A Rawlsian Middle Ground:

Individual Duties to the Nation based on Hypothetical Consent

History is full of examples of unquestionably immoral acts; however, whether or not present-day citizens have a duty to correct these injustices is a contentious moral issue. Kantians denounce any such loyalties that do not respect the individual’s incalculable value, but this seems an unrealistic representation some of the group bonds that drive our behavior. Communitarians consider ties like group membership the moral starting point of an individual and a justifiable basis for moral decisions, but in doing so strip the individual of autonomy when pondering such collective obligations. I will argue for a middle road: that present-day citizens of a nation are morally obligated to provide redress for injustices committed by past generations because of a global version of the hypothetical social contract they agree to behind the Rawlsian veil of ignorance, but not because of involuntary moral obligations based on group membership (i.e. nationality). In this set-up, all citizens of the world are, in theory, equally morally responsible to provide redress for past atrocities; however, in practice, requiring citizens of the nation who committed the injustice to provide redress is both acceptable behind the veil of ignorance and more appealing to utilitarian and libertarian moral schemes because it maximizes social utility and individual freedom.

Moral obligations based on nationality by definition apply to some people and not others arbitrarily and therefore lack moral weight. If a boy happens to be born in Germany in 1946, it’s morally arbitrary to burden him with paying for the damages caused by the Holocaust because of his nationality when he just as easily could have been born an American or an Ethopian. Even though it seems intuitive to hold Germans responsible for German atrocities, it is equivalent to holding left-handed people responsible for the actions of dead left-handers like Hitler. Present-day Germans and left-handers both played no role in the Holocaust and shouldn’t have to pay for its damages because of these arbitrary group memberships.

Further, moral obligations based on nationality are self-defeating in a Kantian moral system. In such a system, intent rather than consequence is the only basis of morality. Freedom is not defined as non-coercion as it is in consequentialist moral systems, but rather as following the only moral principle that can be completely deduced from reason, the categorical imperative. In this set-up, the underlying maxim behind redress required on the basis of nationality is that being a member of a certain group makes someone morally responsible for all of the past actions of the group in order to correct past injustices and ultimately to promote the respect of all individuals as rational creatures of incalculable value. However, by forcing people to take on responsibilities based on arbitrary distinctions like nationality, such redress loses all moral worth because it champions a realized consequence (an apology or transfer payment) over an individual’s intent to do good. The internal coercion taints individuals by encumbering them with arbitrary, empirical distinctions. To acknowledge morality as a self-legislated obligation, as Kant does, and, in his words, an individual as a “rational being that belongs to the kingdom of ends as a member when he legislates in it universal laws while also being himself subject to these laws,” the only just basis of redress is the individual’s consent.

Obligations to redress past injustices are consensual and therefore justifiable based on a global version of the hypothetical social contract created behind the Rawlsian veil of ignorance. Behind the veil of ignorance, people must agree on principles of justice without knowledge of the empirical realizations that will constitute their life like their share of natural assets, their ethnicity or their nationality. These principles of justice are based on a strange form of consent that people never actually give, but that they would give if they were to decide based on reason alone. This hypothetical consent is important and a solid basis for moral decisions because it ensures that the consent is grounded in autonomy and reciprocity, or that the individuals are choosing free from coercion and for true mutual benefit, not masked self-interest. In the case at hand, present-day citizens that don’t know what country they are going to be born into would agree to equally distribute the burden of the present-day effects of past injustices by obligating each other to provide appropriate redress so as to limited their downside of being born in a “victim nation.” They would only agree to distribute the burden of the present-day effects of past injustices because this is the only part of the injustice that they have a role in, given the point in time at which they are behind the veil of ignorance. Even though none of them played a role in the past injustice itself, they all have an undeserved yet inescapable concern over the distribution of its effects. The form of the agreement follows from the difference principle, as the citizens don’t know their own risk aversion, and also wouldn’t want arbitrary distinctions like nationality to be a factor in the initial distribution of assets so they maximize the condition of the unluckiest person through redress. However, at the same time, the global version of the hypothetical social contract can’t violate the first principle of justice that provides everyone with robust liberties as it is lexically prior to the difference principle. With this in mind, this agreement merely acts as a default that can be overridden by other valid, hypothetical or explicit individual consent that is not dependent on arbitrary factors.

Continuing with the previous example, a German boy born in 1946 should be forced to pay for the present-day effects of the Holocaust based on his hypothetical consent to this default social contract. While he didn’t play any role in the Holocaust, by being born after it occurred, he does play a role in the distribution of its effects. Solely because he was fortunate enough not to be born the son of a victim killed in the Holocaust doesn’t morally free him of this. In this way, the Holocaust occurred to the entire human family, not just one group of people. At the same time, because the global version of the hypothetical social contract is merely a default agreement, it also preserves individual autonomy (i.e. to choose various implementations of it). If the same boy moves to the United States later in life and comes to consider himself more American than German, he can freely opt out of this obligation to pay redress by becoming an American citizen. The global version of the hypothetical social contract requires the man to share the arbitrary parts of other’s lives that just as easily could have been his, but does not require him to live his life entirely for others as this is the only way it can protect the choosing self from arbitrariness. One important restriction to this is that he can’t become an American citizen for the sole reason of getting out of paying for redress, as acting out of such clear self-interest violates the categorical imperative and in actually forcing arbitrariness on others. By refusing to pay, he is opportunistically using the people who happened to be born a victim of the Holocaust as a means to increasing his own happiness and capitalizing on his luck. (Sadly, making such distinctions based on intent is difficult in practice and in some cases impossible.)

There are infinite theoretical ways to redistribute the present-day effects of injustices consistent with the global version of the hypothetical social contract; however, the solution that maximizes social utility and individual freedom imposes the obligation on the present-day citizens of the nation who committed the injustice. Continuing with the previous example, every citizen of his generation is as equally morally obligated to pay redress to the victims of the Holocaust as is the German boy because every person’s nationality is random behind the veil of ignorance. In this spirit, a just solution would be to require everyone by default to pay redress to one another based on their global citizenship until the arbitrary present-day effects of the injustice have been evenly spread. Again, because this global social contract functions merely as a default setting that can be overridden if, for example, the individual feels he can only live a moral life by removing himself from society, it is not heteronomous and is acceptable behind the veil of ignorance. However, the utility- and liberty-maximizing solution is to require the German citizens to pay redress.

From a utilitarian perspective, a direct transfer payment solution is clearly optimal. Requiring the German citizens to pay Israel concentrates the burden on them, which ensures that it will not be ignored as a responsibility diffused across the citizens of the world, such as the burden of environmental stewardship is. Further, if the committers of injustice care about the people of their country more than others as might be true, it creates a social disincentive to commit injustices in the first place. Finally, there are some cases in which it is simply impossible for the world to give redress as for the cases of stolen artifacts and the burden is squarely upon the “victimizing nation.”

The direct transfer payment solution is also optimal under a libertarian moral system. Requiring the German citizens to pay Israel is the least objectionable of all possible solutions with the most objectionable solution of all possible solutions being the universal solution as it seemingly asserts collective ownership in each other. Further, a libertarian system acknowledges some exceptional national obligations that can trump individual rights. For example, conscription is just when the survival of the nation is at stake. Similarly, the fundamental libertarian respect for individual freedom and self-ownership are only defensible if unjust transfers like the present-day effects of past injustices are reversed, which could arguably constitute such a national obligation.

The strongest objection to redress based on a global version of the hypothetical social contract is the communitarian conception of redress based on group membership and an encumbered self. Communitarianism sees the individual as defined by his group memberships, as MacIntyre writes: “I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations.” However, though involuntary obligations to a nation surely have sentimental value, it doesn’t mean they deserve moral weight. Indeed, Rawls’s conception of a choosing self that must “choose a dominant end from among numerous possibilities” seems to recognize both the sentimental pull that nationality can have on someone while subordinating it to morality based on reason. Unless the individual literally cannot make a moral decision without knowing his group memberships, the encumbered self is not a unique conception of the self. This picture of the self imposes a weak form of relativism on morality. Though it doesn’t offer multiple moral standards, it asserts that different people are morally justified in making different decisions when presented with the same moral dilemma. For example, it would be wrong by mere inconsistency to burden someone born in America for past American injustices and not a naturalized American because the latter has made an explicit choice to take responsibility for past American injustices in “becoming American,” even though they are not part of his strict, biological heritage. In irreconcilably binding an individual’s moral decisions to his group memberships, the encumbered self of communitarianism not only imposes a weak form of moral relativism, but also infringes upon individual freedom by discounting his choice, and therefore seems an inadequate standard for such a moral decision.

An equally strong yet conceptually opposite objection to this Rawlsian moral ground states that explicit consent is the only just form of consent. In this set-up, an individual needs to sign an explicit social contract in order to be burdened with the moral obligations of a country, similar to a libertarian counter to utilitarian public projects forcibly imposed on a society through taxation. However, the global version of the hypothetical social contract respects explicit consent by giving the individual the right to opt out of the social contract as long as he does it on valid grounds that are not based on arbitrary factors like the distribution of natural assets, something everyone would agree to behind the veil of ignorance. Further, the optimal version of the hypothetical social contract in which such moral obligations are tied to individual’s nationalities by default but can be overridden by explicit consent yields the same results as the more natural Lockean social contract that is based on implied consent to the government that an individual is born into but that can similarly be overridden by explicit consent to leave the country. However, the hypothetical social contract is arguably a dominating justification because it is based on decisions behind the veil of ignorance and therefore on a purer form of consent that is not tainted by empirical realities like certain citizens being born into rich countries and therefore wanting to downplay the moral import of such group ties. Though explicit consent is certainly a more natural and seemingly unquestionable basis for moral obligations, by not breaking the social contract, an individual implicitly gives consent to the obligations of his government. To be concrete, though an American who fiercely protested the Vietnam War clearly didn’t give his consent for it, unless he disavows his American citizenship, he is not free of his obligation to pay redress for these injustices.

A final objection to redress based on hypothetical consent is Aristotle’s polis-level obligations that burden the nation rather than the individual with the task of redress. In this set-up, a nation’s obligations continue unpaid independent of the lives of its citizens since its telos is to promote virtue in the citizenry and it can’t do this without setting the moral standard by itself paying for its past injustices. A modern example could be when the South Korean President apologized on behalf of the country for, US permanent resident but South Korean national, Seung-Hui Cho killing 32 students at Virginia Tech. However, the choosing self that signs a hypothetical social contract behind the veil of ignorance has a valid objection to this because he consents to be morally obligated to other citizens not to institutions. Even though the national apology by their president might not have a real or large cost for the people of South Korea, it is morally wrong because it forces upon them a certain conception of the good through nonconsensual redress and implies that inhuman institutions like governments can have moral obligations even though they lack rational nature, the source and basic unit of moral obligation.

I believe that the Rawlsian social contract offers an important middle ground on the dilemma of national reparations as it shows an individual does not have to consider himself morally encumbered by arbitrary group membership in order to respect the moral pull of such obligations. The only group I have considered here is the nation, but the hypothetical social contract likely can also offer a unique perspective on obligations to family and class that are typically only given moral weight in a communitarian moral system.