Economic globalization, characterized by the spread of capital and the emergence of a world market, has transformed both production and consumption. It has brought ever more global supply chains, the outsourcing of labor to low-wage countries, increasingly free trade, and the proliferation of marketing and advertising across borders. We have witnessed growing power on the side of capital coupled with a diminishing power of labor, as evidenced in part in widening inequalities in income and wealth both within national states and more globally (despite a decrease in absolute poverty). Forms of labor exploitation persist and are widespread, whether as child labor, sweatshop labor, forced labor and trafficking, or the use and abuse of undocumented laborers and guest workers. At the same time, important institutions of global governance have come to prominence, providing loans to governments and facilitating and regulating trade, especially the International Monetary Fund (IMF), the World Bank, and the World Trade Organization (WTO). These institutions, which were initially set up by developed countries and most often act in their interest, establish policies and make decisions with wide impacts. However, those affected by their functioning, especially developing countries and the global poor, as well as labor more generally, most often lack the right to participate in their decisions or even in the deliberative processes that lead up to them.

If we believe that democracy signifies at its root the right to share in determining the direction of the communities of which one is a part or in institutions that deeply affect one’s life chances, then we need to address the democratic deficit in these communities and organizations, whether they be at the national or transnational level. We have noted the deficit in global governance institutions, but I suggest that similar problems of lack of access to decision making apply within political communities and, I will argue, within a range of economic organizations, including corporate firms. The All-Affected Principle (AAP) is particularly well suited to address the democratic deficits arising from globalization, inasmuch as the laws, rules, and policies of powerful actors – whether they be governments or other institutions – have profound effects on distantly situated people or groups, beyond their import for their members alone. Thus traditional democratic understandings of citizens or members as those who have an exclusive right to participate in decision making or to be represented do not give sufficient weight to the rights and needs of others who may be deeply affected by their decisions. The All-Affected Principle calls on us to structure democratic decision making such that all those who are affected by a collective decision, policy, or law in institutional or communal contexts of political, economic, or social life should have a say in making it. In this chapter, I will briefly lay out my understanding of this principle and its scope, as well as of the original criterion for the scope democracy, which I have denominated the Common Activities Principle. I believe that both principles have important implications for dealing with contemporary forms of the democratic deficit. I will then sketch some of the applications to the case of labor, developing the import for management in firms, and finally for a broader range of labor rights under capitalism.

Two Criteria for Democratic Participation and Input

In previous work, I have proposed two criteria for determining the appropriate scope for democratic decision making, that is, where it ought to pertain and who should have rights to take part and be represented.¹ Each applies to many existing contexts but both also have some radical implications for democratic transformation. Briefly, the first criterion poses a requirement for democratic decision making about what can be called common (or joint) activities, where these refer broadly to institutions or communities organized around shared goals. In such contexts, we can normally identify members, and indeed, equal members of the institution or community in question. The main exemplar has been taken to be citizens of states (or more local communities), but I argue that similar considerations apply to a host of other self-understood communities or institutions, including cross-border ones, regional associations of states, and economic institutions like corporate firms, as well as social organizations like voluntary associations. The argument for democratic rights of participation and deliberation in such contexts does not depend on the coerciveness of law, as in many theoretical approaches, and it proposes an alternative to standard autonomy views as well.

Without going into it at length, I have argued that democratic rights of participation follow from the recognition that opportunities to engage in common activities are important conditions for people as social beings, and that if one is not to dominate others within these contexts, all should have equal rights to codetermine these activities. In my elaborated view, I appeal to what I call a principle of equal positive freedom (as a principle of justice), which presupposes opportunities for the exercise of free choice but goes beyond these to require (prima facie) equal rights of access to a fuller set of conditions for self-transformation over time, or for self-development (of individuals or groups). These necessary conditions involve freedom from constraining ones like domination or exploitation and access to a range of enabling conditions so that choices can be effective, including material means of life activity, security, and forms of social recognition. In my view, these conditions are specified in human rights, including both civil and political ones, and economic and social rights, and these rights themselves can be distinguished into basic and nonbasic (though still essential) ones, where the basic are conditions for any human life activity whatever and the nonbasic are conditions for its further flourishing over time.²

This common activities criterion calls for extending democracy beyond national states to a wide range of other communal or institutional contexts defined by shared goals, whether they be subnational or across borders, and political or economic or social. Thus, I do not take the basic justification for democracy in this sense to involve an appeal to the All-Affected Principle or even to the All-Subjected Principle (ASP), since in my view the crucial factor involves institutions oriented to shared goals. An important dimension of these institutional contexts is that we can identify members, and indeed, something like an equality of membership. The importance of this equal membership has been recognized in the case of political equality, but I argue that it should be extended more broadly to relevantly similar economic and social institutions as well. The All-Affected Principle unfortunately lacks a notion of equality, except if it were to extend globally as in Robert Goodin’s interpretation where it requires enfranchising all-affected interests.³ However, although this latter approach might apply to truly global concerns like climate change, if applied to all issues it would pose new problems, including insufficient attention to local communities and their specific concerns, along with permitting only the most minuscule contribution on the part of any given individual to a decision when taken at this global scale, with billions of potential participants.

The All-Affected Principle has other drawbacks if employed as a general argument for democracy. The list of those affected, including through the unintended consequences of decisions, is vast and cannot be fully known in advance, and it extends to indeterminate numbers of future generations. Moreover, inevitably people are differentially affected by policies and decisions, which would yield not only unequal rights of participation, but also shifting communities or other groupings for the purpose of making various decisions, as is explicitly proposed by Archon Fung.⁴ However, determining in advance the relevant set of those specifically affected so as to authorize their participation in the decision making would be cumbersome, if possible at all, and would seem to require a constant reconstitution of the relevant set of deciders in order to match those potentially affected. This raises the question of who would decide on those affected in each case, with the theoretical possibility of an infinite regress of decisions about who makes the decisions and how they are to be made, and in practice presenting an opening for the replication of existing power relationships, as well as for deep disagreements. Moreover, not only would this method eliminate the equality of citizenship (or other memberships), but it would likely undermine people’s equality across the various groups in which they could conceivably be a part.

Despite these drawbacks if taken as the sole principle for justifying democracy and determining its scope, we can observe that in a sense the All-Affected Principle is implicated in the Common Activities Principle as well. If the latter proposes that members of an existing community or institution should have rights of codetermination about its direction, that is, something like self-rule, then it is also the case that they, being primarily affected by the ongoing processes of that community, are the ones who should determine it, or democratically decide about those plans and processes. From this perspective, the common activities criterion can be viewed as a specification of the All-Affected Principle to contexts of communities of fundamentally equal members (e.g. those recognized as citizens or members of nation-states). This may also explain the appeal that the principle has for us in which it seems to serve as a general justification for democracy and its scope.

However, appealing to the All-Affected idea as the main justification for democracy in such contexts would diminish the role of collective agency that I believe is most characteristic of them – that is, in ongoing communities or institutions, it is the process of projecting shared goals and planning ways of meeting them that is decisive. Of course, we are indeed setting these goals for ourselves – that is, those who will be affected by the decisions. There is here a commensurability between the “we” who decide (either directly or through representatives) and the “us” who will be affected. Insofar as we recognize each other, however tacitly, as equal members in this community with overlapping shared goals and who depend on each other for their realization, we do not have to determine specifically who would be affected each time, and we regard ourselves as equally so, even though the specific decisions in fact may impact us somewhat differently. To use the All-Affected Principle as the essential one would also give our common activities an excessively individualistic reading, deriving as it does largely from consequentialist accounts in ethics, and would call on us to aggregate those specifically affected into a group with rights to participate in the decision. I believe that conceiving matters this way would lose the primary sense of our comembership in an ongoing collective activity, in which we jointly construct our ways of being together, and do so (normatively at least) through democratic procedures. Of course, since our being together also means that we are affected by each other and by the decisions we make, we would certainly do well to attend to how our choices will impact or affect us, avoiding those that diminish the life chances of some of our members. But our projecting goals for future activity and making decisions about this activity is what is most decisive in these communal or institutional contexts, and is also responsive to our own individual functioning as intentional and goal-projecting agents.

Although it is thus not a first principle for democracy in my view, the All-Affected Principle does have a crucial place in democratic theory and necessarily supplements the common activities criterion. It does so in several ways. For one thing, the principle serves as a heuristic by which to evaluate the democratic adequacy of the scope of existing communities and institutions and can in turn serve as a corrective, by pointing toward more inclusive understandings of the communal or institutional bodies that ought to have powers of decision. Indeed, the impacts of decisions on people currently excluded from membership may well lead these excluded others themselves to demand inclusion in the relevant communities or in their decision-making processes. Besides this, the very boundaries of economic institutions like transnational corporate firms may themselves be unclear, or, even if clear, often involve extensive interaction and close cooperation with other firms, as in global supply chains or in the case of subsidiaries. Likewise, the informal communities brought into being with contemporary internet technologies may themselves be not only cross-border but also amorphous in their boundaries, without clearly defined notions of membership. If these transnational contexts involve decision making, appeal to the All-Affected Principle can help to set reasonable boundaries for who should be able to participate in these decisions or policy making.

Besides these various uses as a heuristic and corrective guide for the reach of democratic norms, the application of the All-Affected Principle can also lead to calls for new institutional design to give affected outsiders concrete opportunities for democratic input into relevant decisions. In fact, I propose that the main function of the All-Affected Principle is to address just these sorts of exogenous impacts of decisions. It demarcates the affected others, and argues for the need to give them democratic input to these decisions, if not fully equal participation rights. The cases here range from calls for powerful collective actors to simply take into account the effects of their decisions on others in their own decision processes, to the need to hear from these affected outsiders directly through such means as democratic forums, to more stringent requirements of granting these others full participation rights proportional to their affectedness, and in some cases, to according them fully equal participation rights.

I suggest that, in practice, the contemporary power of the All-Affected Principle resides particularly in giving us a way to address the increasingly dispersed, or even global, impacts of decisions, which I pointed to at the outset. The principle is thus central to dealing with these exogenous effects, where existing powerful states, global governance institutions, and transnational corporations increasingly set policy that impacts populations around the world. Inasmuch as these decisions, policies, rules, and laws affect the basic life chances of people who are not members of the institutions or communities in question, these affected outsiders should have rights of what I have called democratic input into the decisions in question.⁵ As noted, this democratic input may sometimes consist in full participatory rights or representation, but in other cases it may suffice to enable opportunities to affect the deliberation processes of these institutions without granting fully equal participatory rights. It may also be necessary to design entirely new institutions to remedy the defects of the existing institutions of global governance, or even to create new democratic assemblies at regional or global levels.

However, given the extraordinarily wide scope of those potentially affected by decisions and policies of these powerful actors, we need to find some way to delimit and to specify the set of those who should be given opportunities to provide democratic input into these decisions. I have argued elsewhere that we need an understanding of those we could regard as “importantly affected.” I have further suggested that this set should be taken to include those people seriously impacted in their ability to fulfill or realize their human rights, and in the first place their basic human rights.⁶ The principle can accordingly be formulated as follows: Whenever people are prospectively seriously affected in their possibilities for fulfilling their basic human rights by a given decision or contemplated policy, these people have rights of democratic input into the decisions in question. It is insufficient, in my view, for decision makers to simply imagine the effects of their decisions on distant others, as is often recommended by stakeholder theory. Instead, they need to hear from these affected others concerning their interests and needs. Indeed, in some cases where others can be expected to be more affected than the decision makers, these affected others would need to have full rights of participation or representation in the decisions in question. I have delineated some of the implications of this requirement for global governance institutions in other work,⁷ but it also has important implications for labor and labor rights, which I will sketch in the following parts of the chapter.

We can observe that such democratic rights for those affected are required by the very principle of equal positive freedom that I have proposed supports equal rights of democratic participation in the case of common activities. Insofar as people are impacted in the possibilities of human rights fulfillment, where this is clearly an important condition for their self-transformation or self-development over time, they require (some shared) access to determining the course of these conditions. I have elsewhere argued that human rights claims are not in the first instance to be understood as holding against the state, as on traditional interpretations. Instead they fundamentally hold as claims on others to set up and support institutional forms to help realize them, and these institutions would have to be responsive to people’s own understanding of their basic needs and enable ways of hearing from them as to the effective means of meeting these needs or fulfilling their rights. Although the democratic rights that are entailed here are, at a level of generality, equal across persons, the specific ways that rules or policies affect particular groups or individuals necessarily give rise to differentiated rights of access into the various decisions and institutional contexts in question, since these touch people’s lives in multifarious ways. I suggest that these sorts of differentiated effects and their correlative of differentiated rights of input are not pernicious when the All-Affected Principle is interpreted to apply to participation based on the external impacts of decisions, whereas to my mind it would tend to undercut political equality and the equality of membership in institutions if it were taken as the general and exclusive basis for democratic participation.

If we reflect on the way that the All-Affected Principle, like the common activities one, follows from the principle of equal positive freedom in the approach here, we can see that the norm of democracy is closely related to that of justice. However, it is certainly not coextensive with justice, which implies other requirements that go beyond the scope of either democratic principle. Among these implications of the principle of justice is the critique of domination and exploitation, including in forms of structural injustice. This in turn suggests that for a full account of labor rights, or for such desiderata as the regulation of market externalities, or of the economy more broadly to make it more responsive to people’s fundamental interests or rights, we need to appeal to considerations of justice, and not only to the democratic considerations posited in the All-Affected Principle. While one could conceivably construe that latter principle such that nondomination and overcoming structural injustice would be a special case of it – since domination or exploitation violates the principle to the degree that it does not give scope to the collective will of those affected by exploitative or dominating forms of activity – to my mind, this would take the principle beyond its proper home in democratic theory. Instead, many social and political harms are best addressed with reference to principles of justice, rather than by relying only on democratic norms. Needless to say, these various principles also interact in practice in ways important to the account here. For example, increases in justice and equality in social and economic life can conduce to a better and more effective democratic politics. Indeed, meeting economic human rights to a decent standard of living is itself a prerequisite to viable democratic processes in the political sphere.

Application of Democratic Criteria to Labor

We can now move to the outlines of a democratic approach to dealing with the difficult impacts of economic globalization and of capitalist economic organization on labor. In my view, the application of the All-Affected Principle globally, along with the common activities criterion, requires a radical rethinking of work and labor, and more fundamentally, the relation of democracy to economic life, although we will only be able to consider these issues schematically here. In this part, I will take up the core requirement of self-management at work, or what has been called workplace democracy, and in the subsequent part explore some of the other applications of the All-Affected Principle to labor and labor rights. In both parts, the reflections and proposals will be largely normative, and admittedly difficult to envision concretely and to apply in practice. Nonetheless, I believe that it is important to clarify these normative democratic dimensions so they can be of some help in guiding practical transformation going forward.

The need for self-management has been a core thesis in my previous writing, given the requirement of overcoming domination and exploitation at work, along with the constructive democratic implications of the norm of equal positive freedom, or equal rights to the conditions required for free activity.⁸ I will briefly note the arguments for self-management in this part and then discuss some of the problems arising from the need for worker-managed firms to implement the All-Affected Principle in their own policies and plans. In the third part of this chapter, where I take up some other implications of the All-Affected Principle for giving labor more of a say in global economic contexts, I will build on previous work concerning the democratic deficit in global governance institutions. I have advanced proposals for adding regular human rights impact assessments to the environmental and technological ones currently in use, and the inclusion of INGOs advocating for the global poor and of representatives of labor within the deliberations and decision processes of existing global governance institutions.⁹ Other proposals have concerned the need for the development of regional forms of democracy, and for the reduction of the democratic deficit and of bureaucracy within existing regional associations, notably the EU.¹⁰ I have also argued for more democratic forms of decision making within civil society organizations and even within social movements themselves (some of which have already moved to implement democratic forms of solidarity). It is clear, however, that these changes, though helpful, will not suffice to deal with the degradation of labor under the conditions of globalization or to rectify labor’s lack of input and control in regard to the extensive range of corporate and governmental decisions that affect it. Deeper transformations are needed to address the democratic deficit in regard to labor, taking guidance from both criteria for democracy stated above.

Turning now to the requirement of self-management in firms and to rights of democratic management where full worker control cannot be achieved, we can consider how these requirements follow from both criteria of democracy, but most especially from the Common Activities Principle. Among the various stakeholders in a firm’s activities – including suppliers, consumers, the surrounding community, etc. – employees are distinctive in being part of the firm itself. As members of it, taking it as a common activity, they properly have rights of codetermination over the firm’s planning and policies. Seen in this light, their situation has many parallels with membership in a political community, understood as entailing equal rights of participation. Admittedly, this understanding of firms elides the customary distinction between the political as public and the economy as private. But corporate firms operate under a charter or other legal recognition granted by the public to corporations,¹¹ and under the aegis of publicly instituted property rights, and I suggest that these firms can also be viewed as quasi-public in the mode of their institutional functioning. Conceiving them within the frame of common activities defined by shared goals regards them as more than merely profit-seeking institutions, looking to the ways they function as productive group agents, though ones that involve institutionalized roles and practices through which they operate and make decisions. In this view, the steering of these firms normatively properly belongs to all the members who collectively should be enabled to decide their course rather than being restricted to a small group of directors and managers, as at present.

The democratic requirement most certainly does not imply that all those who work in a firm need to make all decisions, but rather that the managers need to be accountable to the workers and, in the strong case, should be chosen by them. Ideally, all who work in the corporate firm should be given ownership and management rights, though they may delegate responsibilities to managers, that is, authorize managers to assume them. The democratic rights for members can be vested in them after some initial waiting period, thereby avoiding counterarguments, e.g. concerning “scabs” potentially having voting rights, or even having to give them to workers who turn out to be ill-suited to the job at hand. We can also acknowledge that democratic management is a desideratum that can be implemented to various degrees short of full self-management. In such cases, it comes closer to what has been called participative management, although the latter has tended to be understood in theories of management and business ethics to include only a weak set of requirements.¹²

The All-Affected Principle supports rights of democratic participation similar to that implied by the common activities criterion, since clearly workers are very deeply affected by a firm’s policies and plans, almost always considerably more so than other stakeholders, both in terms of intensity and consistency of these effects. However, I think the common activities criterion remains the dominant criterion here, inasmuch as it casts workers as members equally with managers and, in the strong case, generates full rights of participation rather than only democratic input into decisions.

The All-Affected Principle has important consequences for the other stakeholders of a firm (including distantly situated ones). It supports the introduction of forms of democratic input for these stakeholders, and in cases where they are directly and forcefully affected, requires even fuller forms of participation and representation. Although it is true that distant others increasingly contribute to a firm’s production or activity more generally, e.g. by way of global supply chains, nonetheless it is still possible to distinguish members from importantly affected nonmembers. Those who labor in the firm can be identified as members, whereas other stakeholders are affected or impacted by it, but do not constitute the firm itself in the relevant sense.

The normative requirement for firms to consider the impacts of their policies on distant stakeholders would apply to worker-controlled as to existing hierarchical firms. To a modest degree, the need to take stakeholders into account is already recognized by current theories of business ethics, whether in terms of the notion of corporate social responsibility or in terms of stakeholder theory itself. However, this taking into account is usually envisioned as simply a matter of managers imagining the impacts on these stakeholders. A somewhat stronger requirement would be the introduction of human rights impact assessments to supplement the existing technology or environmental impact assessments. Yet, this too falls short of actually hearing from those impacted others beyond the firm. To accomplish that, it might be possible to include representatives of distant stakeholders within the firm’s decision-making processes.

However, much of the required democratic input would undoubtedly need to take place within institutions above the level of the firm, assumed to exercise some democratic sway over them. Ideally, workers or their associations would elect the members of these high-level supervisory bodies. In the nearer term, they are more likely to take the form of regulatory institutions within elected democratic governments. Even these would require eliminating the power of lobbyists and others who advocate for narrow corporate interests, if the concerns of affected workers are be taken seriously. It would also require more generally removing the power of money from politics – a difficult prospect indeed. The influence of wealth and corporate power in contemporary politics clearly undermines political equality and its elimination is a prerequisite for gaining real equality for labor and other currently marginalized groups.

The proposal here for self-managing firms is of course incomplete as it stands. They would be likely have to operate within a market framework, though not necessarily a market in labor of the sort we have at present. Further, as theorists like David Schweickart and others have argued, transitioning to a system of self-managing firms would require new sources of loans, including from governments, for starting up new firms.¹³ New firms could be encouraged to have a Green mandate, and their introduction could also help to deal with the problems posed by ever-growing degrees of automation in manufacturing, if funding were made available for these purposes. Needless to say, an economy of self-managing firms raises new questions, especially concerning the possible disinclination of such firms to take on new workers as equal members. Nonetheless, the importance of eliminating existing domination and exploitation within the work process and of introducing greater degrees of participatory decision making in those contexts provides motivation for addressing these new issues. It can be noted finally that participation at work would likely have a salutary effect on politics, both in terms of providing opportunities to practice participation¹⁴ and because of the empowerment of workers that it entails, an empowerment sorely lacking at present.

The All-Affected Principle and Contemporary Labor Rights

The reach and application of the All-Affected Principle for labor extends beyond the workplace. Its use points to the fact that labor is most often not adequately represented in decisions and policy making that affect its onerousness or the dangers it poses to workers’ health and safety. And the principle can ground labor rights to collectively bargain with owners in existing contexts of contemporary capitalism. We can consider in this final part some further applications of the principle, by way of a list, and take note of how these would enhance the situation of labor and serve to extend and deepen labor rights.

1. 1. The International Labor Organization (ILO), a unit of the UN, is tasked with improving labor conditions and helping to generate work opportunities around the world. It promulgates international labor standards, e.g. regarding child labor, forced labor, etc. However, it is primarily representative of governments, along with employers, and labor (in equal measure). One major problem is that the ILO has no real power to regulate the use of labor to accord with these standards, despite its declarations of them. In view of the impact such standards would have for people’s work activity, a prospective change would be to at least make the ILO more fully representative of labor, as the group most closely affected by standards or their absence. It would also be essential to endow this more fully representative body with effective powers not only to regulate work so as to eliminate child labor and forced labor, but also to protect collective bargaining. In the long term, the organization could also support and facilitate democratic management within firms. Granted, this is more of a wish list for the ILO (or a similar organization) rather than an immediately realizable scenario, but movements towards this sort of transformation would be important.

2. 2. A related change would involve gaining input from workers and distantly affected people in institutions of global governance like the WTO, which deeply affect their life chances. Such a change would aim to at least counterbalance the power within them of wealthy states and corporate interests and include a new focus on meeting workers’ needs. An even deeper structural transformation would involve replacing some of these institutions by new ones explicitly representative of labor internationally and fully responsive to developing states.

3. 3. The right to form and join unions for the protection of people’s interests is included among the human rights enunciated in article 23 of the Universal Declaration (1948). That right would seem to require also a second right, namely, to collective bargaining over wages and conditions of work. Indeed, the UDHR article also specifies a right “to just and favourable conditions of work,” to “equal pay for equal work,” and to “just and favourable remuneration” providing for the worker and the worker’s family “an existence worthy of human dignity.” Clearly, these are examples of rights that are dependent for their form on a particular stage and type of institutional development. Nonetheless, I believe that these rights, including the right to form unions, are responsive to the even more basic right to an adequate level of material well-being, as well as to the conception of the freedom and dignity of all humans that underlies the Declaration.

   We can see that, short of worker management or control, collective bargaining is a crucial tool for the improvement of the conditions of work and the achievement of material well-being and equal social status for labor. It can be seen as required by both the common activities and the All-Affected Principle, inasmuch as it enables participation and representation in regard to labor’s affected human interests in the sphere of work. One concrete proposal would be to make the recognition of the right of collective bargaining a condition for all trade agreements and for all foreign direct investment. This would extend the notion of human rights conditionality in a more progressive direction to include an underappreciated human right. Needless to say, in the United States, the rights to form unions and to collective bargaining have been eroded over time rather than becoming more fully recognized and established over the years. Short of the introduction of self-management, however, unions and collective bargaining constitute crucial means for ameliorating the effects of capitalist political economy on labor, both domestically and in international contexts.

4. 4. It is sometimes suggested that free trade is bad for workers but that protectionism will be good for them. However, I think we need to recognize that both free trade and protectionism as presently constituted for the most part operate to benefit corporations and wealthy interests rather than workers, who nonetheless are deeply affected by these policies. So it is necessary to address and assess trade from the standpoint of its impact on labor. In addition to questioning the functioning of the WTO and its lack of representation of the interests of workers, it would also be helpful to consider the connection of both labor and capital to borders. Capital presently is quite free to move across borders, while workers are most often bound by them, and in any case find it difficult to move. Some modest control on finance capital, or at least forms of taxation of it, should be contemplated. Besides this, enforceable labor standards can be attached to trade deals, to try to prevent the “race to the bottom.” Indeed, such standards would be helpful at an international level, although the problems posed by their disparate impact on developing countries would need to be addressed. Implementing these standards would thus require concomitant efforts to address global inequalities, for example, through some (modest) forms of global taxation, as well as by more open immigration policies.

5. 5. An account of labor rights given the effects of globalization on workers would be insufficient without an acknowledgement of the unemployed. They are deeply affected by economies and markets, but have little opportunity for input or for participation. Policies that affect the unemployed are enacted politically so the All-Affected Principle would here seem to require their active participation in politics. But a basic precondition for such political participation is in jeopardy if the unemployed lack the basic essentials of life. This suggests the need to support them by way of guaranteed basic income (or other modalities of material support), in addition to the more standard directions of job training and job creation.

6. 6. Related considerations of the role of economic well-being as a crucial condition for participation in democratic politics, which so deeply affects laborers and sets conditions for their activity, point to the need for a living wage, and its status as a central contemporary goal for labor. Of course, the call for a living wage also follows from the intrinsic importance of an adequate level of material well-being as a human right.

7. 7. The All-Affected Principle helps to call attention to the impact of work on reproduction activity in the home and on the status of gender in work both in that sphere and on the job. Economic and development policies undoubtedly can have differential and often problematic effects on housework and caring labor, the burdens of which have traditionally been assumed mainly by women. As a form of labor, housework has tended to be uncompensated, despite its substantial value. Alternative ways of providing it and/or compensating for it need to be assessed not only in economic terms, but through a consideration of its differential impacts on women. Alleviating their unequal burden remains a requirement for full gender equality. Moreover, caring work and housework require reevaluation and valorization as equally essential forms of work in comparison with standardly compensated types. The All-Affected Principle specifically requires that women, and care workers more generally, be represented in processes of legislation and policy making that affect their care work and, more mundanely, their housework, and that the needs of all care workers should be taken into account in deliberations concerning the policies that affect them as workers.

Beyond these proposals, it is clear more generally that focusing on all those affected by the modes of functioning of contemporary economies helps to call our attention to the disparities in power relations that characterize the sphere of politics and economics. It calls for a more inclusive approach on the part of policy makers and citizens that would cut through ideological or epistemically unjustified biases, and requires instead considering the entire set of people and groups impacted by a proposed law or policy. I have suggested that labor is prominent among such groups and that it is often marginalized in such decision-making processes. However, it is not the only such group disadvantaged by capitalist economic organization and existing globalization processes, or by governments that often reflect the interests of the wealthy and powerful. Indeed, conflicts have arisen, and can be expected to continue to emerge, between labor and other affected groups, for example, Indigenous people, or the unemployed. The All-Affected Principle does not directly provide guidance toward resolving such conflicts, although if sensitively applied, it can help provide guidance for whose interests need to be taken into account in any given case.

Conclusion

It is useful to observe that conflicts between labor and other groups in fact presuppose, and are likely exacerbated by, the existing social and economic context, one marked by separation among various groups, each of which is taken to have quite different interests. While we can expect that some sorts of variations in the interests of diverse groups will undoubtedly persist through all social formations, the proposal made above for self-management and more democratic economies could function to moderate some of the most pernicious differences and conflicts among groups. It would involve a degree of structural transformation, with the potential result that a broad subsection of the population as a whole would be understood to fall under the heading of labor. In this transformation, an empowered labor would not be understood as it is at present as limited to a “working class” sharply distinguished from a “middle class” or from the “upper class.” Rather, if full worker control were to prevail, with few exceptions people would be considered to be – and would take themselves to be – workers or laborers (and also managers). Of course, some groups, e.g. the unemployed or those who cannot work, would still need to be treated separately.

I suggest that this transformation would likely endure even as work itself becomes less prominent over time (at least in its traditional forms), given the increased automation of work processes. We can expect that the concept of work will itself undergo a transformation, to include more than remunerated production and service activities. It would extend to creative, caring, and community service work as well. However, the application of the All-Affected Principle to that new context would need to be further explored, in ways that go beyond the present chapter. In the near term, this principle clearly requires that workers be given much greater opportunities to address the potential consequences of automation, both in their own workplaces and in the political sphere. Indeed, this same requirement can also be seen to follow from the core proposal for democratic management developed earlier in this chapter. It is evident, in any case, that both of the principles considered here – the Common Activities Principle and the All-Affected Principle – have multifarious and interlocking implications for enhancing the role and status of labor in contemporary political economy and in our political societies more generally.

My aim in this chapter is to offer an interpretation of the All-Affected Principle that captures important intuitive sources of its appeal for democrats in the pluralist institutional landscape of global governance practice.¹ Here I take the AAP to be an institutional principle for distributing the political power contained within governance institutions (in shorthand, “political inclusion”), as distinct from an ethical principle for guiding the discretionary “considerations” of powerful decision-making elites.² Thus understood, the AAP provides an alternative to the more common democratic claim that political inclusion should be distributed in accordance with the scope of egalitarian moral solidarities – whether these are understood in “communitarian” terms as national in scope,³ or in “cosmopolitan” terms as globally all-inclusive.⁴

In what follows I present a normative interpretation of the AAP, as a democratic principle for distributing political inclusion, which incorporates answers to three key questions. First, what distinctive democratic values does the AAP advance, in contrast to the solidaristic egalitarianism of cosmopolitan or communitarian principles? Second, what follows institutionally from the AAP, in relation to the institutional sites in which political inclusion is to be sought, the types of institutionalized governance power that political inclusion is to distribute, and the basis on which particular individuals are to be politically included within particular institutional sites? Third, what does an endorsement of the AAP imply for our broader theoretical understanding of the normative role and limitations of democracy as a global political project? The answers I offer to these questions are guided by what I call a “realist” normative conception of democracy. Some influential philosophical defenders of the AAP have presented it as an ideal-theoretic democratic principle – with institutional implications that are “wildly impractical.”⁵ Here I offer a rival interpretation that accounts for its role as a realist democratic principle for distributing political inclusion. Whereas ideal-theoretic democratic principles identify criteria for judging institutions to be morally justifiable (or “just”), realist democratic principles instead identify criteria for judging institutions to be politically legitimate, in the normative sense of being worthy of political support by real political actors in some concrete operational context.⁶ Here I take the broader concept of democracy to denote a governance practice that institutionally empowers the self-determining political agency of some collective or collectives (the “demos” or “demoi”),⁷ on terms that are politically inclusive of individuals.⁸ As such, articulating a realist conception of democracy requires consideration of which forms of political inclusion best strengthen the real-world support-worthiness of governance institutions, as instruments of collective political empowerment.

I develop and argue for this realist interpretation of the democratic AAP in three steps, answering each of the above key questions in turn. First, I argue that the distinctive democratic value of the AAP derives from its concern with institutionally empowering those valuable dimensions of individuals’ political agency that are expressed through participation in the practical performance of global governance functions, alongside those expressed through deliberative or aggregative social “choice” procedures. By aligning political inclusion with political “affectedness” rather than moral solidarity, the AAP recognizes that the collective activities constituting existing governance practices (rather than philosophers’ ideals of political community) constitute the politically legitimate starting point for democratic political projects. Second, I argue that this interpretation of the normative point of the AAP supports a pluralist, rather than a cosmopolitan, institutional approach to democratic inclusion; the sites, types, and constituencies of inclusion should vary across institutional contexts, depending on their real-world consequences for the empowerment of individuals’ capacities to advance their interests through institutional collaboration with others.⁹ Third, I elaborate the broader “realist” conceptions of global democracy and political legitimacy that are implied by this interpretation of the AAP, and highlight some advantages and limitations of the realist account.

The Democratic Value of the All-Affected Principle

To understand the distinctive democratic value of the AAP as a principle of political inclusion, it is instructive to begin with some further reflection on what it means to be included in a democratic process. Central to the concept of democracy, as characterized here, is the idea of empowered collective agency: democracy is an inclusive process of collective self-determination, empowered through shared governance institutions. As such, the meaning of political inclusion in a democratic process must be derived from an underlying conception of the kind of empowered collective agency in which inclusion is sought.

Since ideas of power, collectivity, and agency are some of the broadest in the modern political lexicon, the conceptual space within the idea of democratic inclusion is in principle very wide. Among most contemporary democratic theorists, however, there is convergence on a much narrower conception of empowered collective agency – as the operation of social choice procedures within some formal institutional process of political decision making. Here the notion of social “choice” denotes either the aggregation of individuals’ formal preference signals in the form of electoral “vote,” or collective agreement arising from the mutual articulation of individuals’ reasons in the form of deliberative “voice.”¹⁰ Corresponding with this conception, the democratic idea of political inclusion is typically identified narrowly with participation in aggregative or deliberative political decision-making procedures.

The normative appeal of this conception of empowered collective agency rests on two implicit theoretical commitments, both of which have been influential through the modern historical period in which contemporary democratic theories have developed. The first is a normative commitment to a rationalist model of political agency, which attributes value to the democratic self-determination of collectives as a function of the value placed on the strategic rationality of individual voting behaviour, or the communicative rationality of public deliberation. The second is an empirical commitment to a hierarchical model of political governance, which assumes democratic social choice procedures can be “plugged in” to some institutionally subordinated governance instruments with the requisite material capabilities (resources, technologies, and administrative infrastructures) to implement democratic decisions – as is envisaged, paradigmatically, within constitutional democratic states or functionally equivalent cosmopolitan governance institutions.

If we understand the empowered collective agency at the heart of the democratic project in this way, what follows for democratic principles of political inclusion? This social choice-focused democratic conception of empowered collective agency can be straightforwardly reconciled with traditional principles of political inclusion based on morally solidaristic (communitarian or cosmopolitan) conceptions of political community, simply by prescribing the construction of constitutional democratic states to align with moral solidarities at either national or global levels. It is much more difficult, however, to reconcile it with the AAP as a principle of political inclusion. If it is assumed that all of democracy’s empowered collective agency is located within the social choice procedures for which the AAP regulates inclusion, then the prescriptive implications of the AAP appear to be either indeterminate or circular. The AAP cannot generate determinate institutional prescriptions unless we can first determine what set of people will possibly or probably be affected by some specific decision-making process. Yet we cannot even begin to speculate about what range of people will possibly or probably be affected unless we have some substantive idea about the content that its decisions will possibly or probably have. But if we counter this indeterminacy by specifying in advance some range of substantive decisions, we encounter a new problem of circularity – insofar as settling some decisions in advance seems to call for pre-judgment on the very matters that democratic decision-making procedures are supposed to settle.

In one influential interpretation of the AAP, Robert Goodin proposes a way of escaping both the indeterminacy and the circularity just described. His proposal is to assume all decision-making processes to be entirely open regarding the range of their possible decisions, such that any decision-making outcome is assumed to be possible, in any decision-making process. This avoids the charge of circularity by making no substantive assumptions of the kind that would prejudge a democratic decision-making process, since all possible decisions remain in the set available for a demos to decide upon. It also provides determinacy by prescribing universal inclusion, such that “(at least in principle) we should give virtually everyone a vote on virtually everything virtually everywhere in the world.”¹¹

But while this proposal escapes the problems of indeterminacy and circularity, it encounters two new problems: impracticality and prescriptive non-distinctiveness. The first of these problems is straightforward: as Goodin himself recognizes, his proposal for universal inclusion in all decision-making processes is “wildly impractical,”¹² and untenable as a real-world prescription for democratic institutional design. The second problem is that this interpretation of the AAP as an institutional principle effectively collapses it into a variant of cosmopolitan solidarism, insofar as claims to political inclusion follow directly from cosmopolitan moral concern for individuals’ interests, conditioned only by an extremely broad background assumption of (possible if not actual) global social interconnectedness. While talk of “affectedness” here may help to justify the cosmopolitan institutional claim that universal political inclusion follows as a prescriptive corollary of cosmopolitan moral solidarity, this “affectedness” talk does not generate any prescriptive institutional principle that is distinct from solidaristic cosmopolitan inclusion.

Here I propose an alternative normative interpretation of the AAP that preserves its prescriptive distinctiveness as an institutional principle of political inclusion, while further escaping the problems of indeterminacy, circularity, and impracticality. My proposal is that the AAP’s directive to align political inclusion with political “affectedness” is prescriptively distinctive in virtue of directing democrats to recognize existing institutional practices of governance (rather than philosophers’ communitarian or cosmopolitan moral ideals of political community) as the politically legitimate starting points for democratic political projects. In concrete prescriptive terms, this means that the AAP directs democrats to pursue political inclusion of the affected not only through formal social choice procedures linked to hierarchical state-like administrations, constructed to align with national or global moral solidarities. Rather, the AAP prescribes the expansion of political inclusion within a much wider set of institutionalized governance practices, incorporating non-state organizations such as corporations and NGOs alongside more institutionally complex market and networked governance activities, which perform significant governance functions within real global political practice.

In addition to achieving prescriptive distinctiveness, this interpretation of the AAP helps to solve the problem of indeterminacy: since the AAP prescribes inclusion through governance institutions that already exist in concrete forms, empirical analysis of institutions’ functions and impacts can help inform political efforts to map out circles of “affectedness.” It also helps to moderate objections to the practicality of the AAP. Any democratic project must confront substantial practical challenges, which are inherent to its emancipatory and egalitarian political ambitions. But the prescription to start by engaging institutions within existing governance practice at least gives democrats some concrete political agencies to “go to work on” – as Nagel puts it in a related argument about global justice¹³ – rather than contemplating the task of engineering a revolutionary overhaul of the global institutional order.

Beyond these analytical advantages of my proposed interpretation of the AAP, we must also consider what substantive theoretical commitments are required to support its normative appeal as a democratic principle of political inclusion. The claim that real governance practices constitute the right starting point for the pursuit of democratic inclusion can draw some preliminary support from well-established empirical literatures highlighting various functional limitations of “hierarchical” state-based governance instruments, and corresponding functional advantages of the disaggregated “network” and “market” governance instruments¹⁴ that play substantial roles in existing “private,”¹⁵ “complex,”¹⁶ and “liquid”¹⁷ global governance institutions.¹⁸ But normative claims about the democratic value of real governance practices must rest on more than empirical assessments of their distinctive functional capabilities; it must rest further on normative assessments of the substantive political interests that real governance institutions have functional capabilities to advance. So here we need a further account of how and why practice should have primacy in defining the democratic “common interests” that governance institutions should strategically pursue.

One well-known account, derived from pragmatist political thought, goes some of the way by demonstrating the special epistemic value of experimental forms of political action found within some real governance practice.¹⁹ But such epistemic justifications for the primacy of practice are not adequate alone, since they account only for the instrumental value of certain forms of governance practice in identifying how best to advance substantive “common interests” (albeit allowing that understandings of these interests may themselves shift as experimentalist practice develops). A normative argument for the primacy of practice in defining governance problems must go further, by accounting also for the role practice should play in defining the substantive content of these “common interests.”

On my proposed account of this role, the “common interests” advanced through the functions of existing governance practices have democratic value insofar as participation in the constitution of institutions’ material governance capabilities, alongside participation in institutions’ deliberative or aggregative “social choice” procedures, can constitute meaningful expressions of individuals’ political agency, of the kind that democratic projects aim to respect and empower. The claim is that political value judgments concerning common interests are not always expressed communicatively – in the rationally articulated forms of vote or voice that contribute directly to decision making within formal social choice procedures. Rather, they are often expressed behaviourally²⁰ through individuals’ behavioural patterns of adaptation, support, and resistance towards institutions within real political practice, which over time and in the aggregate contribute substantially to shaping the functional capabilities embodied in governance institutions.²¹

Relevant political behaviours here may include institutional rule-compliance, or conversely rule-evasion, “foot-dragging,” or “false compliance,”²² resource allocations towards or away from particular institutional activities, cultural expressions of institutional endorsement or disapproval, or patterns of attentional engagement or disengagement with institutions. Such behaviours vary in their degrees of communicative articulateness: some, such as financial donations to institutions, or organized protest actions against them, may be both intended and interpreted as clear communications of political value judgments articulated explicitly elsewhere. But others – in particular those involving more “everyday” (ad hoc, low-stakes, and unprincipled) interactions with institutions – express less articulate judgments, based in part on non-cognitive evaluative faculties such as attentional and emotional responsiveness or motivational energies, which are more dissimilar from the intentional modes of “choice making” envisaged by rationalist normative models of democratic political agency.²³

On this interpretation, the forms of political inclusion prescribed by the AAP are democratically valuable insofar as they provide individuals with access to powerful institutional avenues for collaboratively advancing the interests that they judge to be most valuable – whether these judgments are politically expressed through rationalized voice and vote within institutions’ decision-making procedures, or alternatively through the less articulate everyday behaviours that help shape the range of powers accumulated within real institutions, and thereby the scope of their decision-making impacts. The political value of democratic institutions is still understood to be derived from their role in politically empowering the exercise of collective self-determination; but this collective self-determination extends beyond collective choice making to incorporate empowered collective agency more broadly conceived.²⁴ Rather than viewing “social choice” decision-making procedures as the sole sites of democratic collective agency – with the functional capabilities of “public power” cast as mere instruments for executing these decisions, via a hierarchical subordination of “public power” to the decision-making authority of a demos – here democratic collective agency is viewed instead as more highly diffused across more complex social processes for constituting as well as deploying institutional power.

Some democrats may object that this normative interpretation of the AAP cannot fully overcome the circularity objection, since limiting inclusion to those affected by existing governance practices may reinforce a range of injustices supported by the existing institutional boundaries of governance capability and impact, and rig global political decision-making processes against more just political decisions.²⁵ I will return to the larger theoretical questions raised by this challenge in the final section of the chapter. But for now it is enough to point out that it is perfectly coherent to recognize that many existing global governance practices perpetuate (and are to some degree products of) injustices – and moreover to protest these injustices strongly – while nonetheless insisting that governance practices can embody some valuable expressions of collective political agency.

On the interpretation I have outlined here, the application of the AAP as a principle of political inclusion provides a normative bridge between practice-based and philosophically based dimensions of democratic collective agency, by defining a division of labour between them within an overarching institutional framework for democratic global governance. Governance practice produces its animating institutional material, in which the functional capabilities of governance institutions are structurally embodied, while social choice procedures perform the secondary role of rationalizing and moralizing this collective agency, through filtering some important dimensions of it through the philosophically justified procedures of public deliberation and egalitarian preference aggregation.

The Institutional Implications of the All-Affected Principle

Having thus established a rough interpretation of the distinctive democratic values advanced by the AAP, the next question to consider is: what follows institutionally from this interpretation of the AAP? There are three institutional questions in particular that must be addressed in further detail than I have considered so far. In what institutional sites is political inclusion to be sought? What types of institutionalized governance power is political inclusion to distribute? And on what basis are particular individuals to be politically included within particular institutional sites? I will consider these questions in turn – arguing overall for what I describe as a pluralist institutional approach to political inclusion.

Justice, Legitimacy, and Democratic Empowerment: A Realist Account

The normative democratic interpretation of the AAP advanced here is vulnerable to moral critique in two key dimensions. First, it is vulnerable to critique in terms of procedural moral principles, which are central to familiar moral ideals of democratic social choice. Applying my interpretation of the AAP within pluralist global governance practices undercuts procedural moral principles insofar as it permits some erosion of the political authority of democratic “social choice” procedures, which are structured in accordance with rational and egalitarian principles. By prescribing political inclusion through diffused institutional sites of global governance that lack these procedural characteristics, the AAP compromises the forms of collective rationality³⁷ that formal and public procedures of preference aggregation and deliberation can support, and may also make it harder to operationalize and institutionally assure political equality within global governance processes.³⁸

It is vulnerable to additional moral critique in terms of substantive moral principles of liberal-egalitarian social justice, which are often identified as justificatory philosophical grounds for democratic procedural principles.³⁹ At a minimum, some of the political exclusions permitted by the AAP may leave unchallenged unjust forms of social and economic inequality and domination that shape existing governance practices, and thus influence the substantive interests advanced by status quo institutional functions. In some cases these political exclusions could even reinforce social injustices, insofar as the democratization of established governance institutions serves to bolster their sociological (as distinct from normative) legitimacy, and thus strengthen their functional capabilities to advance unjust collective political agendas. I regard these moral critiques as sound, and do not dispute the charge that my normative interpretation of the AAP should be regarded as non-ideal from the perspective of a liberal-egalitarian conception of justice.

One way to defend my interpretation, in light of this concession, would be within the framework of a “non-ideal” theory of justice⁴⁰ – arguing that the AAP provides the most effective democratic instrument for pursuing justice under non-ideal social conditions. Here, however, I set aside altogether the philosophical assumption that conceptions of justice are the right place to look for the normative grounds of democratic political principles and projects. Instead, I contend that these grounds are located in the conceptually distinct value of political legitimacy, understood as an institutional virtue of normative acceptability or “support-worthiness.”⁴¹ As such, the normative role of democratic principles is not to articulate some institutional dimensions of a moral ideal of justice, but rather to identify criteria for judging institutions to be politically legitimate, in the normative sense of being worthy of political support by real political actors in some concrete operational context.

There are many competing accounts of the normative sources of political legitimacy in general, and correspondingly, of the role of democratic principles in legitimizing governance institutions. One family of theories views political legitimacy as distinct from justice in the character of the moral values each captures; such accounts link political legitimacy to special procedural⁴² or non-ideal standards of justice,⁴³ or with other independent moral values.⁴⁴ A second views political legitimacy as distinct from justice insofar as it captures epistemic, alongside moral, virtues of political institutions.⁴⁵ A third views political legitimacy as derived from some distinctly political value – such as solving complex political problems of order⁴⁶ or “meta-coordination,”⁴⁷ or institutionalizing a political conception of collective “self-determination”⁴⁸ or “collective agency.”⁴⁹

It is a variant of this latter political conception of the value of political legitimacy that I invoke here to account for the normative grounds of the democratic AAP. On my favoured account, principles of political legitimacy are grounded in the value of the collective political agency they help to empower, through the governance institutions to which they are applied. Different normative theories of political legitimacy invoke varying substantive normative conceptions of valuable “agency” and “collectivity” – with varying normative commitments to rationalism, egalitarianism, cultural norms, and so on. Here democratic institutional principles serve as distinctive standards of political legitimacy insofar as they empower the exercise of collective political agency on terms that are inclusive of affected individuals. This collective agency account of the sources of normative political legitimacy thus provides the overarching conceptual framework within which my earlier arguments – concerning the legitimacy of practice-based versus social choice-based models of collective political agency – play out. By empowering practice-based alongside social choice-based dimensions of collective political agency, the AAP expands the scope of inclusive political empowerment, and in so doing strengthens the political legitimacy of global governance institutions.

The scale of the prescriptive gap between an AAP grounded in a practice-based collective agency conception of political legitimacy and a democratic principle of inclusion grounded instead in a philosophically based moral conception of justice will depend on how exactly a more comprehensive account of the practice-based dimensions of collective agency is fleshed out. It will depend first on what range of agents’ real motivations towards institutional adaptation or resistance are viewed as valuable forms of agency and admissible as normative sources of political legitimacy; and it will depend further on how far this agency departs from the idealized constructions of “rational” and “reasonable” political agency that frame the justificatory structures of liberal-egalitarian theories of justice.⁵⁰ But however our fine-grained normative conceptions of agency are filled out, what deeply differentiates justice-based and legitimacy-based accounts is that the concept of political legitimacy accommodates a more realistic account of political agency, which prescribes respect for more motivationally and contextually diverse dimensions of political judgment than ideal-theoretic moral alternatives. It is in this respect that my account can be labelled as “realist” and linked broadly to an extended family of realist political theories that emphasize the importance of motivationally engaged and contextually sensitive approaches to the justification of political institutions.⁵¹

A key virtue of this realist account is that it preserves a useful division of labour between two distinct normative problems: the search for principles that can galvanize real institutional projects of collective action – which is the problem of political legitimacy; and the search for principles that can illuminate and sensitize political agents to the demands of moral reasons – which is the problem of justice. If we analytically conflate these two problems, we politically deflate the potency of both – diminishing the action-guiding utility of principles of political legitimacy, as well as the critical force of principles of justice. The “realist” normative interpretation I have provided here of the AAP preserves this important distinction: the democratic AAP directs institution builders towards appropriate criteria for expanding the scope of political boundaries, as an instrument of empowerment; while the challenge of expanding the boundaries of moral concern and imagination is preserved intact within the separate theoretical jurisdiction of justice.

Conclusion

The arguments I have presented here, in support of a “realist” democratic interpretation of the AAP, are important in part because they push us to confront a larger set of questions about both the concept of democracy and the sources of political legitimacy in contemporary global politics. In thinking about the concept of democracy, and the fundamental values that support it, it must be acknowledged that the interpretation I have set out here takes us a very long way from both the institutional models of “closed” democratic societies and the moral ideals of political rationality and equality that have been traditionally linked to the democratic idea. It is a difficult question – worthy of more extensive reflection – whether this merely stretches the concept of democracy, or whether it more irretrievably breaks it, and thus calls for a fresh conceptual framework that can more freely and directly capture the organizing political values of a complex global governance order.

In thinking about the sources of political legitimacy in global politics, my arguments push us to reinvigorate normative debates about the role of substantive “common interests” in the constitution of political legitimacy, and to consider how these can be reconciled with the value placed on empowering collective political agency that drives democratic conceptions of legitimacy. In particular, more attention must be given to unpacking the sources of the value that is often implicitly attributed in theories of legitimacy to practice-based constituents of collective political agency, around which real democratic projects are mobilized. These are both large theoretical questions, which set a challenging theoretical agenda for democrats in the years to come.

In this chapter I will explore the idea that an important realization of the All-Affected Principle is the idea that persons ought to have capacities for participating in voluntary exchange. This realization occurs in the context where decision making is decentralized. Normally, the All-Affected Principle is meant to give people power over decisions in which their legitimate interests are at stake. And this is usually thought to mean that persons ought to have a say in a centralized collective decision procedure. But centralized decision making is not the only context in which this principle can be realized. It can also be realized in situations in which decisions are more properly made in a decentralized way, allowing different persons to pursue their own interests in their own way, as John Stuart Mill thought.

There are several contexts in which decentralized decision making seems especially appropriate. One, reasonably open markets are desirable ways of organizing production in society because they tend to put resources to their best use. Two, states make decisions by negotiating agreements with one another. Three, relations between persons in clubs, associations, friendships and other groups are created through voluntary agreements. And finally, the relations between various associations and clubs are also often determined by voluntary agreement.

Centralized and decentralized decision making do not come in all-or-nothing forms. A main component of markets are firms, which are centrally organized; and markets are usually properly heavily regulated in a centralized way so as to overcome the ill effects of unequal endowments and market imperfections such as externalities, asymmetries of information, high transaction costs, natural monopoly or monopsony as well as the forms of unfairness typical of imperfect and incomplete markets. International negotiation among states is often – though not often enough – constrained by procedures and methods that are meant to overcome the problems of imperfect information and unfairness through multilateral conferences. And many states are federally organized, which makes room for decentralized agreement making among the federal units. And democratic processes also depend in large degree on decentralized decision making in the form of citizens creating and joining associations such as political parties and interest group associations for democratic purposes or for the purpose of expressing ideas.

I will argue that in some circumstances the capacity for voluntary agreement making can be an adequate realization of the All-Affected Principle. The basic idea is that one can, with this capacity, attempt to advance one’s interests by entering into voluntary agreements with others. The All-Affected Principle can be satisfied if persons are able to enter into agreements with those whose actions affect them or with those who can advance their interests. Persons should have an equal say or a say proportionate to their legitimate interests and this can be realized in voluntary agreement making, or so I shall argue.

In what follows, I attempt to explain and vindicate this proposition. I start by drawing an analogy between democratic decision making traditionally conceived and voluntary agreement making. This helps us see how we can define appropriate procedural norms for the evaluation of processes of voluntary agreement making in both market and international contexts. I argue that fair voluntary agreement in markets and international decision making is a realization of the same principle as fair collective decision making in democracy, only one is for decentralized decision making and the other is for centralized decision making.

I then lay out the Proportionality Principle, which I take to be the fundamental principle underlying both fair collective decision making and fair voluntary agreement making. I give some examples of when the Proportionality Principle departs from equality. And I defend the principle. We can see, however, that there is a deep puzzle about voluntary exchange that makes it especially prone to unfairness. I then say something about institutions that can realize the principles above. The democratic conception of fair voluntary exchange actually can help us see when voluntary exchange needs to be regulated or even replaced in order to achieve the realization of the Proportionality Principle.

Voluntary Agreements and Democratic Participation

The immediate object of agreements are arrangements of rights (understood broadly to include liberties, claims, powers, and immunities) and duties among those who make the agreement. The participants can set up a system of rules of interaction, which establish a complex of rights and duties and to which they are committed. Or they can merely exchange rights (and the associated duties) to particular things. Further purposes of the agreement consist in a change in the division of labor and the production of benefits and burdens among the parties. The parties shape the social world they live in in terms of basic rights and duties, the division of labor, and they alter it so as to bring about benefits and burdens that the social world can achieve. We can think abstractly about the benefits minus the burdens as the surplus the agreement brings about above the level of benefits the status quo realizes. The transaction takes place in the context of a prior set of conditions, which might be thought of as conditions of the process of transaction. Among these are the absence of force and fraud and other background conditions that enable the participants to treat each other as equals. When a person engages in making agreements, contracts, and other arrangements with other people, they are in effect attempting to shape the social world they live in.

If a person buys a house, they rearrange the social world in that others are now excluded from this house unless the owner consents to their coming in and is able to conduct activities in this particular space as they wish, with or without others. The owner has rearranged the social world in that now there is a space in the world that others can only enter with their consent, whereas before there was none. The owner has revised the relationships they have with others. When a person takes a job, they agree to work for a certain reward. They have rearranged the social world in that certain others now work with them under certain conditions and resources are transferred to them while they employ their skill in producing with others certain kinds of goods.

These different transactions have various effects in shaping the social world the person lives in by altering the rights, duties, and powers that different people have in relation to that person. And if we think of the whole series of agreements a person enters into in the course of a life, we can see that they shape the whole social world they live in through this activity. A person constructs the conditions of their life through this activity of rearranging the rules in their social world. They do this, to be sure, with other people who are also engaged in the activity of shaping their lives with others. And the activity of determining a person’s social world is, of course, constrained by the activities of others, both because they have to make agreements with others and because they must respect the social arrangements that others have created. The social world is an aggregate product of all these different activities of social shaping. It is the product of coordination and it is the product of separate activities that are not coordinated but that mesh together, because the activities are engaged in side by side and within the context of a common legal system.

There is an important similarity between the activity of citizenship and the activities of persons in the processes of agreement making with others. Just as a citizen participates in shaping the overall character of the society they live in by participating in collective decision making about the overall collective features of the society, so the ordinary person in everyday life shapes parts of the social world in which they live by engaging in agreement making with others – the difference being that in the case of citizenship each has a small voice in a very large activity, while in private life each has a large voice in relatively small issues.

The justification of these different powers of shaping the social world is grounded in common liberal concerns. Persons have different interests that conflict and they disagree on how best to shape their social worlds; indeed, they are often uncertain about their own interests. We think that people ought to be able to make the basic decisions about how their society is organized, and how their lives with others are organized, by exercising the power to advance their legitimate aims in accordance with their own judgments. They need this power both because they do not want to be imposed upon by people with less understanding and concern for their interests and because they need to explore their interests.

The analogy of democratic citizenship with the activities of persons in decentralized settings is not meant to imply that these decentralized settings ought to be centralized and democratized in the traditional way. My intention is to show that there is an analogy between democratic citizenship and the activities of persons in decentralized settings, not to suggest that we should eliminate the decentralized settings. There are many important values that are realized in decentralized settings that make them unsuitable for at least complete collectivization. The values involved in personal relationships and development and the distinctive values that arise from people cultivating their particular talents and ideas must be given some significant protection from collectivization. And I think, with the tradition of economic theory of Adam Smith and John Maynard Keynes, that some kind of open market system is important for putting resources to productive uses. Furthermore, any effort to replace decentralization in international politics with serious centralization in the near-term future is likely to lead to very unhappy and tyrannical government. The integrity of states, so essential to the realization of the basic interests of persons, must be preserved for a significant time into the future.

Nevertheless, that the democratic idea has a realization in decentralized settings as well as centralized settings will shed light on how we ought to think normatively about voluntary exchange. It will help us develop some basic principles for how to evaluate a system of exchange and provide us with a way of thinking about when and how to reform or change institutions. I elaborate next a picture of the basic idea of fairness in exchange that builds on the democratic analogy.

Fairness in Individual Transactions

The conception of fairness in individual exchange here articulated attempts to avoid the classical natural law approach of equal exchange in value¹ and attempts to develop a procedural conception of fair exchange that goes beyond the standards of absence of coercion and fraud.² The reason for the procedural approach is that the benefits of transactions can be quite heterogeneous and hard to compare outside the points of view of each of the participants. So, it may be very unclear in many circumstances whether the goods exchanged are equal in value in some more objective sense.

Let us first think of an individual exchange as if there were only one exchange for each person’s whole life. The appropriate background fairness conditions for such an exchange consist in the realization of equal capacities for that exchange. This breaks down into two components: equal cognitive conditions, including equal access to information relevant to discerning one’s interests and concerns and abilities to negotiate desirable arrangements, and equal opportunity for exiting or refusing entry into the arrangement.

When we extend the principle to the usual case in which each person engages in a series of many exchanges, the persons must have equal capacities globally in the sense that they start from background conditions that ensure equal capacities for all. This equal background condition need not be fully maintained throughout the series, because earlier agreements persons enter into may curtail opportunities they have in later agreement making. If this is done knowingly, the later agreement making in which there may be some inequality of opportunity is not unfair. Furthermore, individuals may choose to focus on some agreements in which they think of themselves as having much at stake and focus less on other exchanges in which they think of themselves as having a lot less at stake. This stake sensitivity in agreement making will have some importance later.

This realizes a kind of democratic value in everyday life, because the two conditions in the one-shot case specify circumstances in which persons have an equal say in the structuring of their relations with each other. And the global principle of equal capacity gives persons a kind of equal say in the formation of their social lives together with others regarding the contents of the series of agreements they enter into.³ It specifies a kind of condition of global equal bargaining power between parties such that each person has an equal say overall. It does not imply equal bargaining power in each agreement-making context but only over the sum of agreements a person enters into.

This principle of equal capacity is meant to give persons equal power in the process of the creation of the informal social world they live in. Their interests are, roughly speaking, equally at stake in the system of agreement-making overall. This is like the idea of equality in democratic collective decision making in which persons are to have equal power because we think that, for the most part, their interests are equally in play in the political system.

We achieve this condition of equal power in agreement making by making sure that people have the education and resources that enable them to discern their interests and exit or refuse transactions and enter others that advance their interests. Education, basic needs provision, and other goods give people opportunities to choose among transactions by enhancing their bargaining power.

The principle of equal opportunity for exit is meant to be a special principle for societies like the modern nation-state in which there is a rough equality of stakes for persons overall in the process of agreement making, at least for the great majority of people. There are a number of qualifications that need to be explained concerning this principle. First, we need to say what kinds of things can produce inequality in the outcomes of the processes of agreement making. One, those who knowingly exert themselves and make use of their opportunities for the sake of a particular good are more likely to achieve that good, other things being equal, than those who knowingly do not exert themselves for the sake of that good. Two, more controversially, it makes sense for differences in natural talent to bring about some inequalities in social power that arise from occupying different positions in the division of labor. With Rawls, we should not accept that differences in talent should bring about significant differences in income or wealth. But two people who are competing for a particular social position may justly end up in different positions in the division of labor if differences in their natural talents imply that they should occupy those different positions, even if one of the positions is more desirable and interesting than the other.

The question is, what can justify this? It can be justified by the principle that we ought to think inequality can be justified over equality when all are better off and by the idea that it is important that people be able to realize their talents. The realization of natural talent implies that persons are benefited when they exercise those talents. To require that people not be able to exercise their talents so that they have no more bargaining power than others would be to make others worse off as well as the person who is deprived of the opportunity to exercise talent. There is injustice here, but it is desirable in order to avoid leveling down.⁴

The Proportionality Principle

The second observation is that the principle of equal opportunity is really a special case of a more general principle, which also governs collective decision making. The more general principle is that persons ought to have a say in a transaction in proportion to the legitimate stakes they have in the transaction.⁵ This principle is narrower than Mark Warren’s principle of proportionality in this volume. His is a more general principle of equity and includes distribution in proportion to need or desert. My principle only regulates the distribution of power. The principle of equal opportunity is a principle that respects this more general principle for the special case of overall equal legitimate stakes.

The stakes a person has in an agreement or set of agreements consists of the range of potential legitimate interest affecting outcomes of that agreement. This includes the effect on interests if there is no agreement and the effects on interests of the various agreements available in the circumstances. We must distinguish between, on the one hand, ex ante stakes a person has in a transaction or system of transactions and, on the other hand, the actual stakes in a particular transaction. Ex ante stakes are the extent to which the transaction or the system can advance the legitimate interests of each party independent of the distribution of resources among the parties. This varies according to context in the sense that it depends on the real possibilities of the system or the transaction. Actual stakes will depend on the interests in the transaction as well as the distribution of resources among the parties, which will determine what each party brings to the transactions. In the context of a particular transaction, a person with very few resources will have higher actual stakes in the agreement because they have fewer resources to fall back on or to offer others in alternative transactions. The transaction matters all the more. A person with a lot of resources has less need of the particular transaction and so has a lesser stake.

This principle applies to democratic decision making as well as voluntary exchange. In the case of democratic decision making, the stakes are the range of interests affected by plausible outcomes that can be achieved by the collective decision process. The equal distribution of power is a special case of its proportional distribution.⁶ In the case of democratic decision making we see the application of proportionality in two ways. First, some decisions in a federalist system are made in a way that gives all persons an equal say; other decisions give greater weight to persons in local jurisdictions. A natural interpretation is that when people’s interests are affected in a roughly equal way overall, they have an equal say, and when some persons’ interests are much more affected than others (as in local political decisions), they have significantly more say. This is institutionalized in the system of federal institutions.

Second, proportionality operates at the level of individual democratic decisions as well, but only informally and according to the judgment of the individual. That is, when people with equal political power think that some issue is of great importance, they devote many more resources to that issue and fewer resources to things that matter less. The democratic process overall, on the assumption that the differences cancel each other out when all issues are taken into account, gives people broadly egalitarian opportunities to trade with people through logrolling. It is equality of stakes in the collective decision making overall that justifies the equal vote.

Voluntary agreement making is different from collective decision making. There are usually two distinct dimensions: one is whether to make an agreement at all, and the other is what the content of the agreement is. It is for this reason that the definition of stakes is different from that of collective decision making. The basic determinant of relative stakes in the case of particular actual voluntary exchange is the relative significance of the non-agreement point. This means that how much a person benefits from an agreement need not determine stakes. How the surplus of the agreement is divided up will depend on what the parties agree to. But the initial condition of the agreement, which are the values or disvalues of no agreement for each of the parties, is external to the agreement and thus can provide an external reference point for determining the stakes.

The principle of equal capacity is based on the idea that persons have equal ex ante stakes in a system of transactions. In society virtually all the fundamental interests we have (with respect to voluntary exchange) are in play in the whole system of voluntary exchanges. The non-agreement point is essentially life outside society. It then requires that the distribution of resources be adjusted so as to achieve equal capacity. This is a special case of the more general principle that persons ought to have capacities that are proportionate to their ex ante stakes. Someone who has a lot less stake in a transaction ought to have less power over it than one who has more stake.

The principle of proportionality is qualified in the two ways of the equal capacities principle above. A further qualification results from a worry, pointed out by Nozick, that this gives people power over the intimate choices of others. If one person loves another deeply and the other chooses to marry a third person, then the first person has great stakes in the second person’s choice. Does this mean that the first person ought to have a say in the choice? This seems really implausible. We should allay this worry with the idea that some interests are protected interests in the sense that a person may choose to fulfill these interests without the leave of others. This might be the case, for example, in choices of friends or life partners and perhaps choices about basic questions of conscience.⁷

A clarification is in order here. I take stakes to be defined in terms of well-being and I think of well-being as being essentially an objective state. But the stakes involved in the Proportionality Principle in a pluralistic society must proceed with a fairly generic conception of the interests of persons, since there is likely to be significant disagreement and uncertainty regarding what particular interests persons have. Persons have interests in health, friendship, resources, education, and other generic goods and the principle of proportionality allows them to explore those interests with the power that it assigns them.

Some Cases in Which the Proportionality Principle Applies

I have already pointed out that sometimes proportionality applies to politics in a non- egalitarian way. But there are important contexts in which persons or groups come together to make important agreements where they are not really part of an extensive and unified system of agreement making and in which they have different stakes.

First, states with different populations make negotiated agreements. Larger societies have a greater stake than smaller societies in their negotiations. The democratic principle in voluntary exchange, as in the case of collective decision making, is an individualistic principle. Hence the theoretical challenge is to aggregate the interests of the members of the society in a way that is relevant to defining the stakes each society has.

Second, agreement making among states in the making of international law is fairly modest compared to the domestic legislation states engage in and relatively modest compared to the amount of agreements individuals enter into in modern societies. In climate change negotiations, we can see that certain societies have much more at stake in these negotiations than other societies. The average Bangladeshi has a great deal more at stake than the United States citizen in the medium short run, which is a function of the extent to which the society is affected by non-agreement. Proportionality would suggest that Bangladesh has more of a say in the content of its agreement with the United States on climate change (abstracting from difference in size of population).

Third, people enter into contractual arrangements across different societies, such as when a firm from a wealthy society sets up shop in a poor country to employ relatively cheap labor. The poor person has a significant amount at stake in this activity, presumably more than the members of the company and its consumers. The members of the company do have an important stake in setting up desirable arrangements because they must make sure that the company’s costs do not go too high. The consumers have an interest in paying lower prices and this is what is partly driving the move to sweatshop labor. But perhaps here the consumer’s interest in lower prices is a far lesser stake than the poor person’s interest in having a decent wage. Of course, even here there is a lot more complexity: some poor consumers may have a pretty big stake in low-priced goods such as shoes.

Argument for the Proportionality Principle

Intuitively, when we are setting up an arrangement with another person whom we know well and we know that the other person has a lot at stake while we have less, we often give more say to that person over the arrangement: “This matters more to you [or for you], so you should decide.”

There are really two main connected theoretical arguments for this principle that start from the All-Affected Principle, suitably modified. The first argument is essentially a welfarist argument. The idea is that people have an important interest in taking care of their own interests. The basic reasons are that they know their interests better than others do, they have incentives to concern themselves with their own interests, and they have the capacity to learn from mistakes about their own interests. To the extent that more is at stake in an agreement for a person than for others, they have more of their interests at stake and so there is reason for them to take greater care. But this also gives reason to others to give them a greater say in the agreement. The welfare of persons is better advanced when they have a greater say in those issues in which they have a greater interest.

There is an egalitarian argument for this as well, at least under normal circumstances with normal people. The idea is that a principle that extends a greater say to those who have more interests at stake in agreements will, over the long run, equalize the say of persons over the matters that affect their interests. This is based on the idea that over the long run normal people have roughly equal stakes in how the external world is organized. The principle gives people an equal say over the external world they live in when we think of its global application.

One question that we cannot address here is whether the principle we are defending is essentially an instrumentally defended principle or whether there may be some intrinsic value to implementing the principle. The arguments above suggest an instrumental cast, but the democratic interpretation of equality of opportunity offered above suggests that there may be intrinsic value in implementing the idea.

Before moving on, I want to address three important concerns. First, the principle I have defended is an individualistic principle in a limited sense. It focuses on the distribution of power to individuals in the process of exchange and whole systems of exchange. In this respect it is much like the democratic principle for collective decision making. And it is committed to a kind of deeper individualism, which asserts that the ultimate values that we are dealing with are the well-being of the individual and justice among individual persons. Even the notion of the common good will have an individualistic interpretation on this account. But the principles of justice are not individualistic; they specify a collective order with the proper distribution of benefits and burdens among persons. I also reject individualism regarding the content of well-being. I want to argue that many, or perhaps most, of the important interests people have consist in their social relations with others. Friendship is an obvious case of this, but so is the interest in being recognized and affirmed as an equal and the interest in making the world a home for oneself, or the interest in seeing that one is making a contribution to valuable cooperative activities. The social nature of our interests is compatible with the democratic conception of voluntary exchange.

A second clarification has to do with the nature of the duties people have with regard to this principle of the proportional distribution of power in the system of exchange. The principle applies in the first instance to institutions just as much as conventionally democratic collective decision-making principles. Another departure from individualism obtains here because individuals have jointly held duties to bring about, maintain, and improve these institutions. Since the duties are jointly held, each person has a duty to do their fair share in bringing about, maintaining, reforming, and complying with the institutions that distribute power. In reasonably well-functioning institutions, individuals may go about pursuing their partial interests as they see fit.

One important question is: What kind of duties do people have to take up the slack when others fail to do their share? It is not the case that each person must do everything possible to make up for every inequality of power they have not produced, but they do have duties to do their share – but what is that when others fail to do theirs? I do not have a complete answer for this, and it will depend on the specific problem confronting a person. If a particular person is in dire straits, an agent may have the duty to do quite a bit. If a particular person unjustly has less power than other persons, it is not clear what it is fair to ask a better-situated person to do. But it is not normally everything that can be done. The duties are jointly held and so fairness in the distribution of duties plays a role even in the case of taking up the slack.

A final clarification repeats what I have already said. The principle I have defended is a principle of equal distribution of power among individuals. But much of decentralized decision making involves interactions between groups such as firms or states and sometimes between these and individuals. I do think the individualistic principle still applies here, but it is not between the firm and the person as if these are two individuals. The firm is a group of persons and so the question of power ultimately comes down to the distribution of power between the persons in the firm and the persons the firm is negotiating with. For a complete analysis of this kind of interaction we will need a method of aggregating the persons’ stakes to arrive at an account of the proper distribution of power between the firm and the person. And this method will vary depending on the institution in question. For example, something close to an additive method may be acceptable in the case of the relations between states with different populations. But additivity will not work in the case of firms as they are constituted in the United States, where there is significant conflict between the different elements. An account of the proper methods of aggregation of stakes is absolutely essential to the full articulation of the principle I am defending in this paper, but I am not in a position to offer one now.⁸

The Puzzle

One of the most fundamental puzzles in a system of free transactions is that the principle of power proportionate to stakes is prone to violation in many normal circumstances. For example, if you have two persons who depend on making an agreement to advance certain interests, the one who has the least stake will often have more power. This is because they can more easily afford no agreement. But this means that power is inversely proportioned to stakes in a scheme of free transactions, while the normative principle tells us that power ought to be proportioned to stakes.⁹ This is the fundamental puzzle that Marx pointed to in the relations between capital and labor. The laborer has a great deal at stake in a transaction since their life depends on it, while the capitalist has a lot less at stake. The consequence is that the capitalist has more bargaining power.¹⁰

A scheme of equal opportunity in a context of equal ex ante stakes provides a unique resolution to this problem. Power cannot be inversely proportioned to stakes in this context overall. Proportionality can still continue to function in this context but it is informally applied by the parties. For example, if two parties have equal capacity overall and one party has more at stake in a particular transaction than another because of difference of interest, the usual consequence is that the one with less at stake will devote less attention to the issue (in order to devote more time to other issues) while the one with more at stake will devote more time. To the extent that each has overall equal stakes and capacities, the disproportions will cancel out. In this way, the overall proportion between capacity and interest is maintained.

What Marx was concerned with was that the capitalists, who have less actual stake in each particular transaction with a particular worker, also have many more resources to devote to the making of the transaction. This compounds the initial disproportion.

Institutions

It looks like this problem does occur in perfectly competitive and complete markets but only in a highly attenuated way. In markets where there are lots of buyers and sellers and no impediments to exchange and there is no incompleteness so that credit and insurance are available to everyone, there is no difference in bargaining power. And a genuine inequality of stakes only obtains as a result of unequal initial endowments, but this difference may not normally count for much when there is unlimited availability of credit and insurance. Only when there is extreme difference of endowments, including natural endowments, will complete markets be very unfair to participants.

The puzzle is nevertheless a deep one, because in fact we always observe significant divergence from complete and perfect markets. And many of the principal institutions in what we call the market are specifically designed to overcome imperfections in actual markets. Indeed, one of the central institutions of modern capitalism, the firm, is essentially a response to market imperfections.¹¹ At the same time, some form of a system of voluntary transactions is a highly effective tool in figuring out how to allocate resources to their most productive uses. We do not have a clear idea of an alternative system for the allocation of scarce resources that does not involve the use of voluntary market exchange playing a central role.

The question is, how can we make use of this tool for allocating resources in an efficient way but without sacrificing fairness? There are really four basic kinds of mechanisms that we can introduce to try to ensure a kind of fairness in the process of making agreements. The first is redistribution so as to achieve a kind of background distribution of resources that enables people to meet each other on reasonably equal terms. The second is direct regulation of the employment relation. The third is direct regulation of the bargaining process so as to help achieve a kind of balance between worker and employer. The fourth involves some kind of collectivization in the decision making in economic institutions. Here we replace bargaining with collective decision making among the parties and try to achieve equality in the collective decision process. We can think of a number of institutions that might help to alleviate the disproportionality involved in voluntary transactions.

One basic mechanism for overcoming the problem is redistribution of resources from those who have low stakes to those who have high stakes so as to equalize the stakes as much as possible, or so as to provide some kind of basic floor of resources to protect those who have very few resources and thus lessen the stakes for the less well positioned. The welfare state comes to mind as a complex of institutions that are designed to lessen the stakes for workers when they choose where and how to work.

The provision of public education is a way to ensure that persons are able to develop their abilities so as to participate as equals in economic life. Unemployment insurance and income maintenance programs imply that the alternative to work at a particular job is not starvation or penury but some kind of minimally decent life. It is important to notice one distinctive function of the welfare state is that it enhances the power of persons to shape their social world. It enhances people’s power to shape their work conditions and wages. The dismantling of the welfare state is in effect a kind of authoritarian strategy to disempower workers.

A second mechanism is direct regulation of the employment relation. Minimum wage legislation, legislation concerning working conditions, legislation concerning hours of work, and legislation constraining how workers can be fired are all direct regulations imposed by the political society. They do this because workers tend to be at a bargaining disadvantage in negotiating the work agreement with employers. These constraints on work conditions increase the bargaining power of workers by decreasing the bargaining power of the employer since they lessen the alternatives available to employers.

The third kind of mechanism is direct regulation of the bargaining process. Here the idea is to make use of facts that are already present without having to redistribute resources such as the great number of workers and their potential for organization. One institution for altering the conditions under which agreement to work is made to avoid great unfairness is union organization. The effect of union organization is not to lessen the stakes of the worker in work, but to increase the stakes of capital in refusing terms of work by requiring capital to deal with a lot of workers at the same time. Unions do this by themselves, but the state can help by setting up rules for negotiation that are favorable to unions. Notice that this mechanism introduces elements of voluntary agreement and elements of collective decision making. Workers participate in unions as participants in a collective decision-making process, but that collective agent then bargains with employers.¹²

A fourth kind of mechanism is local collectivization. I do not mean here to say that the whole structure of society is collectivized. I am assuming some kind of decentralized market system for allocating resources to their most efficient uses. The idea here is to replace the process of bargaining with all its inequalities with a collective decision-making method that includes unions, laborers, managers, and capitalists.¹³ This seems to be the mechanism at work in the German codetermination system. The particular value of the approach I have taken makes egalitarian voluntary exchange and egalitarian collective decision making derive from a single basic principle. They are two distinct types of realizations of the principle of proportionality. What this approach suggests is that one kind of decision making can conceivably be a remedy for a deficiency in the other. I have in mind, for example, various kinds of workplace democracy. Workplace democracy can be a partial remedy for imperfections in the market that put workers at a serious disadvantage in the bargaining process. Consider the familiar case of partial monopsony in which there are lot of workers but it is not easy for them to move from job to job, either because they have to make asset-specific investments or because they have imperfect information or because of high transaction costs in moving from one job to another. And let us further suppose that the circumstance workers find themselves in is not the result of a set of fully understood choices made earlier. The workers are at an unjust disadvantage. The consequence of this is that they tend to have relatively little say in the process of agreeing to a work contract. They have little say over the conditions of work. We can possibly rectify this deficiency by giving them more direct and locally collective power over the conditions of work, as in workplace democracy. The approach I am suggesting has this as a result, and I think it is a good result.

But the approach I am suggesting is not a general argument for workplace democracy, because the conditions under which the argument above works are not general conditions. In fact, I think that there is continuity here. We can imagine partial deficiencies remedied by partial requirements for workers’ participation. In cases where the deficiencies are great, the requirement of fairness suggests a greater say. In case where they are present but not so great, they suggest a lesser say. Union organization is in some ways a lesser form of participation and it may be defensible as a response to lesser problems.

Conclusion

I have attempted to present here a vindication of the idea that the possession of a capacity to enter voluntary exchange is a realization of the All-Affected Principle. It is a way in which one can try to advance one’s interests in the context of other persons. And I have tried to show that the fundamental principle for evaluating voluntary exchange is the principle of proportionality and that this is the same principle for evaluating collective decision making. I have tried also to show what some of the benefits of thinking of exchange in this way are.

Discussions of the history of the All-Affected Principle (AAP) frequently locate it in a procedural maxim of Roman private law known by the tag quod omnes tangit (“what touches all”), a maxim that became, in various formulations, a more expansive principle of medieval canon and civil law.¹ One representative locus of this maxim is in a law passed under Justinian in 531 and included in the second edition of the Codex that forms part of his Corpus Iuris Civilis, that where several different tutores (tutors) were appointed as guardians for a single ward or an undivided guardianship (tutela), all of them must consent to any legal proceeding to terminate the joint guardianship. The relevant part of the law reads: “it is necessary that all of them give their authorization so that something which touches them all in the same way is approved by all of them (necesse est omnes suam auctoritatem praestare, ut, quod omnes similiter tangit, ab omnibus comprobetur),” the quod omnes … tangit serving as the familiar tag.² I begin this contribution with reflections on the significance of this particular legal origin as inspiration for the All-Affected Principle, before going on to deploy these reflections to assess the relevance of the principle for the case of climate change. (For clarity, I will refer to quod omnes tangit in its various formulations as “the maxim” or “maxims,” and to contemporary formulations of the AAP as “the principle” or “principles.” I focus on those versions of the principle that adhere relatively closely to the original maxim.)

The Roman Law Maxim: “Quod Omnes Tangit”

While the All-Affected Principle “has migrated into democratic theory” in a broad wave of scholarship over the last several decades, as Mark Warren observes in his contribution to this volume, the relevance of the Roman law formulation has been disputed by Jürgen Habermas, who argues that as a maxim of judicial procedure (a context of norm application), it is not relevant to the principles governing the fundamental justification of norms [note that this volume uses “justification” and “application” in related ways].³ One might think to bolster Habermas’ case by pointing out the private law context of the original maxim. How could a maxim governing court procedure for legal guardians be relevant in any more than a homonymic way to broad issues of normative democratic theory?

In fact, the history of political thought has already been deeply marked by Roman private law as a source of maxims migrating into the realm of political theory and eventually democratic theory, as Daniel Lee has argued in his work on the emergence of the idea of popular sovereignty.⁴ Already in the medieval period, the quod omnes tangit maxim had begun a migration into the public domain, for example in the English royal approach to the defense of the realm in a “‘case of necessity,’” in which it was held that “all must consent to such extraordinary taxes as were justified by the emergency.”⁵ So while differences in contexts are of course significant, a brief overview of the history of quod omnes tangit and related maxims indicates that many of the dilemmas marking the AAP today share commonalities with the Roman and medieval uses, and debates, about the varied forms of the original maxim.

Within Roman law, variants of the maxim were implicitly or explicitly formulated in a number of contexts. In addition to the law that was noticed above (of the multiple guardians (tutores) appointed to share a single guardianship (tutela) who must all agree to a proceeding to terminate that guardianship), another case discussed by Ulpian in the Digest was that of the users of the water of a given aqueduct, all of whom were entitled to be heard in relation to certain decisions about its management.⁶ As these cases suggest, a first commonality between the original Roman context of the maxim and contemporary versions of the principle lies in the interaction of the procedural and the substantive. Construing the AAP within the ambit of its Roman law origins points to a procedural focus in the sense of discursive input. The maxim originated in the context of judicial procedure and the scholar Gaines Post summed up what it required in the contexts to which it applied: “all must be given a hearing and a defense of their rights.”⁷ Such a procedural right clearly depends on a prior specification of moral claims in at least two respects: first, who has the right to be heard in a given proceeding, and second, on what basis (in virtue of what specific other rights or other morally relevant attributes) that right to be heard is attributed. So in the case of the Roman guardianship law mentioned above, each guardian’s right to be heard in any legal proceeding to terminate the guardianship depended on their having been previously named in that role and so attributed the bundle of rights to act on behalf of the ward that such a role entailed.

Thus, the very specification of procedural rights relied on a previous set of substantive rights, themselves assigned or recognized through other procedures. The AAP as a maxim was, as it were, an auxiliary or supplementary framework that depended on a body of wider law to give it point and meaning. Moreover, the guardianship law accommodating multiple guardians of a single ward’s interests and rights underscores the relevance of the procedure in relation to giving voice to some on behalf of the interests of others. This is also a potentially promising feature for modern versions of the AAP to emphasize: discursive input may be given procedurally by empowering some to speak on behalf of the moral claims of others.

A second important commonality lies in the need to achieve closure of a procedure that could otherwise seem quite open-ended, and in which a dilatory or evasive attitude to the summons, or a demand that still others putatively affected also be summoned, could threaten to extend a court case indefinitely. One such danger that became especially evident in medieval times was this: that the right to have rights considered could be exercised as a capacity to block or obstruct the resolution of justice. Distance, in particular, such as for those “overseas or in the Holy Land [presumably on crusade],” was one factor that often came into play.⁸ This led to the need to achieve “a synthesis of voluntary and procedural consent.”⁹ Procedural rights to be heard had to be made to comport with procedural devices to close hearings and resolve cases. While an open-ended procedure might have value as a regulative ideal, in institutional legal and political contexts, a procedure is most practically useful when it can be conclusively resolved. Closure does not require unanimous consent, but rather, only compliance with the required procedure, just as majority decision procedures need not be interpreted as representing the will of the minority or of the whole, but only as serving to determine a binding decision to be followed.¹⁰

This general point may help to explain some of the important variations that developed in the statement of the maxim itself, building on variant formulae found already in the corpus of the Roman law. In particular, as Gaines Post observes, the great common law authority Bracton followed popes such as Innocent III and sovereigns such as Edward I in their related formulations in never using either the word similiter (“in the same way”) or the phrase ab omnibus comprobetur (“must be approved by all”).¹¹ By leaving out similiter, on the one hand, Bracton opened the door to a recognition that those who are touched may not all be touched in the same way, an important feature for contemporary developments of the principle. By leaving out ab omnibus comprobetur, on the other hand, and preferring weaker formulations requiring only that all those touched be summoned to a hearing (vocandi sunt),¹² he transmuted an absolute consent requirement into a summoning procedure in which verification that one had had the opportunity to be heard could suffice.¹³ In so doing, Bracton’s uses of the maxim suggest ways in which the AAP might be likewise reformulated for new purposes today, while also limiting its reach and power to what one might call having a voice, rather than even a potential veto – a point that has been made by others in criticizing the AAP and related principles and to which I return in my conclusion.¹⁴

The third point of comparison, which may initially appear to be a disanalogy to many contemporary applications of the AAP, will lead directly into my discussion of climate change. It pertains to the significance of the private law context of the original quod omnes tangit maxim. The maxim presupposes the existence of rights (in particular, though not exclusively, rights related to property) that have been already established by a different part of the legal code and already acknowledged as held by those to whom the maxim applies. The “all” in quod omnes tangit is not an open-ended, indeterminate group of people, but rather a specific and already separately identifiable group who possess already acknowledged rights. The procedures to which quod omnes tangit applies are those which give force to, and are based on, preexisting rights, rather than serving to establish rights ab initio. Indeed, it is this sort of point that is likely to have inspired Habermas’ remark, noted earlier, dismissing the relevance of quod omnes tangit to the justification of norms, even though the burden of this chapter is that such relevance can nevertheless be defended.

As I turn now to consider whether the maxim can underpin a version of the AAP as a principle relevant to a moral and political response to the anthropogenic role in causing climate change through greenhouse gas emissions, the potential disanalogy just noted may seem to present a roadblock. For it may seem that there are no preexisting rights or claims in the area of property that are relevant to climate change and that could thus underpin an application of the maxim-based principle. In the next section, however, I will argue that this is not the case. Rather, there are grounds to identify moral rights to a fair per capita share of a total global carbon budget, which could then underpin an application of the AAP. Such an application could involve any version of that principle adhering closely to the procedural force – in allowing discursive input – of the original maxim (“what touches all similarly must be approved by all,” or the variations noted above and considered further below). In the subsequent section I will consider the case for another (additional or parallel) application of the AAP, not on the basis of moral rights to a kind of property, but on the basis of moral rights against the unjust imposition of harm or the risk of harm. Then, in the final section, I will consider a range of procedural and institutional possibilities for taking account of both of these kinds of rights in embodying the AAP in moral, legal, or political expectations and practices.

Climate Change and the AAP: The Case for Moral Rights to a Kind of Property

To think about whether the AAP is helpful in the context of climate change, one must think first about the value of focusing on procedural forms of expressing discursive input into the establishment or modification of a moral or legal order. The presumptive value would include rectifying some inequities in causal and political power and so potentially allowing for better substantive outcomes in the domain of the harms caused by climate change than is currently the case. In order to realize any such procedure, we must consider the underlying substantive rights on which it would have to rest: whether there are recognizable rights or claims that some group of “all affected” hold, and whether that group can be properly identified. While one might leap to the issue of “future generations” here – and indeed we will come on to that issue below – I think that it is more helpful to inquire first, as the above discussion of the maxim suggested, into the sense in which there might be in this context a group of “all” with preexisting rights or claims that a principle such as the AAP can acknowledge.

One argument that would support the application of the AAP would be to accept arguments that have been made for the atmosphere as a global commons as the basis for the preexisting moral rights on the basis of which a claim to discursive input for all affected could be founded.¹⁵ This moral idea takes as a starting point the idea of a global “carbon budget” of greenhouse gases in the atmosphere, set at a point that is likely to be compatible with keeping the increase in the earth’s mean surface temperature within a certain tolerable range. That total accumulation – understood as a sum of carbon sources and sinks – is a total for all time. It has been driven most dramatically (though not solely) by fossil fuel emissions in the period of the Industrial Revolution, and its rate of increase is expected to eventually slow, stop, and gradually decline, as future energy and other needs can be supplied instead by non-fossil fuel and non-greenhouse-gas emitting activities. On the global commons argument, this total accumulation is understood as a kind of negative commons, one to which no individual or country had preexisting property rights or could rightfully establish a squatter’s claim to keep out others from making equal fair use of the same commons.¹⁶

For present purposes, consider the players in the Industrial Revolution period of the dramatic increase in the accumulation in terms of countries or nation-states, divided into richer countries that have emitted far more and poorer countries that have emitted far less per capita, and in many cases less also in absolute terms.¹⁷ Countries are also the dominant (though not the only) players in the politics of potential mitigation in the critical period of the next decades in collectively determining whether a sustainable path to a tolerable likely global mean temperature rise will be achieved. Thus the concept of a global carbon budget for fossil fuel emissions is assigned per capita to the populations of countries between, say, 1880 and 2050, providing something akin to “property rights” as a moral basis for the applicability of a version of the AAP.¹⁸

This cumulative carbon budget of fossil fuel emissions has been calculated as 820 GtC, of which just over 400 GtC have been already emitted since 1880 (using 2010 data).¹⁹ Yet in 2011, one billion of the people living in the poorest countries emitted less than 1 percent of the total global carbon emissions that year.²⁰ Working the numbers, one could calculate the proportion of emissions in the full period likely to be attributable to the richest countries versus the poorest countries. That has been done by the Global Carbon Project for a slightly different time period (1870–2015), for cumulative emissions from fossil fuels and cement, showing the United States to be responsible for 26%, the EU28 for 23%, China for 13%, Russia for 7%, Japan for 4%, India for 3%, and all other countries for the remainder.²¹ A further adjustment for populations over that time period would confirm, broadly speaking, that the “property rights” attributable on the basis of the global carbon budget to the poorer countries, and people within them, have been usurped to a considerable extent by the richer, who have taken up far more than their fair share of the carbon budget to date, while the poor are far more vulnerable to its effects.²² (The Global Carbon Project data just cited shows that the United States and the EU28 are jointly responsible for just under half of the total.)

Of course, these rights are moral, not at present legal, but as often in the history of rights claims, the former can provide a basis for eventual political and sometimes ultimately legal claims. Indeed, Susan James has argued that even moral rights must be conceptually understood to require an “effective method of implementation,” judgments about which will be “partly shaped by our moral beliefs about the urgency of the right in question.”²³ This brings the AAP itself into focus. The AAP can be understood as a moral insistence that all affected have a right to be heard, implying a procedure – whether actual or counterfactual – that is capable of reaching some conclusive outcome such that the right to be heard can be brought to bear in relation to some decision or outcome. As the right to a fair share of the global commons has never been implemented and its absence is having dire consequences for many, especially in the Global South, the impetus to develop a version of the AAP that can inform a moral procedure and ultimately a legal or political one (however imperfectly on each level) is considerable.²⁴

Such a procedure would ideally include the summoning of all affected in some form (whether as a thought experiment, or through some institutional means, the possible implementation of each of which is discussed below) in order to redress the balance of so-called property rights through mechanisms of compensation as well as mitigation and support for adaptation. Carbon footprint calculations can help to establish broad divisions among those who are using up more than their fair share of the global carbon budget (the term in ancient Greek would be pleonexia, or greedily grasping more than one’s fair share). This can establish the baseline for compensation, while institutional arrangements for forms of trusteeship (canvassed below) can help to forestall further such usurpation, drawing on the AAP’s origins (or at least originating encapsulation) in the Roman law maxim that allows and enables some to speak on behalf of the moral claims of others.

Setting an end date in defining the global carbon budget has the further advantage that it can obviate some of the conceptual difficulties about future generations that otherwise arise when considering the ethics and politics of climate change and the AAP more generally. The AAP must always contend with the problem of whether “possible” people – including those whose very existence is contingent upon the decisions made to which the AAP is being applied – are relevant to its application, or whether only “actual” people in the actual world that materializes as a result are so relevant. While Robert E. Goodin’s original reasons for construing the principle in terms of those who are “possibly affected” remain theoretically cogent, the imposition of an end date for the global carbon budget calculation helps to limit the scope of possibility, albeit without resolving the theoretical difficulties entirely.²⁵ Indeed, the need to consider an indefinitely long sequence of future generations, each composed (barring a catastrophe of human extinction or near-extinction) of very large numbers of people, is difficult more generally for consequentialist reasoning as for democratic theory.²⁶ Being able to posit that future generations beyond a certain point should not need any longer to emit carbon from burning fossil fuels, and should be able to drastically reduce their remaining emissions into balance with natural or artificially created carbon sinks, enables us to remove them from consideration of the All-Affected Principle in terms of the agency of those who will go on doing the affecting. They still remain, of course, in the pool of “all affected” by the ongoing effects that anthropogenic climate change, even if such change is eventually to be slowed or stopped, will have upon them. That brings me to the next section, on the AAP as a principle applied to moral rights against wrongful harm or the risk of such harm.

Climate Change and the AAP: The Case for Moral Rights against Unjust Harm

As just discussed, unjust usurpation of moral “property rights” is one way of construing the morally salient way in which some agents “touch” or “affect” others by means of greenhouse gas emissions and so make the AAP potentially relevant to climate change. A more general explanation for the wrongs done by anthropogenic climate change – wrongs that will continue well beyond the date set for contributions to the global carbon budget – lies in the wrongful imposition of harm or the risk of harm. An agent (individual or collective, but I shall focus on the former here for simplicity) emits greenhouse gases or in some relevantly responsible way induces or acquiesces in their being emitted as a means, or side-effect, of pursuing the agent’s ends. And these emissions contribute to the imposition of serious harm on others, when that harm could be avoided (either by reducing emissions, though not possible in all cases, or by providing compensation).²⁷

By imposing this unnecessary and disproportionate harm, all those who emit – or more precisely, those who emit above a relevant fair threshold and without perfect compensatory offsetting, if such a thing is technically feasible to a sufficiently high epistemic standard – are contributing to a grave moral injustice against all those affected by their emissions. That is, against all present and future persons, all of them subject to the changing climate that emissions contribute to engendering, as well as, on some accounts, other constituents of the biosphere.²⁸ Not only are all present and future persons, and living (and indeed nonliving) natural entities, affected, but all past and present persons have contributed to some extent to affecting others in this way (even people in the far distant past emitted greenhouse gases in the course of living their lives, though their moral responsibility for having done so may be limited by fair-share as well as epistemic considerations). Carbon footprint analysis and sectoral studies, as well as country-level analyses, can help to distinguish those who are proportionately most responsible in generating emissions.

Here a number of problems have been flagged in the literature. One is whether what emissions impose is actual harm, or a “risk of harm.” John Broome refers to the latter at one point,²⁹ but what he means by this is that “there is only the tiniest possibility that your emissions harm no one,” presumably having in mind questions about thresholds or timing that he has discussed earlier. (He relies upon a continuous harm function and one to which all emissions potentially, and almost certainly actually, contribute, even if in infinitesimal amounts.) But one might wonder, first, whether emissions that are necessary for a certain standard of living (to be philosophically or politically determined) should count as doing harm at all, insofar as they do not cross an accepted threshold for interpersonal (and ideally reciprocal) interaction. And one might wonder, further, whether the risk involved should not be taken more seriously, in its potentially differential effects. Broome argues that even if one’s emissions engender only “minuscule, imperceptible harms,” nevertheless on a global scale “the amounts add up.”³⁰ Here I pass over the controversy over whether so-called “imperceptible” or “negligible” harms can in fact be understood as contributing, causally or in some other relevant sense, to a significant collective harm, one that I have discussed elsewhere.³¹ My interest at present, relative to the AAP, is in the differential effects of such contributions as well as their differential causes.

The key point is this: those affected will not all be affected similiter. On the contrary, the modifications in ecological conditions effected by climate change will (almost certainly) affect present and future people, and other constituents of the biosphere, in dramatically different ways and to significantly different extents, both because of the altered extent of exposure to hazardous changes and because of social as well as natural factors shaping differential vulnerabilities.³² A few lucky people may find previously extreme climates become more temperate (though even they will also be affected by drastic climate-induced changes of various kinds); far more will see their livelihoods evaporate with parched fields, or their villages or countries inundated by rising sea levels (this was seen catastrophically in the flooding of Pakistan in the summer of 2022). And because the “patients” of the harm done will suffer its consequences in these very different ways and extents, the “agents” of the harm done must be treated as causing very different kinds and levels of harm to different patients. The generic contribution that a marginal emission of greenhouse gases makes to climate change (even if we posit that it is generically equal, which may not be the case, for example, if an aviation emission at altitude does more harm because of radioactive forcing than the same marginal emission would do emitted elsewhere) is not equivalent to a generic imposition of equal harm. Thus, to the broad division between rich and poor in causing climate change must be added the inverse vulnerability to suffering its effects.

To be sure, just how emissions link to harm is a matter of ongoing scientific debate and increasing capacity for precisification. While the causal link between greenhouse gas accumulation and global mean temperature is well established in basic science on the basis of observations, models, and historical records, the effects of an increase in global mean temperature on the complex systems that shape the biosphere and so result in increased risk of harm to many of its constituents (while also in some cases benefits to some) are far more complicated to trace. Scientists have in recent years made great progress in being able to conduct attribution studies that can quantify the increased risk of certain events occurring (extreme weather events, severity of hurricanes, and so on) as a result of the changed background conditions shaped by global warming (in its turn shaped crucially by anthropogenic greenhouse gas emissions). It is now possible to quantify how changes in climate (to which individual agents contribute) make certain effects (such as hurricanes) more likely, or more likely to be more destructive, and so to have expected greater levels of affectingness on individuals.³³ Studies also demonstrate how changes in climate, such as temperature rises, lead to differential likelihoods of individual and group actions such as conflict and violence.³⁴ In light of these studies, we can move beyond the individualized causal framework that has dominated philosophical debates about imperceptibility in assessing contributions to climate change, at least when seeking ways of thinking about “all affected” and “all affecting” rather than answering questions of individual moral responsibility.³⁵ Rather than seeking to individuate the likelihood of an individual emission causing, or contributing relevantly to, some harm to some specific other persons, we can explore other paradigms of affecting and affectedness. I shall canvass two: forms of tort liability on the one hand, and structural injustice that might be compared to racism and sexism (and other similar phenomena) on the other.

The tort liability paradigm can in some cases assess responsibility for causing a risk of harm to an entire community, even though that may not eventuate in a harm to a specific person. One might think of emitting greenhouse gases at least above a “necessary” threshold as like driving above the speed limit, knowing that by doing so one imposes the risk of harm on other drivers (and more problematically on pedestrians, cyclists, etc., as there the risk is not fully reciprocated). In such contexts, some have argued that public policy can and should, in assessing contributions to corrective justice, include those who have negligently or otherwise wrongly imposed risks of harm, even where those harms do not eventuate – for example, by setting up a fund for all motorists (or all caught on speed cameras, even if not ticketed) to contribute to compensation for those who are in the event harmed by car accidents. Catriona McKinnon has drawn this analogy in advocating a “corrective justice” approach to greenhouse gas emissions. As she suggests, adopting such an “ex ante view of responsibility” – in the way that some have argued should be done for tort liability – would provide “a justification for extracting resources for reparation from a liable agent (or her insurers) now even though those their actions put at risk exist in the distant future and, indeed, even if many of those distant strangers are never in fact harmed by the action.”³⁶

The tort liability paradigm, however, does not break with the individualizing paradigm of harm on which harms are still generally treated as assignable to discrete persons as both agents and patients, even if the risk of harm affected a class of persons generally before its materialization as an actual harm. An alternative paradigm could seek to model the harms posed by climate change as akin to contributions to structural injustices such as racism, sexism, and other forms of domination. One reason to consider climate change to be “structural injustice” is that it is hard to separate the “affecters” from the “affected”: very many people are doing the affecting, though some much more extensively and culpably than others, and everyone now or in the future alive (as well as other beings and the earth itself) is in the group of those affected, though again not necessarily similiter, given the ways in which exposure and vulnerability are seamed and structured by political, social, and economic inequalities. And this means, further, that there are no clear lines from the actions of one individual or discrete group to the harm suffered by another, an ambiguity that is further heightened by the complexities of climate science itself, in terms of the multiple and sometimes countervailing effects that increased concentrations of greenhouse gases have on various aspects of the dynamics of the climate system. Instead, the actions of the affecters collectively constitute conditions that make harm likelier without making it individually predictable or assignable (even if group-level probabilistic predictions may be feasible).

To be sure, contributions to greenhouse gas emissions are not exactly like contributions to sustaining racism and sexism. It is beyond the scope of this chapter to provide a full analysis of the similarities and differences; instead I will simply point to some commonalities. One is that in all these contexts, actions that might be prima facie (or “facially”: on their face) innocent and legitimate can instead have unjust effects, harming distinct individuals but also further embedding unjust domination into the social and sometimes physical fabric of society. As Luke Cole and Caroline Farrell have argued, in an article that both compares and links pollution and racism, because “racism … is … structural … [f]acially neutral decisions” can reinforce it, as when business owners choose the site of a polluting factory based on the criteria of “appropriate zoning, access to transportation, and cheap land.”³⁷ Other work on the production and reproduction of identities, including identities shaped by domination, suggests that people tell, institutionalize, and objectify (build into the material civic fabric) the stories that construct these identities.³⁸ Others still suggest that it is our “habits” that shore up oppression and inequality, as for example the “racial habits” that shore up racism.³⁹ In these cases, it would be both impossible and unnecessary to try to individuate a discrete harm or causal chain – from one person’s facially neutral decisions; telling, institutionalizing, or objectifying of stories; or racial habits – to a specific measurable harm suffered by another who is affected by those actions or dispositions.

In structural cases, people contribute to harm by playing a role in the social constitution of conditions and dispositions that make it likely or effect it. Neither insiders nor outsiders can penetrate or dissolve that social web to identify either the harm caused by individual agents or that suffered by individual patients, much less to link them directly. Nevertheless, one might be able to attempt “attribution studies” of a similar kind in the social sphere to those now being pursued in climate science. Do increases in background expressions or toleration of racist attitudes, for example, create a climate in which acts of racist hatred and racially motivated violence become measurably more likely? If so, one could establish varying levels of responsibility, from that of individual perpetrators of specific acts, to that of those who more actively facilitate the formation of structural conditions, to that of all people who serve as contributors by tolerating the continued existence of those conditions and failing to intervene actively to attempt to change them.⁴⁰ The same kind of broad scale of responsibility can be applied to the harms caused or risked by climate change. Those who contribute to its background conditions – especially and disproportionately those who are on a global scale relatively wealthy, measured both as individuals and also as countries (though the latter requires further analysis of the distribution of responsibility internally) – are responsible in one way. Those who more actively facilitate the formation of structural conditions, such as by promoting the continuation rather than the phasing out of especially polluting industries, are responsible in another way. There may be relatively few equivalents in the domain of climate change to the individually identifiable perpetrators of individual racist or sexist acts. But that only means that the responsibility of the contributors and facilitators is all the more urgent to address.

Climate Change and the AAP: Procedural and Institutional Arrangements

I have argued so far that the AAP can embody procedural recognition, at least morally speaking, of those who have preexisting moral claims, whether analogous to property rights (in the moral domain), or against being subjected to wrongful harm or the risk of harm. Yet as observed earlier, even in the original development and application of the maxim quod omnes tangit, the entitlement of all affected (or touched) to give their consent to the proposal in question had to be modified in the medieval period’s more expansive applications of it to allow for procedural closure. Bracton, as was noted above, dropped the call for all touched to consent, instead calling only for them to be summoned – giving them the presumptive opportunity to be heard, but depriving them of an effective veto should they fail or refuse to respond to that opportunity. That turned the maxim in judicial contexts into something closer to a compulsory consideration of potentially affected interests and rights in the context of a conclusive procedure. In other words, it gave those affected the opportunity to exercise their voice, but not the opportunity to exercise a veto at their discretion (as the original Roman guardianship cases may have envisaged, though even there the need for procedural closure was significant).

In the context of climate change, such a move would suggest the institutionalization of procedures enabling the compulsory consideration of all potentially affected interests and rights, within the relevant domain (so bounded by an end date for the “property rights” of the global carbon budget, but extending indefinitely into the future for the risks of harm). A number of institutional mechanisms have been canvassed in the literature for such purposes. Some of these would introduce the voice of otherwise unrepresented parties into present-day proceedings by means of representation. For example, the model of ombudspersons appointed in democratic assemblies to represent the interests of nonhumans, distant humans, or future humans is potentially promising. We might also take a leaf out of Bracton’s focus on judicial settings to think about the potential for guardian ad litem positions, modelled on those “appointed as an ‘arm of the court’ to protect children who are unable, because of age or other incapacity, adequately to express their wishes,” though in this case those being protected would not necessarily be minors.⁴¹ Indeed, as noted earlier, a Roman law in the context of which the quod omnes tangit maxim was articulated involved the several guardians (tutores) of a single ward. Empowering some to speak on behalf of the moral rights of others, who would otherwise go unheard, would be broadly in keeping with the spirit of the original maxim and its historical evolution (even though in that law it was the rights of all the guardians to be heard that was in question).

Another institutional route would be to protect the moral claims to “property rights” in the global commons of the carbon budget, in the form of actual commons trusts.⁴² Such trusts have been canvassed elsewhere in environmental law. Issuing “shares” in the carbon budget whose use would require the consent of the trust would be akin to cap and trade mechanisms, but could operate at a more dramatic and symbolic level of global politics. More broadly, the idea of trusteeship for future generations – both for their own capacities and institutions for democratic self-governance, as argued by Dennis F. Thompson, and perhaps also more broadly for their environmental capacities and institutions, political as well as ecosystem-related – again seems a natural extension of the original context of guardians at stake in the quod omnes tangit maxim.⁴³

Conclusion

Whatever institutional arrangements are pursued for particular purposes will carve up the world of interactions in a particular way. Models of affectingness and affectedness are always shaped by judgments of salience, within the scope of existing knowledge, and must also allow for closure if they are to be institutionally and even, in many cases, morally relevant. It behooves those concerned with climate change to broaden the horizon of the AAP to include the intricate patterns of interaction, inequality, dependence, expectation, and “normality” within which the effects of climate change are shaped, and also to seek institutional and theoretical mechanisms that can impose principled closure on those patterns relevant for specific purposes.

At the same time, in light of the grave failure of national and international institutions so far to rise fully to the challenges of mitigation and adaptation on the existential scale that is urgent, the lack of a veto to accompany the voice granted by the AAP is of increasing concern. As Pakistan Senator Mustafa Nawaz Khokhar wrote in the Guardian about the catastrophic climate change-induced flooding of 2022, “Pakistan contributes less than 1% in global emissions and yet it is one of the countries most at risk due to climate change and global heating … We’re now living through a crisis that wasn’t of our making.”⁴⁴ Being guided by the original uses, contexts, and variations of the Roman law maxim quod omnes tangit may open the door to a richer, more variegated, and more objectively discernible horizon of understanding the AAP – who is affecting whom, and what follows from that – when it comes to climate change. Yet as with all matters to do with the ethics and politics of the AAP and climate change alike, there are no easy ways out.