Rawls and the Responsibility to Protect: Distributive Justice in Human Rights

Domenic Siravo

Dr. Taylor

Senior Thesis

04 May 2012

Sir Isaiah Berlin wrote “it may be that, without the pressure of social forces, political

ideas are stillborn: what is certain is that these forces, unless they clothe themselves in ideas,

remain blind and undirected”.1 Berlin’s elegant description of political ideas acts as a comment

on the need for philosophers to take relevant political conceptions seriously and to not avoid

them despite their ostensible inability to fit into the currently popular analytic tradition. In times

of sensationalized political movements or political paradigmatic shifts, it may be that only those

who are trained to think critically are able to effectively criticize or curtail the political thoughts

that create historic political realities like war or insurrection that often result in violence and

death. When philosophers today look at pressing world issues like the civil strife in Libya and

more recently in Syria, they should not only take into consideration the moral or ethical problems

surrounding these issues but also the political ideas prevalent in the response of the international

community. It is a rather uncontroversial opinion to argue that a political idea which promotes

the mass killing of citizens by their own state should not be endorsed as a an ideal principle of a

political theory, though what is less obvious is how the international community should respond

to these situations and how philosophers should view the political and moral ideas embedded in

these potential solutions.

One such political idea that has been put forward is the emerging international norm, or

set of principles and standards of behavior, known as the “Responsibility to Protect”.2 This norm

suggests that sovereignty is not a right but a responsibility of governments and that if countries

fail to protect their citizens from egregious violations of human rights the international

community should intervene to protect these victims. While it is not the sole aim of the

responsibility, the act of humanitarian intervention is conditionally legitimized by the report and

1 Berlin, I. (1958) “Two Concepts of Liberty.” In Isaiah Berlin (1969) Four Essays on Liberty.Oxford: Oxford University Press.2 ICISS Reponsibility to Protect

thus the security of citizens, through various enforcement mechanisms, may be enforced upon

unwilling nations by international organizations and other countries. This poses numerous

political and economic pragmatic implications that are frequently at the center of policy debates,

however it concurrently raises several philosophical implications as well that should not go

unnoticed if Berlin’s assertions holds any value. An issue of considerable philosophical import is

if this new norm is grounded in a reasonable and compelling theory of justice, especially in its

call for forms of security to be distributed from states to another state even if they are opposed in

doing so. This particular issue is a matter that in part falls under the philosophical jurisdiction of

distributive justice since one must consider if this is a just or right way of allocating this good in

a global society.

In this paper I defend the emerging international norm of the “Responsibility to Protect”

by turning to the concepts of distributive justice in Rawls’ A Law of Peoples. I argue that the

limited type of distributive justice in the law of peoples effectively justifies the distribution of

security for humanitarian intervention without needing a worldwide overlapping consensus or a

global adherence to liberal principles of distributive justice. The Responsibility to Protect is a

theory that reflects the compelling portions of Rawls general theory of justice while also being

able to avoid the philosophical baggage that accompanies the ideological political principles that

persist in Rawls’ specific liberal conception. Ultimately the principles of justice in the norm and

the law of people justify intervention without leading to a centralized global government or an

unjust expansion of governmental power.

What is “The Responsibility to Protect” ?

The Responsibility to Protect (R2P) emerged as a legal norm that has swiftly been

endorsed extensively throughout the United Nations and international political community. Its

conception dates back to 2001 when the International Commission on Intervention and State

Sovereignty (ICISS) developed the conception of responsibility in its report named The

Responsibility to Protect. The central theme of the R2P report was “the idea that sovereign

states have a responsibility to protect their own citizens from avoidable catastrophe…but that

when they are unwilling or unable to do so, that the responsibility must be borne by the broader

community of states”.3 The Westphalian conception of sovereignty as an inherent privilege of the

state was thus shifted to be a responsibility that must be upheld by the state, and if the state

abandons this responsibility then it is yielded, along with the principle of non-intervention, to the

international community. 4 The international community is then charged with protecting citizens

using enforcement measures with the use of force as being a last result.

The central ideas of the report were adopted by member states of the United Nations

General Assembly when the 2005 World Summit Outcome Document referenced the major

principles of the original concept and outlined R2P’s scope by proclaiming that the protection

against "genocide, war crimes, ethnic cleansing and crimes against humanity" is first and

foremost left up to the State, but that regional and international organizations must also provide

assistance and step in if states fail at protecting citizens against these atrocities5. Importantly the

four crimes listed are all violations of the personal security of individuals, and thus the onus for

intervention on the international community is focused on the doling out of security for these

individuals. The UN Security Council formalized their support for the concept in 2006 with a

resolution on the protection of civilians in armed conflict6 and in 2009 Secretary-General Ban

Ki-moon ushered forth a report named "Implementing the Responsibility to Protect” which

3 ICISS Report- The Responsibility to Protect 2001 VIII4 Peace of Westphalia 16485 2005 World Summit Outcomehttp://www.who.int/hiv/universalaccess2010/worldsummit.pdf

6 Resolution 1674

outlined his support of the norm and possible ways it can be enforced in the international

community. 7

The purpose of this paper is not to analyze the detailed contents of the ICISS report and

the subsequent UN documents, the pragmatic policy recommendations made in the documents,

or the way the norm will be implemented in international law by specific international or non-

governmental bodies. Nor is this meant to be a political critique on the pragmatic merits of

humanitarian intervention or a contribution to the ever growing debate surrounding international

relations and the concept of sovereignty. Rather my aim is to look at the R2P norm on a more

theoretical level and to see if it’s main principles can be considered to be grounded in a

philosophically convincing conception of distributive justice. Since R2P requires the

international community to essentially be a sort of provider of last resort in regard to the good of

security, even in the limited sense of just protection against atrocities, theoretic issues of

distribution should be addressed. Accordingly I will not to go into too much detail about the

specific policies of the report, but I will focus on the central theme of R2P and will be looking at

these chief objectives throughout this essay, especially the most philosophically intriguing notion

of justifying humanitarian intervention and the distribution of security.

II. The Responsibility to Protect and Rawls’ theories of justice

A norm which aims at preventing and ending mass human rights atrocities may appear

prima facie to be intuitively attractive for all shades of theories in political philosophy, yet the

“Responsibility to Protect” is for the most part is considered to be a product of the liberal

conception. Thus, when assessing the international political conception of justice that is

7 Follow-up to the outcome of the Millennium Summit “Implementing the responsibility to protect” http://globalr2p.org/pdf/SGR2PEng.pdf

embedded in the policy of R2P, it is fitting to turn to the thinker who honed the focus of

liberalism towards developing a theory of social justice, John Rawls. In Rawls’ A Theory of

Justice, he constructs a conception of justice which, while following in the tradition of

contractualism, aims at providing a criterion for determining the basic institutional framework of

society to which all reasonable citizens would rationally agree. Rawls propose two principles of

justice that would be agreed upon by rational and free peoples and make up what he calls “justice

as fairness”:

(1) each person is to have an equal right to the most extensive scheme of basic

liberty of equal basic liberties and (2) social and economic inequalities are to be

arranged so that they are both reasonably expected to be to everyone’s advantage

(the difference principle) and attached to positions and offices open to all (the fair

equal opportunity principle).8

However Rawls’ conception of justice was developed with a certain type of ideal society in mind

which involved a liberal democratic citizenship that existed in a self-contained system. The

above principles are ideals of Rawls’ political liberalism, and reflect how the basic institutional

framework constitutional democratic society should deal with issues of inequality and

distribution. Consequently Rawls’ theory was applicable only to domestic institutions in a closed

society, and for this reason it may seem odd to evaluate R2P by looking at Rawls’ theories of

domestic justice. Yet Rawls, along with many scholars who were influenced by his eminent

ideas, realized that his theory could possibly be broadened to a global level.

If Rawls had truly established a just criterion that allows citizens of the liberal society to

choose among possible institutional alternatives through consensus, and if we now expand the

8 Theory of Justice 53 –original quote does not include words in parentheses

philosophical undertakings of Rawls’ theory to a broader level, then the ensuing step to be taken

after the domestic consensus is achieved consists of addressing how citizens of the liberal society

should measure the justice of the international institutional structure, as well as their society’s

foreign policy towards other states in the global order. Rawls recognizes in A Theory of Justice

that the liberal paradigm urges tolerance of various philosophical, religious and moral

conceptions, and subsequently “a theory of justice must work from its own point of view how

to treat those who dissent from it”.9 In his development of justice as fairness there is never a

discussion of how to handle the injustices between societies, though Rawls suggests that the

societies will have to deal with this in some manner as per his comments on tolerance. Later in

his career, Rawls did eventually address how to extend his conception of justice to the sphere of

international relations and the global institutional framework in his paper “The Law of Peoples”.

By looking at the set of theories that Rawls puts forward to buttress his law of peoples, the merits

of the R2P as a just international theory may perhaps come into sharper focus.

Peoples and the International Basic Structure

Prior to evaluating the essential features of the law of peoples, the scope of the concept

will first be fleshed out in order to crystallize the subject of the theory. This entails observing

what is philosophically intended by the word peoples, or asking who exactly does this political

conception of justice apply to and on what grounds according to Rawls. Rawls purposively does

not use states as his subject for the theory of international justice because he wants to avoid the

conceptual pitfalls of the traditional concept of the state. The Hobbesian style of sovereignty in

the traditional conception of states permits states to do whatever they wish within their own

borders and also to pursue expansionist policies to further their interest. Rawls writes that “a

9 TJ 370

government as the political organization of its peoples is not, as it were, the author of its own

power”10. The power of government is dictated by the political institutions and peoples are

“persons and their dependents seen as a corporate body”11 that are organized by these

institutions. Peoples can be simply understood as referencing societies that are organized by

practices and principles that are guided by some conception of justice. Thus to give no

restrictions to a state’s internal autonomy would be antithetical to the way that Rawls thinks that

principles of justice should be conceived of on a domestic and then an international level. Rawls

is therefore admitting the need for change in the concept of sovereignty much akin to the shift

that is promulgated in the R2P. Additionally since Rawls’ domestic theory of justice is only

applicable to a closed society, questions of war are inconceivable as there would be no other

state in this hypothetical scenario, and thus the law of peoples is necessary is deal with issues

like the war powers of government and other matters of international relations.

It is evident today that most, if not all societies must interact with other external societies

in some manner and require a way to decide on how to handle these relations. The law of peoples

fulfills this need by offering a set of ideas and principles of justice and human rights that peoples,

and the governments that represent them, should abide by. Rawls aim is to create the essential

ground rules for social cooperation in an international context. In Rawls’ domestic conception of

justice social cooperation is necessary for the arrangement of fundamental institutions that he

calls "the basic structure of society” need citation. The concept of justice, which within the

liberal society is justice as fairness, is charged with describing a just arrangement of the

institutions that make up the basic structure. The basic structure is essential in deciding how to

allocate the benefits of social cooperation and thus represents the principles of distributive justice

10 LP 53511 LP 534

that have been adopted by that society. Then the international basic structure is also ordered by

the law of peoples and would therefore convey the principles of a global distributive justice that

are entrenched in the family of concepts. These principles that comprise the law of peoples need

explicating so that the distributive justice issues raised by R2P may be addressed from a

Rawlsian perspective. Rawls explicitly lists principles of the law of peoples that are not a

complete account of the theory but include:

“1. Peoples (as organized by their governments) are free and independent, and their

freedom and independence is to be respected by other peoples.

2. Peoples are equal and parties to their own agreements

3. Peoples have the right of self-defense but no right to war

4. Peoples are to observe a duty of nonintervention.

5. Peoples are to observe treaties and undertakings.

6. Peoples are to observe certain specified restrictions on the conduct of war (assumed

to be in self-defense)

7. Peoples are to honor human rights”

For the relevance of this paper principles fourth and seventh of are the most significant,

as the R2P would require the fourth to in some instances be violated in order to honor the

seventh. Then is R2P contradictory with Rawls’ law of peoples, and going further is Rawls’ own

theory riddled with self-contradictions? Rawls clarifies that this is not the case, by writing that

“obviously a principle such as the fourth---that of nonintervention---will have to be qualified in

the general case. While suitable for a society of what Rawls calls “well-ordered” democratic

peoples who respect human rights, it fails in the case of “disordered societies in which wars and

serious violations of human rights are endemic".12 Distinguishing the types of societies based on

their internal ordering of institutions illuminates the significance of legitimacy for Rawls. What

12 LP 540

is meant by this is that the legitimacy of the domestic institutions in a society is at the foundation

of what is acceptable for terms of social cooperation; terms which enables individuals to live in a

society by forming a social contract and for peoples to interact with other societies. Social

cooperation is not possible in a society if its institutions do not recognize the basic human rights

of citizens, and likewise social cooperation is not possible internationally between peoples that

lack this domestic social cooperation. Thus the obligation of recognizing human rights is a

minimum standard that peoples must meet in order to participate in the law of peoples and

legitimately retain sovereignty.

If societies are to reasonably decide on the obligations and duties that they share they

must have some kind of legitimacy to their own domestic institutions, though we will see they do

not necessarily need to be fully just, and thus the sovereign right of nonintervention could be

forfeited in cases where societies fail to protect their citizens against serious violations of human

rights. This notion is extremely compatible with the tenets of R2P and suggests that within

Rawls’ law of peoples there is at least a minimal conception of distributive justice as the law of

peoples permits sanctions from international institutions against societies that ignore or violate

human rights. However is Rawls suggesting that societies must adopt certain moral

comprehensive doctrines or liberal conception of distributive justice? If so then Rawls’ law of

peoples could prove to be a somewhat unappealing position to defend as the toleration that

Rawls has promoted throughout his theories of justice become meaningless as the enforcement

of cosmopolitan liberal values upon individual societies potentially comes into play. The

meaning and intended usage of the concept of human rights by Rawls and the R2P requires

examination so that these fears, along with others, may be assuaged.

The Role of Human Rights

As the R2P makes normative suggestions in the spirit of protecting human rights

internationally, it is essential to recognize the basis on which these human rights are justified by

both the international norm under scrutiny and Rawls’ own theory. Due to the nebulosity

surrounding the phrase “human rights”, I find that international human rights can primarily be

discussed in two different but wide ranging ways.

The first method is to broach the topic by developing or embracing an account of the

natural origins or moral properties of human rights in general and then using this account to

evaluate the content of policies prevalent in international human rights. The second way of

considering international human rights involves approaching human rights by identifying their

existing role in the international political sphere and the functional relationship they have with

international laws and norms that are put in practice. This interprets human rights to express

basic standards of how human wellbeing should be judged and incorporated into political

institutions, and thus is normatively universal without being founded upon certain ontological

positions. In the former conception of international human rights they are intrinsically tied to the

general philosophical theory of human nature and moral doctrines from which they derive their

authority, and in the latter method human rights are conceived of independently, though not

necessarily detached, from fundamental moral assumptions or natural origins and are defined by

the objects they represent in the international discourse. For instance one who is talking of

human rights can refer to rights that all humans possess because of some natural authority which

is universal to all humans such as God or human reason, or it could be used in a way that refers

to what is known as human rights in the international legal and political system and how states

should minimally treat their citizens. With this distinction established the subject of Rawls’

peoples in his law of peoples may be understood in a more comprehensive and salient fashion

once it is recognized which method Rawls adopts.

The law of peoples is in part an interesting theory because it approaches international

human rights in the second and more pragmatic conception even though it utilizes Rawls’

abstract ideals and theoretical thought experiments to justify them. Rawls made a note of his

choice in terminology by explaining that the phrase the “law of peoples” is meant to be

understood closely to the meaning of ius gentium intra se, or as referring to what the laws of all

peoples had in common.13 This is significant because Rawls is not making a universally

applicable claim in the sense that it is not based on a moral principle that applies to anyone

during any time period who meets the conditions of being a human. This is made clearer when

Rawls states “by law of peoples I mean a political conception of right and justice that applies to

the principles and norms of international law and practice”14. The law is based on consensus in

domestic and international institutions. This practical and political approach to human rights and

justice considers the norms of international discourse and law and subsequently does not depend

on a comprehensive moral doctrine or general first principle based on independent values.

Importantly this practical conception of human rights is not incompatible with a universal

conception of human rights and justice since in a globalized international structure, such as the

one we currently live in, it is rational to assume that each society must have an idea on how it is

related to other societies. Hence a theory describing how societies should justly act in regard to

others can be extended universally to all societies. However, Rawls realizes this was always not

the case as there may have been rare times in human history where societies were self-contained

and international relation did not exist. Regardless, just like Rawls’ theory of justice was meant

13 The Law of Peoples (1993) 114 Ibid 1

for a contemporary democratic society, his law of peoples is written to address the international

order and state of global affairs as it has existed in the modern era.15 Yet Rawls is careful to not

fall into an outright historicist mode of thinking, as he argues that his general liberal conception

of justice is not applicable to only societies with liberal institutions, but that it also would be

accepted by non-liberal societies as well. The arguments that lead Rawls to this conclusion will

be reviewed later in this paper, though it is brought up here to acknowledge that Rawls is putting

forward a conception of human rights that can be universally applied to all persons but is not

contingently tied to an overarching moral doctrine or independent set of values that exist

abstractly from their role in guiding international relations.

The role of human rights according to Rawls is quintessential to his law of persons and

thus also a philosophical justification of R2P. Rawls proposes that human rights “are a special

class of rights designed to play special role in a reasonable law of peoples for the present age”

Rawls 4. He goes on to explicate what this role entails by writing that human rights “specify the

limits on the domestic institutions required of all peoples by that law”.16 That Rawls discusses

human rights in terms of their functionality and role in international law and interstate relations

is evident in these previous statements. Though to what importance does this observation hold

for international distributive justice, and more relevantly for evaluating the merits of R2P?

The first task in providing a suitable reply to this question involves establishing that the

R2P norm treats human rights in the similar way that Rawls does. The Responsibility to Protect’s

overall purpose is to redefine the parameters of sovereignty and set limits to the admissible

action of a society if they are to be considered a just sovereign state. In the original report the

first core principle of the norm is that “state sovereignty implies responsibility, and the primary

15 Ibid 316 Ibid 554

responsibility for the protection of its people lies with the state itself”17. The report attributes its

ability to make this claim as being based in part on the foundation of “specific legal obligations

under human rights and human protection declarations, covenants and treaties, international

humanitarian law and national law”18. While the content of these various international legal

doctrines and intergovernmental documents may be shaped by various concepts of morality, the

R2P norm does not appeal to a grand moral first principle to justify its normative assertions but

instead defers to the practical role of human rights in the international legal schema. The primary

staple of the international human rights canon that R2P relies on most for its notion on human

rights is the Universal Declaration of Human Rights (1948), which the report describes as

embodying “the moral code, political consensus and legal synthesis of human rights”.19 Human

rights are thus constructs of international political and legal consensus that serve to guide the

responsibility of states in their conduct towards members of their society; essentially what Rawls

stated in his law of peoples.

In both the law of peoples and the R2P, human rights are not treated as being necessarily

attached to a first general principle of a moral, religious, or other philosophical source of

authority; though it has yet to be explained how Rawls constructivist view reaches authority.

However in both concepts there exists a theory of justice that can result in the obligation of

respecting human rights to be universally applied to all states. Thus these two premises, (1) that

human rights should be discussed as representations of the legal and political constructs of the

international institutional framework and (2) that the recognition of human rights can be applied

universally to all states, can strengthen the concept of distributive justice within the law of

peoples and R2P in several ways. 17 Responsibility to Protect XI18 Ibid XI19 Ibid 14

The (1) premise allows for the states to decide through consensus, by either working

through the international institutions or deciding on the basic structures from the original

position, on exactly what the good of security or protection applies to. Since R2P holds states to

be responsible for respecting human rights, and if they violate these rights the international

community must distribute the protection via some enforcement method, then basing what these

rights consist of on a moral principle that might only be prevalent in the domestic institutions of

some societies could result in several problems of autonomy and the forcing of a set of values

that could be rationally incompatible with the values of another society. This will be discussed

further when analyzing the constructivist development of Rawls’ law of peoples, but it is

advantageous to keep in mind the benefits of treating human rights in this manner when

proceeding through the analysis of R2P. Additionally in a similar vein the (2) premise prevents

the distribution of the public good to be applied to only certain types of states that meet certain

conditions, which might be the worry for one who considers Rawls’ affinity for the liberal

society. Both the law of peoples and the R2P are meant for all states, at the very least all those

existing in the current era, and thus theoretically all states have an equitable stake in the

distribution of the good of security. This presumes a hypothetical situation where all states are

unaware of their economic or military resources, and this will be addressed when looking at the

global original position that Rawls conjures in his law of peoples.

Rawls conception of human rights and the law of peoples recognize that different

societies have different conceptions of the good and that these should be respected by liberal

societies, and thus an argument may be made that Rawls is committing to cultural relativism.

The danger of endorsing relativism is that one is effectively granting acceptance of anything a

state may do as long as it can show it is central to its conception of the good. This is especially

deleterious for Rawls as he would be sanctioning nonliberal practices and beliefs that contradict

what he promulgates in a liberal society, and by equating the validity of actions of all societies

Rawls effectively abolishes any reason one would have to choose a liberal framework over

another one. Rawls’ international theory of justice could then lead to the downfall of his

domestic justice, but seeing as his international theory is built from the ground up of his

domestic conception, the integrity of Rawls’ arguments would face a severe conceptual

breakdown.

This objection is worrying, but it ignores that Rawls is bringing up the notion of

toleration not just because he is an adherent to relativism, but because he thinks that liberal

societies should not just exclude all other nonliberal societies from their international relations,

nor should they physically coerce all nonliberal states into adopting the liberal conception of a

fully just society. Hence toleration is promoted, but as we will see in more detail when reviewing

the international original position, the toleration only extends to those non-liberal societies which

Rawls labels as "well-ordered"; suggesting that a state's practices and beliefs can be more correct

than another’s according to Rawls. The flaw in the relativism objection is that it equates

tolerance of another society with the assertion that that society is equally just as another society.

If B is a society that is tolerable in terms of the legitimacy of their domestic social institutions,

for example not violating human rights, this does not mean that B is as just as society A which

has liberal institutions that satisfy both of Rawls laws of justice. The mere fact that Rawls makes

the recognition of human rights a necessary condition for a state to be considered in good

standing or as legitimate in the international realm is telling of his commitment to at least

minimal limitations that can be applied globally and are not up for relativist interpretation. His

lack of a moral consensus or doctrine does not mean that he has no universal principles that he

thinks societies should adopt, like his justice as fairness which is heavily based on ideas of

egalitarianism. Rawls constructivism is set on creating a just way to deal with other societies

while recognizing that not every society will be the same, and that a justified international

structure should recognize this fact when determining which laws and norms are just. This is

achieved through the application of the original position for establishing a law of peoples that

gives a minimal form of distributive justice to ensure a basic standard of social cooperation.

Distributive Justice and the limits of Social Cooperation

The law of peoples is thus a conception, or a “family of political concepts”, of justice and

human rights that applies to norms and principles of international law and relations 20. It

establishes the concepts by which these international laws and norms, like R2P, are to be judged.

Yet if this law of peoples is not derived from a comprehensive philosophical or moral doctrine,

then on what basis is this conception formed? Rawls builds this theory by extending the political

constructivist approach that was utilized to determine how the basic structure of a domestic

society should be designed in his A Theory of Justice. The political constructivist approach treats

political norms and conceptions of justice to be indicative of realities and interests of those who

make these judgments. For Rawls, how we choose the basic principles of society is a reflection

of practical reasoning that we employ when we take into account certain matters of fact that are

pertinent to political decisions; such as the fact that there exists a finite source of resources. The

chief mechanism that Rawls uses to illustrate how this constructivist approach works is the

hypothetical situation of the original position that he applies in both A Theory of Justice and then

in A Law of Peoples.

20 LP 536

Rawls postulates the hypothetical question of what would happen if societies had the

chance to deliberate on how the international structure should be structured and what

conceptions of justice they should endorse before they knew what the essential characteristic of

their own societies would be like? The original position is a device that tries to answer this

question by modeling what we would regard as “fair conditions for the parties, as representatives

of free and equal citizens, to specify the terms of cooperation regulating the basic structure of

their society”.21 It is a thought experiment that attempts to discern what terms would be best for

parties in adopting principles of justice in a way that is reasonable and fair, though what is

considered reasonable and fair needs to be clarified. When applied to an international context

then the original position is used to determine the principles of justice that will govern the terms

of cooperation in the basic international structure.

For Rawls’ theory of international justice to be convincing, and subsequently the

argument that it endorses international institution charged with protecting human rights, the

premises of the original position must be equally satisfying. The original position does not

require the presence of societies themselves, but representative of each different people to decide

on these principles and to do so from a veil of ignorance. The purpose of having representatives

is to abstract from characteristics such as the size of the territory and population, the extent of

natural resources and all other economic factors of the society, and the relative strength of the

peoples among many other unknown details which the representatives would not know in the

original position because of this veil of ignorance.22 Rawls also adds that the original position

must meet the conditions of the parties being represented reasonably, rationally, and as making

decisions for appropriate reasons. Representatives are reasonable or fair if each representative is

21 Law of Peoples 53822 Ibid 539

symmetrically situated in the sense they are all starting on a level political playing field with

inherent advantages apparent. They are rational if they aim do the best they can to respect the

interests of the persons they represent. Finally they make decisions based on appropriate reasons

if they consider the restrictions that are in place by the veil of ignorance while aiming to treat

their peoples as free and equal. Note that the last condition is embedded with liberal principles

such as freedom and equality, and this is because Rawls uses the original position to extend the

liberal conception of justice to a broader law of peoples.

Though the original position is hypothetical, it would be of little worth to Rawls if it did

not reflect what might accurately happen in reality. Accordingly Rawls builds his law of people

on the presumption that the theory would originate from what he calls “well-ordered” societies

who have adopted liberal conceptions of justice in the original position.23 Rawls explains that a

well-ordered conception of justice can be considered to be of liberal ideas if it contains: (1) a list

of basic rights, (2) an emphasis on fundamental freedoms “especially with respect to claims of

the general good”, and (3) measures that protect the means for citizens to exercise these

freedoms.24 Thus when a liberal conception of justice is referred to, it is a conception of justice

that respects human rights if they are understood to be protections of basic needs and individual

freedom, which is the way in which they are treated in R2P. Rawls does not go further in

including egalitarian features that would be present in a liberal society according to his justice as

fairness which is another similarity to the minimal approach of the international norm.

Considerably this does not mean that the law of peoples will be extended to only liberal

democratic societies, although that it is likely to come from these societies.

23 Ibid 53724 Ibid 537

Rawls sketches two main stages of the extension of international justice from the

domestic original position: the “ideal” and “the non-ideal” stages. The ideal situation is one

where there only exist two kinds of well-ordered societies in the world, liberal societies and

hierarchical societies. This is a world that is utopic in that it is full of just societies that share

good standing in the international order because their domestic political institutions are well-

ordered; essentially creating a just world. However this utopia is not impractical but is indeed

obtainable according to Rawls and is partly why his law of peoples can be applied more

generally than his justice as fairness for the standards of justice are not contingent upon liberal

principles but minimal limitations of social cooperation. This is exemplified lucidly by Rawls’

development of the law of peoples in the ideal situation.

The law of peoples begins with the application of the original position to representatives

of well-ordered societies. In the case of liberal societies the original position is used to determine

how free and democratic peoples should cooperate with each other, and Rawls argues this will

lead to the eventual formation of the law of peoples. The argument begins in establishing that in

this original position liberal societies are represented reasonably as they are all peoples who are

democratic and whose fundamental interests are in accordance with domestic liberal principles of

justice. As democratic and free society, they must value the political independence of their own

peoples, and thus would not to have political or moral ideas imposed upon them. Then out of

regard to these fundamental interests of a free democratic society, these peoples will naturally

work out the basic terms of social cooperation and recognize certain principles of justice that will

govern this cooperation, like limitations on war and the honoring of human rights which are a

part of the seven principles of justice that were listed in the previous sections. These principles

will aid in ensuring a stable basic institutional framework for an association of democratic

peoples, and Rawls defines stability as when “the institutions and practices among peoples

always more or less satisfy the relevant principles of justice”.25 It is thus in the fundamental

interest of a liberal people to adopt a law of peoples that is shaped by liberal conceptions of

justice so that principles of democracy and political freedom can be respected by fair terms of

social cooperation. This argument is not discussing what global arrangement would be necessary

for an equitable distribution of resources, but only what is necessary for a working system of

international cooperation for these peoples. But if the law of peoples, like the R2P, is applicable

to all peoples then for what reasons would other societies, who adhere to other conceptions of the

good and other moral principles, adopt it?

Besides liberal societies, the other society that Rawls considers in his ideal theory is that

of hierarchical societies. A hierarchical society is “well-ordered and just, often religious in nature

and not characterized by the separation of church and state”.26 The political institutions of these

societies can be organized by the a comprehensive moral or religious doctrine that Rawls aims in

avoiding in his own liberal conception of just, however they must meet certain requirements in

order to be considered well-ordered for Rawls. First the societies must be peaceful and not be

expansionist even if it wishes to spread the influence of its religious or philosophical doctrine.

Secondly the society does not need to be democratic and the political rights of a liberal society

are not necessary, though there must be some consultation hierarchy in place that will look after

the interests of all members of society and apply its conception of the common good to all

people. Finally a well-ordered hierarchical society must respect basic human rights, because if

the expansion of the conception of the common good to all peoples is guaranteed to all peoples,

then all persons are secured minimal rights like the right to life and freedom from slavery. This

25 Ibid 26 Ibid 537

assumes that the comprehensive religious doctrine of well-ordered peoples is not “unreasonable”

in that it allows for a minimum, though not necessarily equal, level of freedom of thought and

conscience to even those who are outside of the religion. 27

Rawls argument proceeds to claim that these conditions are conducive for hierarchical

societies that are well-ordered to adopt the same principles of international justice that liberal

societies would in the original position. This is because the hierarchical societies are ordered

according to their own common conception of justice that in the international original position

would make them be rationally interested in preserving the wellbeing of the society they

represent, and thus principles curbing wars and external aggression would emerge as part of the

basic terms of social cooperation. Additionally even though these societies may endorse social

inequality within their own domestic political institutions, each hierarchical society would want

to be treated equally in the international basic structure and as a result they would be equally

situated in accepting a law of peoples that is based on a liberal conception of justice which

demands the protection of human rights. If a society violates human rights, then they could not

be considered to be in good standing internationally if it is to be believed that their legal and

political system is guided by a common good conception of justice.

Rawls’s account of hierarchical societies is not brought up in this paper with the purpose

of defending the assumptions that he makes in the detailed description of what a well-ordered

form of this society would be like. Rather my aim is to bring into light how Rawls is willing to

accept a society that even though is not internally just, according to the standards of his justice as

fairness, as a part of his ideal and utopic vision of a just international association of peoples.

Rawls is developing his law of peoples to convey the most basic level of justness of domestic

27 Ibid 546

institutions that is required for a society to be in good standing and cooperate with other peoples.

Hierarchical societies may not allow for the political freedoms that are found in liberal

democratic societies, though this does not mean that they lack a rational reason for wanting to

protect the basic human rights of their citizens or wishing to cooperate with other societies for

the advancement of the common conception of justice in their society. Thus hierarchical societies

are less just than liberal societies on a domestic level, but if their internal conception of justice

meets the minimal standards for allowing the development of basic ground rules of social

cooperation then they can adopt the same principles of international justice that liberal societies

would agree on. Ultimately this minimal standard of a society’s good standing in the basic

international structure is measured according to Rawls by the acknowledgement and protection

of the basic needs and security provided to a citizen, which is expressed by Rawls and the R2P as

honoring human rights. This claim must not be made without providing convincing evidence,

though I suggest that some observations have previously been made that will lead to this

conclusion.

It has already been discussed how Rawls has espoused a political conception of human

rights in which they have a special role in international politics in demarcating the outer

boundaries of acceptable behavior of a domestic society. When this interpretation is joined with

the understanding that Rawls’ law of peoples is intended to express what the limits of basic terms

for international cooperation are, a solid case can be made that Rawls’ had human rights in mind

when discussing the basic terms of social cooperation needed in a legitimate peoples. A society

cannot have a common conception of justice or respect a pluralistic consensus on basic principles

of justice if individuals do not have the right to live or are enslaved. The terms of social

cooperation according to Rawls’ original position include at the very minimum that individuals

are represented in some rational way, and it would thus make little sense if representatives of

individuals agreed on terms that could give basic institutions the power to kill their individual

arbitrarily. While political institutions of a society do not need to adopt egalitarian principles, for

them to have domestic legitimacy with the citizenship in a society and has some level of internal

justice, then protecting basic human rights are a necessary condition for this legitimacy. Rawls

even goes on to claim that when this legitimacy is expanded on a global level, societies will in

some cases have a positive duty of enforcing the recognition of basic human rights in other

peoples in order to move towards this more ideal scenario. This distribution of international

justice is discussed in Rawls’ nonideal theory.

Nonideal theory addresses how the ideal conception of peoples can be achieved in the

world as it is now through policies that are just and politically possible. The first kind of nonideal

situation is what Rawls calls “conditions of noncompliance”, where certain regimes refuse to

acknowledge the law of peoples and thus are not well-ordered as they have lost the legitimacy of

their own basic institutions.28 These societies are referred by Rawls as “outlaws”, and they range

from those governments that have no conception of justice at all to those societies whose

philosophical or religious comprehensive doctrines lead them to recognizing no geographic

bounds to the limits of their authority. These societies are outlaws because they lack permissible

conceptions of justice that shape their legal order. Those that adhere to the law of peoples, what

Rawls dubs “law-abiding societies”, can interact with the outlaw regimes on a modus vivendi

arrangement where peoples “exist in a state of nature” with each other.29 The interaction of law-

abiding societies with outlaw societies is of the most philosophical relevance for this paper, for it

poses how states should deal with those that do not respect human rights and may commit the

28 Ibid 55529 Ibid 556

crimes that are outlawed by the R2P. Rawls writes that law-abiding societies “have a duty to

their own and to one another’s societies and well-being, as well as a duty to the well-being of

peoples subjected to outlaw regimes”.30 Thus a duty of assistance is obligated by societies under

a reasonable of peoples who are to be considered well-ordered and just in the international

system. Rawls explains what is meant by this assistance by saying that the only legitimate

grounds of war against an outlaw society is in self-defense of a well-ordered society and “in

grave cases, of innocent persons subject to outlaw regimes and the protection of their human

right”.31 Rawls has mentioned throughout his theory that violations of human rights may

constitute intervention in grave cases, and here he makes it explicit that peoples may do so when

dealing with noncomplying countries. A reasonable law of peoples treats human rights as

necessary condition of a regimes legitimacy and thus for any kind of conception of justice to take

place in that society they must be upheld by the law. Thus for peoples who have no way of

ordering their institutions according to a rational conception of justice because their basic human

rights and fundamental freedoms are violated by a regime, other peoples have a duty to assist

them through such actions as sanctions and intervention.

Rawls does acknowledge another situation of the nonideal theory that he calls

“unfavorable conditions” which describes how well-ordered peoples should approach societies

that lack the conditions, like resources and political traditions, which make a well-ordered

society possible. Based off of Rawls’ domestic theory of justice as fairness, one would expect his

solution for dealing with the inequalities of resources in an association of peoples by utilizing

such liberal principles of distributive justice such as the familiar difference principle. Yet this

intuition disregards the way in which Rawls has developed his law of peoples so far. Rawls’ law

30 Ibid 55631 Ibid 556

of peoples is more general than his domestic conception of justice as it recognizes that societies

are governed by their own characteristic principle or common conception of justice and that it

would thus go against the spirit of toleration that is necessary in a law of peoples to impose

domestic principles of justice of a liberal society on others. The law of peoples is not concerned

with enforcing that all societies adhere to a certain kind of domestic justice, but just that societies

are well-ordered enough so that the original procedures and situation where the principles of

justice can be agreed on meet a certain minimum level of legitimacy and justness. This original

position cannot be considered just if human rights are violated, and thus well-ordered societies

can help with dealing by these unfavorable conditions by protecting human rights, but by doing

any more they risk the pitfalls of expansionism.

Ultimately Rawls’ law of peoples has led to a philosophical justification of military

intervention if a country commits egregious crimes against human rights by pegging the

protection of human rights to be a minimal standard of legitimacy for a society’s domestic

institutions. Since the goal of well-ordered societies who follow a reasonable law of peoples is to

bring outlaw societies that do not respect human rights to a position where they can become a

well-ordered society, or have the ability to have legitimate social cooperation, then well-ordered

states will participate in the distribution of security for human rights worldwide. Rawls’s theory

of international justice avoids the imposition of liberal principles that are found in his domestic

theory of distributive justice. In fact, the only real form of distributive justice that is in the law of

peoples is in the distributed security for human rights that well-ordered peoples will agree to,

despite lacking an overlapping moral consensus. The law of peoples, like the R2P, does not

require societies to redistribute their resources in the name of liberal principles or impose liberal

moral ideas on different cultures. However in order for societies to be able to agree on the most

basic rules of social cooperation, and subsequently principles of justice, the basic human rights

of their citizens must be protected so that citizens may take charge of the political and social

institutions in a just and reasonable way.

The protection of human rights is a necessary step for the ideal situation to be realized,

and therefore well-ordered societies who wish to move towards Rawls’ utopia, no matter if they

are driven by liberal pluralism or a central moral or religious doctrine, should participate in the

distribution of security to achieve a world full of societies that have legitimate basic institutional

frameworks. Analogously the R2P recognizes that a state cannot be considered a truly sovereign

ruler of its people if the basic institutional framework of its political and legal order ignores

human rights and the fundamental freedom of security that must be held in a functioning social

contract. In both cases peoples, or states, would agree that the establishment of basic human

rights is essential for a reasonable conception of justice to develop in a society. Thus if a

people’s rights are being flagrantly violated, and a world is more just if it is full of societies or

states that are in themselves just at some minimal level than a world full of Rawlsian “outlaws”,

then if Rawls declares that “the basic duty of assistance is not some liberal principle of

distributive justice. Rather it is the ideal conception of the society of peoples itself as consisting

of well-ordered societies”.32 The minimal amount of distributive justice found in the R2P and

Rawls’ law of peoples goes far enough to potentially make the international institutional

framework without exceeding the appropriate bounds

World Government or No Government

Intervention for the purposes of protecting citizens against grievous human rights

violations is justified by the principle of minimal distributive justice in the law of peoples, and

32 Ibid 559

by extension the R2P. However Rawls’ utopic vision of the ideal situation and the R2P’s

reshaping of traditional Hobbesian sovereignty may lead one to worry that the logical

progression of these ideas could lead to a world government where one central authority governs

the lives of everyone around the globe. This worry can cut both ways, as one concern may be

that the theory of minimal distributive justice does not go far enough in protecting human rights,

or it may be argued that is goes too far and exceeds the permissible functions of a just

government.

An interlocutor in this discussion of human rights security may bring up that a proper

protection of human rights and distribution of security requires a strong cosmopolitan approach

of human rights which requires a sufficient central authority to enforce the required protections.

However in the principles of the law of peoples and R2P may fall short in creating a proper

central authority and are too statist in their methodology for settling matters of human rights and

distributive justice. When looking at Rawls, the first concern may be in his original position of

the law of peoples. Why does Rawls start from the creation of the basic framework of a singular

society when indeed he trying to decide on the principles of government for the whole world,

wouldn’t it make more sense to start from a truly global original position where each human has

a representative instead of each society? Rawls spends too much emphasis on states and not on

peoples. If Rawls truly wants to get rid of the arbitrary conditions that give rise to inequality in

the veil of ignorance, then state boundaries should be considered to be just as much as a the

natural lottery of a peoples as things like the amount of resources and population size are. States

may not have ever come into existence if a global original position consistently followed the

purpose of the veil of ignorance in Rawls’ development of domestic justice.

Rawls acknowledges this possible objection and answers that there are conceptual flaws

with the notion of a global original position. This position ignores the world as it is now, and

while state boundaries may be in some ways arbitrary they are still historically speaking apart of

the world and must be considered in this way. Rawls defended his original starting point by

saying “all principles and standards proposed for the law of peoples must, to be feasible, prove

acceptable to the considered and reflective public opinion of peoples and their governments”.33

Rawls’ law of peoples is not meant to recreate the best possible world of all worlds, rather it is

meant to guide current societies in making the existing international instructional structure more

just so that eventually the best possible scenario from this starting point may be reached.

Likewise the R2P may be very narrow in the crimes it protects against, though it is essential for a

minimal approach of distributive justice to be taken when possible military intervention is at

stake. While there are certainly good arguments for why a society should honor other rights like

those dealing with equality, and Rawls would most likely agree with these arguments if they fit

into his liberal justice as fairness, it does not mean that the adoption of these rights by a society

should take place by the enforcement of the international community. Rawls has shown that a

society need not respect the egalitarian individual rights of a liberal society but only honor basic

human rights in order to have an acceptable level of internal justice for social cooperation. The

importance that Rawls’ places in his theory on the role of human rights as a limitation of the

internal autonomy of government should dismiss concerns of his theory being too statist or

allowing the state to have too much power. Additionally the R2P realizes the need to defend

against atrocities like genocide though it should not become a tool for certain states to impose

their own political ideas onto another in the name of distributive justice, and for this reason it

should be tailored as narrowly as possible.

33 Ibid 536

The other major concern of the over extensions of power to the international community

can manifest in two different objections. The first is that the law of peoples and the R2P will

result in a centralized world government that can be despotic and tyrannical in nature. If liberal

countries, or societies, work out a universal law of peoples which constitutes a global association

of peoples and imbues them with the power of intervention into other non-liberal countries or

societies in the name of justice, then why won’t this association strive to amalgamate their own

societies and conception of justice into one coercive world state? The best way to ensure that the

internal institutional frameworks of all societies are just is to make them be under the jurisdiction

of one central authority that can enforce the desired principles. The second objection is that even

if these theories of international justice do not result in a world government, the amount of

distributive justice and the international institutional framework which are being espoused are

still unjust overreaches of governmental powers. The fact that a government of one society can

intervene into another society for reasons that are not based in self-defense should be seen as an

illegitimate extension of what a just government should do. The rights of an individual are

threatened with states band together and decide what is right for people of a certain country

without their direct consent. In this case it may be better to have no form of international social

cooperation or intergovernmental bodies than to extend beyond the minimal functions of a state.

The world government objection is certainly not without merit, as there are serious

problems of autonomy if states were to be abolished in lieu of a global authority that holds all

forms of legitimate coercive power. Nonetheless this worry should not emerge when considering

Rawls’ law of peoples, as he himself acknowledges that “a world government…would be either

a global despotism or a fragile empire torn by frequent civil strife as various regions and people

try to gain political autonomy”.34 Rawls’ decision to forego a truly global original position

dismisses the possibility that the elimination of states would be a result from peoples deliberating

on the law of peoples, as states are in fact the starting point of the law of peoples. Additionally

Rawls follows in Kant’s tradition in concluding that global state-like political and legal

institutions in a federal world government would end up as one concentrated superior power, or

as Kant says “a universal monarchy”, which would curtail essential freedoms and ultimately fail

to maintain peace.

It should be conceded that Rawls never explicitly justifies the reasons he adduces for

claiming that a world government would be despotic, but it is not difficult to construct an

argument for this conclusion based off the main principles he endorses in his law of peoples.

Since the law of peoples is centered on the liberal ideal of toleration and an acknowledgement of

the plurality of interests that exist in differing peoples, it is reasonable for Rawls to view a

unified regime that creates universal laws for all peoples as not being conducive to the toleration

that he holds a crucial aspect of an effectual theory of international social cooperation. In the

same vein the R2P is fixed on not eliminating the concept of state sovereignty but strengthening

it so that it more accurately reflects what the role of a sovereign should be in a rational and just

social contract. The R2P is explicitly minimal in the rights it protects so that the political and

cultural importance of states and their domestic institutions. A world government will not come

from either of these theories alone, though a confederation of societies or international body like

the ones currently in place are permissible.

Even though a world government is not a pertinent concern, one may argue that even the

very limited sense that the R2P and the law of peoples distributes security is too much of a

34 Ibid 539

stretch of state power, as it extends beyond what Nozick and his adherents would call the

minimal state. Nozick’s theories of justice are much too robust to be covered in the scope of this

paper, though a cursory analysis of his thoughts on utopia may lessen the apprehension of

accepting the kind of international structure that Rawls and the R2P are promoting. While Rawls

and Nozick’s theories of domestic distributive justice are for the most part incompatible, their

visions of an international utopia are not that far off and may be in some ways complimentary.

Nozick’s utopia is in actuality a framework for the existence of multiple utopias that come in the

form of a world where states have minimal functions and act in their “night-watchman” capacity.

A night-watchman state is when the state protects individuals from violence, theft, fraud and

breach of contract, and nothing else. According to Nozick this is only morally permissible way

that a state may exist without infringing upon individual freedom and fundamental rights.

Nozick’s utopia is then a world full of night-watchman states where each state is

discouraged from intervening in the affairs of another state as that would be stepping outside the

bounds of morally permissible action. This will be a world where people form voluntary

associations with each other and will exist in the community that best benefits them, and this is

made possible by the limitations of state power and coercion. Nozick realizes that for this world

to exist it will require the nature of almost all currently existing states to change, and that this

“voluntary framework” could justify the need of some kind of central authority or protection

association to be expanded outward so that the freedom and right of nonintervention of the

voluntary communities is protected. Nozick recognizes that the utopian framework relies on

voluntary action and those in the world who benefit from corruption or injustice will not

voluntarily agree to new patterns and will possibly resort to violence to defend their established

privilege. He says that:

We make no assumption that people can be gotten voluntarily to give up

privileged positions based upon illegitimate interventions…nor do we assume that

in the face of permissible voluntary actions of persons refusing any longer to have

their rights violated, those other persons whose illegitimate privileges are

threatened will stand by peacefully.35

Nozick proceeds to insist that while he is knowledgeable of the best possible way

to handle these situations, though he does go on to posit that there might be a role for

some kind of central authority in keeping together the utopian framework and settling

these issues. He explains that the major role of this authority would be:

To enforce the operation of the framework—for example, to prevent some

communities from invading and seizing others, their persons or assets…

furthermore, it will adjudicate in some reasonable fashion conflicts between

communities which cannot be settled by peaceful means.36

There must be some way to ensure or reinforce that the framework is properly in place,

and thus some kind of central authority is needed. Moreover the central apparatus will

resolve any conflicts that emerge between peoples that cannot be solved by peaceful

means. This central authority or protective association is very similar to the limited

distribution of security that is provided in Rawls’ law of peoples and the R2P. The law of

peoples considers a state legitimate only if they reach the night-watchmen state that is

described by Nozick, and this equally true for the R2P. The basic rights that Rawls makes

mandatory for protecting are those of fundamental security that are protected by the R2P

35 Nozick Anarchy, Statue, and Utopia 328

36 Nozick 239-330

and by Nozick’s minimal state. Rawls would certainly disagree with Nozick on what the

powers of a state should be in ideal society, but both agree that a limited state is the

minimum and perhaps preferred requirement for a realistic and just international structure

free of expansionist and internally oppressive states.

Conclusion

The political realities of genocides and mass killings of citizens create a dilemma

in international relations and distributive justice. Societies must face whether people

whose very right to life is denied to the state deserve to be protected by external forces

outside their own state, and if so is it just that other societies should distribute this

security. The emerging norm of the R2P reshapes the traditional Hobbesian conception of

sovereignty by shifting it from a privilege into a responsibility of states. The norm limits

the legitimacy for a state’s permissible bounds of sovereignty via the states

acknowledgement of basic fundamental human rights. It additionally transfers the

responsibility of the protection of people in states that do not respect these rights and

commit grievous actions again their own citizens to the international community as a

whole. This distribution of security is justified by conceptions of international justice that

acknowledge the necessity of marking this limit of legitimacy like Rawls’ law of peoples.

Human rights play an essential role in both concepts, as they are conceived to

play a special role in politics and international law and are essential to the basic terms of

social cooperation. Because respecting basic human rights is a necessary condition for a

reasonable capacity of social cooperation, the protection of human rights thus necessary

for a rational conception of justice to be achieved of that reflects the interests of all

citizens. Consequently the basic security of a person is a requirement of participating in a

just social international system and the law of peoples justifies the distribution of this

security, though in a very limited sense. Therefore the R2P and Rawls’ law of peoples

avoid the philosophically precarious notions that are opposed by those who value

autonomy over more egalitarian concepts of justice and can even be reconciled with

advocates of a minimal state such as Nozick.

The R2P and the law of peoples justify humanitarian intervention without

enforcing a certain moral or philosophical doctrine or even a general overlapping moral

concensus. The R2P ultimately provides for a just distribution of security and principle of

international justice. Philosophers should look on the idea of intervention and other

coercive actions by the international community with great care, as the line between just

actions of international aid and the infringement of a culture or state is certainly a thin

one. Yet when it comes to the R2P, at least in a theoretical level, concerns of an unjust

distribution of security should be put aside.

Works Cited

Nozick, Robert. Anarchy, State, and Utopia. New York: Basic, 1974. Print.

Rawls, John. A Theory of Justice. Cambridge, MA: Belknap of Harvard UP, 1971. Print.

Rawls, John. Collected Papers. Ed. Samuel Richard. Freeman. Cambridge, MA: Harvard UP,

1999. Print.