There are Peoples and There are Peoples: A Critique of Rawls’s The Law of Peoples

By Brian E. Butler

Brian E. Butler, The University of North Carolina at Asheville

Introduction

The political philosophy of John Rawls has dominated discussions of liberal justice for the last thirty years. The ideals elaborated in his theory have without doubt greatly influenced everyday ideas of justice and political reasoning. His A Theory of Justice1is one of a very short list of works that are undisputedly representative of the most important and influential philosophical thought of the 20th century. The Law of Peoples,2 as an extension of the central ideas of A Theory of Justice and Political Liberalism3to the issue of international relations and law, is therefore a philosophically important event.

To construct a workable foreign policy for liberal theory, Rawls sets out to create a group of principles necessary and sufficient for justice between decent “peoples” from his liberal framework developed in A Theory of Justice and Political Liberalism. In The Law of Peoples he chooses to utilize the concept of “peoples” instead of “state” to avoid issues attached to traditional ideas of state sovereignty. To develop a law of international (interpeoples) cooperation, he utilizes two of his most famous tools: (1) the original position; and (2) the veil of ignorance. His argument, in essence, is that from an original position adjusted to eliminate improper information (or “wrong reasons”) through use of the veil of ignorance, it is possible to arrive at proper and workable principles of justice to be used to regulate interaction between peoples. The veil of ignorance is used to ensure that only relevant issues will determine the principles that the individual chosen representatives of peoples arrive at through their rational yet constrained deliberation.4 Rawls’s claim is that his Law of Peoples would be acceptable to both the members of liberal states and those members of non-liberal states that correspond to the description of what he calls “decent but non-liberal peoples.”

Therefore, the same tools that allowed liberal individuals to arrive at basic principles of justice for their own government can be used to arrive at principles useful for evaluating international law. In this paper, I will show that the arguments offered and conclusions at which Rawls aims in his Law of Peoples are telling as to the intellectual legitimacy of his larger theoretical project. To show this I first investigate how (1) non-liberal peoples fit within the limitations Rawls describes in The Law of Peoples and (2) how liberal peoples would react to such rules. I argue from the answers to these questions to the further conclusion that by spreading the principles and tools of A Theory of Justice and Political Liberalism to the international realm some assumptions implicit in the earlier works come out more clearly. The final section of the paper analyzes some of the implications of the newly exposed assumptions for Rawls’s project of liberal justice.

How Do Non-liberal Peoples Fit into the Law of Peoples?

How exactly do non-liberal peoples fit into Rawls’s Law of Peoples? Rawls is less concerned with whether non-liberal societies would accept the Law of Peoples than he is with whether liberal peoples should tolerate any non-liberal peoples. In his words: “A main task in extending the Law of Peoples to non-liberal peoples is to specify how far liberal peoples are to tolerate non-liberal peoples.”5 This is consistent with his attempt to create the principles of the Law of Peoples from inside the framework of political liberalism. This indicates that non-liberal peoples will not be granted the same consideration as liberal peoples in the creation of such a law of peoples. Rawls’s describes his project as follows: “the Law of Peoples is an extension of a liberal conception of justice for a domestic regime to a Society of Peoples. Developing the Law of Peoples within a liberal conception of justice, we work out the ideals and principles of the foreign policy of a reasonably just liberal people.” 6

Rawls’s description of his project as “foreign policy” – rather than, say, international (or interpeoples) relations – highlights the internal aspect of his project. 7 Not only does placing nonliberal peoples in a position of “toleration” show that they are outsiders, but “foreign policy” implies a choice from within a settled and independent territory (or people) that is then imposed upon relations with other peoples. In contrast, the inter-entity relational approach of international relations implies the inclusion of at least two voices in the policy choice conversation. What Rawls actually concludes is very simple. Decent non-liberal peoples are to be tolerated and accepted in the Law of Peoples alongside liberal peoples; other societies or peoples are to be either a) helped to become one of the two acceptable types, if burdened or b) to be thought of as an outlaw state. 8 So the classification of peoples as “liberal” or “decent” becomes crucial to understanding the limits of toleration within the Law of Peoples.

As will be seen below, this internal aspect of Rawls’s theory actually ensures that any peoples classified as “decent,” under the use of this term that Rawls adopts, will, by definition, accept many, if not all, of the principles of his Law of Peoples. Because of this, much of this part of Rawls’s argument has the quality of a foregone conclusion. This is an endemic problem of missing justification that the content of The Law of Peoples has in relation to both non-liberal and liberal societies. In the Law of Peoples, definitions are repeatedly doing work where argumentation is required.

To see that Rawls’s definition of “decent but non-liberal peoples” smuggles in his conclusions, one must outline his portrait of decent non-liberal peoples and place it beside his Law of Peoples. “Decent non-liberal peoples” is never completely defined by Rawls. In The Law ofPeoples it is mainly exemplified by another concept–that of “decent hierarchical societies.” According to Rawls there are two criteria for decent hierarchical societies. First, the society does not have aggressive aims. 9 Second, a decent society secures: (a) a set of minimal human rights (the right to life, liberty, and formal equality); 10 (b) bona fide moral duties and obligations that are imposed upon all members within the peoples’ territory; and (c) “a sincere and not unreasonable belief on the part of judges and other officials who administer the legal system that the law is indeed guided by a common good idea of justice.” 11

A “common good idea of justice” entails that the society has a common aim that the society tries to achieve and a “decent consultation hierarchy” which allows for the people of various groups within the society to be heard by the main peoples. 12 In his imaginary picture of the decent but nonliberal peoples of Kazanistan, the consultation hierarchy satisfies six “guidelines”: 1) all groups are consulted; 2) each member of a people belongs to a group; 3) each group must be represented by a body that “contains at least some of the group’s own members who know and share the fundamental interests of the group”; 4) the body that makes the final decisions must weight the claims of those consulted and explain/justify the decisions if asked; 5) the decision should be made according to the society’s common aim; and 6) the scheme should coordinate all the groups under explicit and fair terms. 13

It is important to acknowledge that Rawls allows that there might be decent non-liberal peoples other than those in a decent consultation hierarchy. In his words “other possible kinds of decent peoples I do not try to describe, but simply leave in reserve.” 14 But this open quality of the concept is belied by his description of their makeup as having attributes “equivalent” to those of the consultation hierarchy and right of dissent. 15 In any case, because the only example Rawls offers for an understanding of the concept “decent non-liberal peoples” is that of the “decent hierarchical society,” I will treat them as virtually identical in content.

Place these definitional features of decent but non-liberal peoples next to the principles of The Law of Peoples. Eight basic principles make up the Law of Peoples:

  1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples.
  2. Peoples are to observe treaties and undertakings.
  3. Peoples are equal and are parties to the agreements that bind them.
  4. Peoples are to observe a duty of non-intervention.
  5. Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense.
  6. Peoples are to honor human rights.
  7. Peoples are to observe certain specified restrictions on the conduct of war.
  8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. 16 (Rawls immediately qualifies the fourth principle by stating that intervention will be justified in the case of “outlaw states and grave violations of human rights.”) 17

Of the qualities a decent society must satisfy, the first is that the society does not have aggressive aims. This, extended by the most minimal inference, ensures that the non-liberal but decent society would satisfy 1, 4, and 5. That is, because the country is non-aggressive it will not disrespect the independence of other peoples, intervene in other peoples’ affairs or instigate a war.

Here agreement is ensured by Rawls’s definition of what is to be accepted as decent, and thereby worthy of toleration, by liberals; hence no argument is necessary. This leaves us with 2, 3, 6, 7, and 8. Six might be thought the most problematic, but because Rawls defines human rights as “necessary conditions of any system of social cooperation” 18 this would be trivially true of any society, but is undeniably true here because a decent hierarchical society must by definition secure “minimal human rights” (see above). Two follows from any theory based upon contract. So while this is not explicitly pointed to in the definition of decent non-liberal peoples, it is clearly an essential presupposition for any theory that Rawls will accept as reasonable (more on this issue later). Therefore, the question is whether non-liberal peoples would satisfy 3, 7, and 8?

Principle Seven requires restrictions upon the conduct of war. The reason given why liberal peoples come to this agreement is that an aim behind a law of peoples is ultimately to come to a “just and lasting peace among peoples.” 19 Rawls seems to believe that waging war in a just fashion will both give the other side a model to which to aspire and create a better chance of living in mutual respect later. 20 No evidence is offered for this belief, but it hardly seems deductive; therefore it is hard to see how the principles of just war could be arrived at in the original position. On the other hand, if the claim is true, then these reasons would pertain to the decent non-liberal society as well as the liberal society.

Principle Eight creates a duty to assist peoples that are disadvantaged. This requirement might be justified in two ways. First, it might be thought prudent to assist disadvantaged peoples because their instability could be a threat to well-ordered peoples. 21 Second, there might be a duty to assist based upon the “minimal” human rights that Rawls believes individuals must have as individuals within their various peoples. The first reason applies equally to both non-liberal and liberal peoples. If the second justification is adopted, then the duty to assist disadvantaged peoples follows from the definition of a decent society; here again, stipulation by definition appears to replace needed argumentation.

The most interesting law is the third, which requires that “peoples are equal and are parties to the agreements that bind them.” This seems a fair requirement for a Law of Peoples. Peoples implicated in such an international set of laws certainly can be expected to demand equal treatment.

On the other hand, it seems somewhat out of place given Rawls’s project. Rawls develops the Law of Peoples from within liberalism and then asks what type of non-liberal peoples liberal peoples would be able and willing to tolerate. Even the carefully defined decent peoples are only grudgingly let in, and are tellingly described as less than “fully reasonable.” 22 They clearly are a second-rate peoples among “equals.” The Law of Peoples is an ideal contract theory full of “boiler plate” provisions that other parties are to accept in order to be tolerated. What Rawls does is to define a tolerable and minimally non-liberal peoples to fit his Law of Peoples. 23 “Decent peoples” are defined such that they accept, by definition, the terms of his ideal contract between peoples. This “reverse engineering” seems inappropriate in the world of real people and real problems of international scope.

Would Liberal Peoples Accept the Law of Peoples?

So, it is by definition that decent non-liberal peoples would be fit peoples for toleration by liberal peoples. It is more interesting to ask the question whether liberal peoples would agree to the content of The Law of Peoples. This question is clearly germane since it is Rawls’s express description of the project to develop The Law of Peoples from within liberal beliefs. The eight laws drastically curb the standard modern or Hobbesian ideas of national sovereignty concerning the right of war. Non-aggression between peoples is the baseline rule. This result, I agree, would be embraced by liberal peoples in an ideal environment. But the negative conclusions about redistribution of wealth between peoples seem much more troublesome. Why does Rawls, even in the domain of relations between liberal peoples, think that the peoples would refuse to allow for more than a minimal and short-term redistribution of wealth between peoples? This is a question that has troubled some followers of Rawls who have attempted to apply his theory’s strategy and tools to the international context. For example, Charles R. Beitz argues that in international relations peoples using a Rawlsian original position analysis would come to the conclusion that each person has “an equal prima facie claim to a share of the total available resources.” This, it is argued, would follow from a “resource redistribution principle” that would function analogously to the way Rawls’s difference principle did in domestic distributions. 24

Because this conclusion seems just as reasonable a conclusion as Rawls’s own, and is plausibly derived from use of the original position, the reasons Rawls gives for the narrower set of laws are informative. Once again, according to Rawls, the Law of Peoples allows for relatively large inequalities in wealth between peoples. Rawls seems to think that a peoples’ being decent will ensure enough equity in distribution of social goods within the peoples’ territory. Further, it is apparently a deductive truth for Rawls that individuals within a well-ordered people will have adequate means to “make intelligent and effective use of their freedoms and to lead reasonable and worthwhile lives” (114) no matter what constitutes the natural assets of the people’s territory. vast differences in the wealth of various peoples is based upon a claim that actual distress and poverty within a country are caused by the political culture of the country, and not its lack of material resources, historical treatment, etc. 25 As Rawls puts it, “there is no society anywhere in the world–except for marginal cases–with resources so scarce that it could not, were it reasonably and rationally organized and governed, become well-ordered.” 26 Here the clear claim is that if a people is well-ordered it will not be impoverished. 27

Once again, a claim that seems indisputably empirical is offered with no substantiating evidence. 28 More importantly, while this claim is debatable, its truth would still not force the conclusion that Rawls aims for.

Just because a country or a people would not be impoverished if well-ordered does not explain why a wealthier people might not have a duty to distribute some of its wealth to the poorer people. This is especially true if the wealthier peoples have accrued that wealth with the use of resources that other peoples might have utilized for their differing purposes. An example of an element missing in Rawls’s analysis, but ever present in today’s global situation, is the trans-national issue of pollution. Should there not at least be some type of luxury tax upon the more industrialized nations to force them to internalize the costs they are currently imposing without constraint upon other peoples? Why should there be no reallocation of expenses due to activities that have effects that cross the boundaries of various peoples? Does Rawls really mean to ignore such externalities in the interpeoples context? In any case, just because a people are not impoverished does not mean that the world might not be much fairer and just if greater redistribution between peoples was accomplished. That Rawls seems to ignore this possibility is problematic. This is especially true because Rawls finds pressure towards adopting such a principle when the same tools are used internally by a liberal people. It seems that the Law of Peoples might be, in Rawls’s hands, a tool with which to help liberal peoples avoid the greater issues of justice in favor of a minimal stability.

So, there might be much more impetus to redistribution of resources between peoples than Rawls allows. On the other hand, why would a liberal people relax the idea of rights so as to allow in the decent non-liberal peoples? It is important to remember that this is what Rawls describes as ideal theory. Why would a liberal peoples who base their political organization upon the inviolability of the individual allow other peoples the ability to ignore the inviolability of some individuals? Why water down the idea of human rights to the point where it becomes equivalent to the “necessary conditions of any system of social cooperation?” 29 In the original position, the representatives of the liberal peoples might value human rights for individual members of other peoples more than the rights of various non-liberal but decent peoples as group or corporate entities. If not, we deserve more of an argument as to why not.

Such an argument seems necessary because it is highly questionable whether liberal peoples would accept the Law of Peoples as Rawls sets it out. First, the liberal peoples might feel the need for greater redistribution of wealth between peoples. A sense of justice as fairness that goes beyond necessities and the alleviation of poverty and distress might come into play. In other words, fairness might require redistribution between peoples even where no peoples are impoverished. Second, the representatives of liberal peoples might not be willing to relax their assumptions enough as to the necessity of a broad set of human rights so as even to allow in decent non-liberal societies (regardless of the euphemistic label such societies get from Rawls).

Further Implications of the Rawlsian Project

As stated above, Rawls uses the term “peoples” as a strategy to avoid traditional problems of national sovereignty. Specifically, he thinks that this terminology will avoid the ability unconsciously to adopt traditional international attitudes of national right and aggression. An important question here is whether the chosen terminology actually achieves Rawls’s goals. As discussed above, the conclusions argued for might not be acceptable even to his target audience–liberals–so why adopt such an awkward vocabulary and perpetuate an awkward style of analysis?

The use of the term “peoples”––as opposed to “nation” or “state”––does highlight some of the strange assumptions attached to the existence of a state. Ideals of national sovereignty, the inviolability of the border, and group agency issues are brought to the fore just by changing the term “nation” to “peoples”. Furthermore, by not using the “nation” or “state” terminology, Rawls avoids suggesting that a peoples are a single, unified entity, but implicitly points to the individual people that make up such an entity. “Peoples,” that is, both points to the group status and to the individuals that make up the group. This is admittedly a virtue related to the label. But what does the avoidance of the “nation” and/or “state” terminology really do for the Law of Peoples as a whole? Especially within the Rawlsian style of argument, an appeal to our intuitions30must take human issues much as they are–this must be true even if the theory is described as utopian. It is easy imaginatively to put an individual person behind the veil of ignorance to further the project of deciding his or her own rules because this fits many of our intuitions concerning how issues should relate an individual to a national covenant. It is much harder to put a person in the original position as a representative of “peoples” without explaining the shift from nation to peoples. 31 This just doesn’t fit our intuitions very cleanly. In fact, we have almost no idea of what a “peoples” is unless we project the attributes of nations or states upon the concept. 32

While a “nation/state” has a familiarity from which we could start, “peoples” is a vague term and it is not clear what nature and entitlements it connotes. Liberalism carries within itself a firm common-sense ontology that undergirds the intuitive acceptance of the primacy of the individual. The ontological commitments underlying talk of “peoples” is unclear. Rawls’s theory appeals to common liberal intuitions. But when Rawls moves from the idea of state to that of peoples to avoid common intuitions as to the sovereignty of states, he tries to avoid these very same intuitions without having explicitly to justify the shift. This seems to be begging the question in a way that substitutes a lack of intuition for intuitions Rawls wants to avoid.

This vagueness or lack of intuitions about the reasonable entitlements of peoples becomes even clearer when Rawls tries to limit redistributive principles to within each individual people. How can he explain why such peoples only care about being internally just? None of the reasons he offers seem adequate. As argued above, allowing Rawls’s reasons full force doesn’t explain why the further distribution of social goods might not be required on grounds of fairness, not necessity. So, the combination of the internal appeal to our intuitions and a novel vocabulary creates less a new picture of international relations than a new set of problems to be solved in addition to the old ones. And with these new issues arrive the potential for new conflicts and entitlements to be identified.

This realization raises a number of questions. Can Rawls reasonably utilize the same tools of analysis in such divergent situations as individuals contracting within a liberal society and that of “interpeoples” relations? The very idea that the tools of the original position and the veil of ignorance can be used in both intrapeoples and interpeoples justice inquiries seems highly implausible, indeed, counterintuitive. Rawls situates his liberal theory within a liberal culture and explicitly appeals to our intuitions to justify his conclusions about liberal justice. Some have found this purported humility of expectations and goals to be one of the theory’s great virtues. It seemed that by limiting the reach of the theory to only those within a liberal society it helped liberalism live up to its own ideals and yet allowed other societies to exist on their own terms. This in turn appeared to combine the hope for rigorous justification of liberal ideals of justice with another important liberal virtue–toleration of other world-views. Such toleration of various possibilities shows (at least on its face) a lack of imperialist ambition. One might argue that this ignores too much of the international discourse or inter-peoples intercourse that exists. However, this oversight seemed benign because the humble goals would not impede other discourses, just help liberals to justify the liberal principles used at home within their own society. But the benign and intuitive quality of the story radically changes with the ambitions and conclusions contained in The Law of Peoples. Here the social contract strategy Rawls uses shows itself to be less fitting to the problem at hand. Here we are confronted with the existence of many clearly non-liberal peoples, a strong tradition of national sovereignty with attendant assumptions, further assumptions as to what kind of knowledge should and should not be allowed into the newly modified original position, and results determined by the thought experiment that are applied to peoples that would neither agree to the assumptions used to arrive at the interpeoples principles nor to those principles agreed upon among liberal intrapeoples. Because this agreement is supposed to cover relations with all peoples, the coercive nature of such a stance can no longer be ignored and must be seen as other than humble and benign.

From Implicit Dialogue to Deduction

As stated above, Rawls’s liberalism gains much of its plausibility from the assumption that it is situated within a group of individuals who agree on many ideals and objectives. His arguments generally appeal to shared intuitions concerning what reasons should count in a dialogue on justice and then conclude that certain results follow naturally from a properly defined set of reasons and relevant knowledge. This form of argument, in Rawls’s case, runs through the original position constrained by a properly adjusted veil of ignorance. As a reading of A Theory of Justice shows, Rawls originally thought that an argument or arguments must be provided at every stage of this process to justify the conclusions at which he arrived. That is, the factors excluded by the veil of ignorance must be justified and the conclusions arrived at the same after running the thought experiment. This is, at minimum, a kind of input/output equilibrium that helps fill out the famous Rawlsian concept of “reflective equilibrium” if it is to mean more than “good enough, now I rest.” So, for a liberal society, Rawls’s strategy is to start with an argument for why certain reasons should or should not count in a liberal theory of justice, and then process these reasons through his imaginary position to conclusions that seem reasonable. After this process, the conclusions are compared to the reasons again to see if more adjustments need to be made in the procedural apparatus to arrive at a coherent view of what liberal justice requires. Neither the starting point nor the conclusion is taken as given (in terms of not needing further justification or being closed to further revision).

Both aspects require justification even though the starting point is from within a liberal society. This method seemed happily to combine the situatedness of our beliefs with an analytical rigor that justified our beliefs about our underlying political arrangements, as well as helped to diagnose those beliefs for inconsistencies.

That something has changed in The Law of Peoples is clear. Here what Rawls provides is a set of conclusions from a process originally designed for use at constructing principles of justice internal to a liberal society. But whereas earlier works were characterized by a more dialectical process of trial, revision, and criticism, in The Law of Peoples arguments for the reasonableness of the input of some information and the exclusion of other information is almost entirely lacking. It has been claimed that the system is therefore exposed as an “ad hoc” 33 procedure that serves merely as “camouflage.” 34 That is, insufficient argumentation is offered as to why certain aspects of peoples are included or excluded by the veil of ignorance to arrive at conclusions concerning a just law of peoples. In the “Second Original Position” (that designed to produce the Law of Peoples) “rational representatives of liberal peoples” are represented as being “situated symmetrically,” rational, and subject to a veil of ignorance that excludes knowledge of territorial size, population, strength of people, natural resources or level of economic development. 35 Deduction from first principles or a truly original position is used in place of a dialectical or reflective process. Furthermore, the explanation of why certain peoples are excluded seems to be summed up in the response “because they wouldn’t agree.” But this is just to admit that we are not engaging in discourse or trying to justify our conclusions to those who don’t accept the conclusions or premises already.

It appears that Rawls thinks this argumentation is unnecessary because the second original position is just an extension of the first use of the original position, and therefore the arguments previously used to justify the first original position are equally useful in the context of interpeoples inquiry. But this move seems intuitively wrong. The similarity between the two positions is tenuous at best. Social contract theory applies much more cleanly to a circumstance where all are parties to the agreement. Contract theory in general works best when people have agreed to the starting principles within which a valid contract can be created. But where some agree to principles that cover parties not in on the contracting process the analytical situation changes radically. The internal standpoint loses its prima facie appearance as a combination of humility and tolerance and becomes an imposition upon, or at least a dismissal of, parties not privy to the contract. While the question Rawls asks is how far a liberal society can tolerate other peoples, the type of tolerance required is drastically different from that between liberal individuals. Here the question is toleration of people, and peoples, outside of the original position who do not have an ability to opt out of the regulated environment. The imposition from the other side is too great; the inequality between purported equals too palpable. Some peoples are not recognized as “decent” by other peoples, and because they are not decent they are by definition not reasonable. Given this analytical framework why would a liberal people feel the need to recognize peoples that are outside of these parameters?

The Law of Peoples exposes a problematic side of Rawls’s liberal theory–its inability to accommodate opposing viewpoints and its insular and formalistic picture of reasoning. As Jean Hampton puts it: “It is one thing to call your opponents wrong; it is another to say they hold their incorrect views only because they have been unable to form their beliefs in a fully rational and reasonable way.” 36 Rawls’s formal and proceduralist picture of reasoning begins to look less benevolent once we get to see how his liberal peoples view the other peoples in the world. What kind of response is “you brought incorrect information into the original position” to a people’s representative who disagrees with Rawls’s rules? The question to ask is: “Why did anyone think that any such a proceduralist account of justice ever could lay claim to more reasonableness than any other?” 37 Some procedures may be helpful, but arguments are needed to justify the adoption of such procedures. As opposed to a stance that aims to create a forum to reason–such as Habermas’s, Rawls’s system aims at determining what reason must be like, and how it must be utilized. 38 A procedure that appears neutral only to those who approve of the results it guarantees and only allows in reasons that reinforce the desired results doesn’t offer much for those who prefer different outputs and acknowledge different reasons. Allowing “a space between the fully unreasonable and the fully reasonable” 39 doesn’t ensure the less than fully reasonable that their “reasons” will be recognized at all. And if the inputs are determined by the desirability of the resulting outputs, then more argument should be allowed concerning what should be included as reasons and/or reasonable.

Conclusion

In this paper, I first asked how a non-liberal but decent peoples would fit into the Law of Peoples scheme as it is proposed by Rawls. Here the problems identified were that: 1) the Law of Peoples is described as being developed from within the stance of political liberalism as a question of foreign policy and therefore the question of non-liberal consent is, at best, secondary; 2) the criteria for a decent non-liberal state are seemingly “reverse engineered” to fit within Rawls’s Law of Peoples so that any real, and substantial, toleration of non-liberal societies is questionable; and 3) the rules Rawls proposes, especially number 3 (relating to equality among peoples), are incompatible with his method of deduction of the rules from within one type of peoples. The explicit task for Rawls is to answer whether a liberal peoples should tolerate non-liberal peoples. And the explicit description of the task is one of creating foreign policy.

Second, I asked a question that more directly relates to Rawls’s express aim in The Law of Peoples, namely, would liberal peoples accept the law of peoples? Here the difficulty is how toexplain the strange allocation of rights and limitations put upon peoples by the Law of Peoples.

First, Rawls must offer a better explanation concerning why the representatives of liberal peoples would agree to such minimal redistributive principles. His argument that such distribution is not necessary to relieve poverty does not answer the question asked. It might not be necessary for such purposes and yet still be required because of justice issues. The issue raised is justice between peoples, not whether some peoples would be impoverished. Why would there not need to be redistribution based upon issues of justice between two wealthy societies? There seems to be no apriori way to rule this possibility out, though that appears to be Rawls’s aim. Fairness and justice issues extend beyond the alleviation of poverty within a liberal society; why shouldn’t they extend further between liberal peoples as well? Furthermore, more analysis is needed to explain why the representatives of liberal peoples would relax their own beliefs in human rights so as to allow decent hierarchical peoples into the Law of Peoples. As described, such peoples will have license to ignore certain rights that liberal peoples hold to be central to their ideals of justice. Why should these ideals be relaxed at the edge of the people’s territorial border? As far as I can tell, Rawls gives no real answer. As others dealing with the same issues, and using the same tools, have arrived at conflicting answers, more reasons for one side of the debate are needed before we can consider the question settled. The conclusion from this section has to be that no one knows if a liberal peoples would accept the Law of Peoples that Rawls describes.

From the investigation of the questions above, I drew some further implications of the Rawlsian project. First, I highlighted some implications of the strategic move of labeling what we would consider a nation or state a “people.” While this does serve to escape some of the assumptions thought normally attached to statehood, this escape mechanism proved to be doubleedged.

Because Rawlsian argument always appeals to intuitions from within, his new terminology seems to cut us loose from any concrete ability to reason consistently. 40 This, in turn, seems to create room for Rawls to ignore ideas of state sovereignty when he wants to and, at the same time, smuggle them back in when they are convenient. But this destroys Rawls’s ability to appeal to the usual basis of his argument–we really have no intuitions to which to appeal unless we fall back on the nation/state analogy. If we make this move and admit a return to the nation/state analogy, then the content of The Law of Peoples may fill in much differently.

The problem of trying to understand just what a “people” is gave way to the last section which asks why it should be the case that the tools that seemed so effective in arguing for liberal justice among self-contained liberal societies should be thought equally useful for inter-peoples theories of justice. The argument highlighted how ideals of argumentation that appeared humble, tolerant and benign in one context became one-sided, coercive and disrespectful of genuine difference when translated into a different context. Because of the disanalogy between the internal stance of his earlier work and the inter-peoples import ofThe Law of Peoples, the solipsism of Rawls’s method of argumentation becomes clear. Once this becomes clear, its inability to deal with differing beliefs about what constitute relevant reasons, and therefore genuinely differing voices, becomes all too obvious. What can be seen is that according to Rawls’s Law of Peoples there are peoples, and there are peoples, and the two will never be truly equal because the one will have a monopoly upon properly reasoned argument. Such a result as this should raise questions concerning the larger Rawlsian enterprise. It certainly casts doubt upon its relevance to the domain of international relations and global justice.

Works Cited

Beitz, Charles. Political Theory and International Relations. Princeton, NJ: Princeton UP, 1999.

Buchanan, Allen. “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World.” Ethics 110 (2000): 697-721.

Copp, David, John Roemer, Jean E. Hampton, eds. The Idea of Democracy. Cambridge: Cambridge UP, 1995.

Habermas, Jurgen. Between Facts and Norms. Cambridge, MA: The MIT Press, 1998.
Hampton, Jean. “The Moral Commitments of Liberalism. The Idea of Democracy. Ed. David Copp, 1995. al. Cambridge: Cambridge UP, 1995.

Lipkin, Robert Justin. “In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism.” DePaul Law Review 45 (1996): 263-339.

Moellendorf, Darrel. “Constructing the Law of Peoples.” Pacific Philosophical Quarterly 77 (1996): 132-154.

Peller,Gary. “NeutralPrinciplesinthe1950s.” JournalofLawReform21(1988):561-622.
Paden, Roger. “Reconstructing Rawls’s Law of Peoples.” Ethics & International Affairs 11 (1997): 215-232.

Pogge, Thomas W. Realizing Rawls. Ithaca, NY: Cornell UP, 1989.

Rawls, John. A Theory ofJustice. Cambridge, MA: Harvard UP, 1971.
—Political Liberalism. New York: Columbia UP, 1993.
—. The Law ofPeoples. Cambridge, MA: Harvard UP, 1999.
Sen, Amartya. Poverty and Famines. Oxford: Oxford UP, 1981.
Tan, Kok-Chor. “Liberal Toleration in Rawls’s Law of Peoples.” Ethics 108 (1998): 276-295. Teson, Fernando R. “The Rawlsian Theory of International Law.” Ethics & International Affairs 9 (1995): 79-99.

  1. John Rawls, A Theory of Justice (Cambridge, MA: Harvard UP, 1971).
  2. John Rawls, The Law of Peoples (Cambridge, MA: Harvard UP, 1999).
  3. John Rawls, Political Liberalism(New York: Columbia UP, 1993).
  4. In The Law of Peoples, instead of individuals representing their own interests, there are chosen representatives of peoples who decide on principles for their group.
  5. Rawls, Law of Peoples 59.
  6. Rawls, Law of Peoples 55.
  7. For one version of this distinction, see Alexander Wendt, Social Theory of International Politics(Cambridge: Cambridge UP, 1999) 11.
  8. Rawls, Law of Peoples 63.
  9. Rawls, Law of Peoples 64.
  10. Rawls, Law of Peoples 65. Here the extent of such rights is incompletely specified. Depending upon how broad or narrow the reading of such a list the Law of Peoples would be either very intolerant of what western liberals would consider human rights violations or very intolerant of alternative political arrangements. For example, Rawls’s concept of a right to liberty entails “freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought.” Obviously this could be read broadly so as to rule out almost any non-liberal society. Even more worrisome is his definition of formal equality as “treating similar cases similarly.” As feminist and critical race scholars have shown, the meaning of this phrase is anything but clear. In fact, from the position of a non-liberal society, the vagueness of such rights could be seen as allowing a liberal society the ability to explain its intolerance at any time by changing the limits of such terms. Furthermore, Rawls’s description of such rights is prefaced by the words “[a]mong the human rights.” What others are going to be required? If no others are required, then why the open-ended nature of the requirement?
  11. Rawls, Law of Peoples 66.
  12. Rawls,Law of Peoples 71-72.
  13. Rawls, Law of Peoples 77.
  14. Rawls, Law of Peoples 4.
  15. Rawls, Law of Peoples 61.
  16. Rawls, Law of Peoples 37.
  17. Rawls,Law of Peoples 37.
  18. Rawls, Law of Peoples 68.
  19. Rawls, Law of Peoples 94.
  20. Rawls describes six principles as central to the concept of “just war doctrine”: (1) “the aim of a just war waged by a just well-ordered people is a just and lasting peace among peoples;” (2) “Wellordered peoples do not wage war against each other . . . but only against non-well-ordered states whose expansionist aims threaten the security and free institutions of well-ordered regimes and bring about the war;” (3) “In the conduct of war, well-ordered peoples must carefully distinguish three groups: the outlaw state’s leaders and officials, its soldiers, and its civilian population;” (4) “Wellordered peoples must respect, as far as possible, the human rights of the members of the other side, both civilians and soldiers;” (5) “well-ordered peoples are by their actions and proclamations, when feasible, to foreshadow during a war both the kind of peace they aim for and the kind of relations they seek;” and (6) “practical means-end reasoning must always have a restricted role in judging the appropriateness of an action or policy” (Law of Peoples 94-96). It seems to me that this list, and its internal perspective, is another example of the internalist quality of Rawls’s style of reasoning, with the vocabulary doing most of the work. It may be that acting on this list would help ensure peace after the war, but the important point is that this is an empirical and not a conceptual issue.
  21. It seems that such prudence is required to create a stable environment so issues of immigration become dismissible (such as Rawls believes they would be in a proper world of liberal and decent peoples).
  22. Rawls, Law of Peoples 74. Of course, the real problem may be in the characterization of human or international relationships as relationships of “toleration.” This choice of terminology might inevitably privilege the “tolerators” point of view in relation to the “toleratee.”
  23. This can be seen also in that the real defining characteristic of his “outlaw states” is aggression. They are outlaws by definition, though what counts as aggression might not be so easy to operationalize.
  24. Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton UP, 1979) 141-142.   See also Beitz, “Rawls’s Law of Peoples,” Ethics 110 (2000): 692-693.
  25. Rawls,Law of Peoples 117.
  26. Rawls,Law of Peoples 108.
  27. It seems to me that Rawls is generalizing in a rather reckless way from Amartya Sen’s work on famines. Sen’s work showed that political organization seemed to have an intimate relationship with famines in India. What Sen’s work could not have done is proven Rawls’s much more all encompassing claim that this is the actual necessary and sufficient cause of famines. See Sen, Povertyand Famine (Oxford: Oxford UP, 1981).
  28. As Allen Buchanan argues, it seems as if there should be more consideration of “alternative conceptions of justice for the global basic structure.” Buchanan, “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World,” Ethics110 (2000): 707.
  29. Rawls, Law of Peoples 68.
  30. As Rawls puts it, “the Law of Peoples starts with the need for common sympathies, no matter what their source may be” (Law of Peoples 24).
  31. As Darrel Moellendorf argues, even the analogy between states and individuals is tough to use to justify the conclusions to which Rawls wants to get. See his “Constructing the Law of Peoples,” Pacific Philosophical Quarterly 77 (1996): 152. Even more difficult is to argue from the vague term “peoples,” if we are to use our current intuitions as a starting point.
  32. This is a point made by Kok-Chor Tan in “Liberal Toleration in Rawls’s Law of Peoples,” Ethics 108 (1998): 287. Furthermore, as Fernando R. Teson points out, the claims made on behalf of peoples in Rawls’s theory fall short of moral claims that are already accepted internationally. See his “The Rawlsian Theory of International Law,” Ethics and International Affairs 9 (1995): 84
  33. For this claim and a defense against it, see Roger Paden, “Reconstructing Rawls’s Law of Peoples,” Ethics and International Affairs 11 (1997): 222.
  34. Robert Justin Lipkin makes this claim in “In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism,” Depaul Law Review 45 (1996): 284.
  35. Rawls, Law of Peoples 32–33. Of course, the exclusion of these factors might be proper, but Rawls offers no argument as to why they should be excluded. The important point is that the starting point, as well as the resulting conclusions, have the quality of a priori truths in Rawls’s system. What is completely lacking is a reasoned justification for the starting point. It almost appears as The Law of Peoples is less an exercise in the use of his philosophical system to arrive at justifiable principles of foreign policy and more a use of modern intuitions of foreign policy to further justify the adoption of his political-philosophical reasoning apparatus.
  36. Jean Hampton, “The Moral Commitments of Liberalism,” in The Idea of Democracy (Cambridge: Cambridge UP, 1993) 308-309.
  37. For a critique of such assumptions, see Gary Peller, “Neutral Principles in the 1950s,” Journal of Law Reform 21 (1988): 284. Unfortunately, the critique that Peller makes is marred by a completelyincorrect description of Dewey’s relationship to the idea of neutral procedure. But the questioningof the assumptions upon which hopes for such procedure rest remains insightful.
  38. This may be why when Habermas tries to show that a Rawlsian original position element could fit into his communicative type of liberalism he must broaden the presuppositions to the point where all that is maintained are the “symmetries of mutual recognition of communicatively acting subjects in general.” Jurgen Habermas, Between Facts and Norms (Cambridge, MA: The MIT Press, 1998) 63.
  39. Rawls, Law of Peoples 74.
  40. Another way that Rawls puts this is that his way of arguing appeals to “you and I, here and now” (Law of Peoples 30, 32).

Brian E. Butler