1

On the potential and limits of (global) justice through law. A

frame of research.

Gianluigi Palombella

Abstract. On the potential and limits of (global) justice through law. A frame of research. Beyond the
objection that global justice needs the creation of a global coercive power, this article focuses upon the
role of legality. International and suprastate norms shift our attention from the need for moral
foundations to the actual implementation of rules and the fight around interpretation. Avoidance of
injustice is to be addressed by new legal methodologies, taking account for notions like complexity,
indivisibility, responsibility, ie resorting to experimental forms of regulatory incentives and guarantees,
touching upon a range of interconnected ‘sides’, requiring to progressively integrate justice or human
rights safeguards as internal legal counterweights in the mission of whichever global regime; and
impliying a careful consideration of the divergent outcomes possibly stemming from single one sided
remedies.
Keywords: Justice; Complexity; Indivisibility; Human Rights; Responsibility.

1. Global justice, law and a world coercive power

1.1. Global justice has been for some time under the opposite lenses either of
cosmopolitan or of “political and statist” views (Pauer-Studer 2009, 207-231; Brock
and Moellendorf 2005), mutually denying their idea of justice. General cosmopolitan
conceptions focus on the issues regarding resources and opportunities available to
individuals on the globe, thereby transcending state-centred concerns and the sheer
logics of inter-states relations. According to their view, evidence shows that
transnational or supra-state institutions control economic fluxes crosscutting the line
of states, and the latter in turn are most often an obstacle for justice among
individuals. On the contrary, the main thrust of the political or statist conception is
that justice revolves around the fundamental structure of single societies, and
therefore it belongs to associative obligations, within bordered polities: other human
beings can only generate duties of assistance, humanitarian duties, not justice
obligations.
The dispute has itself given rise to hybrid or balanced alternatives. The
following pages shall not consider further the arguments raised by either side. It is of
relevance though that the two standard conceptions are like intertwined in the
everyday options of practitioners and NGOs, being both of help in addressing a
variety of diverse issues.
Even the very relation that can be set between global justice and the law is often
made to depend on one or the other (or on mixing) of those two general views.
Indeed, the hybridization is recurrent, and even the state is both cherished for its
potential roles in preventing global injustices or blamed as one of their main causes or
even perpetrators. Notably, law itself is either charged with producing injustice or
recognized as a promise of justice.
Instead of directly dwelling on the dispute about the ultimate causes of
injustice, the moral nature of our duties to others and their extension beyond the limits
of our polities, this article would rather recommend to approach the international
norms providing for human rights protection and to take the connected legal
 2

obligations seriously. Of course, such a perspective is premised upon the idea that
legal norms matter1, even in a world ruled by conflicting and merely self-interested
powers. It cannot either subscribe to the assumption by Thomas Nagel (2005, 113-
147), according to whom the idea of global justice cannot be defended because it
demands the coercion by a world state: while a global coercive power does not exist.
Notably, entire sets of fundamental international law, quasi-universal treaties
concerning human rights, norms protecting global public goods, or prescribing erga
omnes obligations (binding even non consenting states), would be pointless, should
we think that a global coercive power (now inexistent) would be necessary for them
to create actual legal obligations.
As it is known, justice is strictly connected, by Nagel, to the monopoly of
power, that is, the main pillar of the modern political thought, explaining how a civil
state has superseded a sheer state of nature. It should be stressed that in that narrative,
as well as in Nagel’s, the creation of a civil power is itself made a premise to the rise
of law. But something more should be added to that regard, that allows for a slightly
different perspective.

1.2. The possibility of justice is seen to ultimately depend on power. However,

justice has been explained also as connected to the emergence of law. This seems to
be true in different threads of legal thought, that is, for example, both with Kant and
with Bentham. For Bentham (1970, 192), law provides for generally accessible
criteria of behaviour, it aims at ensuring social coordination and collective fairness by
facing disagreements that stem both from individual interests and from ideal or
principled divergences over collective issues2. As Bentham argued, a civil society
public sphere would be impossible to imagine outside the service afforded by law. It
is not simply that law tends to overlap with positive (and current) morality, but that
morality requires the law as ‘determinative’ in order to spell out and achieve its aims.
Similarly, Kant provides a straightforward view of law3 as a generator of publicness
that combines the creation of legal parameters with the problem of justice. In Kant’s
reasoning, law and justice are resorted to conceptually in order to avoid the (state of
nature) condition in which the abuse of personal liberty and external control is
unobjectionable. Even if the state of nature need not be unjust, it is devoid of justice,
so that men ‘do one another no wrong when they feud among themselves’. 4
Nonetheless, ‘in general they do wrong in the highest degree by willing to be and to
remain in a condition that is not rightful, that is, in which no one is assured of what is
his against violence’5.
It appears that the creation of a coercive authority is relevant to the institution of

1
Literature is huge, see for ex. the chapter by Kratochwil (2001). Or the book by Onuf (2009).
2
G. Postema (1989, 60) addresses the problem of the public character of law in Bentham, as a
coordinative service of law, but he stresses as well that: “To focus only on the law’s ability to put some
questions beyond further debate obscures the role the law plays structuring the debate which continues.
Legal arrangements, far from calming the political waters in the way Bentham’s theory predicts, often
attract and even invite disagreement and contention”.
3
In Kant’s view unless man “ [W]ants to renounce any concepts of right, the first thing it has
to resolve upon is the principle that it must leave the state of nature, in which each follows its own
judgment, unite itself with all others (with which it cannot avoid interacting), subject itself to a public
lawful external coercion, and so enter into a condition in which what is to be recognized as belonging
to it is determined by law”. Kant (1996, § 43).
4
Ibidem } 42, 86.
5
Ibidem. For that reason, man “ought above all else to enter a civil condition”, and accordingly
“each may impel the other by force to leave this state and enter into a rightful condition”.
 3

law and legality, but would not of itself be a direct generator of justice, say, in a
lawless state. While power has no necessary relation to justice, it is the birth of law,
like in the Kantian construction of the “idea of public law”, to make up for the
conditions of conceivability of justice (the just-unjust couple) and mark the shift
beyond a state of nature. Justice is premised upon a legal order, not upon coercive
power. Law becomes the epistemic premise of (the possibility of) justice: the question
of power (coercive power) commonly relates to the effectiveness of a legal order
(although one might doubt it has to be a quintessential premise). For this very reason,
for example, we can understand how for long the international legal order has been
denied the nature and quality of a juridical system. International law is a case in point
here, since we can test through it the general assumption concerning the ultimate role
of a global coercive sovereign.
After some centuries of controversies, as a matter of fact, the normativity of
international law has survived, the absence of a global sovereign notwithstanding: the
nature of international law as a legal order is today undoubted and must not be an
issue. Thus, if this holds true, demands of justice can be raised, availing of
international legality, despite the lack of a world coercive power. And in truth, an idea
of justice, whatever it might be, is contingently conveyed by the legality- beyond- the-
state, and in particular by international law, and it partakes in the same level of
bindingness, validity and effectiveness that such a legal order can demonstrate. This is
why the transformations of law and the questions of global justice can be placed at the
forefront and should better be focused together.

2. The importance of legal improvements and rules’ interpretation

In his analysis of massive poverty on the globe, Thomas Pogge maintains that
international economic law, global or regional financial institutions, and, as one could
add, global regulators governing trade and commerce especially, are not without
responsibility for the present state of affairs. More, they have a fundamental role, one
that cannot be concealed behind the rawlsian assumption (Rawls 1999, 108)
according to which the wealth or extreme misery of a population depends, ultimately,
upon their culture, policies, and their more or less oppressive or corrupt governing
elites (Pogge 2009, 418).
Actually, one can find rather out-dated the idea of (economic and financial)
state autonomy, in a world that has become intertwined, making it impossible for any
state to grant a perfectly insular existence, immune from the material consequences of
external events, especially through trade and financial fluxes. In Pogge’s terms, world
transactions are “shaped by an elaborate system of treaties and conventions about
trade, investment, loans, patents, copy-rights, trademarks, double taxation, labour
standards, environmental protection, use of seabed resources, and much else. These
different parts of the present institutional order realize highly specific design
decisions within a vast space of alternative design possibilities” (419).
I wish to uphold this view, in so far as it enhances the role of legality, starting
from the normative choices of several decision making authorities, exercising a
jurisgenerative power in the varied global context.
It could be part of the mission of international authoritative bodies to pursue
their policies also avoiding human rights violations or preventing them. Here the
question of interpretation of the principles and rules comes to the forefront. The most
powerful International financial Institutions that are lenders to governments and
 4

corporations are generally expected to frame their business-related intervention under

conditions of respecting human rights. But it is remarked that they do not do their best
and “to date, no International Financial Institutions ensure that the environmental and
social due diligence of companies that they finance encompasses human rights and
due diligence to identify prevent, and mitigate potential adverse rights impact of their
activities” (Evans 2016, 327).
The European Investments Bank works as an exception because it follows its
statement of principle by denying financing projects that can result in a violation of
human rights: although it has scarce staff resources to ultimately insure compliance
(328). The most important single example is the World Bank, as its attitudes are
described by Philip Alston: in his Report 6 he points to the rule of “political
prohibition”, one that forbids the Bank’s interference in matters that amount to
political affairs of any member state, and requires that officials’ decision making be
based only on economic considerations. Recent General Counsels of the Bank have
been determinant in interpreting such a rule on ways that prevent to consider even
grave issues of human rights protection.
As Alston writes, they were using a double standard, since they have “ found
convincing rationales to facilitate the wish of the management to work on issues as
diverse as corruption, money laundering, terrorist financing, governance and the rule
of law, but on the other hand, human rights remains on a very short blacklist, along
with support for the military and intelligence services, as issues that are currently
classified as being predominantly political and thus prohibited” (par. 12). It seems
untenable the claim that when human rights are concerned the Bank could not keep to
objective economic standards and could not avoid to interfere into political matters:
while the same claim is not raised when it is the case of corruption, terrorist financing,
the rule of law, that are considered fields where there is no risk of involvement of the
Bank in political considerations. In fact, it is of evidence that “adoption of an
expansive criminal justice policy, while refusing to engage with human rights, leads
to a highly artificial separation of the two issues” (para 21).
It is worth noting that there are reasons7 for such an interpretive stance: they
partly reflect the institutional Dna and its economic-technocratic and legalistic
character, partly show the fact that human rights are still (mis)placed in balance with
other interests or goals that are given (but should not be given) straightforward
priority.
The reasons for an opposite stance, that is, reasons for overcoming the current
interpretation of the ‘political prohibition’ as a hinder to the protection of human
rights, are more relevant and convincing. Alston notes, for example, that human rights
are not something for a lip service, since they have become normative obligations by
which most states are committed as a matter of law. This argument can be called the

6
UN Report of the Special Rapporteur on extreme poverty and human rights [A/70/274 , 15
sept. 2015 at https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N15/243/35/PDF/N1524335.pdf?OpenElement
7
Among the reasons a the Rapporteur suggest as causing this interpretive bias of the Bank,
leading toward the exclusion of human rights are the institutional culture based on the role and
education of economists, thus making economic impact relevant, not ideals values and dignity; the
misplaced legalism conforming to the current classification of human right as ‘political’ not economic;
the perception of human right problematique as fatally slowing down loans approval and raising costs;
the perception of imposing western ideas and values vis à vis cultural relativism; the risk of
transforming the Bank into a ‘human rights cop’, enforcing rights and sanctioning; human rights
concerns being a competitive disadvantage for the World Bank vis à vis other lenders not taking human
rights into account.
 5

argument from legality. A second and important reason is an argument from

indivisibility or complexity. It is mentioned through reference to Amartya Sen’s
(1999) demonstration that development is not just a matter of economics, but of
effective freedom and rights’ enjoyment.
As I believe, the argument from legality stands as an autonomous pillar that is
often overlooked in the discussion between moral and political philosophers. When
the protection of rights is embodied in the international (and national) obligations of
states and belongs in so many normative contexts hosting international and
supranational authorities, some of the paths toward the realisation of principles of
justice have been trodden. In many ways, positive and recognised legal obligations
represent a precious achievement, one that overcomes the stage of the previous
controversy that led to the positivisation through law. Accordingly, we are not any
longer asking whether some basic human rights, as components of justice, should be
defended, or whether a justification of a merely moral obligation can be given (say,
vis à vis the egoism of states or despite the unwillingness of leading political powers).
Legalisation brings us into a subsequent and further realm belonging to law: it shifts
our focus also toward the consistence of the legal apparatus, its organisation and the
actual interpretation of the fundamental commitments enacted through law.

3. Indivisibility and specialised legal regimes

The second argument, indivisibility, regards the relation between rights’ enjoyment
and contextual factors, including development. In a sense, the problem of
indivisibility concerns the connections among different types of rights, it captures as
well the nature of the material process of globalised economy and the inextricable
overlapping between rights and economic sustainability, the issues of material
complexity and interconnectedness (like, on different levels, environment and
industrial or agricultural development, trade and social welfare safeguards, health and
pharmaceutical patents, security and access to justice, and so forth).
The way chosen to deal with complexity, on the global stage, has been the
institution of hundreds of sector-related legal regimes: they identify and discipline
pre-defined specific issues, be they trade, sport, forest, environment, security, human
rights, energy, and so forth. One of the epistemic starting point, to this regard, should
be the recognition that in a world of material interconnections, on one hand territorial
spaces’ borders are hardly mastered, and on the other the separation among fields of
action or public policy issues becomes a weak and defeasible presumption. The work
of global legal regulators has an artificial strength, trying to separate in order to
regulate, that is, a divide et impera, an attempt to control the growing complexity by
differentiating its multiple components and singling them out. Martti Koskenniemi
aptly wrote that a

“better place to start would, therefore, not be their separateness but their connectedness,
not their heterogeneity but homogeneity. Every regime like every state is always already
connected with everything around it. We know this from practice. Environmental law may be
best supported by market mechanisms through introducing pollution permissions. For the
market to fulfil its promise, again, a huge amount of regulation is needed, not merely on
conditions of exchange or the terms of ownership or banking. A market with no provision for
social or environmental conditions will fail. Human rights may be best advanced by giving up
strict human rights criteria and, for example, insisting on early accession of Turkey in the
European Union […] such arguments would highlight the contingency of the limits of
 6

individual regimes, their dependence on other regimes, and the politics of regime-definition.
Here there is room for much ingenuity. A regime of trade may always be re-described as a
regime for human rights protection while any human rights regime is always also a regime for
allocating resources.”8

It is possible to interpret the present situation as a theatre of regulatory

interventionism, implementing some fixed statutory functions and tasks, based on
field related rule-making authorities, whose main goals can be resumed under the
need to control discrete sectors of an interrelated world, through the means of their
legalization, regulation, administration. This project of control developed by facing a
series of challenges: it had to create international authorities and institutions holding
an unprecedented power, that in turn are suspected to serve the interests of affluent
countries (in the Washington consensus).
Nonetheless, their global functions pretend some legitimacy, owing to a sort of
coordinative role overcoming the interests of any single parties. Therefore, they could
be recognized some primacy under condition that they take seriously their
universalistic or human-rights respecting declaratory charts. Even in the Global
Administrative Law project (Kingsbury, Krisch and Stewart 2005; Cassese 2005), one
should find a promise of injustice reduction (Stewart 2014; 2015; pace Rached 2014),
in so far as its scholarly work recommending and monitoring especially procedural
conditions (transparency, review, hearing of stake holders and addressees,
revisability, judicial review, rule of law) and substantive respect for basic human
rights, improves accountability, ‘civilizes’ and curbs the self-referentiality and closure
of global regimes administrative rule-making.
This said, the question of indivisibility is not, of itself, solved. On the contrary,
no global or regional specialized regime can work beyond its sector-related tasks and
field relative objectives. Human rights international regime is said to pursue radically
different imperatives from the United Nations Security Council system of rules, and
between the two a kind of acoustic separation is drawn. The World Bank works on
fundamental aims that rule out political or human rights issues in the name of
economic efficiency.
The concern for the overall state of affairs, resulting from the work of too many
jurisgenerative bodies, virtually unrelated to each other, is hard to address, and its
treatment is still out of sight. One important factor obscuring further prospects of
global justice lies indeed in the consequent limited reach of the international
institutions, governing the intercourses among peoples and states. Efficient measures
of health protection, capable of increasing life expectations, might well be issued by
the World Health Organisation (or by states conforming to WHO objectives), but the
best means to contrasting some endemic diseases in poor countries might foreseeably
require, and have implied in the past, to infringe the pharmaceutical patent system
protected by the World Trade Organisation.
Admittedly, cosmopolitan ideas claim that justice be pursued by piercing the
veil of states, because the latter are often responsible of the grave violations of human
rights that international authorities should be entrusted to prevent or redress.
Cosmopolitans recognize that the transitivity of common problems crosses territorial
divides and state borders, and thereby invoke universal standpoints for global justice.
Nonetheless, the fact remains that the breaking in of global legal institutions is a

8
“Global Legal Pluralism: Multiple Regimes and multiple modes of thought”, Harvard, 5
March 2005. Available online at http://www.helsinki.fi/eci/Publications/Koskenniemi/MKPluralism-
Harvard-05d[1].pdf.
 7

double-edged sword. The nature of the administration/ regulation at the global legality
level is by its birth segmental, while the problem of justice refers to the entire well
being of the affected persons. I shall return to this point in the last section.

4. The puzzling interplay between legal and extra-legal factors

It can well be said that ‘artificial’ specialized institutions, and treaty based
international arrangements are deceptive constructions bearing the illusion of legal
control over realities that are like machines running of themselves. Yet, this objection
goes too far: it cannot explain the job made by the flourishing of international,
regional and global jurisgeneration, and at the same time would imply that no
intervention through law can promise any better prospect. However, If we turn to
Pogge’s observation, stressing the performative effect of legally framed economic
institutions, we realize that it is premised on an opposite account: It relies on the
chance that by re-modelling or re-interpreting legal arrangements and the choices
behind them, some of the fundamental hurdles of injustice, included extreme poverty,
might be better addressed.
For example, it is for him of some evidence that in treaty negotiations, poorest
countries are bound to accept conditions that protect or favour affluent countries’
markets through “quotas, tariffs, anti-dumping duties, export credits, and subsidies”.
Therefore, changing the legal measure by lowering barriers where they are still high
might be of help (Pogge 2009, 420).
Others might think that trusting a rules’ change as though all the troubles boil
down to a matter of reforming some legal international device, might be a mistake.
Pointing to ease through legal amendments the export-led growth of poorest countries
is seen insufficient a move, lacking a state driven series of domestic provisions
capable of fostering industrial development and boosting productivity (Howse and
Teitel 2009, 409): in other words, even trusting some equal global market openness,
through international economic law, severe poverty might still depend of other
aggregate factors, including state policies, corruption, and the like. At the same time a
strong explosion of growth in industrial products or agricultural development might
on other sides negatively affect the rights of many, regarding, say, health,
environment and pollution, labour exploitation, slavery.
Anyway, that is not an argument to discard the role of legal interventionism.
According to Pogge, some legal arrangements are even directly responsible for
exacerbating the issue of poverty: in these cases the impression is that it is legality
itself to have produced injustice9.
This is a claim that holds along with the acknowledgment of the progress of
international law towards ‘humanity’ obligations, in the last 70 years, and even the on
going attempt to curb and ‘civilise’, through law, the impressive power of the most
important global legal regimes, like the Security Council or the WTO.
Eventually, one cannot demonstrate that different institutional policies and
legal rules would have prevented extreme poverty, and of course, one does not have
to necessarily agree with the diagnosis about causes and effects made by Pogge

9
After all, that would confirm the caveat that Nagel wrote concluding his analysys on global
justice: “The global scope of justice will expand only through developments that first increase the
injustice of the world by introducing effective but illegitimate institutions to which the standards of
justice apply, standards by which we may hope they will eventually be transformed. An example
perhaps of the cunning of history” Nagel (2005, 147).
 8

himself: consequently one does not have to stick to his own recommendation of
reforming one or another rule, in the view of eradicating extreme poverty. Probably,
justice is not a question of single outcomes, it cannot be mastered in insulated clusters
and one rule change could be deceptive as long as the actual complexity of global
economy makes it impossible to fix dysfunctions in one place without triggering
unintended side effects elsewhere (Howse and Teitel 2009). It has been rightly
stressed that it is not just a matter of targeting some economic and trade agreements as
unfair or pernicious to poorer countries: “Interpreted in a balanced way, and as we
have argued, in light of human rights including the right to health, the TRIPs
agreement, which contains significant limitations or balancing clauses, need not have
negative effects on the well being of people in poor countries” (447). Thus, it is often
not only a matter of rules and institutions, but also a matter of interpretation and
application, as the Alston Report, discussed above, clearly showed as well.
Nonetheless, as I think, this does not disprove the tenet that rules and institutions, by
including the interpretive legal work on them, are essential factors in our attempt at
controlling the economic reality, and addressing gross injustice.
Besides all that, it is rather clear that the question on the table, because of the
multiple factors involved, is whether we can find a case-by-case fine tuning for
effective governance and minimise and monitor countervailing effects. The closest
thing to an answer here is resorting to multiple and experimental forms of new
regulatory incentives and guarantees, touching upon a range of several relevant
interconnected ‘sides’ at the same time. To this family of ideas belongs for example
the recognition that in governing hard problems, it proves expedient a convergence of
different regulatory sources instead of a unitary top-down authority: in other words, as
it is demonstrated in affording climate change, regime-complexes instead of an
integrated international regime (Orsini, Morin and Young 2013; Keohane and Victor
2017). That is convened under the general frame of the notion of “Global
Experimentalist Governance” that is, an “institutionalized process of participatory and
multi-level collective problem-solving, where the problems and the means of
addressing them are framed in an open-ended way, and subjected to periodic revision
by various forms of peer review in the light of locally generated knowledge” (de
Búrca, Keohane and Sabel 2014).

5. Responsibility and injustice

As in the foregoing, it appears that the ultimate conundrum of global justice is not
simply that our conceptions of justice need to include both cosmopolitan and
institutional state-related concerns. It is as well that the production of justice is a
difficult task, among the rest, because of its material complexities. Moreover, instead
of some sovereign global power, as a reassuring enforcement authority (in the
mentioned Nagel’s sense), we need to acknowledge that multiple perspectives are to
be made relevant in a strategy of solidarity10 towards avoiding injustice. Again, this
recalls the idea that responsibility of each actors, regime authorities, states and non-

10
Howse and Teitel (2009), for example, have emphasized the need for a comprehensive
strategy of solidarity, also pointing to the fact that the absolute value of human survival can only be
granted by taking account of and managing a greater variety of connected objectives and factors, and
by conceiving of extreme poverty eradication within a bundle of concurring and interwoven
determinants involving a general idea of human security, including health, environment, and further
human rights.
 9

states players should involve more than caring for the core interests for which they are
accountable to their own stakeholders or constituencies.
In this connection, some background considerations are in order. ‘Segmented’
law, proper to the extra-state setting, of itself, is unsuited to make for the coherence of
overall contents of the kind that we strive to reach through the centralized system of law
belonging in the state.
‘Taking account of the whole’ is the attitude that we were used to expect from the
state, upon which we put the responsibility for it 11. The concept of responsibility here
equates the sense it bears for a “responsible person”, capable of a sensible, self involving,
consideration of as many relevant factors as possible: taking on one’s shoulders the scope
of the state of affairs exceeds the limits within which one can be held accountable for her
action (liable for some commitments, or deserving punishment). In the latter sense,
responsibility regards the past, and the action performed by someone. But in the former
sense (Villey 1977), the meaning implies the care for the future and a sensitive approach
to the overall state of affairs. For this reason, it is well suited to the question of justice.12
While the mantra of controlling supranational entities bearing material and jurisgenerative
power is now “accountability”, holding them accountable does not necessarily change
their incapability to approach world problems taking some less unilateral and more
comprehensive attitudes. The very fact that “responsibility” requires a consideration of
the “whole”, and future, clearly discloses a dimension that accountability 13 cannot
provide. While, for example, global regulatory entities’ structures and procedures can be
made accountable on giving reasons, granting transparency and review, with regard to the
pursuit of their special functions and aims, the point in global justice lies beyond such
arrangements: first it requires to progressively integrate justice or human rights
safeguards as internal legal counterweights in the mission of whichever global regime;
second, it implies a careful consideration of the divergent or conflicting outcomes
possibly stemming from single separated sources. Looking at global justice (‘being
responsible’) plays a largely different drama than that of ‘being accountable’ for
accomplishing well-defined, feasible and ‘limited’ tasks: it points to the regulative idea of
the ‘whole’, that is, in some way, to the problematic equilibrium among discrete and self
referential rationalities14.
However, in the lack of some kind of ‘Olympic rationality’, or a unique substantive
idea of the good, the concern for a comprehensive idea of justice can only be addressed

11
The idea of responsibility that is in the background has less to do with the notion of “imputabilité“ (or
that of “imputation”) of criminal responsibility and the like.
12One can find in H. Jonas (1984) some converging conceptual hints. Firstly, new technology should be
informed by a new “ethics of responsibility”, one that exceeds the Kantian idea of duty, in the
deontological mode, as largely consequence-insensitive. Secondly, what he calls “political
responsibility”: in analogy with parental responsibility (97), which in his words bears a significant
relation with the notions of totality, continuity and future: because the responsible person here cares for
the “total being” of its object, with no possible interruption in time, and “beyond its immediate present”
(98-105).
13
In Grant and Kehoane (2005), however, accountability divides in two strands: in the participation
model, “the performance of power wielders is evaluated by those who are affected by their actions. In the
delegation model, by contrast, performance is evaluated by those entrusting them with powers” (31).
14
I think apparent that for such imperatives, the character of being limited and well defined turns to be
condition of the very accountability of those who are entrusted with their observance and implementation.
On the contrary, what I refer to as the ’whole’ resumes the self involving capability that is mirrored in states’
polities, related to their ‘self’ and their identity, and admittedly located within the pattern of sovereignty,
rather than in managerialism. For this couple, that is, once more on the divergence between sovereignty and
managerialism cf. M. Koskenniemi (2011).
 10

through case by case tailored substantive appraisals, sensitive to ‘relations’ (Palombella

2016) and open to contextual assessment.
One can find concurring insights from Amartya Sen. Since rationality and
‘objectivity’ can still leave open a plurality of defensible options, a “critical scrutiny from
the perspective of others must have a significant role in taking us beyond economic
rationality into reasonable behaviour in relation to other people” (Sen 2009, 197)15. But
doing so implies “responsibility” in respect to them, one that might exceed our immediate
duties16, and our accountability for the task that we have been assigned17. Sen does not
advocate “simply” a consequentialist vision (against a deontological one), focused on
“culmination” results: his view invokes “outcomes in their comprehensive form”, and
minds about “social realizations”18. It is not a matter of expected utilities, then, but the
overall consideration of a complex setting, including the reduction of liberty, inequalities,
or other shortcomings. If we return to the instance of extreme poverty, Sen’s perspective -
starting essentially from avoiding injustice - traces a persuasive frame of reference, also
given its shift away from the rawlsian (political) ‘optimal’ and institutions-centred image
of justice to the well-being of situated people.
In this connection, the role of international and supra-national law should better
foster or channel communication, and balance among different actors / addressees in the
play. Justice does not depend only on an intra-state societal notion, on a rawlsian view.
Moreover it can be assessed by pooling convergent intuitions stemming from grave
injustices, gathering diverse sensitivities and in diverse affected places, reaching a kind of
more comprehensive view, aimed at dissolving one-sidedness, and causing the
perspective of others to be heard.

Gianluigi Palombella
Scuola Superiore Sant’Anna
Istituto DIRPOLIS
Piazza Martiri della Libertà, 33
Pisa 56127
gianluigi.palombella@santannapisa.it

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15
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