Globalization, Inequalities and Justice

Elisabetta Di Castro, Universidad Nacional Autónoma de México (UNAM)

Abstract: The considerable inequities and exclusions that exist in our globalized world call for a global framework to deal with them. In particular, the problem of methodological nationalism, citizenship and exclusion from the entitlement to many basic rights (both social and political) in national constitutions is stressed. The consolidation of a global institution (or network of institutions) is presented as necessary; one that, overcoming the discrimination between person and citizen, might watch over and defend fundamental rights, enabling them to become effective rights for all persons, irrespective of the place where they were born and the place where they happen to be. The aim of a just distribution not only of wealth but, in general, of the benefits that globalization has to offer requires institutional reforms that depend on a renewed perspective of global constitutionalism. This in turn demands a new approach leaving behind the confrontation between uniform universalist visions and closed multiculturalisms.

Globalization is one of the most controversial phenomena of the contemporary world. Since the end of the last century, it has been regarded by some as a source of prosperity of nations; others, by contrast, see it as the origin of new inequalities between and within nations, hence as fostering global injustice. Yet others view it as a space of power, negotiation and cooperation for the construction of a new global order.

We cannot conceive of the development of globalization without the scientific-technological revolution that required a redesigning of nation states, whose frontiers were being eroded as a result of the development of digital information and communication technologies (Castells 1996). These gave rise to information flows and knowledge networks that surpassed the territorial controls of states, and these, in order to maintain their international competitiveness and quotas of power in the world system, had to opt for the formation of regional blocs. Hence, the world was restructured with growing international economic interdependence and an increasing differentiation in development between regions.

In the final decades of the twentieth century, the division of global power between two parts—capitalist and socialist—became a thing of the past and, although the United States has continued to exert a strong presence, other important nuclei of power have emerged. Likewise the East-West conflict took on new characteristics and was joined by a new disjunction: the North-South divide (Kennedy, 1993 and 2008). The nation states were obliged to promote the liberalization of national markets in goods and services, as well as liberalizing their financial systems, although it must be stressed that national labor markets remained within the narrow margin of each nation state. The great world power intensified its control over the arbitration of regional conflicts—with actions that on many occasions violated international law—and the nation states gave impulse to the creation of supra-national centers of regulation, such as the WTO, and strengthened others, such as the IMF.

One of the consequences of the globalization process has been the crisis of the nation state, which questions the traditional significances of sovereignty and citizenship that are implicated in it and which were once a factor of inclusion and equality, present since its origins.8 While the nation state and citizenship came to be regarded as global norms (to the degree that a considerable proportion of the world’s population was living in democratic nation states), the end of the Cold War heralded the appearance of a new world order in which a hierarchy between states became manifest (Castles and Davidson 2000; Castles 2003).

The hierarchy of states that characterizes this emerging world order is in accordance with the level of dependence of each in relation to the superpower, as likewise the differing degrees of power they have among themselves, which may vary considerably. Stephen Castles called this new order the ‘hierarchical nation-state system’; its structure can be understood as a set of concentric circles around a dominant superpower. In correspondence with the differing degrees of power (in cultural, economic, military and political terms) wielded by nation states, their populations are subject to a similar hierarchy of rights and freedoms —a situation that Castles refers to as one of ‘hierarchical citizenship’. In this sense, we may say that the dominant development in our globalized world is one of hierarchization, and hence of inequality and exclusion.

In contrast with the liberal supposition that all citizens are equal and free persons (irrespective of their belonging to specific groups), in reality, citizenship has always been differentiated in nation states, based on criteria of origin, ethnic identity, race, class and gender. This tendency has become more acute with globalization, and in particular with the increase in international migration and transnationalism. The typical categories of differentiation of citizenship within nation states are: ‘full citizens’ born in the country, ‘naturalized migrants’, ‘legal residents’, ‘undocumented residents’, ‘asylum seekers’, ‘ethnic minorities’, ‘indigenous peoples’ and ‘groups discriminated against on the basis of gender’.9 In the differentiation of citizenship rights in the international sphere, five levels can be distinguished: the citizens of the United States; the citizens of other highly developed countries; the citizens of countries in transition and recently industrialized; the citizens of less developed countries; and non-citizens (without doubt the worst possible situation in a world made up of nation states).10 There is a close link between these two types of hierarchization of citizenship, that is to say the intra-state and the international hierarchies: being a native of a country with a high position on the international citizenship hierarchy may well lead to a high position in the hierarchies of other nations; thus, while few migrants from highly developed countries end up as undocumented migrants or asylum seekers, many people from low levels of the international hierarchy do end up in a low position on the national scale of their country of destination. Besides, it must be considered that the greater prevalence of discourses about the naturalness of violence and chaos, and transnational racism, clearly play a role in the assignation of groups to a subordinate national status (Castles 2003).11

In view of this situation it is worth remembering that, at least on the normative plane, since the 1940s, with the United Nations Charter and the Universal Declaration of Human Rights, both the concept of citizenship and the principle of state sovereignty have been superseded by the creation of a supranational order in which nation states became subject to norms, and citizenship ceased to be the sole basis of rights conceived of as vital (and which are those that allow the enjoyment of other rights, such as may even include that of citizenship); rights that ought to belong to each person, irrespective of where he or she was born or happens to be. Obviously, this occurred only on the normative plane since, as we have seen, in international relations today the principle of sovereignty and the exclusive vision of citizenship still hold sway. In this respect, as Luigi Ferrajoli has remarked:

[…] sovereignty is now no more than a legal black hole, its rule being the absence of rules or, in other words, the law of the strongest. As regards citizenship, this has become the ultimate personal privilege, the ultimate factor of discrimination and the last surviving premodern relic of differentiations by status; as such, it contravenes the much acclaimed universality and equality of fundamental rights. (Ferrajoli 1998, p. 178)

In spite of their deficiencies and of the critiques that can be directed against them, the United Nations Charter and the Universal Declaration of Human Rights can be seen as comprising an embryonic global constitution. Of course, this constitution, though formally established, still lacks institutional guarantees—that is to say the adequate instruments for activating those rights—these comprising precisely one of the main pending tasks of global justice. To achieve that, a change of paradigm would be required, which in the long term leads to the ‘superseding’ of citizenship and the ‘denationalization’ of rights because, as Ferrajoli had already glimpsed before the turn of the century, it will not be feasible in the long run to maintain the coexistence of “rich and comfortable democracies with secure standards of living alongside famine and misery in the rest of the world” (1998, p. 183).

This superseding of citizenship and denationalization of rights ought to lead to the future consolidation of a global constitution in which fundamental rights would be universal, recognized for all persons as such; hence, having lost their moorings in citizenship, they would have to be supervised not only within, but beyond and even in opposition to nation states. Here, fundamental rights are to be understood as not only the classical human rights or first-generation human rights, but also later formulations, such as:

[…] all those rights which must be guaranteed in order to ensure equality in relation with the faculties, needs and expectations that are assumed as essential; to link the forms and contents of democracy to those faculties, needs and expectations; to ensure peaceful coexistence; and finally to operate as laws of the weakest as against the law of the strongest that would rule in their absence. (Ferrajoli 2007, p. 284)

Ferrajoli explains how modern law was characterized initially by the principle of ‘formal legality’: a legal norm, whatever its content, exists and is valid on account of the way in which it was formulated, thus leaving aside the traditional visions of legality as conferred by the justice or rationality intrinsic in the norm. Later, the principle of ‘substantial legality’ was incorporated, by which law is subject to conditions not merely formal but also substantial, imposed by the fundamental principles and rights established in constitutions. The incorporation of this second principle took place following the Second World War when, both on the national and international plane, the meaning ‘arose’ of a ‘constitution’ as the limit and bond to which the public powers are subject, as substantive norms guaranteeing both the division of powers and the fundamental rights of all individuals, which had been negated by fascism. As a consequence, rigid constitutions were to become a regular feature of the legal systems of democratic states, along with the subjection of nation states to conventions on human rights in international law (which, as has already been pointed out, do not yet enjoy the legal force that would be accorded a global constitution). Hence, in a system with a rigid constitution, a norm is valid not only because of being in force and having been issued in accordance with the forms predisposed for its production, but also because its substantial contents respect the fundamental principles and rights established in the constitution.

It must be underlined that the entitlement to rights plays a crucial role in the subject we are dealing with because existing legal systems have not included all persons as enjoying that status. Although various criteria have existed for setting some human beings apart from the status that would enable them to be titleholders of a recognized normativity—which historically has been subject to different limitations and discriminations—today only two basic differences exist that still delimit the equality of persons: citizenship and capacity to act. On the basis of these differences, nowadays two important divisions can be distinguished in constitutions: the division between ‘rights of the person’ and ‘rights of the citizen’ (whether entitlement belongs to all persons or only to citizens); and the division between ‘primary (or substantial) rights’ and ‘secondary (instrumental or of autonomy) rights’ (whether entitlement belongs to all persons or only to those who have capacity to act). Hence, an initial classification is formed that is subjective to the degree that it attends to subjects to whom are attributed, and who receive, the expectations of a right (whether they are persons or citizens); and a second classification is formed that is objective in the sense that it rests on the behavior of subjects that make up the selected category (whether or not they have capacity to act).

When we cross these two basic divisions, four classes of fundamental rights come into view:

Thus, the distinction between person and citizen that underlies the fundamental rights recognized in the local constitutions of each nation state is a source of considerable inequalities and exclusions;12 to which must be added, as we have seen, those derived from the hierarchical system of the nation state that characterizes our globalized world. Hence, the proposal for a global justice in accordance with our times ought to include, even if in the long term, the formulation of a global constitution (or equivalent) in which the fundamental rights are guaranteed for all persons without exceptions. In this way, for Ferrajoli, justice could finally stop being a matter relegated to individual morality, to acts of benevolence and sentiments of solidarity.13

But how can we arrive at the construction of this global justice? One must set off from the fact that basic questions regarding justice arise when we evaluate a present situation as unjust. Luis Villoro (2007) proposed a negative path for understanding justice from the awareness of its absence: reflection on justice must set off from some concrete reality, an experience of suffering caused by injustice and the consequent perception that the damage suffered in our relation with others has no justification, thus eliciting the rejection of an unjust situation and the determination to resist it. This negative route for understanding justice from the point of view of its absence has the virtue of concentrating on concrete and diverse situations of injustice, rather than abstract universalisms that ignore the historical, social and cultural differences that influence the way people live their daily lives. Likewise, Amartya Sen (2009) stresses the need to take specific situations of injustice as the starting point: the awareness that manifest injustices can be overcome is what impels social actors to promote changes in society. Nevertheless, the feeling of injustice that may serve as a signal for mobilization always demands a critical examination. A theory of justice that aims to serve as a basis for practical reasoning must include ways of judging how injustice is to be reduced and how to advance towards justice. The possibility also exists of different arguments regarding justice passing the scrutiny of criticism and leading to divergent conclusions. This should, however, not weaken the commitment to the need for reasoning.

This negative approach to justice has various antecedents—for example, the historical study by Barrington Moore (1978) of the sentiment of injustice that on occasions, though not always, leads to the rejection of an existing situation and the promotion of change. The starting point of Moore’s study is that social coexistence has always implied problems of coordination, among which those related with authority, the division of labor and the distribution of goods and services stand out—problems that the members of society must resolve, since otherwise that society would cease to exist. Among social needs, Moore distinguishes three aspects in particular: a causal relation as regards the ordinary temporal order (i.e., if the need is not satisfied something serious will happen); an element of inevitable choice (i.e., the society may satisfy the need or fail to do so); and, in the case of managing to satisfy the need, a variety of forms may exist for achieving this (which may generate, in turn, diverse social inequalities which, it is hoped, will be accepted). This study concludes that social needs or imperatives lead to moral imperatives and, through these, when they are violated, to moral outrage and the feeling of injustice. But social rules and their violation are not sufficient as fundamental components of moral affront and the sentiment of injustice. The latter also has to be ‘uncovered’: people must perceive and define their situation as a consequence of a human injustice—as a situation that must not, cannot and need not be borne. This enables us to understand how there can be long periods in the history of peoples in which large social groups accept humiliating and unjust situations, and other periods in which they reject these situations and rebel.

Here, the difference between law and justice takes on its full meaning: not every positive law is just, nor is every demand for justice transformed into law. As Javier Muguerza (2004) has pointed out, moral demands, which are prior to law, are stated in the name of justice and it is intended that they materialize in a just law. Nonetheless, not even in the latter do justice and law coincide perfectly, since there is always the possibility of arriving at a fairer law than any so far known. Muguerza points out that in the history of how the demands for justice have come to take form in positive law, the most important thing has been not so much consensus on the fairness of such laws (thereby making a clear reference to the cornerstone of the principal contemporary theories of justice), but rather the dissent in view of the injustice undergone by those who were excluded from its enjoyment. Hence, when we speak of law, we are thinking of an institutional fact; on the other hand, when we speak of justice we are thinking in ‘utopian’ terms, of that horizon that urges us to ‘go forward’, to ‘make the law advance’ so as to become fairer.

One of the most relevant examples of this fundamental difference is the history of the struggle for human rights—before their legal recognition, these were only ‘moral demands’ claiming justice. In this sense, for Muguerza, as long as justice is an ideal to be attained (like other ideals of humanity, such as peace or democracy), utopian thinking will remain alive, accompanying societies in their development. What is involved is a utopian form of thinking that does not confuse ideals with illusions, or whose struggle is distant from efficacy— one that is, rather, closely linked to the ‘here and now of reality’ setting off along a ‘negative path’. In other words, a struggle for ideals takes place through the rejection of its opposites. In the case of justice what is aimed at is the eradication of injustices (just as peace is opposed to war and democracy to tyrannies). But even in the case of these struggles finally achieving success, utopian thinking ought not to disappear because, as Muguerza points out:

[…] if by good fortune some day our world were to see the instauration of a peace, a justice and a democracy widespread and reasonably stable, we would still have to be on our guard against somebody or something with the power to summon up regressions, causing the return of humanity to prehistory or its falling into dystopia. In other words, we must ensure that nobody nor any material situation be capable of transforming the dreams of reason into nightmares. (Muguerza, 2013, 31)

As we have already seen with Sen, a theory of justice that aims to serve as a basis for practical reasoning must include ways of judging how injustice is to be reduced and how to advance towards justice, without ignoring the possibility of mutually opposing claims arising, or of reasonable arguments leading to divergent conclusions. Thus, a reflection on justice should acknowledge the relevance of differences between social groups, as well as the concepts of domination and oppression. In this sense, it is worth mentioning authors such as Iris Marion Young (1990) who, far from pretending to elaborate a comprehensive and necessary theory of universal justice, proposes a rational discourse on justice, the arguments of which cannot be considered definitive because they are directed at other persons and must remain open to their replies in a situated political dialogue—they form a normative reflection characterized by historical and social contextualization. In fact, constitutions and declarations of fundamental rights can be conceived of as syntheses of specific historic-socio-cultural dynamics. As Giacomo Marramao (2008 and 2009) has pointed out, far from reflecting simple abstractions or ideal dimensions, these respond to actual processes of conquest and acquisition of values obtained, whether by hard-fought conflicts or compromise solutions.

The theories of justice of the past century centered basically on what had to be equaled between the citizens of a state, what sphere was to be prioritized for seeking equality (in turn legitimating inequalities in other spheres) and who are those to be included and who are to remain excluded. Suggestions have been made to equalize primary goods (Rawls 1971 and 2001), capacities (Sen 1992 and Nussbaum 2006), incomes (Van Parijs 1995), opportunities (Roemer 1998), and resources (Dworkin 2000), to mention just some of the main proposals. But today, it is insisted, the citizens and the state have ceased to be relevant because the living conditions of the subjects of justice do not depend solely on the political community of which they are citizens; there are extraterritorial and/or non-territorial structures that have an important impact on those conditions (Fraser 2008).

As we have seen, citizenship and states are not homogeneous but rather differentiated and hierarchized, which leads to serious inequalities, discriminations and exclusions. Hence it is necessary to overcome ‘explanatory nationalism’ in order to understand the principal contemporary injustices, which can no longer be reduced to domestic causal factors—such as the dominion of the local elites and the political weakness of the impoverished majority—and which incorporate, for example, international economic and power relations (Pogge 2009). Likewise, in our globalized world, in which a transition is taking place between a modernity characterized by an inter-state order under the hegemony of the West and one characterized by a new supranational order in the process of being constructed multilaterally, the standard conception of the processes of universalization has been questioned. That conception takes as its reference two conditions linked to the beginning of modernity: equivalence of culture and identity, and the uniform conception of universalism. The latter in particular needs rethinking if it is to be applicable in a world of multiplicity and difference: “it must be newly formulated, taking as its starting point the awareness that—to borrow the celebrated words of Hamlet—there are more ways towards liberty and democracy than are dreamt of in our poor philosophy” (Marramao 2009, pp. 14–15).

Let us take it by stages. There are two basic ways of conceptualizing the problem of cultural differences: on the one hand, there is what has been called strong or mosaic multiculturalism, according to which human groups and cultures are well-delineated and identifiable totalities that coexist (although with clear frontiers) as if pieces of a mosaic; on the other hand, different cultures can be regarded as constant creations, recreations and negotiations of imaginary frontiers between an ‘us’ and the ‘other(s)’ (Benhabib 2002). In the latter case, the ‘other’ is always linked to the ‘us’; we cannot lose sight of the fact that ‘oneself’ can only exist as such in distinction from ‘another’. Hence, we can conceive the various struggles of persons and groups as a demand for respect, freedom and equality, while each maintains a sense of ‘oneself’. In view of the cultural differences that characterize everyday coexistence in almost all corners of the planet—the exchange of which has increased and accelerated with the process of globalization—two perspectives can be adopted to accompany the conceptions already mentioned. The first is a vision of cultures as clearly definable totalities: a view of the culture under study as seen from the outside which generates a coherent image of it with the aim of understanding it, and at times also of controlling it. In the second, on the contrary, the vision is from within the culture, in which the participants experience their traditions, histories, rituals and symbols, tools and material conditions of life through shared narrative accounts, although also subject to controversy and even susceptible of being overturned.14

The globalization process is not only characterized by the increasing interdependence of all nations and, in this sense, by a strong impulse towards homogenization—it has also led to a process of localization, and hence an insistence on differences. In response to this, the term ‘glocalization’ has made its appearance in recognition of the fact that the tendencies toward homogenization and heterogenization, far from confronting each other, take each other’s existence for granted. In fact, as Roland Robertson (2000) has emphasized, in various areas of contemporary life, both homogeneity and heterogeneity combine, as do universalism and particularism. The dichotomies ‘we/others’, ‘West/East’ and ‘North/South’ mask a considerable diversity in each of these poles; there is no single ‘we’, nor ‘West’, nor ‘North’ confronting a discrete ‘other’, ‘East’ or ‘South’. Such simplifying stereotypes must be left behind, with the understanding that they are mere indicators that include within each extreme a plurality of phenomena. As Marramao has pointed out, the monolithic representation of culture postulates a reified image of civilizations as monolithic entities, thus preparing a fertile soil for the arising of fundamentalisms. Hence, the need arises to go beyond these visions and to confront the crisis of the two models of modern democratic inclusion: both the republican model that assimilates differences in a neutral space of citizenship without belonging, and the strong multicultural model in the ‘mosaic’ sense. Thus, against the universalism of identity postulated by the conceptions of citizenship by assimilation and the anti-universalist differentialism postulated by the stronga versions of multiculturalism, the author proposes a cosmopolitanism of difference that, drawing on multidisciplinary studies of comparative law and cultural anthropology, sets about outlining possible codes for an intercultural democracy based on multi-polar and mestizo law.

The identity characteristic of present global conflicts cause them to manifest a greater proximity to the fundamental conflicts that had marked the civil wars of religion in the phase before Westphalia than those typical conflicts of the industrial era (Marramao 2003 and Sen 2006). Against this, the tradition of modern rationalism—even in its noblest forms, such as the Kantian ethical universalism and legal guaranteeism—seems to lack by itself the capacity to find a solution to the conflicts of our times and to contribute to building a ‘cosmopolitan republic’. In a similar sense to Sen’s reflections on the concept of democracy,15 Marramao states, quoting Raimon Panikkar (2008), that:

[…] the house of the universal is still not ready; it has to be constructed multilaterally. We cannot say to others: ‘come on and be guests in our house; integrate and let yourselves be annexed to our civilization of law’. On the contrary, it is necessary to negotiate a new common space: together to build a new house of the universal. If our view of other contexts of experience were less vitiated by prejudices, we might become aware of the existence in other regions of the world of conceptions of liberty and dignity of persons just as noble as ours (or at least not less respectable). (Marramao 2009, p. 26)

One characteristic that accompanies the history of the nation state is the process of assimilation that has tended to blot out community identities, but which in many cases has led to these resisting in underground forms, with occasional explosions of violence. Hence, we should not be surprised that one of the main problems of contemporary political theory has to do with the conflicts of recognition and their relation with conflicts of redistribution. If we set off from a radical democratic interpretation of the principle of equal value, as does Nancy Fraser (2008), the most general significance of justice ought to be parity in participation, and overcoming injustice would be a matter of dismantling institutionalized obstacles that prevent some from being able to participate in equality with others. It is here that the political takes on a special relevance, to the degree that it provides the scenario in which to develop struggles for both redistribution and recognition. This has to be thought out on a global level, giving particular emphasis to the problems of inequality and exclusion, not only between nations but also within them. Hence, far from remaining confined within the narrow sphere of the state, rethinking justice today requires considering it on different scales and levels, both above and below the state, which introduces also the recognition of a diversity of agents and powers, not only political parties and public agencies.

History has also shown that the attempt to impose a standard model, ethnocentric and hegemonic, of modernization is doomed inevitably to produce an extension and deepening of conflicts. Thus, an adequate policy towards the ‘others’ cannot be the ‘exportation of freedom’, but should instead be a policy favoring the emergence of processes fostering rights and democracy, on the basis of autonomous paths and methods:

[…] we should be more open to what an old and illustrious anthropology called ‘functional equivalents’, taking as our program a subsequent, decisive theoretical task: to graduate from the method of comparison to the politics of translation… We should be capable of detecting in other cultures principles, values, normative criteria, of equal value although defined in different ways from our own: without yielding to the temptation of imposing upon them our own definitions, once again fraudulently positing the old Manichean division between good and bad. (Marramao 2009, pp. 29–30)

The principal contemporary conflicts and injustices, therefore, demand that historical dynamics be oriented towards a path transcending identities postulated as closed or homogeneous. A politics of translation and a cosmopolitanism of difference could make the globalization process a space for negotiation and cooperation oriented towards the construction of a less unjust world.