John Rawls, “The Law of Peoples,” Critical Enquiry 20, no. 1 (1993): 36–68.

http://www.jstor.org/stable/1343947

Before proceeding, make sure you are familiar with Rawls’ concept of justice as fairness. For an interesting and broader discussion on the concept, check out Michael Sandel’s lectures from his course: “Justice: What’s The Right Thing To Do?” The topic is introduced here and continued here.)

Sections under square brackets can be skipped on first reading.

Introduction

The essay seeks to develop a “law of peoples” out of “liberal ideas of justice”.[1],By a “law of peoples”, Rawls means a “political conception of right and justice that applies to the norms and principles of international norms and practice” (emphasis added).[2]

The essay seeks also to determine the attitude of political liberalism to non-liberal societies once a law of peoples has been developed from liberal principles. Briefly stated, liberal societies will respect non-liberal societies provided they adhere to the law of peoples. More specifically stated, liberal societies will tolerate a specific type of non-liberal societies: “well-ordered hierarchical societies” (see Section IV.1–3).

I. How a Social Contract Doctrine in Universal in its Reach?

1

The conceptualisation of a liberal conception of justice begins with a hypothetically closed and self-sufficient liberal democratic society and covers only political values and not all of life. How can such a conception be extended to non-liberal societies? How can it be extended to future generations? How can it be extended to non-cooperative individuals? How can it be extended to animals and the rest of nature? In short, how can such a conception be universalised?

Reasonable answers may be forthcoming to only the first three questions. In any case, a political conception of justice cannot be expected to handle all these questions.

2

In most philosophical positions, the universalising factor is often a source of authority: God (Gottfried Leibniz, John Locke) or human reason (utilitarianism, rational intuitionism, perfectionism).

3

However, the liberal conception of “justice as fairness” is “constructed” through a “reasonable procedure” by working with “relevant subjects” at different levels. The principles of this conception are first arrived at for closed democratic societies which is extended to future societies, and then to a law of peoples until all the requisite principles are discovered. This constructivist doctrine becomes universal when it produces the law of peoples that applies to the most comprehensive subject, “the political society of peoples”.[3]

II. Three Preliminary Questions

1

There are two parts to the liberal conception of justice. One applies to the domestic realm of liberal societies and the other, to the general realm of the political society of peoples. The principles of justice for both are derived from the “original position”. In the first, the relevant subjects are the citizens. In the second, they are representatives of the domestic (liberal as well as hierarchical) societies.

Doesn’t this accept the state (the domestic society) as traditionally conceived, with all its familiar powers of sovereignty?

No. Because, in the first use of the original position, domestic society is seen as closed, since we abstract from relations with other societies. There is no need for armed forces, and the question of the government's right to be prepared militarily does not arise and would be denied if it did. Also, the war powers of governments, whatever they should be, are only those acceptable within a reasonable law of peoples. We must reformulate the powers of sovereignty in light of a reasonable law of peoples and get rid of the right to war and the right to internal autonomy.

2

Why start with liberal societies and not, say, the global society? For one, the attempt to chart the concept of “justice as fairness” began with domestic society and it has proved to be a reasonable starting point. For another, domestic societies organised by governments exist all over the world.

3

The law of peoples provides the conceptual tools with reference to which the law of nations (or international law) can be judged. This is the distinction between the law of peoples and the law of nations.

III. The Extension to Liberal Societies

1

The liberal conception of justice contains: (a) a list of basic rights, liberties and opportunities; (b) a high priority for these fundamental freedoms; and (c) guarantees to ensure effective use of these freedoms.

Justice as fairness is typical of these conceptions except that its egalitarian features are stronger. To some degree the more general liberal ideas lack the three egalitarian features: the fair value of political liberties, fair equality of opportunity, and the difference principle.

The extension of the liberal conception to the law of peoples proceeds in two stages: ideal theory and then, non-ideal theory.

In the first stage, it is assumed that all relevant societies comply strictly with the principles arrived at. These societies may be liberal or hierarchical but they are similar in that they are all well-ordered.[4] The examination of liberal societies is followed by the consideration of hierarchical societies. The feature of consequence is that both kinds of societies will comply with the principles of the law of peoples.

In the second stage, the case of societies that refuse to comply and societies that are unable to comply due to unfavourable conditions are very briefly considered.

2

The first original position behind the veil of ignorance is a device of representation that specifies fair conditions for the participating parties, the representatives of free and equal citizens in liberal societies, in that they fairly represented (all are equal in the original position), understood as rational (they do the best they can for their interests) and assumed to choose to choose the principles for the appropriate reasons (the veil of ignorance prevents the use of “unsuitable” reasons).

3

In the next level, the participating parties as representatives of liberal societies are to determine the law of peoples. As with the first original position, the representatives are reasonably situated (the representation is symmetrical), they are rational (principles of law are determined with reference to the interest of liberal societies), and they decide in accordance with appropriate reasons (the veil of ignorance hides information regarding the size of territory or population, the relative strength of the people, the extent of natural resources, the level of economic development and so on).

4

The principles arrived at by liberal societies will be familiar ones. They will allow cooperative association but not lead to a world state.

I … (think) that a world government — by which I mean a unified political regime with the legal powers normally exercised by central governments — would be either a global despotism or else a fragile empire torn by frequent civil strife as various regions and peoples try to gain their political autonomy.

The principles of justice between free and democratic peoples will include “certain familiar principles… , among them the following:

Peoples (as organized by their governments) are free and independent, and their freedom and independence is to be respected by other peoples. Peoples are equal and parties to their own agreements. Peoples have the right of self-defence but no right to war. Peoples are to observe a duty of nonintervention. Peoples are to observe treaties and undertakings. Peoples are to observe certain specified restrictions on the conduct of war (assumed to be in self-defence). Peoples are to honour human rights.”

The list is incomplete and some of its contents may appear, to differing eyes, either too superfluous (#6) or too contested (#4). The point however is that such principles will constitute the charter of association of liberal societies.

The government of a society is the representative[5] and effective agent of its assets, i.e., the people’s territory and its (the territory’s) capacity to sustain them. Without such an agent, the asset would “deteriorate”. Irresponsible management of the asset does not give them the right to conquest by war or migrate without consent.]

6

In addition to the three requirements of the original position (See Section III.3), there are two further requirements. First, the society of liberal societies should be stable in the right way. This means that it should remain stable by generating respect through the merit of its principles and judgements with regards to its ideas of justice and not because of some “fortunate balance of power — it being in no people’s interest to upset it (the society of liberal societies)”.

7

The historical record suggests that, at least so far as the principle against war is concerned, this condition of stability would be satisfied in a society of just, democratic peoples. …since 1800 firmly established liberal societies have not gone to war with one another. …This being so, I shall suppose that a society of democratic peoples, all of whose basic institutions are well ordered by liberal conceptions of justice (though not necessarily by the same conception), will be stable in the right way as above specified.

The last condition is that the citizens of liberal societies accept the principles and judgments of the law of the society of liberal societies after due reflection.

IV. Extension to Hierarchical Societies

1

This section (the second step of ideal theory; see Section III.1) considers hierarchical societies. Such societies are usually, but not always, religious.

A well-ordered hierarchical society fulfils three conditions. First, it is peaceful and gains its legitimate aims through “ways of peace”. Its comprehensive religious doctrine is not expansionist. It respects the civic order and integrity of other societies. If it seeks greater influence, it does so in a way that respects the liberties of other societies.

2

Second, it imposes moral duties and obligations upon its members. It not only insists on a common good conception of justice, i.e., it takes into account what it thinks are the fundamental interests of its members, but it is also willing to administer its legal order, and defend and justify its decisions publicly. A well-ordered hierarchical society constitutes a “reasonable consultation hierarchy”.[6]

3

In view of this account of the institutional basis of a hierarchical society, we can say that its conception of the common good of justice secures for all persons at least certain minimum rights to means of subsistence and security (the right to life), to liberty (freedom from slavery, serfdom, and forced occupations), and (personal) property, as well as to formal equality as expressed by the rules of natural justice (for example, that similar cases be treated similarly).

Third, it recognises basic human rights. If it insists on a common good conception of justice (as the second requirement specifies), it must recognise and protect those rights. Otherwise, such an insistence would be unreasonable.

A hierarchical society may have an established religion with certain privileges. Still, it is essential to its being well ordered that no religions are persecuted or denied civic and social conditions that permit their practice in peace and, of course, without fear.

4

Fulfilling these conditions, even hierarchical societies can agree to a law of peoples that recognises human rights. Their representatives will also, when positioned in the original position, adopt the same principles that liberal societies would. (see Section III.4) Why? Because they care about the good of their societies (meaning they are rational) and also because they respect the civic order and integrity of other societies (meaning they are reasonably situated).

(This subsection only clarifies some methodological questions and does not introduce any substantive material.)

There is no inconsistency in assuming that hierarchical societies are equally (or reasonably) situated along with liberal societies, even though the former might allow basic inequalities among its members because it is “not unreasonable”[7] for an inegalitarian society to insist on equality in making claims against other societies.

Although, the first original position incorporates a political conception of the person rooted in a liberal society, the second original position that determines the law of people does not (do not confuse this with the “political conception of justice” introduced in the Introduction). This enables the more specific liberal conception to be extended to a more general law of peoples the encompasses even non-liberal societies.

Why not start from global original position (see also Section II.2)? For one, it is not certain that proceeding in this manner would yield a different set of principles. Also, starting from such a position is troublesome for the use of liberal principles since it means narrowly assuming all persons as rational based on liberal conceptions.]

6

But how can a liberal conception of justice be applicable to hierarchical societies? Because they fulfil the same conditions as those specified for liberal societies in Section III.6­–7. They will honour a just law of peoples for the same reasons that liberal societies do.[8] In short, they fulfil the conditions of well-orderedness (see Subsections 1–3).

V. Human Rights

1

Human rights are not derived from comprehensive moral or philosophical doctrines. They only express a minimum standard[9] of well-ordered societies available to all members.

2

The imposition of moral duties and obligations (see Section IV.2–3) makes the existence and acceptance of human rights possible. The requirement of human rights is that members of societies be responsible, cooperating, and obedient to the moral duties and obligations, all of which are fulfilled in hierarchical societies. Human rights are therefore not exclusive to the liberal tradition. They are “politically neutral”. The basic human rights can be protected in a well-ordered hierarchical state.

3

One role of human rights is to circumscribe state sovereignty.[10] They are universal and non-controversial. They are integral to a law of peoples and specify the limits on the domestic institutions of societies.

Human rights (a) legitimise regimes, (b) prevent forceful (even if justified) intervention by other peoples, and (c) “set a moral limit to pluralism” among peoples.

1

All discussion up to this point has assumed strict compliance to the principles of the law of peoples, i.e., ideal theory (see Section III.1). But to complete the sketch of the law of peoples, the case of noncompliant societies will have to be considered, i.e., nonideal theory.

Nonideal theory presupposes ideal theory[12] and seeks to work towards it (ideal theory) in gradual steps. There are two kinds of nonideal theory: outlaw regimes which refuse to comply with the law of peoples, and societies with unfavourable conditions that make their achieving well-orderedness difficult if not impossible.

2

Outlaw regimes are often built on a system of terror and coercion (Nazi Germany, for example) and they may recognise no conception of right and justice at all. There are also expansionist regimes (Spain, France, the Hapsburgs) that recognise no geographic limits to their authority (see Section IV.1).

With expansionist regimes, the well-ordered societies can at best establish a modus vivendi. With outlaw regimes, for the short term, the well-ordered societies are in a state of nature and they have a duty to protect and defend their own peoples as well as those innocent peoples subjected to outlaw regimes but not the rulers and elites of those outlaw regimes.

3

But in the long term, the aim is to bring all societies to honour the law of peoples. How to do this is a matter of foreign policy and calls upon political wisdom and success depends on luck too.It is not for political philosophy[13] to intervene.

For well-ordered peoples to achieve this long-term aim they should establish among themselves new institutions and practices to serve as a kind of federative center and public forum of their common opinion and policy towards the other regimes. … This federative center may be used both to formulate and to express the opinion of the well-ordered societies. There they may expose to public view the unjust and cruel institutions of oppressive and expansionist regimes and their violations of human rights.

VII. Nonideal Theory: Unfavourable Conditions

1

This type of nonideal theory applies to societies that “that lack the political and cultural traditions, the human capital and know-how, and the resources, material and technological, that make well-ordered societies possible.” The goal here is to raise the societies with unfavourable conditions towards conditions that make well-ordered societies possible.

Can the difference principle[14] be used? No. Because, it applies only to liberal societies. It also deals with ideal theory. And with the diversity of societies that are in existence, not all of them can be reasonably expected to accept a liberal principle of distributive justice.]

3

But how may the project of helping societies burdened by unfavourable conditions become well-ordered societies proceed? This question shall remain unanswered at the moment for the problem of giving aid is extremely tricky and also because the problem is often not of lack of resources but the political culture and social structure (oppressive government, corrupt elites, subjection of women, unreasonable religion etc.)

VIII. Concluding Reflections

(The following will be extracts and must be read along with the essay or not at all. In any case, they are non-substantive “reflections”, important from a critical perspective but not crucial to a preliminary understanding of the ideas being put forth.)

1

“… (the) respect for human rights is one of the conditions imposed on any political regime to be admissible as a member in good standing into a just political society of peoples. Once we understand this … it is perfectly clear why those rights hold across cultural and economic boundaries, as well as the boundaries between nation-states or other political units. With our two other conditions (see Section IV.1­–2), these rights determine the limits of toleration in a reasonable society of peoples. …These conditions indicate the region of bedrock beyond which we cannot go.”

2

“(I)n working out the law of peoples we assumed liberal societies to look at how they are to conduct themselves towards other societies from the point of view of their own liberal political conception. … to proceed thus is not then necessarily ethnocentric or merely Western. … The liberal conception asks of other societies only what they can reasonably grant without submitting to a position of inferiority, much less to domination. … (it) does not ask well-ordered hierarchical societies to abandon their religious institutions, and adopt liberal ones. … (it) does not justify economic sanctions or military pressure on well-ordered hierarchical societies to change their ways, provided that they respect the rules of peace and their political institutions satisfy the essential conditions we have reviewed.”

3

“A liberal society is to respect other societies organized by comprehensive doctrines, provided their political and social institutions meet certain conditions that lead the society to adhere to a reasonable law of peoples.”

4

“…to affirm the superiority of a particular comprehensive view is fully compatible with affirming a political conception of justice that does not impose it, and so with political liberalism itself.”

Notes

[1] When Rawls says “liberal ideas of justice”, he is drawing upon the ideas expressed in his conception of “justice as fairness” which he wants to make more “general” in this essay.

[2] By a “political conception of justice”, he means a conception that: (a) applies to basic political, economic, and social institutions; (b) is independent of religious, philosophical, or moral doctrines; and (c) is expressed through fundamental liberal ideas.

[3] It means a society comprising well-ordered liberal and well-ordered hierarchical societies.

[4] “Here I understand a well-ordered society as being peaceful and not expansionist; its legal system satisfies certain requisite conditions of legitimacy in the eyes of its own people; and, as a consequence of this, it honours basic human rights.”

[5] The arbitrariness of the territorial boundaries of politically organised societies might be brought up to object to the validity of the agreements made by them but such a fixation would be “wrong” because their role in the law of peoples is not subject to whether they were properly defined territorially but only to what political values they serve in the system of the law of peoples.

[6] “It includes a family of representative bodies, or other assemblies, whose task is to look after the important interests of all elements of society. … (Its citizens) are seen as responsible members of society who can recognize their moral duties and obligations and play their part in social life. …there is an opportunity for different voices to be heard … and (the citizens) have the right at some point in the process of consultation to express political dissent.”

[7] That’s not to say that it is reasonable. Rawls thinks that space should be allowed between what is (fully) reasonable and what is (fully) unreasonable.

[8] Rawls thinks this “seems plausible” enough to not warrant argument and clarification.

[9] “Since they are to express a minimum standard, the requirements that yield these rights should be quite weak.”

[10] Based on considerations of human rights, the war making and population exterminating rights of the state has severely been limited. War is no longer an admissible state policy.

[11] “In actual affairs, nonideal theory is of first practical importance and deals with problems we face every day. Yet for reasons of space, I shall say very little about them.”

[12] Because without it, nonideal theory has no objective to achieve and no standard to adhere to.

[13] Rawls ventures to give some suggestions though.

[14] The most crucial principle amongst those that constitute the concept of justice as fairness.