (written or

unwritten) constitutions, almost all of which purport to enumerate the rights that

people subject to that state have. The UDHR is explicitly meant to be an obstacle to

countries making rules, even in their constitutions, abrogating the rights laid out in the

Declaration. To the extent that the UDHR really does limit the power of state

actors⎯and there are costs in terms of international condemnation to states that do not

comply⎯it can be understood as mechanism for guaranteeing these rights above and

beyond national guarantees. 207 A guarantee of a particular right can be thought of as a

stable equilibrium in which no governing actor is able to make a change that would

prevent people from enjoying that right, and this of course also means that a guarantee

of rights is a check against even democratically controlled governing actors taking

away that right.

My goal here has been to show that, even in the absence of a constitutional

system, there is a coherent way to understand both rights themselves and guarantees of

rights. I have not tried to settle the question of what basic rights should be strict

requirements for legitimacy. However, showing that it is possible for rights, any

207 See Hannum (1995), Risse and Sikkink (1999), and Lebovic and Voeten (2006) for analyses of the ways the UDHR (sometimes) constrains state behavior. In general, however, weak states are constrained much more than strong ones. For more general analyses of the way international agreements constrain the effective abilities of states to make laws, see Goodman and Jinks (2003) and (2004).

   

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rights, to be guaranteed in cases of non-Westphalian governance clears the way for

this question to be asked. We can ask what rights are necessary for legitimacy without

the concern that, if non-state actors are involved in governance, particular rights⎯or

rights in general⎯are out of reach. It should also be clear that, in many cases of non-

state governance, people lack even the most basic rights, or if they have them they are

not guaranteed. Residents of the Niger Delta lack many basic political and civil rights.

I have tried to show, however, that when this is the case, the problem is not the fact of

non-state governance itself. Constraints on the ability of the oil companies to make

policies that do not respect basic rights of the residents of the Delta could include

pressure from governments in their home countries, consumers, or shareholders, or

international agreements that apply directly to corporations.208 Non-state governing

actors, and the basic structures in which they participate, can be targeted for

improvements on rights, just as they can be targets for democratization.209

6.4 Distribution and equality

Another way to judge the legitimacy of governance is to evaluate the way a

particular set of rules shapes the distribution of primary goods in a society.210 As

208 See Human Rights Watch (1999), 21-5, La Mure and Spar (2003), and Graham and Woods (2006) on the potential promise of this kind of pressure. 209 In Marsh v. Alabama (1946), the United States Supreme Court ruled that Gulf Oil, which owned a “company town” outside Mobile, Alabama, had to allow religious literature to be distributed on its streets and sidewalks, even though these streets and sidewalks were the company’s private property. One way to describe the principle this ruling established was that, by building and running a town, Gulf Oil took on powers over the inhabitants that brought with them the obligation to abide by guarantees of rights that otherwise constrain only state institutions. Ordinary homeowners are, for example, under no obligation to allow religious literature to be distributed in their backyards, but Gulf Oil’s property was, the Court ruled, the “functional equivalent of a municipality” and thus no longer fully private. Siegel (1997), 471. 210 Rawls defines primary goods as the things that people want regardless of whatever else they want and what kind of vision they have for the good life. These include food, shelter, income, and health. See Rawls (1973), 62.

   

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Rawls emphasizes, the basic structure affects the distribution of goods in a “profound

and pervasive” way; it shapes what distributions are possible, even conceivable for

members of the society.211 When non-state actors participate in governance, one way

to judge the legitimacy of this power is, as with Westphalian governance, through the

way this power shapes the distribution of goods, and I argued in Chapter 2 that it is

both possible and desirable to do this without collapsing the concept of governance

into everything that influences the conditions of people’s lives.

In each of the cases of non-state governance I have discussed in this project,

including governance by Shell and other oil companies in the Niger Delta, aid

agencies becoming governing actors through the provision of vital services in

countries with weak state institutions, and the outsourcing of government functions in

developed countries, the rule-making power of the non-state actors has exactly the

kind of profound and pervasive effects on the distribution of primary goods Rawls

identifies. These effects should be evaluated the same way we would evaluate a

Westphalian basic structure’s influence on the society’s distribution of primary goods.

This section looks first at Rawls’s Difference Principle, one way of making this

evaluation, and then considers the question more generally.

Rawls argues that a fully just society is one in which laws and policies are

arranged so that inequalities are to the maximum benefit of the least-advantaged.212

The Difference Principle can, in its original form, be used to evaluate a non-

Westphalian basic structure.213 Applying the Difference Principle means making

211 Rawls (1973), 96. 212 Rawls (1973), 302. 213 Theorists urging that the Difference Principle be applied to the “global economic order” are, for instance, pushing in this direction. See Pogge (2008), 13-18.

   

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comparisons to other possible policy alternatives, with conditions of full equality

treated as a baseline for comparison. The idea is to ask whether particular inequalities

in a society could be removed or mitigated in ways that would help, or at least not

harm, the least-advantaged members of society. If removing the inequalities would

actually harm the least-advantaged, then this justifies the inequalities to the least-

advantaged members of society and, by extension, to the other members of society as

well. If, in contrast, there is a policy change that could be made that would reduce a

particular form of inequality without harming the least-advantaged people, then this

particular form of inequality is, according to the Difference Principle, unjustifiable to

the least advantaged and, therefore, to the parties to the original position situated

behind the veil of ignorance.214

The case of policies relating to greenhouse gas emissions is a useful example. I

argued in Chapter 3 that it makes sense to think of people around the world as

governed, on issues relating to greenhouse gas emissions and climate change, in part

by their own country’s rules and in part by the global system of rights and obligations.

Applying the Difference Principle to this case would mean asking whether there is a

justification for inequalities in the distribution of primary goods caused by the global

greenhouse gas emissions regime (as it interacts with each country’s set of rules) that

could be endorsed by the worst-off people. Chapter 3 discussed how the people of the

Maldives are, arguably, some of the ones made worst-off by the current global

greenhouse gas emissions regime, because the current system will very likely render

their country uninhabitable by the end of the century. Inhabitants of other, better-off

countries not only benefit from the inequalities in the current system in the present but, 214 Rawls (1973), 136-42.

   

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in at least some cases, may even benefit from future climate change. These profound

and pervasive inequalities inherent in the current system of rules on greenhouse gas

emissions⎯that some people end up shouldering, without compensation, large

burdens due to economic activities elsewhere⎯cannot be justified to the worst-off,

because other nearby possible policies, such as the cap and trade system discussed

earlier, would both reduce inequality and benefit the worst-off. It is the availability of

this other policy, one that could be chosen but has not been, that makes the current

system fail the test of the Difference Principle.

Applying the Difference Principle in the Niger Delta, we can ask whether there

are changes to the system of land rights that could benefit the least well-off. The least

well-off people are, it seems fair to say, farmers whose land is damaged by oil drilling

and are then pressured into accepting less than the fair value of the land in

compensation from the oil companies. As was discussed in the previous two sections,

there are numerous ways this rule system could be changed that would benefit the

Delta residents. To take only the most obvious example, Shell and the other oil

companies could commit to compensating farmers whose land is damaged for the full

value of the land. For the current system to meet the requirement established by the

Difference Principle, it would have to be shown that changing the system in this way

would somehow harm the least well-off people. Assuming this cannot be shown, the

current system would fail to meet this requirement. In general, applying the Difference

Principle to shared governance would mean asking if there is a policy change that any

of the governing actors could make, alone or in concert, that would reduce inequalities

without harming the least advantaged members of society. A “perfectly just scheme”

   

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would, in Rawls’s view, be one in which the answer is a definitive no, in which a

policy move in any direction would be a loss for the least-advantaged.215

I do not assume that it has been settled (here or elsewhere) that the Difference

Principle is the best measure of distributive justice. My goal has been, rather, to use it

to show several things. First, the fact that it is possible to apply the Difference

Principle to non-Westphalian cases shows that in general there is no conceptual barrier

to applying liberal principles of distribution to cases involving non-state governance.

Second, using any principle to evaluate the distributive impacts of non-state

governance would be a major change from what is now widely accepted practice. If

citizens of the Maldives made the critique of the global greenhouse gas emission

system discussed above, the first response of the large nations would likely be, not that

the criticism is incorrect but that it is misplaced and inapplicable because the

Maldivians are not their citizens.216 If the residents of the Niger Delta made the

critique discussed here, Shell would likely also respond that the criticism is misplaced,

because Shell is a private actor and not the kind of agent (a state) whose actions

should rightly be evaluated according to their impact on the distribution of primary

goods. My core argument here, that it is the power of governance itself, not any other

feature of the relationship between governors and the governed, that establishes the

applicability of questions of public justification, blocks both of these responses. There

should be, again, a fairly wide variety of principles on which to evaluate the

distributive impact of non-state governance that all, from a liberal point of view, meet

215 Rawls (1973), 78. 216 The idea of political legitimacy is, of course, not the only resource political theory has to critique current world greenhouse gas policies; these policies can also be described as exploiting people in climate-vulnerable countries, or as unfairly disregarding the interests of future people, critiques that are already agreed to apply to agents other than states. See, for example, Broome (2012).

   

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the requirement of establishing legitimacy. If a system of power is to be legitimate,

however, there must be some distributive principle, and it must apply to non-state

governing actors. To take an extreme contrary case, a mugger offers no justification,

distributive or otherwise, to his victim of his “rule” that the victim must either give up

his valuables or be killed. A claim that legitimacy requires that there be some

justification for impact on the distribution of primary goods that applies to non-state

governing actors sounds extremely minimal, but, as I showed above with the Niger

Delta and Maldives cases, it would be a substantial step beyond where we are today.

There is today for the most part no recognition that any justification for the impacts of

governance on distribution is needed outside of state governance.

6.5 Comparing basic structures within the same society

In the previous chapter, I proposed the idea of a two-stage original position to

account for the fact that, in cases of non-state governance, a society will often have

more than one basic structure. The concept of legitimacy proposed in that chapter

therefore had two parts: power is legitimately exercised over a particular person if (1)

there is a justification for her particular basic structure that she can reasonably be

expected to endorse, and (2) there is a justification for the division of her society into

smaller groups with their own basic structures that she can reasonably be expected to

endorse. This chapter has discussed three ways that the first part of this question can

be answered, three types of potential justifications for basic structures: democratic

   

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control, protection of basic rights, and limits on inequality. This section addresses the

second part of the concept of legitimacy, the question of whether a person can be

reasonably expected to endorse the division of her society into smaller groups with

their own basic structures.

To review the argument of the last chapter, this second part is necessary

because, on the one hand, cases in which non-state actors participate in governance are

very often cases in which we cannot meaningfully describe a society’s system of

governance as fitting together into a single system with a single scheme of rights and

obligations, but, on the other hand, the society is still a group that plays an important

role in people’s lives. As was discussed in the previous chapter, comparisons within

this group are therefore important in a way that comparisons across its borders are not,

and the use of a second original position, to ask whether inequalities within the society

are acceptable, is meant to take this into account. Each of the three sources of

legitimacy discussed earlier in this chapter can also apply to society-wide

comparisons. Consider the protection of rights first. In order to be legitimate, a basic

structure must guarantee equal basic rights for the people governed by it. If it does not,

there is no way someone situated in the original position could accept the basic

structure. Addressing society-wide comparisons, someone in the original position

could accept the division of his society into smaller groups with their own basic

structures only if each basic structure guarantees roughly equal basic rights. In the

case of Nigeria, one part of the country, the Niger Delta, is governed by the oil

companies and the government together, while the rest of the country is governed by

the Nigerian government alone. Thus even if all the people of the country make up one

   

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society in the sense of the roles they play in each other’s lives, there are two basic

structures. If we accept that a person can only be expected to endorse her basic

structure if it guarantees certain equal basic rights to all people, then we can only

expect her to endorse the division of her society into (in this case) two basic structures

if each basic structure guarantees a similar set of rights. If, for example, the residents

of the Niger Delta enjoyed significantly more or better protected rights, compared with

people in the rest of Nigeria, there would be no way this division could be justified to

the second group, even if each group, considered on its own, were guaranteed equal

rights. In terms of the original position, we could say in this case that someone who

did not know which of the groups she would belong to would be unable to accept the

overall system because of the disparity in rights.

Rights-based legitimacy, then, requires that each basic structure within the

society guarantee a roughly similar set of rights. Because the two groups are governed

differently, however, basic rights can be guaranteed to each in different ways. For

example, for people outside the Delta, who are governed only by the state, guarantees

of rights in the constitution may be sufficient. For residents of the Delta, living under

shared governance, some method of constraining the actions of the oil companies is

also necessary for rights to be guaranteed. Again, the comparison between the rights of

people in the two groups within Nigeria matters in a way that comparisons between

people in Nigeria and people in, say, Cameroon do not, if it is the case that all the

people of Nigeria form one society in the relevant sense. This is, as I emphasized in

the previous chapter, an empirical question, and I assume an answer to it here only to

explain the idea.

   

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The other ways of evaluating legitimacy discussed here can similarly be

extended to the level of the society. To the extent that inequalities in the distribution of

primary goods among people who share a basic structure must be, according to the

Difference Principle, justified with reference to their impact on the least-advantaged

person, inequalities throughout a society must be similarly justified, even if the society

contains more than one basic structure. Similarly, if the requirement of democratic

legitimacy means that people subject to a particular set of rules and obligations be able

to make changes to these, then, considered at the level of the society, the requirement

would mean the ability to make changes to the system of power that characterizes the

society as a whole, including, arguably, the division of the society into multiple groups

with their own basic structures in the first place.217

6.6 Conclusion: the goals of a theory of legitimacy

This chapter has tried to show some boundaries of pluralism about legitimacy,

to identify some key features that all plausible liberal conceptions of legitimacy must

share. The three features of governance I identified here as sources of

legitimacy⎯democratic control, protection of basic rights, and limits on inequality, all

flow from core liberal values. I have tried to show that there is a coherent way each

can be understood in the novel context of non-Westphalian governance. For each one,

important questions are, intentionally, left open: how much democratic control is

necessary for legitimacy? Exactly which rights are the most important to protect? Is

217 This is a version of the “boundary problem,” the question of, even once we accept the principle of democratic control, whether and to what extent people should be able to determine the unit of governance of which they are a member. Dahl (1989) argues that there is no general or abstract way to answer the question of what boundaries of political units are best and that an answer can only be found by going “deep into the realm of practical judgment,” p. 207.

   

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the Difference Principle the right answer to the question of how much inequality is

compatible with legitimacy? For each of these questions, there is a range of possible

answers consonant with basic liberal values. A theory of legitimacy as I understand it

here is not meant to provide definitive answers. It is rather meant to provide a

framework within which to debate these very questions. It is only possible to debate

what basic rights are necessary for legitimacy in cases of non-state governance if we

have in hand a coherent idea of what it means for rights to be guaranteed in this

context, and the same point applies to democratic control and limits on inequality.

I have not included among the sources of legitimacy discussed here the

efficacy of the governance structure in question in achieving the substantive goals of

members of society, the maintenance of stability and order, economic growth,

progress in science and culture, and so on, even though one of the core question of

governance is, after all, how a society can best achieve these goals. In designing and

redesigning our societies’ systems of governance, we ask the following question: with

the proviso that only legitimate governance is acceptable, what type of governance is

the best way of achieving our substantive goals in a particular case? Legitimacy is a

side constraint on the ongoing question of what sort of governance a society should

use. My goal in this chapter, and this project more generally, has been to offer new

insights into how this side constraint should be interpreted in cases of non-state

governance. I have tried to show in this chapter that this side constraint does not rule

out non-state governance altogether and that therefore some forms of non-state

governance should be on the table when societies debate how best to achieve their

substantive goals.

   

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689-719.

Chambers, Simone. 2010. “Theories of Political Justification.” Philosophy Compass: 5:11, pp. 893-903. Dahl, Robert. 1985. A Preface to Economic Democracy. Berkeley: University of California Press. Dahl, Robert. 1989. Democracy and its Critics. New Haven: Yale University Press. De Bres, Helena. 2012. “The Many, Not the Few: Pluralism about Global Distributive Justice.” Journal of Political Philosophy, 20:3, pp. 314-340. Dow, Gregory. 2003. Governing the Firm: Workers’ Control in Theory and Practice. Cambridge: Cambridge University Press. Dworkin, Ronald. 1977. Taking Rights Seriously. London: New Impression. Dworkin, Ronald. 1984. “Rights as Trumps,” in Waldron, Jeremey, ed. 1984. Theories of Rights. Oxford: Oxford University Press. Ferreras, Isabelle and Helene Landemore. 2012. “Toward a Justification of the Analogy Firm/State.” Presentation at American Political Science Association Conference. Fraser, Nancy. 2007. “Transnationalizing the Public Sphere.” Theory, Culture &

Society. Vol. 24(4): 7–30. Goodin, Robert. 2007. “Enfranchising All Affected Interests, and its Alternatives.” Philosophy and Public Affairs: 35:1, pp. 40-68. Goodman, Ryan and Derek Jinks. 2003. “Measuring the Effects of Human Rights Treaties.” European Journal of International Law: 14:1, pp. 171-83.

   

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Goodman, Ryan and Derek Jinks. 2004. “How to Influence States.” Duke Law Journal: 54, pp. 621-703. Graham, David and Ngaire Woods. 2006. “Making Corporate Self-Regulation Effective in Developing Countries.” World Development: 34:5, pp. 868-83. Grant, Ruth and Robert Keohane. 2005. “Accountability and Abuses of Power in

World Politics.” American Political Science Review. 99:1, 29-43. Gugerty, Mary Kay and Aseem Prakash, eds., 2010. NGO Accountability Clubs: Self-Regluation in the Nongovernmental and Nonprofit Sectors. Cambridge: Cambridge University Press. Habermas, Jürgen. 1996. Between Facts and Norms. Trans. William Rehg. Cambridge: MIT Press. Hansmann, Henry. 1990. “When Does Worker Ownership Work? ESOPS, Law Firms, Codetermination, and Economic Democracy.” The Yale Law Journal: 99:8, pp. 1749- 1816. Hannum, Hurst. 1995. “The Status of the Universal Declaration of Human Rights in National and International Law.” Georgia Journal of International and Comparative Law: 25, 287-397. Human Rights Watch. 1999. “The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities.” http://www.hrw.org/reports/1999/nigeria/nigeria0199.pdf. Keohane, Robert. 2003. “Global Governance and Democratic Accountability,” in

David Held and Mathias Koenig-Archibugi, eds., Taming Globalization: Frontiers of Governance. Cambridge: Policy Press, pp. 130-57.

Koenig-Archibugi, Mathias. 2004. “Transnational Corporations and Public Accountability.” Government and Opposition: 39:2, pp. 234-59. La Mure, Lane and Debra Spar. 2003. “The Power of Activism: Assessing the Impact of NGOs on Global Business.” California Management Review: 45:3, pp. 77-101. Lebovic, James and Eric Voeten. 2006. “The Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR.” International Studies Quarterly: 50:4, pp. 861- 88. Mill, John Stuart. 1859. On Liberty. [2003] Eds. David Bromwich and George Kateb. Binghamton: Vail-Bayou Press.

   

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Molina, Oscar and Martin Rhodes. 2002. “Corporatism: The Past, Present, and Future of a Concept.” Annual Review of Political Science: 5, 305-51. Lijphardt, Arend and Markus Crepaz. 1991. “Corporatism and Consensus Democracy in Eighteen Countries: Empirical and Conceptual Linkages.” British Journal of Political Science: 21:2, 235-46. Milgrom, Paul, Douglass North, and Barry Weingast. 1990. “The Role of Institutions

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Pogge, Thomas. 2008. World Poverty and Human Rights. Cambridge: Polity Press. Rawls, John. 1973. A Theory of Justice. Cambridge: Belknap Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Risse, Thomas and Katherine Sikkink. 1999. “The Socialization of International Human Rights Norms into Domestic Practices: Introduction,” in The Power of Human Rights. Eds. Thomas Risse, Stephen Ropp, and Katherine Sikkink. Cambridge: Cambridge University Press. Scanlon, Thomas. 1977. “Rights, Goals, and Fairness,” in Waldron, Jeremey, ed. 1984. Theories of Rights. Oxford: Oxford University Press. Siegel, Steven. 1997. “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama.” William and Mary Bill of Rights Journal: 6:2, 461-563. Sumner, L. W. 1987. The Moral Foundation of Rights. Oxford: Oxford University Press. Tierney, Brian. 1997. The Idea of Natural Rights. Atlanta: Scholars Press. Wolf, Klaus Dieter. 2006. “Private Actors and the Legitimacy of Governance Beyond the State,” in Governance and Democratic Legitimacy: Transnational, European, and Multi-Level Issues. Eds. Benz, Arthur and Ioannis Papadopoulos. London: Routledge, pp. 200-227. World Bank. 2010. “Participation and Civic Engagement.” http://go.worldbank.org/FMRAMWVYV0.

   

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Chapter 7: Conclusion: the uses of a theory of legitimacy

7.1 Introduction

In the previous chapter, I discussed three possible sources of legitimacy for

governance: democratic control, guarantees of basic rights, and limits on inequality.

Any plausible liberal justification of power to the governed must include some

element of each. My main goal in the previous chapter was to show that there is a

coherent way to understand each of these in the context of non-Westphalian

governance. None is exclusive to, or, for that matter, intrinsic to, state governance. If

this is right, then it means that, whatever liberal conception of legitimacy we adopt for

a particular case, legitimacy should not be thought of as prima facie limited to state

governance, and legitimate governance involving non-state actors is, at the very

minimum, possible in principle.

This is an interesting result in its own right, but the claim of course was not

that all, or even most, actual non-state governance should be considered legitimate.

Whichever of the many plausible liberal conceptions of legitimacy one adopts, there is

surely much illegitimate non-state governance. Indeed the example I have discussed

most here, the involvement of oil companies in governance in the Niger Delta, is

deeply problematic from the perspective of each of the sources of legitimacy discussed

here. These are, however, exactly the cases where my claim that it is possible for non-

state governance to be legitimate becomes most useful. If legitimate non-state

governance were after all impossible, then the right response to systems of illegitimate

non-state governance would surely be to transform them into systems of state

governance or, perhaps as a fallback option, systems of non-state governance that

   

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mimic some of the salient features of states, such as electoral accountability.218

Instead, if my claim here is right, then it is possible to make currently illegitimate

structures of non-state governance legitimate without necessarily having to transform

them into entirely different kinds of governance. It is here that a theory of legitimacy,

and our ways of evaluating the legitimacy of different governing arrangements, can be

most useful.

These institutional improvements are of course practical tasks, but the goal of

this project has been to make a theoretical contribution to them. As has been discussed

earlier in the project, legitimacy, the idea that political power ought to be based on

principles reasonably endorsable by the governed⎯Rawls’s liberal principle of

legitimacy that I have sought here to adapt for non-state governance⎯sets a goal

much less specific, and demanding, than that of a maximally just society.219 It is this

threshold at which the moral claims of governing actors to the allegiance of the

governed start to seem compelling, at which governance is no longer mere brute

power.220 My ambition here has been to make a contribution to our understanding of

this threshold in what I have argued is a previously overlooked set of circumstances:

cases where non-state actors participate in governance. A clearer sense of what

legitimate non-state governance looks like is useful for specifying what the problem is

even in cases where it seems intuitively right to say that the threshold of legitimacy is

not met and also helps define what the goal for reform is in these cases. I argued

earlier in this project that a claim that non-state governance is illegitimate simply

218 For example, Falk and Strauss (2000) discuss the idea of a democratically chosen “Global People’s Assembly” to regulate world affairs, although they admit that this is probably unworkable. 219 On this point see Simmons (1999). 220 Rawls (1973) makes this point in his discussion of civil disobedience, 350-5.

   

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because it is non-state governance is normatively unconvincing. That claim is also

practically unhelpful. When we critique, for example, Shell’s governance in the Niger

Delta, it is important to the goal of improving the situation that we are able to say

more about why Shell’s actions are illegitimate than that it is not a government.

Each of the sources of legitimacy I have discussed here is simultaneously a

way of critiquing non-state governance and a way of developing an agenda for reform.

We can use them, for example, to make three critiques of the basic structure of the

Niger Delta and, separately, to develop three possible ways to improve it, based on,

respectively, democratic control, protection of basic rights, and limits on inequality. If

the inhabitants of the Niger Delta do not have the ability to change the system of

compensation for land damaged by oil drilling, a significant part of their basic

structure, this is a failure of democratic legitimacy. The fact that local farmers have

little recourse if their land is damaged can also be interpreted as a failure of their basic

structure to protect their basic rights, in this case a right against arbitrary seizure of

property. Finally, if the inequalities of this system⎯the oil companies’ unique ability

to expropriate property is a factor in the ongoing poverty of the area⎯this can be

critiqued from the point of view of the Difference Principle as an inequality that

cannot be justified to the least well-off. Potential ways to improve the situation can be

based on each critique. For example, the oil companies could (be compelled to) accept

the idea of stakeholder democracy and bring local residents into the decision-making

process on terms of compensation for damaged land. The 1978 Nigerian land law

could be changed to provide more robust standing for individuals to sue for damages

to their land. Lastly, the terms of the agreements between the oil companies and the

   

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Nigerian government could be revised to provide for more of the profits from oil

extraction to go to local residents. Each of these points, both the critiques and potential

solutions, is of course only a sketch and would need to be substantially elaborated, but

the goal of a theory of legitimacy is to make this first, most abstract step possible.221

The theoretical goal of better understanding legitimacy in cases of non-state

governance thus can make a contribution to the practical task of getting real systems

of power up and over the threshold of legitimacy. To be able to offer a reasoned

answer to the question of what legitimate power is in a set of cases for which there

was otherwise no clear answer is, at its best, a contribution to reaching the goal of

making power legitimate. As I indicated at the outset, this practical goal is already the

work of citizens, activists, and practitioners of governance all over the world, but my

goal here has been to make a contribution to the theoretical understanding of

legitimate power in systems of non-Westphalian governance. With this in mind, this

concluding chapter will first offer a brief summary of the project, discuss the question

of whether non-state governance will become more common in the future, and

conclude with some questions for future research.

7.2 Overview

My starting point in this project was the debate within liberal political theory

about how to evaluate the rule-making power (governance) that non-state actors have

in many societies. My initial argument was that the basic commitments of liberal

221 Two of the solutions proposed in this sketch involve strengthening state governance, and, while I have tried to show that legitimate non-state governance is possible, a theory of legitimacy that can account for non-state governance can also show when the goal of legitimacy would be best served by adopting or strengthening state governance.

   

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political theory should push us to evaluate the legitimacy of non-state governance by

asking if it can be publicly justified to those subject to it, rather than simply asking

whether these non-state actors are following the rules established by a state-based

basic structure. Chapter 2 situated this argument within the existing debate within

liberalism, the current terms of which were largely set by Rawls in A Theory of

Justice. Rawls argued for “an institutional division of labor” in how we evaluate

power.222 He proposed that the basic structure, the system of rights and benefits that

defines the terms of cooperation for each society, should be evaluated according to

whether it can be justified to those subject to it but that individuals and associations

not part of the basic structure should be responsible primarily for supporting and

following the rules of their society’s basic structure, at least when it is tolerably just. I

endorsed this division but sought to show that the power of what I have been calling

non-state governing actors should be understood as part of the basic structure, and

therefore requiring independent public justification. Non-state governance, viewed in

terms of the roles it plays in people’s lives and its influence over other interactions

within society, is exactly the kind of power picked out by Rawls as standing in need of

public justification. Rawls himself did not need to address this kind of power because

he generally assumed that the basic structure, any particular person’s set of rights and

obligations, is defined at the level of the society, through the political constitution and

formal, society-wide economic and social institutions, and that the basic Westphalian

vision of one state corresponding to one group of people corresponding in turn to one

set of rules is more or less met.

222 Rawls (1993), 268-9.

   

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Rawls made these assumptions, which he acknowledged to be unmet in the real

world, as a way of simplifying the messiness of real political power enough to get

traction on the question of justice in what he called a “special but plainly very

important case.”223 Without these assumptions, many varied cases of non-state and

non-Westphalian governance come into view, including situations of government

outsourcing, state weakness, and global regimes. Chapter 3 highlighted these and other

cases of non-state governance, providing evidence that there is enough of it in the real

world that the question of how we should understand and evaluate it is an urgent one. I

also identified some salient characteristics of non-state governance: that it is typically

shared among many different actors of different kinds, that these systems of rules are

often emergent rather than planned, and that not all groups of people recognizable as

societies share a single basic structure. In Chapter 4, I examined whether the Rawlsian

understanding of how to assess the legitimacy of a basic structure could be applied to a

non-Westphalian basic structure with these characteristics. Whereas in Chapter 2 I

showed only that Rawls had made a series of simplifying assumptions about

governance and that these assumptions had become common in debates after him, in

this chapter I sought to show that these Westphalian assumptions were actually deeply

embedded in the now-standard liberal understanding of public justification. This

standard version, Rawls’s principle of liberal legitimacy and the idea of the original

position that he uses to apply the principle to specific cases, assumes that the members

of each society share a single, unified basic structure. When this assumption is not

met, as in cases of non-Westphalian governance, the theory is unable to specify what

an acceptable public justification might be or how we would evaluate possible 223 Rawls (1993), 257.

   

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justifications. The state-based assumptions of Rawls’s theory, even if they were on

one level a choice of subject matter, were also built right into the theory itself.

In Chapter 5, I proposed revisions to the standard liberal concept of legitimacy

that could take into account the features of non-state governance discussed here. I

proposed that the set of rights and obligations a particular person has should be

considered legitimate if (1) there is a justification for her particular, potentially local

set of rights and obligations that she can be reasonably expected to accept and if (2)

there is a justification for the division of her society into multiple smaller groups with

their own basic structures that she can be reasonably expected to accept. Unlike the

standard concept of legitimacy, this version can be applied to a case where it is

impossible to describe an entire society as defined by a single basic structure. Rawls’s

idea of the original position can be used to determine whether the two requirements

just cited are satisfied, once to evaluate a person’s own basic structure, and again to

evaluate the system of power that characterizes her society overall. Thus this chapter

was meant to propose a theory of who owes (at least hypothetically) justification of

what to whom. The goal of Chapter 6 was to look at how to go from this concept of

legitimacy to fully developed conceptions, to determine what justifications for power

should, in these contexts, be considered ‘good enough.’ As was discussed above, I

identified three ways in which a basic structure can be justified to those governed by

it, democratic control, protection of basic rights, and limits on inequality. Each of

these is a way of justifying a system of rules, rights, and obligations to the people

governed by that system, and a conception of legitimacy (as opposed to a concept)

fully specifies the standards a system of power should meet to be considered

   

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legitimate. It was not my ambition here to identify one particular conception of

legitimacy as the best one but rather to provide a framework for debating between

different possible conceptions of legitimacy that could equally be understood to

instantiate the core liberal values underlying the idea of justifiable power. I also tried

to show in this chapter that there is a coherent way to understand each of these sources

of legitimacy in contexts of non-state governance and that therefore liberal

conceptions of legitimacy do not need to rule out the possibility of legitimate non-state

governance. This is a relatively modest goal, but the development of a method of

debating the question of what forms of power are justifiable in non-Westphalian

contexts, is still a useful advance.

7.3 The future of non-state governance

Improving our understanding of legitimacy in cases of non-state governance

will continue to be important, because the factors that have driven the emergence of

non-state governance so far seem likely to continue. In particular, many of the diverse

and sometimes contradictory forces that together are called globalization make non-

Westphalian governance more likely. Increasing economic links between countries

around the world undermine the ability of individual national governments, and by

extension, democratic publics, to define the economic aspects of their basic structures.

The increasing importance of global regimes and institutions for the (attempted)

regulation of the global economy,224 cross-border pressure on countries to improve

224 See Scholte (2002), Held et. al. (1999), Ch. 4, and Woods (2010).

   

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labor and environmental practices,225 and the growth in power of multinational

corporations whose ties to (and susceptibility to regulation by) any individual country

are weak are all aspects of this phenomenon.226 Furthermore, as was discussed in

Chapter 3, problems like climate change and the terms of international trade, the

conditions of which mean that people’s rights and obligations are inevitably shaped by

decisions made outside their own borders, both by other states and non-state actors,

will remain pressing in coming years.227

The ideal Westphalian model itself also seems to be losing some of its appeal,

both among theorists and practitioners. Non-state governance, of the kinds described

here and earlier in the project, is no longer exclusively viewed as indicating failure on

the part of the state, as the poor relation of state governance. The teleological view of

Western-style unified state governance as the desirable goal for all societies and all

situations, the goal toward which the underdeveloped ought to be developing, has been

somewhat diminished.228 Arguments for actively preferring non-state governance have

emerged, including the capacity for small-scale learning through diffusion and

imitation, greater participation by citizens, and, as discussed above, the apparent

impossibility of tackling certain issues through the state.229 There are of course

potentially troubling reasons for opposing state governance as well, including a

225 See Fung et. al. (2000) on labor standards and Kollman and Prakash (2001) on environmental standards. 226 On attempts to regulate multinational corporations, see Haufler (2001), Bartley (2009) and Brammer et. al. (2012). 227 See Kolk (2000), Kollman and Prakash (2001), and Auld et. al. (2007) on the involvement of non-state actors in the development of world environmental policies, and Held and McGrew (2007) for a review of research on the future of globalization generally. 228 Albert and Kopp-Malek (2002) see a “pragmatist” attitude towards governance, focusing on what works well in a given case rather than what fits a particular model, as gaining strength in Europe. See also Falk (2011) and Shore (2011). 229 See Cohen and Sabel (1997). Fung and Wright (2001) argue that small-scale, directly democratic institutions embedded within state governance can facilitate institutional learning, pp. 24-5.

   

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suspicion of the possibility of large-scale cooperation (often with the market held up

as a superior alternative) and a dislike of cooperating with diverse groups of people.230

7.4 Questions for future research

One of my main goals in this project has been to make non-state governance,

previously often ignored or assumed away, visible from the point of view of political

theory. This has of course been crucial to making progress in understanding legitimacy

in these cases, but it also brings to light other significant questions that are still

unanswered, questions that can serve as a basis for further research into non-

Westphalian governance. This section concludes the project with some of these

unanswered questions.

First, more research needs to be done into how non-state governing actors can

effectively be constrained. The idea of rights protection discussed in this project can

only get off the ground if there are mechanisms that can reliably prevent non-state

actors from enforcing policies in ways that interfere with rights, or, from a different

perspective, ways in which these non-state governing actors could credibly tie their

hands in this regard. Similarly, the idea of democratic control discussed here requires

ways of making non-state actors responsive in general to input from the people they

govern. The democratization of, and the institutionalization of protections for basic

rights in, state institutions is, while certainly not easy, well-studied, and the question

of how these processes can happen with non-state governing actors merits significant

230 See Feigenbaum et. al. (1998). For an influential discussion of the impact of ethnic diversity on support for public goods, see Alesina et. al. (1999).

   

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attention.231 One potential way to achieve both kinds of control would be through

international agreements that regulate non-state actors, particularly multinational

corporations, directly, rather than, as has been the goal of most previous attempts to

manage the influence of multinational corporations, attempt to coordinate state efforts

to regulate them. For example, the labor rights provisions of Article 23 of the UDHR

are meant to ensure that states pass and enforce laws requiring private corporations to

respect these rights, but, given that some powerful corporations are only weakly

subject to state governance, the creation of a regime of labor rules meant to apply

directly to corporations, with credible sanctions for violations, could be the most

promising way to ensure both that people have these rights and that they are

guaranteed.232

It will also be important to learn more about the long-term effects on societies

of non-state governance. In particular, can a group of people endure as a society

without a single system of governance? I argued in Chapter 5 that a group of people

can still play the roles in each other’s lives ascribed by Rawls and others to a society,

serving as the context within which people develop and exercise their moral powers,

even if the group does not share a single basic structure. This is why I argued that

comparisons within the society still matter in ways comparisons between societies do

not even if a society does not share a single system of governance. However, it seems

possible that sharing a system of governance is one of the factors that keeps a society,

231 On the democratization of state institutions see Huntington (1993), Geddes (1999), and North, Wallis, and Weingast (2009). 232 Fung et. al. (2000) and O’Rourke (2006) discuss the possibility of using international agreements to change the behavior of powerful non-state actors. The United Nations Sub-Commission on the Promotion and Protection of Human Rights attempted this with a resolution entitled “Norms on the Responsibilities of Transnational Corporations and Other Business Entities with Regard to Human Rights” in 2003, but there is no enforcement mechanism. See Weissbrodt and Kruger (2003).

   

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in this sense of the word, together in the long run.233 If this is the case, then this would

have to be a part of any debate on whether non-state governance should be supported

in a particular situation.

The question of how the group of people that a particular non-state actor

governs can be reliably identified is also open. My core argument here has been that

governance itself gives rise to the requirement of public justification, that anyone who

is governed by actor X on issue Y has a presumptively valid claim to participate in X’s

decision-making process on issue Y. However, it is not always obvious, either in

advance or after the fact, whose set of rights and obligations will be changed by a

particular action. This means that, even if non-state actors accept in principle the idea

that anyone they govern should have the ability to participate in their relevant

decision-making processes, it can be difficult to know who these people are.234

I have posed these questions generally here, but they may have very different

answers in different situations.235 Moreover, questions of how best to establish and

maintain legitimate governance structures are ultimately practical questions that must

be answered in the inevitably messy conditions of real politics, situations of

incomplete information, ingrained resistance to change, and the necessity of

compromise. I have argued here that, nevertheless, a theory of legitimacy is necessary

for ensuring that the real systems of rights and obligations that people live by fit with

basic and widely shared liberal intuititons about what it means to be a free and equal

233 Weber (1976) shows the opposite development, that shared governance institutions in France created what we now think of as a unified society. See also Anderson (2006) on this point. 234 On this issue as a problem for the accountability of global governing actors, see Benner et. al. (2004), Bexell et. al. (2010), and Steffek (2008). 235 At least in theory, a virtue of Westphalian constitutionalism is that similar institutions could be used in many states. See Klug (2000) on similarities between constitutions worldwide.

   

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citizen. If this is right, and if politics continues to include non-state actors, then a

better theoretical understanding of legitimacy in cases of non-state governance will

continue to be deeply, and practically, important.

   

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Bartley, Timothy. 2009. “Standards for Sweatshops: The Power and Limits of Club

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Benner, Thorsten, Wolfgang Reinicke, and Jan Witte. 2004. “Multisectoral Networks

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