Market transactions and the limits of moral evaluation of cross-border interactions

Abstract

In her important book Promoting Justice Across Borders, Lucia Rafanelli offers a detailed account of ‘reform interventions’, seen as ‘any deliberate attempt to promote justice in a foreign society’. Such interventions, she argues, can and should be subject to ethical evaluation, including standards relating to toleration, legitimacy, and collective self-determination. While I am sympathetic to many of Rafanelli's arguments, in this essay I will argue that, for a large number of cases this complex moral machinery is not needed, because the acts in question either are, or could be, morally indifferent when looked at from the perspective of interaction between members of the international community. In particular, I argue that many market or economic interactions between states fall into this morally indifferent zone, and so need not meet the standards set out by Rafanelli to be acceptable.

In her important book Promoting Justice Across Borders, Lucia Rafanelli (2021) offers a detailed account of ‘reform interventions’, seen as ‘any deliberate attempt to promote justice in a foreign society’. Such interventions, she argues, can and should be subject to ethical evaluation, including standards relating to toleration, legitimacy, and collective self-determination. When these standards are applied we have, she argues, strong reasons to favour ‘less-controlling’ and ‘counter-hegemonic’ forms of intervention, though in some cases interventions not fitting those descriptions are also acceptable. In some cases not only are interventions acceptable, but they may also be required, Rafanelli argues.

The standards to judge interventions that Rafanelli develops are complex, detailed, and subtle. Each of the standards noted above has several points or aspects and applying them requires working through a number of steps to see if the intervention in question meets the standard. The detail and care used in developing the arguments is impressive. But, I will argue that, for a large number of cases this complex moral machinery is not needed, because the acts in question either are, or could be, morally indifferent when looked at from the perspective of interaction between members of the international community.

In this essay, I focus primarily on market or economic interactions between states. Rafanelli makes use of several examples that involve economic aspects, but two of her examples are most clearly economic in nature – the refusal by the EU to allow the sale of certain drugs used in executions to the United States, and the Oman–U.S. preferential trade agreement. My goal here is not, in the first instance, to contest Rafanelli's substantive conclusions in these cases. (Rafanelli concludes that the EU drug sale ban is acceptable, and that the Oman–U.S. preferential trade agreement is not acceptable, but only because it, on her account, ‘undermined Omani's collective self-determination by subjecting them to neocolonial subordination’; Rafanelli, 2021: 201). Rather, I argue that, in cases like these ones – and so in relation to a very large number of ‘interventions’ – ones that can most squarely be characterised as ‘economic’ – the type of analysis that Rafanelli provides is not properly applicable, and the question she raises simply do not arise when we look at these cases in the correct way.

Several years ago now David Gauthier argued that, under certain circumstances, economic transactions could and should be seen as providing a ‘morally free zone’ (Gauthier, 1986: 84). Gauthier also rightly noted that this claim had a much more limited range than the classic laissez-faire economists thought (Gauthier, 1986: 93). We need, then, to work to understand the ‘nature, place, and limits of a morally free zone’ in order to ‘understand the nature and necessity of a morally constrained zone’ (Gauthier, 1986: 85). My contention here can be seen as arguing that Rafanelli puts too many (in fact, I think, probably all) interactions into a ‘morally constrained zone’, while not recognising that many such interactions should be seen as fully or largely being, ‘morally free’, or to use the expression I prefer, morally indifferent.

I do not mean this claim as a general challenge to the arguments and conclusions of the book. As Gauthier notes, a system of morally free interactions is artificial, not natural, and can arise only within a framework of agreed constraints. The most basic constraint is an ‘absence of force and fraud’ (Gauthier, 1986: 85), but we may plausibly think much more is required. As many theorists have noted, we have to consider background conditions in determining if interactions are free or not, not least because those who are unable to meet their basic needs in a reliable way will be susceptible to domination and unreasonable demands. We can see large parts of Rafanelli's book as setting out requirements beyond mere force and fraud that must be met if a zone of morally indifferent interaction is to be possible. But, I contend, Rafanelli goes wrong in either not recognising such a zone or at least by too narrowly delimitating it.

Before looking at cases I want to raise, and partially answer, one worry about my approach in this paper. In discussing the examples I focus on, I will draw parallels with everyday economic interactions between individuals and economic interactions between states. But, we should hesitate to think that the same moral rules apply at the level of individual morality and at the political level (Larmore, 2020; Rawls, 2001: 14, 181–182) and to think that if a claim applies to individuals, it will also apply to states. I hope I am not depending on any such claims. Rather, I hope we can gain some insight by seeing what moral conditions apply in the sort of interactions we take part in regularly, and then seeing if there are useful similarities in the cases of states. While this is an area where it is easy to go astray, I will try to take care to avoid the normal pitfalls.

Recall that my goal here is not to directly challenge the analysis that Rafanelli gives of the cases I will look at, but rather to show that, in these cases and others like them, the questions she poses simply do not come up, as these actions should be seen as morally indifferent. Here an important clarification is necessary. In her discussion of the EU ban on the sale of drugs used in executions, and in several other examples, Rafanelli puts significant weight on the intentions or motives of actors. In our target case, she characterises the drug sale ban as a ‘reform intervention’ (Rafanelli, 2021: 50) and as an ‘oppositional intervention’ (Rafanelli, 2021: 119–20). The motives of actors are essential for these claims – the motive or goal is to change the policy of the United States in relation to the death penalty. This suggests that if, say, the EU refused to sell the drugs to the United States because EU countries needed them all for their own (acceptable) use, or because the sale was simply unpopular in the EU, but that those imposing the ban didn’t care one way or another about U.S. death penalty policy, then this would not count as a ‘reform intervention’, because the act would not be directed at changing U.S. policy. (If the sale ban were intended to cause chaos in the U.S. legal system, undermining the government and allowing the EU to achieve global economic dominance, it would assumedly count as an intervention, but not as a reform intervention, because it would not be directed at increasing justice in the United States.) Similar claims about intensions apply to the Oman–U.S. preferential trade agreement, and other examples in the book, but I will here focus on the drug sale ban.

My contention is that from the importance placed on intentions here, we can see that something has gone wrong. My claim is not that intentions never matter, and is not that we cannot subject the intentions of actors to moral evaluation. Rather, the claim is that, given that the same act – refusing to allow the sale of drugs used in executions to the United States – would fail to be a ‘reform intervention’, and so would be outside the analysis of Rafanelli's book if the intentions were different, we have good reason to think that the act itself is a morally indifferent one. And, given that, in many ways, this is or can be characterised as a normal economic interaction – a decision to not make certain sales – this seems like no surprise. It is a hallmark of morally indifferent actions that the motive or intention for doing them does not matter for determining whether the act itself is permissible, even though the motive or intention may matter in evaluating the character of the actor. But these are importantly different questions. The solid core of Rafanelli's book is, I think, more profitably seen as providing a framework for evaluating acts between states (or other groups and states), not for evaluating the character of those bodies, assuming that the idea of the character of states even makes sense.

An example may help illustrate the point. Suppose (as I think it right) that abortion is a morally indifferent event. If that's right, then it's permissible for a woman to have an abortion for any reason at all, even though some reasons (say, to spite a partner) might themselves reflect poorly on her character. The intention or motive behind the act may be worth considering for various reasons, but won’t impact whether the act itself is permissible, because it is morally indifferent, at least in most cases.

Within certain limits, the large majority of economic interactions are like this. I will return to the question of limits below, but first it's helpful to consider a clear case. If I run a chain of ice cream stands, I may serve any flavours of ice cream that I wish, and may refuse to serve any flavours that I wish. If I think that vanilla ice cream is especially healthy, and so only serve vanilla, this may show me to be foolish, but does not change the proper evaluation of the act itself. And, if I only serve chocolate, because I believe that people will become addicted to chocolate and so eat so much of it that I’ll become rich, this belief, and my intention in selling chocolate ice cream, is irrelevant in evaluating the permissibility of that choice, though again it may be relevant for evaluating me as a person. Similarly, I may price my ice cream as highly or lowly as I’d like, and while any particular choice may or may not make good business sense, this too is not relevant for evaluating the permissibility of the action. And, I can choose to sell ice cream because I think it will bring joy to the neighbourhood, or because I believe it's a good way to make money, or because I come from a long line of ice cream salesmen, or because I think it will make a group of people I dislike fat and unhappy, and none of this will have any impact on the permissibility of selling ice cream. All of this is because the act itself is morally indifferent.

Here I see no clear difference with the EU's decision to refuse to sell certain drugs used in executions to the United States. This is a choice to (not) engage in certain economic interactions. The choice takes place against a certain background that will be considered shortly, but in light of that background, the choice itself is as morally indifferent as a choice to sell, or not sell, certain flavours of ice cream. If this is right, then the complex moral machinery that Rafanelli develops to evaluate interactions between states is misapplied in cases like this, even if it is appropriate for many of the cases she considers. For example, we simply do not need to consider whether the EU's choice to not sell these drugs to the United States is ‘tolerant’ or not, because this is not relevant for evaluating the permissibility of the interaction, any more than, say, a kosher deli needs to worry about whether it is tolerant of people who do not keep kosher when deciding what products to sell.

When we see this, some further worries Rafanelli raises about the case seem less plausible. For example, Rafanelli characterises the action of the EU as a ‘slightly controlling’ one, (Rafanelli, 2021: 154) and we may think that when we ‘control’ others, even ‘slightly’, this needs justification. Similarly, Rafanelli suggests that, by refusing to sell these drugs to the United States, the EU is refusing ‘to grant the US exclusive authority to make and implement policy in its own jurisdiction’ (Rafanelli, 2021: 121). Controlling others and refusing to grant them authority to make decisions in their own jurisdiction both seem like things in need of justification, and if that's so, the act in question is likely not morally indifferent. But, I’ll contend, these are not obviously the right way to understand the EU's actions, because they are not the right way to understand economic interactions generally, and this is an economic interaction. If I am correct, it cannot be morally mandatory to consider the sorts of factors that Rafanelli discusses in these cases, or others of economic interaction.

In normal cases, if I refuse to engage in some economic transaction with you, it would be very odd to say that I am ‘controlling’ you, even slightly. I may inconvenience you, or upset you, or necessitate you looking for other alternatives, but none of these things would normally seem like a way of ‘controlling’ the other person, especially if I had no other obligation to engage in the economic transaction in question. For example, a very large number of bars in Australia close at 8 p.m. This means that, if I want a drink after 8 p.m., I am very likely to have to do so at home. I often find this annoying and inconvenient. But it would be highly unnatural to describe this as the bars ‘controlling’ my drinking behaviour, even slightly. Why would we think of it as ‘controlling’ my behaviour any more than that none of my neighbours have invited me over for a drink on any particular night? But if that's so, then it's unclear why we should say anything different about the EU drug sale ban. At the least, we would need an argument about why the international case is different from the individual one, and I do not here see such an argument.

Similarly, if I refuse to engage in an economic transaction with you, in normal circumstances, it would be odd to say that I have ‘refused to grant you authority to make policy in your own jurisdiction’. In addition to the oddity of the claim, it's worth noting that the converse seems more like a case of a refusal to grant rightful authority to another. That is, if I am obliged to engage in economic transactions with you, despite my objections, then it is my authority that has been limited. But the relationship here is not symmetrical. My refusing to do something for you does not limit your authority in the way that your obliging me to do something does.

We can see this point more clearly when we look at real cases where we do not allow individuals or businesses to refuse to engage in economic transactions. The clearest cases are ones where anti-discrimination rules apply. If the state tells a business that it must serve particular people, or all people, then the state has limited the person's or business's authority to make policy for itself in a certain area. In many instances such limits of jurisdiction are justified, but that does not make them not limits. But if a person refuses to stay at a particular hotel, for example, it would be very odd to describe this as a refusal to allow the hotel owner to have authority in a particular area. Again, I here see no reason why the move to the international level would make any significant difference to our analysis. If the above arguments are right, there is even more reason to think that the EU drug sale ban is not the type of interaction that is properly subject to the type of analysis that Rafanelli applies to it, and the reason why this is so is that the drug sale ban is an example of the sort of economic interaction that is morally indifferent.

I have, above, mentioned that the claim depends on ‘certain limits’ on several occasions. It's worth making these clearer. The absence of force and fraud have already been mentioned, and we can work out others that can be seen as providing a framework for fair interaction between moral equals, be these individuals or states. At least in many circumstances anti-discrimination rules, like those mentioned above, might be seen as providing part of the framework within which we can and should see economic interactions as morally indifferent. What framework and which rules are needed to establish a zone of moral indifference is beyond the scope of this paper, and we should not assume that the same rules or framework that apply inside states apply to international interactions. But, as noted, I think that we can see the core of Rafanelli's book as working out many of these limits. However, we should also see that, within these limits, economic interactions are morally indifferent, and so not subject to the account.

Looking at the Oman–U.S. preferential trade agreement can further illustrate my argument. This is, unlike the EU drug sale ban, not about a particular economic interaction, but addresses the setting up a framework or formula for future interactions. Still, it can be seen as similar to signing a contract that sets out the terms of economic interaction between agents, and so evaluated on terms similar to the above. Importantly, Oman was, before the agreement, a WTO member, as was the United States, and so there was already a trade framework between the two. And, Oman was not a poor country or one dependent on receiving a deal such as this to survive. There is no worry about, or claim of, exploitation here, in any normal sense. But again, Rafanelli characterises the interaction as one that is ‘controlling’, by the United States, even if only ‘slightly’ (Rafanelli, 2021: 33). Is this plausible? Rafanelli notes that Oman likely would not have made the changes to its labour laws that it did make if this was not necessary to get the benefit of the trade agreement, but it is not clear that this shows that the interaction is ‘controlling’ in any plausible sense (Rafanelli, 2021: 34). Consider again my ice cream stand example. My customers will not get the benefit of my ice cream if they do not give me money, and they will not give me money unless they want to get ice cream. But it would be very odd to see either one of us as ‘controlling’ the other, even slightly. Rather, it is more natural to see our interaction as a form of negotiation, or even cooperation, where we each work together to get something we could not easily get on our own. This is of course the normal way to characterise economic interaction. But when we see this, we see these interactions to be morally indifferent, and if they are morally indifferent, then we do not need to consider the complex moral machinery that Rafanelli develops when evaluating actions such as these.

If we see the Oman–U.S. trade agreement as a morally indifferent economic interaction, then it is not clear that we need to think about whether it ‘encourage(s) tolerant treatment in the recipient society’ (Rafanelli, 2021: 82) or not when we are deciding whether it is permissible for the United States to make the offer of entering the trade agreement. From that perspective, the question of tolerance simply does not come up. Of course, if the United States has a preference for increasing tolerance in other countries, this would give the United States an additional reason to engage in the action. But this would be independent of whether the action was itself permissible. The above analysis also would show that it was incorrect to argue that this particular interaction was unacceptable because it ‘undermined Omanis’ collective self-determination by subjecting them to neocolonial subordination’ (Rafanelli, 2021: 201). Tellingly, it is not clear from Rafanelli's analysis how Omanis are ‘subordinated’ by the agreement, in a neocolonial way or any other. The argument for this seems to depend on assuming that this interaction is an ‘intervention’ in the relevant sense, and then evaluating it on those terms. But if, rather, it is morally indifferent, as I have argued, then it is not proper to see it as an ‘intervention’, in Rafanelli's sense. And if it is not an intervention, then it does not run the risk of engaging in neocolonial subordination. Given that it is not clear how this agreement can be seen as involving subordination at all, this seems like a happy conclusion to me, one that makes the general analysis of neocolonial subordination more plausible (Rafanelli, 2021: 37).

In this paper, I have been critical of Rafanelli's account of economic interaction between states or societies. This is important because economic interaction is one of the main types of interaction between societies, and so it is important to understand how to evaluate these interactions. If I am right, then in many cases, just as in the individual or ‘domestic’ sphere, we should see these interactions themselves as being morally indifferent, even if we can evaluate the motives or intentions of those engaging in the interactions. This claim does depend on certain background considerations, and these considerations do not apply to economic interactions between all states in the world. For example, in the case of economic interactions between very poor states where citizens have significant difficulties meeting their basic needs and more wealthy states, we will often need additional rules to ensure that the poor states are treated fairly and as morally equal participants in a cooperative venture. We might see something like Rawls's ‘duty of assistance’ and the other rules that he sets out for just interactions between peoples as providing a baseline in such cases (Rawls, 1999: 37). But, as Rawls notes, we may well want to expend the principles beyond those he lists (Rawls, 1999: 37). And, I think it's right to see Rafanelli's book as working out these principles for many cases of intervention, even if it is not right to see economic interaction between states as itself a form of intervention needing justification. To that end, even if I am correct in my criticism above, the book retains an important core.