G. John Rawls: The Law of Peoples
Previous section: F. John Rawls: Political Liberalism
This entry discusses John Rawls’s extension of political liberalism to international relations. It first describes Rawls’s approach to and understanding of the political morality of international relations and moral foundations of international law, or, as he puts it, the law of peoples. It then explains Rawls’s
I. The (First) International Original Position: Liberal Democratic Peoples and the Law of Peoples
Suppose the world contains one or more reasonably just constitutional liberal democracies. How ought they interact with one another? How ought they interact with nonliberal or nondemocratic polities? What moral principles ought to guide their foreign policies, their treaty-making, their conventional international practices? This is the question Rawls addresses in The Law of Peoples. Justice as fairness remains incomplete until this question is satisfactorily addressed. A well-ordered constitutional liberal democracy must prove capable of sustaining its well-orderedness without betraying its own fundamental commitments in its foreign policy. Rawls addresses this question, at least in the first instance, as a matter of ideal theory, that is, under the assumption of favorable, but not impossible, background conditions. The most important of these assumptions is that there are on the global stage only well-ordered polities.
A just constitutional liberal democracy is a well-ordered polity. And a well-ordered polity is a kind of corporate person, a “people” to use Rawls’s terminology. It has a body (territory, institutional structure) and particular identity. It is rational: it can form for itself (through the activity of its officials within appropriate institutions) a conception of its own good and it can identify and take effective steps toward realizing that good. And it is reasonable: it is prepared and able in so doing to act always subject to publicly justifiable principles, and it is not aggressive in its relations with other well-ordered polities.
What moral principles ought liberal democratic peoples to honor in their interactions with other liberal democratic peoples? Here Rawls again makes use of the original position device. Suppose agents in an international original position behind a veil of ignorance. Each agent represents a liberal democratic people. But each knows nothing about the particular identity (size of territory, level of wealth and development, and so on) of the people it represents. It knows only that it represents a liberal democratic people. Concerned to advance only the fundamental interests of the peoples they represent, these agents must arrive at a unanimous agreement over principles to govern their cooperative undertakings and other interactions.
But what are these fundamental interests? Well-ordered liberal democratic peoples have fundamental interests in securing their territorial integrity, their political independence, their reasonably just institutions (through which their citizens fairly or reciprocally secure their fundamental interests for one another), their free civic culture and diverse civil society, and their self-respect as a people. They have no fundamental interest in indefinite economic growth or wealth accumulation. Moved by these interests, agents in an international original position representing liberal democratic peoples would agree to at least eight principles. These principles express roughly the now nearly fully realized post-WWII settlement within international law. They recognize each well-ordered people as free, independent and equal. They affirm the principle that treaties and other voluntary undertakings are to be kept. They commit well-ordered peoples to basic human rights, to non-intervention, and to war only in self-defense (and then only subject to the traditional requirements of jus in bellum, including the guarantee of civilian immunity except in cases of “supreme emergency”). And, finally, they require well-ordered peoples to assist societies unable to achieve well-orderedness (through no fault of their own) to constitute themselves as well-ordered.
These principles do not exhaust the law of peoples. They simply constitute its core. The law of peoples also includes principles to govern the forming and regulating of various international associations, setting out standards of free and fair trade, and so on. But these Rawls does not work out in detail.
Rawls accepts that there is a global basic structure and that it is to be governed by the law of peoples. He identifies three existing and morally necessary institutional elements of the global basic structure. The first, analogous to the World Trade Organization, will insure free and fair trade between peoples. The second, analogous to the World Bank and International Monetary Fund, will provide an international banking system from which peoples might borrow and insure the stability of currencies within international markets. The third, analogous to the United Nations, will provide a regular confederative forum for diplomacy and the coordination of assistance to burdened societies unable to secure well-orderedness on their own. Of course, additional international organizations consistent with the law of peoples are permitted and can be expected as well-ordered peoples voluntarily cooperate over time. Rawls rejects the idea of a unitary world state or government. Taken together and in dynamic relationship one to another, well-ordered polities and their various associations constitute the international basic structure. This is a basic structure that spans the globe. It is in that sense a global basic structure. It is not a global basic structure in the way a the basic structure of a global state would be.
Rawls develops all of the foregoing solely within the context of well-ordered liberal democratic peoples interacting on the global stage with other well-ordered liberal democratic peoples. But what about nonliberal or nondemocratic peoples? How ought liberal democratic peoples interact with them? Because Rawls thinks it is at least possible that there could be a well-ordered but nonliberal or nondemocratic people, this is a question that must be addressed as a matter of ideal theory. Those who think that a nonliberal or nondemocratic people is necessarily not well-ordered will think it a question to be addressed as a matter of non-ideal theory.
II. The (Second) International Original Position: Decent Peoples and the Law of Peoples
Rawls holds that it is possible for a nonliberal and/or nondemocratic people to be well-ordered. To be well-ordered, a polity must institutionally embody a publicly known conception of justice aimed minimally at the common good of all its members, its officials must publicly and sincerely exercise their authority in accord with that conception of justice, and its citizens must largely voluntarily comply with the laws of their polity as more than a modus vivendi and without undue coercion, excessive policing, secrecy, indoctrination, mass manipulation and so on. A well-ordered polity will respect and honor at least basic human rights (these Rawls identifies as the rights covered in or clearly implied by Articles 3-18 of the Universal Declaration of Human Rights as well the Conventions on Apartheid and Genocide). It will also satisfy the moral core of the rule of law. It will be at least a constitutional republic. It need not be liberal or democratic. A nonliberal or nondemocratic people that is well-ordered is a “decent” people, on Rawls’s terminology.
Like a well-ordered liberal democracy, a well-ordered decent people will be a corporate moral person. It will possess a body (territory, institutional infrastructure), identity (culture, history and so forth), and the moral powers of rationality (to identify and advance its own good) and reasonableness (it is nonaggressive and inclined to act toward others only subject to publicly justifiable principles). As a corporate person, a decent people merits respect and recognition from liberal democratic peoples. And liberal democratic peoples, committed to the ideal of mutual recognition or reciprocity between persons, must interact with it on principles each could reasonably affirm.
Rawls argues that decent peoples could reasonably affirm the same eight principles as liberal democratic peoples, the same core of the law of peoples. To show this he invokes a second international original position within which only decent peoples are represented. Agents therein would agree to the same principles agreed to by agents representing only liberal democratic peoples. It follows that liberal democratic can properly regard those principles as an object of overlapping consensus between them and decent peoples and thus as a reasonable basis for publicly and objectively justifiable judgments of justice and legitimacy between them in the international context. The principles of the law of peoples provide, then, the initial core content of an international public reason. Coercive international action is illegitimate unless authorized through some procedure (even if unilateral decision-making, as perhaps in cases of immediate threats to national security) that could be affirmed by all well-ordered polities from within international public reason. As polities limit themselves to legitimate coercion in international relations and engage in a respectful international politics subject to the law of peoples and its ideal of international public reason, the content of international public reason is likely to develop in breadth, depth, and specificity.
III. International Toleration
Rawls holds that liberal democracies ought to tolerate other decent peoples, regardless of whether they are liberal or democratic. This toleration is to be a toleration of respect, not a begrudging toleration justified only by reference to instrumental or pragmatic considerations. Accordingly, Rawls holds that liberal democracies ought not use any coercive means, even forms of soft coercion such as financial incentives, to advance the cause of liberalizing or democratizing decent peoples. Coercive attempts to liberalize or democratize decent peoples express disrespect. Liberal democracies can advance the cause of liberalization and democratization only through a respectful politics of diplomatic persuasion, including through the force of their own example.
This prima facie paradoxical element of Rawls’s view – liberal democracies have a duty to show respectful tolerance toward decent peoples neither liberal nor democratic – is less peculiar than it might first appear. On Rawls’s view, while decent well-ordered polities are not just, they do satisfy two conditions which, taken together, are sufficient to render them deserving of respectful toleration from liberal democracies. First, they secure the social conditions minimally necessary and sufficient to the moral agency of all their members simply as persons. To be sure, they may fail to secure the social conditions minimally necessary and sufficient to the moral agency of all their members as free and equal persons or citizens. After all, they need be neither liberal nor democratic. But they do not treat any members as less than persons. Second, they embody that degree of reciprocity between rulers and the ruled minimally necessary and sufficient to invest the exercise of political power with at least prima facie moral force. To be sure, that prima facie moral force may be weak. After all, they are not just polities. But it exists. Decent well-ordered polities are not simply systems of brute power or coercion masquerading as systems of right. They are imperfect systems of right. As such, they give rise to moral obligations for those subject to them. Respect for the agency of those subject to them, then, entails respect for their capacity to determine for themselves how to act on, and to balance, their moral obligations.
IV. Political Regimes that are Not Well-Ordered
Rawls identifies three instances of political regimes that fail to achieve well-orderedness. These polities are to be denied the respect and recognition afforded well-ordered polities in the international order. Extending the law of peoples to govern these three cases is a matter of non-ideal theory.
Outlaw states are not well-ordered because they either violate basic human rights, are unreasonably aggressive toward other peoples, or both. Under non-ideal conditions, then, international law must include principles to govern just war, humanitarian interventions, and other forms of coercive international sanction.
Burdened societies are not well-ordered because they are unable without assistance to overcome one or another obstacle on their path to well-orderedness. Under non-ideal conditions, then, international law must include principles to govern humanitarian assistance and political and economic development.
Benevolent absolutisms are not well-ordered because they are ruled not by constitutional officials sincerely acting pursuant to and in accord with a public conception of justice, and thus within the rule of law, but rather by self-appointed rulers acting pursuant to their own private judgments regarding the interests of their subjects or their polity. Regardless of their benevolence, their rule is not part of a well-ordered polity. Benevolent absolutisms have a right to self-defense so long as they honor the most basic of human rights (to subsistence and security, to personal property, to freedom of thought and conscience, including basic religious liberty, and to formal equality under the law) and their members are more or less willing voluntarily to do their part to defend their ruler. They may not coerce their members into defending their ruler (such coercion would be necessarily no more than brute force and thus illegitimate). And they are not entitled to recognition and respect in the international order. Instead, well-ordered peoples afford them only a kind of begrudging toleration.
Under the favorable but not impossible assumptions of ideal theory, all peoples are well-ordered. Still, the everyday politics of international relations in our existing world is largely a matter of non-ideal theory (dealing with outlaw states, burdened societies, and benevolent absolutisms). While we and international law must address these matters of non-ideal theory, we and it ought to address them faithful to the moral North Star given by the realistic utopia of an international society of well-ordered peoples faithful to the law of peoples.
V. No Global Difference Principle
One of the most striking features of Rawls’s law of peoples is that it includes no commitment to anything like a global difference principle as regulative of a just global economy. Instead, Rawls includes in his law of peoples only a commitment to free and fair trade between well-ordered peoples and a duty binding already well-ordered peoples to assist other societies to become themselves well-ordered. The law of peoples imposes no further limits on economic inequalities between peoples. Rawls offers at least two lines of argument in support of his position. First, further limits on economic inequalities between peoples would threaten the self-determination of peoples. No people has a necessary fundamental interest in wealth accumulation or economic growth beyond that necessary to sustain their just institutions. Thus, all peoples should be free to opt for whatever level of wealth and economic growth they like (including a “steady state” economy) once they secure just institutions (along with savings necessary to sustain those institutions in perpetuity). A global difference principle or similarly egalitarian principle of global distributive justice would undermine this freedom. Second, and perhaps more fundamentally, none of the considerations that tell in favor of the difference principle or similarly egalitarian principles in the context of distributive justice within a single liberal democracy apply to the international or global context. Peoples do not stand in the same relationship one to another, or have the same basic interests, as citizens in a liberal democracy. Of course, the law of peoples permits any number of states to voluntarily associate on terms that include something like a difference principle as regulative of economic inequalities between them. The point is that the law of peoples does not require as much. To these two reasons we might add one more. A global difference principle aimed at maximizing the lowest expected ‘lifetime’ share of wealth and income to any representative people presupposes something like a global state capable of establishing and regulating a global currency, legislating for the global economy, enforcing a global tax on all polities, and so on. If there are good reasons to reject the idea of such a state, then there are good reasons to reject a global difference principle. Of course, none of this constitutes a defense of the status quo. There is no excuse or justification for the failure of presently well-ordered peoples to take more effective steps toward eliminating the great poverty and suffering that plagues so many failed states.
Following section: H. John Rawls: Some Main Lines of Criticism