Concept of Justice

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-Concept of Jusice in Globalized World-

DEPARTMENT OF LAWS,
PANJAB UNIVERSITY.

TOPIC:CONCEPT OF JUSTICE IN GLOBALIZED WORLD.


SUBJECT:-LAW AND JUSTICE IN GLOBALIZING WORLD.
SUBMITTED TO- MS. SHALINI MARWAHA SUBMITTED BY- DEEPAK GARG
ROLL NO. 1245/18
2ND SEMESTER
LL.M.
PANJAB UNIVERSITY
- POLICE AND HUMAN RIGHTS-

ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher “MS. GEETA JOSHI” who gave
me the golden opportunity to do this wonderful project on the topic POLIE AND HUMAN
RIGHTSs’, which also helped me in doing a lot of Research and I came to know about so many new
things. I am really thankful to her. I would also like to thank my parents and friends who helped me a
lot in finishing this project within the limited time.

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THE TABLE OF CONTENTS

1. THE LIST OF ABBREVIATIONS………………………………………….

2. THE TABLE OF CASES…………………………………………………..

3. INTRODUCTION…………………………………………………………

4. CONCEPTUAL CLARIFICATION............ ................…………………......

5. TRADITIONAL CONCEPT OF JUSTICE..…………...................................

6. THE COSMOPOLITAN DEBATE...........................................……………..

7. EVALUATION OF DEBATE........................................................................

8. A MINIMALIST ACCOUNT OF GLOBAL JUSTICE....................................

9. CONCLUSION……………………………………………………………...

10. BIBLIOGRAPHY……………………………………………………………

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THE LIST OF ABBREVIATIONS

AIR All India Reporter


CPAA Cancer Patient Aid Association
Hon’ble Honorable

etc et cetera
i.e. idest (that means)
r/w read with

LJ Law Journal

Re. Reference

US United States
No. Number

Ors. Others
p. Page
u/s under section
w.e.f with effect from

SC Supreme Court
SCC Supreme Court Cases
v. Versus
Vol. Volume

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INTRODUCTION

Ideas do not arise in a vacuum, often they are the products of the context of their provenance.
Thus, the conceptual tools we employ in understanding social reality must remain sensitive to the
fundamental transformations in the arena of their application, lest they become so completely out
touch with reality that rather than assisting us to understanding our world, they become outmoded
spectacles that render such understanding impossible. The point being made is that the rapidity of
change that characterize our world today is not only limited to the empirical, they do have conceptual
ramifications, ramifications that must be taking to consideration if we expect our conceptual schemas
are to yield an adequate understanding of the objects of our investigation.

CONCEPTUAL CLARIFICATION

Along with equality and liberty, the concept of justice ―has enjoyed unrivalled prominence
in moral and political philosophy from Socrates of Plato‘s republic in the 4thcentury to contemporary
American philosopher, John Rawls.

Unfortunately in spite, or because, of its prominence, justice had remained an ―essentially-


contested concept. A casual survey of the political theory literature from Plato to Gauthier reveals
that the concept has been assigned a diverse array of meanings, which sometimes are mutually
incommensurable.

There is, however, a near consensus that justice has to do with idea of ―giving to each one
his due‖ as expressed in the Latin phrase suum cique tribuere1.

Thus Aristotle famously defines justice as the treating of equals equally and unequals
unequally2.

Pogge provides a more comprehensive definition when he says justice is a central moral
notion associated with fair and impartial procedures…as well as with persons being treated
evenhandedly and in a morally befitting way3.

From these definitions, it should be fairly evident that, whatever else the justice might imply,
it is related to impartiality, fairness and even-handed treatment. So much for justice, we may now
seek to illuminate the concept of globalization. Compared to justice, globalization is an exceedingly

1
Barry B. and Matravers M, (1998). ―Justice‖ in Craig E. (ed) Routledge Encyclopedia of Philosophy(Vol. 5). New
York: Routledge.PP141-147.
2
Aristotle( Terence, I. trans.) (1999). Nicomachean Ethics, Indinapolis: Hackett Publishing. P.71
3
Pogge, T. (2001). ―Justice: Philosophical Aspects‖ in Smelser, N.J. and Baltes, P. B.(eds) International Encyclopedia of
Social and Behavioural Sciences(Vol. 12.) Oxford. Elsevier P.8055-8060.

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complex concept. That this case could be gleaned from the fact that globalization is at once
employed to describe a phenomenon, a process and a philosophy4.

Globalization also has multiplicity of dimensions, namely the political, the economic and the
cultural. Beyond this, as a concept globalization is not only prone to the ―twin problems of
rhetorical overload and analytical incoherence, it is also an idea that is susceptible to being loaded
with a lot of ―moral and political garbage5.

This explains why Blieker declares that ―globalization is an omnipresent and unruly
phenomenon; whose manifestation are diverse as it s interpretations are contestable6.

In spite of the complexity of the globalization concept, we must arrive at a working definition.
For our purposes in this presentation, we shall adopt Scholte‘s conceptualization of the idea. It may
be helpful, however, to examine a few of the attempts to define globalization in order to put
Scholte‘s conception of globalization in perspective.

Political Scientist James Mittelman defines globalization as the compression of space and
time7. By this, he meant that the technologies of globalization have reduced the significance of the
distance barrier as well as the salience of time in cross-border interactions. In a closely related
definition, sociologist Roland Robertson refers to globalization as ―the compression of the world
and the intensification of the consciousness of the world as a whole8.

One interesting and common theme that runs through all the above definitions is that they
inevitably point to the transnationalization of the connections taking place in the world today. This
leads me to scholte‘s conceptualization of globalization.

4
Muqtedar, K. ―Teaching Globalisation‖ retrieved from www.globalist.com on 6thof June, 2009.

5
Holton, R. (2005). ―Globalisation‖ in Harrington, A. (ed) Modern Social Theory. Oxford: Oxford Unipress. PP.292-312.
6
Blieker, R. (2004). ―Globalising Political Theory‖ in White, S. K. and Donald, M. J. (eds) What is Political
Theory. London: Sage PP 124-141.
7
Mittelman, J. H. (1996). ―The Dynamics of Globalisation in Mittelman, J. H. (ed) Globalisation: Critical Reflections.
Boulder. CO: Lynne Rienner PP.1-19
8
Robertson, R (1992). Globalisation: Social Theory and Global Culture. London: Sage. P.8 11. Giddens, A. (1990) The
Consequences of Modernity. Cambridge: polity

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In her view, globalization is synonymous with deterritorialisation. Thus she defines


globalization ―as the reconfiguration of social geography marked by the rise of supraterritorial
spaces9.

According to scholte, Mcgrew and Held captures this reading of globalization when they
referred to it a ―process (or set processes) which embodies a transformation in the spatial
organization of social relations and transactions.

Conceived as the rise of supraterritorial spaces, globalization spotlights the increasing trans-
border or transnational relations, which are taking place in the contemporary world. The point of this
perspective is that globalization is restructuring our social space or geography from one that is
predominantly territorial to one this increasingly ―trans-national‖. In other worlds, whereas people
normally have most of their interactions and affiliations in the past with others who share the same
territorial space (e.g. the village, town and nation), there is massive burgeoning of interactions and
affiliations across this territories.

What emerges clearly from foregoing analyses is that globalization has brought about the
intensification of global relations. It is the contention of this paper, to inform the way we understand
justice in the contemporary world. However for this to happen, we must transcend the bias in
traditional political philosophy towards domestic justice.

9
Scholte, A. J. (2000). Globalisation: A Critical Introduction. New York: Palgrave. . Stumpf, S. E. and Fieser, J.(2003)
Socrates to Sartre and Beyond: a History of Philosophy. Boston: McGraw-Hill,

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THE TRADITIONAL CONCEPTION OF JUSTICE

The understanding and the conceptualization of justice in political philosophy from its inception
in the days of Plato and Aristotle, until only very recently, have been intimately intertwined with
territorially bounded communities. Plato and Aristotle, for instance, were particularly concerned with
expounding the nature of justice in the small-scale societies of their days. They are perhaps not to be
blamed for limiting the idea of justice to the relations within their Greek city states; given the age
they lived in, these philosophical juggernauts, could not have envisaged the large scale communities
that exist today and the massive interactions between them.

It is instructive however, that the Stoics in the Hellenistic period developed the idea of justice
which saw the former as a principle that ought to apply to all humanity irrespective of their ethnic or
political affiliation. For the stoics all men are connected by rationality and thus have sufficient basis
to subscribe to a set of common norms of justice. Cicero makes the point elegantly when he says
...the first common possession of human beings and God is reason. But those who have reason in
common must also have right reason in common. And since right reason is law, we must believe that
people have law also in common with the Gods. Further those who share law must also share justice;
those who share these are to be regarded as members of the same commonwealth.

While the stoic spoke of the brotherhood of humanity and held a cosmopolitan idea of justice, their
position was relegated to the margins of political thought. With the exception of Kant, the great
majority of thinkers that dealt with the issue of justice almost always operated with the assumption
that justice is territorially bounded to the nation state. Carey confirms that the ‗bounded idea of
justice‖ has been prominent in western thought.

The evolution of thought regarding justice as it applies to political communities has been a
fundamental preoccupation of modern political philosophy for centuries. The background analysis
and reflection mainly derived from earlier efforts to conceive justice in relation to specific
communities. This tradition in western political philosophy can be traced back to ancient Athens and
the conception put forth by Plato and Aristotle, carried forward into contemporary era, most notably
by John Rawls.

Thus, even Rawls whose ideas are generally regarded as the starting point for understanding
justice in the contemporary era is caught in the web of what Scholte calls ―Methodological

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territorialism. Methodological territorialism, according to her, is the practice of understanding and


investigating social relations through the lens of territorial geography10 . Methodological
territorialism in Political Philosophy, or the traditional bias that confines the issue of justice to
relations within states, has been reinforced and supported by two main tradition of thought in
international relations, namely realism and natural law theory.

Realist like Thucydides and Hobbes claim that the international realm is characterized by
violent anarchy ―therefore, ―moral norms do not hold between the states even when they hold
within states11. The natural law perspective which is given one of it finest articulation in the writings
of Grotius asserts that the international system is a society of societies. On this reading, states do owe
themselves the duty of non-interference. The implication of this is that the notion of cosmopolitan
justice does not arise.

On the whole, then, justice in conventional political philosophy or international political


theory is closely connected with the idea of ―bounded justice‖. Justice in the conventional
understanding is nothing but domestic justice or put differently, ―justice within (national) borders‖.
Within the last few decades, however, the preeminence and the analytical accuracy of the state-
centric understanding of justice, is increasingly called into question. Critics of the exclusive focus of
traditional political philosophy on domestic justice argue that such a perspective is increasingly
becoming outmoded in the light of the deterritorialisation of social relations that is being intensified
by global forces and processes. Christiano and Christman identify below the global processes that are
beginning to lead some political theorist to raise the issue of the appropriateness of the tendency that
confines justice relations to those within the borders of nation-states.

The modern era has called the prominence of the state in political theory into question because of the
myriad of relations that citizens of one society hold with those of others societies. the massive
explosion of international trade, finance, communication , transportation and migration of peoples
and increasing awareness of public evils such as air pollution and global warming coupled with the
rise of international institutions that have significant power that tie persons in all part of the globe to
one another.

10
Carey, D. (2003). ―The Cosmopolitan Epoch: Configuring a Just World Order‖ in The Culture of Mandala, Vol. 6., No.
1, PP. 1-35

11
Christiano, T. and Christman, J. (2009). Introduction in Christiano, T. and Christman, J. (eds) Contemporary Debates in
Political Philosophy. Sussex: Wiley- Backwell.

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It does not take any stretch of imagination to realize that for any conception of justice to take the
above developments into account, it will have to become globally sensitive. Around the issues of
global justice has emerged the cosmopolitan movement, a group of thinkers bound together by their
conviction that the proper scope of justice is global. Prominent within this movement are
philosophers such as a Peter Singer, Thomas Pogge, Charles Bietz and Simon Caney. All of these in
their different ways have continued to challenge the bias in traditional political theory towards
domestic justice as well as provided an alternative account of the nature of justice in an increasing
interconnecting world.

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THE COSMOPOLITAN/ COMMUNITARIAN DEBATE

It is important to point out from the onset that Pogge and Beitz takes Rawls A Theory of
Justice as their starting point12 . In fact, the major writings of the duo on justice explicitly aim at
extending Rawls famous principles of justice to the global arena.

In his Political Theory and International Relations, for instance, Beitz vigorously defended the idea
of global justice13 . He started out by refuting the assumption held by Rawls and the communitarians
that the countries of the world are economically and culturally self-contained entities. Instead, he
argues that the degree of economic and cultural links between individuals in various nations across
the world have effectively transformed the ―global‖ society into a system of mutual cooperation. If
Beitz contention that the world approximates a system of mutual cooperation was correct, it would
follow that sufficiently ―thick associational ties now characterize global relations and that the
notion of justice can be extended beyond the borders of nation states to the global sphere.

In a similar vein, Pogge14 has attempted to establish the validity of the notion of global justice
. He repeats most of Beitz‘s arguments, but he takes the cosmopolitan argument further by
emphasizing that the obligation of justice is applicable to the world stage because we share a global
basic structure, i.e., a set of economic and political institutions that has profound and enduring effect
on the distribution of the burdens and the benefits among peoples and individuals around the world.
Based on the idea of the global structure, which is coercively imposed on the poor by the
economically powerful states of the world, Pogge shows that there are morally significant
institutional ties that bind the affluent nations and the poor ones together. He therefore concludes that
since the present global order harms the poor, issues of justice are generated at the global level.

Having laid out the Bietz and Pogges argument for global justice, in the following section, I will
briefly examine some communitarian objections of the idea of global justice.

12
Rawls, J. (1971). A Theory of Justice. Cambridge –Massachusetts: Harvard Unipress
13
Beitz, C. (1979). Political Theory and International Relations. Princeton:
Princeton University Press
14
Pogge, T. (2008). World Poverty and Human Rights. Cambridge: Polity

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COMMUNITARIAN OBJECTIONS TO GLOBAL JUSTICE

Miller is unarguably the most trenchant critic of the notion of global justice, even though it
appears that his recent writings seem to concede some ground to the cosmopolitan formulation of
global justice15. Thus the reference to his objections to cosmopolitan justice in this work,
appropriately refers to the ―early and not the ―latter Miller. He developed two major arguments
against global justice, namely, the argument from national self determination and the argument from
national affinity. According to the first, the idea of global distributive justice violates the principle of
national self determination. Based on this principle, nations have sovereign rights over the resources
that falls within their borders; therefore they retain the discretion as to whether or not to share these
resources with other nations.

According to the national affinity argument, it is the prior existence of special associational
ties which creates obligation of justice by defining it principles, subjects and objects. According to
miller such affinities or special associational ties are found within territorially bounded communities
(nations), and since there no such globally shared affinities, there can be no global justice16. Walzer,
hints at this points when he argued that ―the idea of distributive justice presuppose a bounded world
within which distribution take place17.

The preceding statement attributed to Walzer is better appreciated within the context of his
unwavering normative relativism. In one of his recent articles titled ―Global and Local Justice
Walzer again denies the possibility of a comprehensive theory of global justice on the account of
cultural diversity and relativism. His words: Global justice would seem to require a global theory—
asingle philosophically grounded account of what justice is that explains why it ought to be realized
in exactly this way, everywhere, right now 18.

In Walzer‘s estimation such an philosophically grounded account of global justice is imposible


because

The diversity of cultures and the plurality of states make it unlikely that a single account of justice
could ever be persuasive across the globe or enforceable in everyday practice .

15
Miller, D. (2007). National Responsibility and Global Justice. Oxford: Oxford Unipress
16
Miller, D. (1988) ―The Ethical Significance of Nationality‖ in Ethics, (July) PP.647-662
17
Walzer, M. (1983). Sphere of Justice. New York. Basic Books
18
Walzer, M. (2008). ―Global and Local Justice‖ Available at www.carloalberto.org. PP1.

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If we combine Millers emphasis on the priority of national self determination, the significance of
national affinity and Walzers relativism that point to the impossibility of developing a trans-
cultural account of global justice, it appears that we must give up on the idea, in spite of the fact that
global justice provides a normative basis for regulating transnational relations. I contend, however,
that the communitarian arguments against global justice do not necessarily lead to such a gloomy
conclusion.

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EVALUATING THE COSMOPOLITAN-COMMUNITARIAN DEBATE ON GLOBAL JUSTICE

The communitarian objection from national self-determination to global justice can only be
sustained if it is the case that the present global economic order is fair and just. If it is not, it follows
that the national self-determination of the poor nations has been violated in the first place. Thus the
rich nations, therefore, cannot defend their unjust acquisitions on the account of national self-
determination. In fact, one of the central planks of Nozicks entitlement theory of justice is that where
the where the principle of just acquisition has been violated, rectification can be effected by
redistribution19.The argument from national affinity, suggests that it is only shared institutions and
nationality that creates obligations of justice.

This is certainly not true for justice is could well be a pre-institutional norm. It is, therefore,
possible to incur obligation of justice in situations where the agents in question are not bound by
shared institutions. I am going to show later how this is possible in my minimalist account of global
justice. In any case, Anderson puts a big dent on the national affinity argument, by describing nations
as nothing but ―imagined communities20. In other words, the idea of national attachments is
subjective, one that only lives in the minds of those who see themselves as citizens of the same
nation. By implication, the so called national ties are subjective, imaginary and fictitious.

In the same vein, Moore has shown that Millers claim about national attachments are
exaggerated. According to her, only in ―few states do the territorial frontiers coincide with national
communities21. More significantly, Devetak and Higgot argue that the nature of social bonds in the
contemporary globalizing world is more complex than communitarians are willing to admit.
According to them ―the fabric of the social bond is constantly being rewoven by globalization‖.
Thus, they conclude, ―there are no settled social bonds in the age of globalization. The picture one
gets from Devetak and Higgot, in essence is that while social bonds or attachments are fragmenting
within nation states, significant transnational attachments are being forged.

Interestingly, the duo is quite aware that the instability of social bonds, occasioned by
globalization, does have implication for justice: …the Westphalian ―givens‖ of justice no longer
pertain. The forces and pressures of modernity and globalization, as time and space compress, render
the idea of stable bonds improbable. If this is the case how are we to think about justice? When the
social bond is undergoing change or modification as a consequence of globalizing pressures, how

19
Nozick, R. (1974). Anarchy, State and Utopia, Oxford: Blackwell
20
Anderson, B. (1991). Imagined Communities. London: Verso
21
Margaret, M. (2000). ―Millers Ode to National Homogeniety in Smith, A. D. and Hutchinson, J.
(eds) Nationalism (Vol. V) . New York, Routlegde PP.1696-1697

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can justice be conceptualized, let alone be realized. Can there be justice in a world where that bond is
constantly being disrupted, renegotiated and transformed by globalization.

The position taken in this paper is that we can still speak of some form of justice in the
globalizing age. Indeed the increasing interdependence between societies and its rise of transnational
relations means that events in one locale is capable of having beneficial or detrimental consequences
for another located thousand miles apart and vice -versa. By extension, the consequences of our
action or inaction in the global age are usually not confined to the space within our national borders.
Thus, given that globalization has heightened our capacity to generate transnational consequences,
the notion of global justice does not only becomes intelligible, it in fact becomes an imperative in
order to regulate global relations.

This leads me to Walzer‘s charge that it is impossible to develop a trans-culturalaccount of


global justice. This position, no doubt, smacks of an unremitting relativism built on the fact of the
world‘s cultural diversity. This fact cannot be controverted, but I doubt if cultural diversity implies
that we cannot agree on any principles, however, minimal. Ghanaian Philosopher, Wiredu, for
example, have shown that there are cultural universals, Interestingly, even Walzer himself, agrees
that we can develop what he calls a ―minimalist account of justice-right-now‖ as opposed to a
comprehensive, ―maximalist theory.

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A MINIMALIST ACCOUNT OF GLOBAL JUSTICE

Essentially, my minimal theory of global justice is built on the simple notions of harm and
rectification. Based on the idea of compensatory justice, and the long standing near universal
tradition that we are duty bound not to harm others, we can derive the incontrovertible principle that
any agent causally responsible for harming another necessarily incurs the obligation to remedy the
condition of victim. The harm principle which forms a basic plank of the above principle is well
established idea in ethics and socio-political philosophy.

The harm principle is so basic and so self evident that even the communitarians would accept
it as a principle for regulating human relation. Thus, we have identified one principle that would be
endorsed by both cosmopolitans and communitarians. Based on these preliminary observations, let
me develop an argument to show how transboundary or global justice could arise

(a) We ought not to inflict harm on others


(b) When agent A inflicts harm on agent B, Agent A necessarily incurs the debt of remedying the
condition of B.
(c) Harm is a spatially situated occurrence: it could take place within a nation, in which case it is
domestic harm. However, in the globalizing world, harm is increasingly taking place across
borders, in which case harm is transboundary.
(d) Transboundary harm requires rectification just as domestic harm. Agents (states, individual,
MNCs) responsible for inflicting transboundary harm necessarily acquire transboundary
obligations of rectification.
(e) Therefore, we can speak of transboundary or global justice.

If the above argument is sound, it follows that the norm of justice is not as spatially bounded as
the communitarians contend, nor does Walzer‘s normative pluralism stop us from agreeing on the
harm principle on which the foundation of the whole argument is built. Combining the harm
principle with the notion of rectification, we have arrived at what might be called a rectificatory
conception of global justice, according to which agents who inflicts identifiable harm on others, owe
their victims a duty of justice to rectify such harm.

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CONCLUSION

This paper has demonstrated that in the age of globalization, characterized as it is by the
increasing deterritorialization of social relations and the possibility of transnational harm, the
traditional bias of academic political philosophy towards domestic justice is no more tenable.
Granted that the globalizing forces and processes have been at work from the dawn of history, the
present speed and scope of the spread of transnational relations demands that we must now
incorporate a global dimension to our understanding of justice To continue to insist on the national
attachments as precondition for the consideration of justice as the communitarians are want to do, is
not to come to terms with the reality of global processes which are not only fragmenting attachments
within territorial spaces but are also giving rise to new attachments and relations which transcend the
territorial spaces of Westphalian cartography. Globalization is changing the nature of social relations
from one that is predominantly territorial to one that is significantly supraterritorial. It is imperative
therefore that the concept of justice be extended to cover interactions which are taking place in
transnational spaces or else we leave the global masses at the mercy of the global economic elite-
there can be no just global order until justice goes global.

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BIBLIOGRAPHY

STATUTORY COMPILATIONS

1. THE CODE OF CRIMINAL PROCEDURE,1973.

DICTIONARIES

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001).


2. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009).
3. WEBSTER’S NEW INTERNATIONAL DICTIONARY (1926)

BOOKS

 Bufachi, V. (1995). ―Theories of Justice‖ in Lipset, S. M. (ed) Encyclopedia of


Democracy(Vol. 2.) London: Routledge .
 Devetak, R. and Higgot, R (1999). ―Justice Unbound? Globalisation, States and the
Transformation‖ in International Affairs,
 Gallie, W. B. (1964). Philosophy and the Historical Understanding. London: Chatto and
Windus
 Miller, D. (1995). On Nationality. Oxford: Oxford UniPress.
 Wiredu, K. (1996). Cultural Universals and Particulars: An African Perspective.
Bloomington: Indiana Unipress

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