The
Journal of Philosophy, Science & Law
Volume
10, January 20, 2010
www.miami.edu/ethics/jpsl
A Review of J. Angelo
Corlett’s Race, Rights, and Justice*
By Walter J. Riker**
*
Dordrecht: Springer, 2006, Law and
Philosophy Library, Volume 85, 228 pages.
**
University of West Georgia, Department of Philosophy, Carrollton, GA 30118
In Race,
Rights, and Justice (RRJ), J. Angelo Corlett takes up several issues
in mainstream philosophy of law. Part I
consists of two chapters on constitutional interpretation. Corlett rejects Robert Bork’s theory of
original intent, and defends “constitutional coherentism,” a view that develops
out of his reading of Benjamin Cardozo’s and Ronald Dworkin’s theories of
constitutional interpretation. Part II
has chapters on international law and global justice. Corlett reviews Immanuel Kant’s and H. L. A.
Hart’s theories of international law, trying to identify the basic requirements
of a viable international legal system. He then defends John Rawls’ Law of Peoples, and adds a principle
of compensatory global justice. Corlett
rejects cosmopolitan global justice, because it is culturally imperialistic and
resistant to compensatory justice. Part
III consists of three chapters on rights. Corlett defends a Marxian theory of individual rights, and a more
mainstream theory of collective rights. In the final substantive chapter, he offers an account of humanitarian
intervention, rooted in his approach to indigenous rights, and illustrated by
the situation in
Colombia
and the
U.S.
’s
“war on drugs.”
Corlett
intends this book to be a companion to another, Responsibility and
Punishment (2006) (vii). However,
the issues taken up in RRJ are distinct from those handled in the
earlier book, so RRJ is accessible to readers unfamiliar with Corlett’s
other work. Readers familiar with
Corlett’s work, however, may recognize some parts of RRJ, since Chapters
2, 5, and 6 are revised versions of previously published work (x).
In RRJ,
Corlett does not aim to provide a comprehensive treatment of the topics taken
up (1). Instead, he brings together his
views on several issues in mainstream philosophy of law, integrating them into
a not inconsistent whole. As a result,
each part of the book stands on its own. One benefit of this for readers is that each part can safely be read
separate from the others. One drawback
is that the book subsequently lacks the depth one might hope to find in a
book-length treatment of race, rights, and justice. In fact, the chapters that comprise the
different parts are sometimes only loosely connected. But Corlett does not intend to offer “grand
and complete new theories of the topics under investigation” (2). His aim is more modest. He wants “to assist in the refinement” of
“plausible existing theories” (2). He
completes this task.
Part I
In Part I,
Corlett aims to defend constitutional coherentism. He begins by describing and rejecting Robert
Bork’s original intent theory of constitutional interpretation (Chapter
1). According to Corlett, Bork proposes a
moderate form of original intent (16-8). On this view, judges must interpret the Constitution in ways faithful to
the intentions of its framers. What
makes Bork moderate is his recognition that amendments to the Constitution are
sometimes necessary. But in such cases,
judges must avoid politics, and appeal only to constitutional principles.
Corlett
discusses several objections to this view, many raised previously by
others. For instance, Corlett argues
that Bork offers no principled distinction boundary between constitutional and
extra-constitutional principles (19). It
seems easy enough to distinguish constitutional from religious, ethical, or
political principles. But, Corlett says,
both liberal and conservative judges can claim that their principles are rooted
in some fashion in the Constitution. Nothing in Bork’s view prevents this, or gives us any guidance in such
situations. Thus, any claim that one or
the other side appeals to extra-constitutional principles is an ad hoc
pronouncement. Further, for many
particular cases today, it seems likely that the framers had no intent at all,
since they could not have anticipated many of these modern situations
(20). Original intent can provide no
guidance here.
One of
Corlett’s more interesting objections to originalism is rooted in his interest
in critical race theory. In fact, this
interest shows up in different ways throughout the book. To be clear, RRJ is not an example of
critical race theory. However, Corlett
is sympathetic to this movement, and several of its themes color his analysis
of more mainstream issues in philosophy of law. For example, according to Corlett, we should not privilege the original
intentions of the framers of the Constitution, because the Constitution
“demonstrates an obvious ‘intent’ of the founders to subordinate various
peoples by race and class” (25). The
founders assumed the superiority of white men to women, blacks, and American
Indians. Thus it is clear, Corlett says,
that the intentions of the founders cannot stand as models of what we want
judges today to think of the meaning of the Constitution. The founders were wealthy, white land-owners,
none of whom came from oppressed groups. Given their privileged social positions, and evident aims and motives,
Corlett feels it is absurd to claim that framers’ intentions represent the
interests of “We the People.” That is,
Corlett doubts that the founders sought to represent citizens generally in a
way that would make their intentions when writing the Constitution normatively
significant for citizens generally today. This leads Corlett to reject originalism, and, further, to call for a
demythologization of the founders. On
his view, we need a theory of constitutional interpretation that serves the
interests of the People, and not just the interests of the group represented by
the founders. And this leads to
Corlett’s constitutional coherentism (Chapter 2).
Corlett’s
constitutional coherentism is a version of constructivism, a view that “sees
the law as a dynamic set of justified legal rules … which should be made and
interpreted as coherent with one another and with the most plausible set of
moral and other extra-legal principles” (57). Corlett intends constructivism, so understood, to be a friendly
amendment to Dworkin’s “law as integrity.” Constitutional coherentism builds on law as integrity and
constructivism, by going on to insist that “any law, in principle, can
justifiably be rejected if rejecting it preserves the overall integrity of law
and the most reasonable moral principles” (57). Dworkin’s theory requires that laws be interpreted in ways that make
them consistent and justified. But,
Corlett says, Dworkin tells us nothing about the status of established
law. What should we do when a new law
appears to conflict with an established one? On many accounts, the established law takes precedence, and the new law
should be reinterpreted, revised, or rejected. But Corlett thinks this is a mistake. Why not reinterpret, revise, or reject the established law, at least
some of the time? To Corlett, this seems
like an obvious solution to several problems that arise from the class, sexist,
and racist intentions of the framers, and the (unintended?) intentions of
contemporary legal theorists, who, in supporting originalism, seek to further
the framers’ immoral aims.
Corlett
distinguishes two sets of laws: long-established laws and recently established laws (58). Long-established laws are those enacted prior
to the existence of the current generation of citizens; recently established
laws are those enacted concurrent with (in some sense) the existence of the
current generation. Though Corlett is not entirely clear here--he does
not define "generations," or discuss the way different generations
overlap--his intent seems clear enough. Some laws were enacted before today's citizens, understood as a set of actually existing
autonomous moral agents, could have affirmed or rejected them. Since
these laws pre-exist today's citizens, they do not
properly belong to today's citizens (i.e., to the
current generation). These are long-established laws. Other laws
were enacted later, during the time period when today's
citizens could have affirmed or rejected them. These are recent laws. When
a logical inconsistency appears between a long-established and recent law
(other things being equal), the recent law ought to take precedence. Why? First, “… a community is more directly bound by the rules which it
itself adopts freely than those which it inherits from a previous generation”
(58-9). Second, recent laws represent a
society’s considered legal views at some point in time (59).
For Corlett,
no laws are foundational, in the sense that they should never be revised or
rejected. This is part of his effort to
demythologize the founders. The U.S.
Constitution should not be viewed as some timeless, sacred text. What gives a constitution its normative force
is its acceptance by citizens generally. Thus, the U.S. Constitution ought to be construed as speaking to
citizens as autonomous, rational individuals. For such individuals, the main point of the Constitution is to end
injustice (61). The text of the
Constitution, as it was understood by the founders, was not meant to apply to
non-whites. Thus, originalism is a
non-starter, since the Constitution was itself unjust in inception. Judges today ought to take what they can from
the Constitution, but must also change it, when justice requires it. Citizens should be open to radical judicial
revisions to the Constitution.
Corlett’s
discussion of constitutional coherentism is brief, and several questions remain
unanswered. For instance, Corlett’s
appeal to consent (as legitimating a constitution and other laws) raises
several issues. It seems as if most
Americans do accept the U.S. Constitution, and regard it as foundational. Why isn’t this sufficient to legitimate the
U.S. Constitution? There are a couple of
possible answers. Corlett may demand
universal consent. However, as a
standard of legitimacy, universal consent is generally rejected as a
non-starter, given its obvious impossibility. Alternatively, Corlett may reject the apparent consent of
U.S.
citizens
to the Constitution, because of (what he sees as) the inherent injustice of the
Constitution. That is, he may hold that
consent to something immoral is not genuine consent, in the sense that it
cannot actually bind someone to something. This seems like a promising idea. However, reasonable disagreements over the nature and demands of
justice, and over appropriate (just or fair) methods of resolving such
disagreements, are a permanent feature of liberal democratic society. Thus, it seems, every law/policy is likely to
be reasonably regarded as unjust by someone. How do we resolve this sort of situation? As a third possibility, Corlett may have some
sort of hypothetical consent in mind. On
this sort of view, a law has genuine force if it is the kind of thing citizens
could affirm, from some ideal and shared normative point of view (e.g., the
shared perspective of “democratic citizen,” understood as free equals sharing
ultimate political authority). If this
is what Corlett has in mind, though, we need some understanding of this ideal
normative standpoint (e.g., John Rawls’ “original position” in A Theory of
Justice, 1999a). Also, this sort of
view seems to put justice in tension with consent as a legitimating factor,
insofar as it rejects much actual consent. People can and do consent to many things that promote their interests
over the similar interests of others.
I want to
mention one other issue with Part I. Corlett claims that the U.S. Constitution, as it is written, is morally
flawed by the classist, racist, and sexist intentions of the founders. For this reason, he says, we should expect
judges who seek justice to make big changes to it. Once judges begin to eliminate injustice, “we
must accept whatever truths of the Constitution are able to survive” and open
ourselves to a “future of mutable constitutional content” (61). Corlett seems to think that it would not be
sufficient to simply ensure that the rights and protections specified in the
U.S. Constitution are available to all. For instance, I suspect that he thinks the classist intentions of the
founders have somehow morally skewed the content of the Constitution (not just
its range of application) in unjustifiable ways, such that even if (say) equal
rights for women were secured, according to the terms of the Constitution,
there would still be something wrong with the arrangement. This is an interesting claim, and it is one
that would sharpen his critique of originalism significantly. However, it is never really fleshed out. If the intentions of the founders were
immoral, merely because they excluded some individuals from participating in an
otherwise just scheme, the fix seems relatively simple and
straightforward. If there is more to it
than this, it is not obvious from Corlett’s discussion just what the problem
is. This does not mean that he does not
have an answer, or that there is nothing he might say here. I mean only to point out that, whatever he
might say, he does not say it here.
Part II
The chapters
in Part II aim to refine our understanding of global justice. First, Corlett identifies the basic
requirements of a viable system of international law (Chapter 3). These requirements respond to concerns that
emerge in his discussions of Immanuel Kant and H. L. A. Hart. The first requirement of a system of
international law is a genuine global community which provides a basis for
shared values (78). This is necessary
for the development of laws with universal appeal. But the West should not impose its values on
the rest of the world. Instead, laws
ought to be supported by reasons independent of Western ideals, which are
accessible to non-Western cultures too. The second requirement is a set of legal institutions and bodies
sufficient for the rapid development of clear laws capable of addressing new
and changing circumstances (79). Third,
world states must form a federation and support an international legislative
body with the authority to demand obedience its laws, and the power to enforce
them. Finally, within this system of
law, there ought to be a distinction made between public and private international
law (80). Public law deals with
relations between states, while private law deals with relations between
individuals, groups and corporations interacting across state lines. To these, Corlett adds the eight principles
of Lon Fuller’s familiar “inner morality” of law. Corlett argues that the principles of
international law he has identified ought to have supremacy over the
constitutions of member nations, just as the U.S. Constitution has authority
over states’ laws.
Second,
Corlett evaluates two theories of international justice, John Rawls’ approach
in The Law of Peoples (1999b) and a generic liberal cosmopolitanism
(Chapter 4). One of Corlett’s main
concerns is compensatory justice, since injustice between societies in the
world is common still. Unfortunately, as
he rightly complains, compensatory justice has received little sustained
attention in the literature on global justice. In response to this, Corlett develops a principle of compensatory
justice (88-90) and uses it to evaluate Rawls’ view and liberal
cosmopolitanism. Corlett determines that
Rawls’ view, though silent on compensatory justice, does not rule it out. Thus, Corlett concludes, his principle of
compensatory justice can easily fit into Rawls’ principles of global justice
(91). Liberal cosmopolitanism, however,
has deep conflicts with it. This,
combined with other problems, renders it inadequate as a theory of global
justice.
Liberal
cosmopolitanism focuses on individual persons, and is primarily concerned with
correcting injustice globally and within states (92). Corlett develops the position this way: various global structures create and sustain
injustice, including inequalities of opportunity to realize basic needs; the
global structures in question are those of the world’s wealthiest countries;
those who cause the injustice have a duty to address them, because all
individuals have a right to an equal opportunity to have basic needs met
(94). These problems are primarily
addressed through humanitarian intervention, e.g., poverty relief programs
(94).
Corlett has
two main objections to liberal cosmopolitanism. First, it is paternalistic and culturally imperialistic (93). The Western world’s understanding of equality
is realized through humanitarian aid, with little attention paid to non-Western
values. For example, poverty eradication
programs typically require implementation of Western ideals. This means that the liberal cosmopolitan
approach to combating inequality puts pressure on non-Western nations to accept
Western values (99). But the
preservation of cultural diversity is important. Liberal cosmopolitanism does a poor job of
promoting this value.
Second, “in
their single-minded search for principles of distributive justice, the
cosmopolitan liberals seemed to have downplayed, if not given short-shrift to,
principles of compensatory justice” (103). For example, Corlett says, Thomas Pogge, a prominent liberal
cosmopolitan, sees the solution to the problem of past global injustice not as
one of reparative justice, but instead as one of providing equal opportunities
for all, especially those least advantaged by past injustice. Corlett objects to this, because it “subsumes
any putative right to compensatory justice under the presumed right of
equality” (103). There are many problems
with this, says Corlett, not least of which is the fact that the right to
compensation has nothing to do with inequality (103-8).
Corlett’s
first objection to liberal cosmopolitanism is compelling. He has identified a genuine worry about the
position. However, his second objection
is much less compelling. Corlett does
not identify anything in liberal cosmopolitanism that rules out, in principle,
any genuine concern for compensatory justice. In the end, he is left saying that liberal cosmopolitan thinkers are
inadequately concerned with it. But this
does not show that the theory is incapable of handling it. Thus, while Corlett’s most interesting
objection to liberal cosmopolitanism does highlight something important that
has been overlooked, it does not show that the liberal cosmopolitan view is
inferior to Rawls’.
Part III
Chapter 5
deals with individual rights. Corlett
spends the first half of Chapter 5 refining Joel Feinberg’s theory of rights
(125-36). This chapter will be
instructive for readers unfamiliar with Feinberg’s work, and does make some
progress refining the view. But the
second half of the chapter, in which Corlett defends a Marxian theory of
rights, is much more interesting.
In the second
half of Chapter 5, Corlett responds to Allen Buchanan’s reading of Marx on
rights. Buchanan finds both an internal
and an external critique of rights in Marx’s “On the Jewish Question” and
“Critique of the Gotha Program”. The
internal critique rejects rights, on the grounds that they will not be
necessary in communist society (137-9). Marx holds that communism will do away with the sources of conflict that
make rights valuable, because no one will feel a need to secure his share of
the social product or means of production with rights. This is an example of how communism will do
away with the “rights of man,” rights associated with individuals as human
beings. According to Buchanan, this
Marxian critique of the rights of man shades over into a critique of the
“rights of the citizen,” rights associated with individuals living under
states. Marx holds that the rights of
the citizen depend on and foster the illusion that the state is above and does
not contribute to clashes between classes. According to Buchanan, this implies that in communism the rights of the
citizens will no longer be needed either.
Buchanan’s
external critique deals with rights as such (139-40). First, he points out, Marx never says
bourgeois rights will be replaced by communist rights. Second, Marx is generally scornful of
rights. Third, the idea of rights
implies equality, but, for Marx, the application of equal standards to
different people treats them unsatisfactorily. Thus, on the external critique, Marx is against the very idea of rights.
In contrast,
Corlett holds that Marx rejects only some rights, and only in
capitalism (140). Further, according
to Corlett, Marx holds a position that implies that persons do have some rights
(140).
Corlett finds
several difficulties with Buchanan’s internal and external critiques. For instance, the fact that Marx believes
that communism will reduce one source of egoism, and hence one significant
source of conflict, does not mean that it will end egoism or conflict
(141-2). Illegitimate pursuit of
individual interests, perhaps rooted in weakness of will, might give rise to
egoism. One might wonder if this worry
is unfounded. Would communism not
produce a harmony of interests? Corlett
rejects this (142). It assumes that
communism will undermine the separateness of persons and self-respect, and makes
Marx’s communist society almost too utopian. Finally, even if rights are not needed to secure individuals against
egoism and class conflicts, still there might be a need for rights. Having one’s rights respected is a source of
enjoyment and self-respect, and there can be value in voluntarily not asserting
rights-claims.
After
responding to Buchanan’s critiques, Corlett lays out the foundations of a
Marxian theory of rights (146-150). Corlett argues that Marx criticizes only certain rights, such as the
rights to liberty, property, equality, security, and other political
rights. These are rights that promote
egoism and conflict, by opposing the individual to society (146). But other rights do not do this, for
instance, the right to resist oppression (146), to not be exploited (147), to
freedom of expression (149), and to individual self-determination (148). Some collective rights are also consistent
with Marx’s view, including a collective right to the means of production (147)
and communal self-determination (148). Corlett argues that these values ought to be protected institutionally
through law, even in communist society.
Whether or
not Marx would approve of Corlett’s approach to rights in communist society is
an open question. Buchanan’s critiques
are compelling, and Corlett’s responses, while not wrong, are not particularly
strong. He does show that there is room
in Marx for some rights, though this is far from convincing evidence that Marx
would accept Corlett’s view. Nevertheless, Corlett may be right to say that Buchanan’s reading of
Marx is uncharitable. Buchanan’s reading
of Marx is an interpretation, after all. In any case, Corlett’s claim that Buchanan’s vision of communist society
is too utopian is instructive. It is,
perhaps, the most interesting part of Corlett’s response. Rawls claims that one of the primary purposes
of political philosophy is the production of “realistic” utopias (Rawls,
2001: 4-5 and 2007: 10-1). These visions provide hope, and give us some sense of how to evaluate
contemporary social and political institutions with an eye toward a better
future, but they do this within the confines of what is practically possible,
that is, what it is reasonable for us to assume about human beings, human
nature, and social life. It does no good
to produce unrealistic utopian visions. These provide no guidance, and can leave people hopeless. Whatever Marx might have thought of communist
society, and it is not clear that he had any strong ideas about what it might
finally look like, we will be better placed to understand and evaluate it if we
think about it in more realistic terms. Corlett’s complaint against Buchanan is justified in these terms.
In Chapter 6,
Corlett defends a notion of collective rights. On his view, certain collectives can have moral rights. That is, some rights belong properly to
collectives, and cannot be reduced to the rights of the individuals who
comprise the collectives. For example,
Corlett argues, the right to secession is a genuine right that cannot be
reduced to the rights of individuals (162). Not all collectives can have rights. In order to have rights, a collective must be a conglomerate: “its members see themselves as normatively
bound to each other such that each does not act simply for herself, and … there
is a shared understanding among members of the collective regarding its
membership” (161). On Corlett’s account,
the Congress of American Indian Nations (CAIN) is such a conglomerate (158). The first part of this chapter develops the
ideas central to this account of collective rights, including the idea of
common interests, conglomerates, and so on, and then refines the view by
placing the idea of collective rights ascriptions more generally in political
philosophy.
In Chapter 7,
the last substantive chapter, Corlett discusses humanitarian intervention. Proponents of humanitarian intervention argue
that one country can have moral justification for intervening in the affairs of
another. Corlett seeks to identify the
conditions of such justification. What
is interesting and novel about his approach is the attention he gives to
indigenous rights. He illustrates his
discussion with examples drawn from
Colombia
and the
U.S.
’s “war on
drugs.”
Corlett’s
account of humanitarian intervention draws on John Stuart Mill and Michael
Walzer (188). Corlett holds that
humanitarian intervention is justified when it is necessary to help another
country exercise its moral right to national self-determination. Sometimes this means helping other countries
settle internal disputes. Sometimes this
means protecting vulnerable members of another society, since not everything is
permitted under the right of self-determination (e.g., acts that shock the
conscience). In every case, though,
humanitarian intervention must respect national self-determination.
Colombia
is currently going through a civil
war (187). According to
Corlett
,
U.S.
intervention, through its “drug war,” amounts to taking sides in
Colombia
’s
civil war, in this case, against the rebel forces. Corlett argues that, though there may be
reason for some country to engage in humanitarian intervention in
Colombia
, the
current
U.S.
intervention is not justified as humanitarian intervention, for several
reasons. First, the
U.S.
is not
helping Colombian’s to settle an internal dispute, but seems set on helping one
side win (188-9). This is not consistent
with
Colombia
’s
right to self-determination. Second,
only legitimate states can justifiably engage in humanitarian intervention
(191). Since the
U.S.
is not a
legitimate state (at least to many people in other parts of the world), its
intervention in
Colombia
is not justified (191-3). Third, in
order to be justified, humanitarian intervention has to be invited or wanted by
the subject nation 195-8). This is
necessary to make intervention consistent with national
self-determination. Following this basic
principle, countries in need of help have the right to determine what kind of
help they should get, and who might provide it. According to Corlett, the
U.S.
government has not been asked
to intervene by the majority of Colombians.
Corlett’s
second point is not convincing, for two reasons. Corlett says that the
U.S.
is not a
legitimate state, because the
U.S.
fails basic standards of justice, and has perpetrated evil acts that it has yet
to rectify (192). Why and how the
U.S.
fails
basic standards of justice (all of them?) is not obvious, and Corlett does not
make this claim clear. The second point,
regarding evil acts, is clearer, and easier to accept, but it is not obvious
why this renders the
U.S.
government illegitimate. Persons do not
lose their status as moral agents when they commit evil acts, even if they fail
to rectify them. They still have moral
obligations, and undoubtedly still have many moral rights. So it is not clear at all that this part of
Corlett’s discussion is helpful.
Corlett’s
first and third points are more helpful. There is reason for the
U.S.
to be concerned about drug use, and
Colombia
’s role in our national
drug problem, but this concern does not justify humanitarian intervention. This intervention is justified by the help it
gives to others, and not in terms of self-interest. Corlett’s discussion of self-determination
and indigenous rights is timely and instructive.
References Cited:
Corlett,
J. Angelo. 2006. Responsibility and Punishment, 3rd ed. Library of Ethics and Applied
Philosophy, Volume 9. Dordrecht: Springer Publishers.
Larmore,
Charles. 1996. The Morals of Modernity. New York: Cambridge University Press.
Rawls,
John. 1999a. A Theory of Justice, rev. ed. Cambridge, Ma.: Belknap Press of Harvard University Press.
_______. 1999b. The Law of Peoples. Cambridge, Ma.: Harvard
University Press.
_______. 2001. Justice
as Fairness: A Restatement. Erin Kelly, ed. Cambridge, Ma.: Belknap Press of Harvard University Press.
_______. 2007. Lectures
on the History of Political Philosophy. Samuel Freeman, ed. Cambridge,
Ma.: Belknap Press of Harvard University
Press.
Waldron,
Jeremy. 1999. Law and Disagreement. Oxford: Oxford University Press.
