Rawls’s Law of PeoplesA Realistic Utopia?

Edited by

Rex Martin andDavid A. Reidy

Rawls’s Law of Peoples

I contend that this scenario is realistic – it could and may exist. I say it is alsoutopian and highly desirable because it joins reasonableness and justice with condi-tions enabling citizens to realize their fundamental interests.

John Rawls, The Law of Peoples, p. 7

Rawls’s Law of PeoplesA Realistic Utopia?

Edited by

Rex Martin andDavid A. Reidy

Editorial material and organization © 2006 by Rex Martin and David A. Reidy.Chapter 1 © 2006 by Rex Martin and David A. Reidy; Chapter 2 © 2006 by David Boucher;

Chapter 3 © 2006 by Philip Pettit; Chapter 4 © 2006 by Catherine Audard; Chapter 5 © 2006by Kok-Chor Tan; Chapter 6 © 2006 by Leif Wenar; Chapter 7 © 2006 by Wilfried Hinschand Markus Stepanians; Chapter 8 © 2006 by Alistair M. MacLeod; Chapter 9 © 2006 by

Allen Buchanan; Chapter 10 © 2006 by David A. Reidy; Chapter 11 © 2006 by David Miller;Chapter 12 © 2006 by Thomas Pogge; Chapter 13 © 2006 by Rex Martin; Chapter 14 © 2006by Samuel Freeman; Chapter 15 © 2006 by James W. Nickel; Chapter 16 © 2006 by Alyssa R.

Bernstein; Chapter 17 © 2006 by Andreas Follesdal.

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Rawls’s Law of peoples : a realistic utopia? / edited by Rex Martin and David A. Reidy.p. cm.

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ISBN-10: 1-4051-3531-X (pbk. : alk. paper) 1. Rawls, John, 1921– Law of peoples. 2.International relations – Philosophy. 3. International law – Philosophy. 4. Justice. 5. Human

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Contents

Notes on Contributors x

Preface xv

List of Abbreviations xviii

Part I Background and Structure 1

1. Introduction: Reading Rawls’s The Law of Peoples 3Rex Martin and David A. Reidy

2. Uniting What Right Permits with What Interest Prescribes:Rawls’s Law of Peoples in Context 19

David Boucher

3. Rawls’s Peoples 38Philip Pettit

Part II Cosmopolitanism, Nationalism, andUniversalism: Questions of Priority and Coherence 57

4. Cultural Imperialism and ‘Democratic Peace’ 59Catherine Audard

5. The Problem of Decent Peoples 76Kok-Chor Tan

6. Why Rawls is Not a Cosmopolitan Egalitarian 95Leif Wenar

Part III On Human Rights 115

7. Human Rights as Moral Claim Rights 117Wilfried Hinsch and Markus Stepanians

8. Rawls’s Narrow Doctrine of Human Rights 134Alistair M. Macleod

9. Taking the Human out of Human Rights 150Allen Buchanan

10. Political Authority and Human Rights 169David A. Reidy

Part IV On Global Economic Justice 189

11. Collective Responsibility and International Inequality inThe Law of Peoples 191

David Miller

12. Do Rawls’s Two Theories of Justice Fit Together? 206Thomas Pogge

13. Rawls on International Distributive Economic Justice:Taking a Closer Look 226

Rex Martin

14. Distributive Justice and The Law of Peoples 243Samuel Freeman

Part V On Liberal Democratic Foreign Policy 261

15. Are Human Rights Mainly Implemented by Intervention? 263James W. Nickel

16. A Human Right to Democracy? Legitimacy and Intervention 278Alyssa R. Bernstein

viii Contents

17. Justice, Stability, and Toleration in a Federation ofWell-Ordered Peoples 299

Andreas Follesdal

Index 318

Contents ix

Notes on Contributors

Catherine Audard is a Visiting Fellow at the Philosophy Department of theLondon School of Economics, where she has been teaching moral and politicalphilosophy, as well as continental philosophy, since 1991. She is the Chair of theForum for European Philosophy, based at the European Institute of the LSE. Shehas published translations into French of works by John Stuart Mill and JohnRawls. Her most recent book is Anthologie historique et critique de l’utilitarismein three volumes (1999), and her new book Citoyenneté et pluralisme will bepublished shortly. She is currently writing a book on Rawls.c.audard@lse.ac.uk

Alyssa Bernstein is Assistant Professor of Philosophy at Ohio University. She is apast Fellow of the Carr Center for Human Rights Policy at Harvard University. Asa graduate student at Harvard she worked with Rawls while writing her disserta-tion: “Human Rights Reconceived: A Defense of Rawls’s Law of Peoples.”bernstei@ohio.edu

David Boucher is Professor of Political Theory in the School of European Studies,and Director of the Collingwood and British Idealism Centre, at Cardiff Univer-sity. He has published in the area of international relations theory and politicaltheory. His recent books include Political Theories of International Relations fromThucydides to the Present (1998), British Idealism and Political Theory, co-author(2000), and Political Thinkers, co-editor (2003). He is currently working on thedevelopment of human rights in their legal, philosophical and political guises.boucherde@Cardiff.ac.uk

Allen Buchanan is currently James B. Duke Professor of Public Policy Studiesand Professor of Philosophy at Duke University. His work spans issues in political

philosophy, economics and business, and medical ethics. He is the author ofJustice, Legitimacy, and Self-Determination: Moral Foundations for InternationalLaw (2004) and Secession (1991) among other books, and of numerous articles.Buchanan was the John Medlin, Jr. Senior Fellow at the National HumanitiesCenter (2001–2).buchanan@pps.duke.edu

Andreas Follesdal is Professor and Director of Research at the Norwegian Cen-tre for Human Rights, Faculty of Law, University of Oslo. He received his PhD(1991) in Philosophy from Harvard University, and publishes on issues of inter-national political theory, with a focus on topics of European integration. He isFounding Editor of the series Themes in European Governance.andreas.follesdal@nchr.uio.no

Samuel Freeman is Steven F. Goldstone Term Professor of Philosophy and Lawat the University of Pennsylvania. He has published many articles and chapters inpolitical, moral, and legal philosophy. He edited John Rawls’s Collected Papers(1999) and, more recently, The Cambridge Companion to Rawls (2003). He iscurrently editing Rawls’s Lectures on the History of Political Philosophy, and acollection of his essays on Rawls is forthcoming.sfreeman@sas.upenn.edu

Wilfried Hinsch studied philosophy at the University of Hamburg where hereceived his PhD in 1984. He was a Visiting Fellow at St. John’s College,Cambridge, in 1986 and at Harvard University in 1987 and 1988. He taughtmoral and political philosophy in Münster, Leipzig, and Heidelberg and is cur-rently Professor of Practical Philosophy at the University of the Saarland inSaarbruecken. His books include Erfahrung und Selbstbewusstein (1986), Zur Ideedes politischen Liberalismus (1997), and Gerechtfertigte Ungleichheiten: Grundsätzesozialer Gerechtigkeit (2002).w.hinsch@mx.uni-saarland.de

Alistair Macleod is a graduate of Queen’s University (Canada) and the Univer-sity of Glasgow. He is currently Professor Emeritus and Adjunct Professor ofPhilosophy at Queen’s University, where he was Head of the Department ofPhilosophy from 1986 to 2000. His most recent book is Social Justice, Progress-ive Politics and Taxes (2004); he is the author of numerous articles, mainly insocial and political philosophy, on such topics as liberty, equality, justice, effi-ciency, markets, rights, and rational decision-making.macleoda@post.queensu.ca

Notes on Contributors xi

Rex Martin has held appointments in both the United States and theUnited Kingdom. Currently he is Professor of Philosophy at the Universityof Kansas and Honorary Professor at Cardiff University. He has held a numberof visiting teaching positions, independent research fellowships, and fellowships atresearch centers, most recently a research fellowship at the National HumanitiesCenter in North Carolina (as William C. and Ida Friday Senior Fellow, in2004–5). His most recent books are A System of Rights (1997 in paperback)and a revised edition of R. G. Collingwood’s An Essay on Metaphysics (2002 inpaperback).RexMartin@compuserve.com

David Miller is Professor of Political Theory at the University of Oxford andOfficial Fellow in Social and Political Theory at Nuffield College, Oxford. He isa Fellow of the British Academy. In addition to many articles and chapters inpolitical theory, he is the author of several books, including Social Justice (1976),On Nationality (1995), Principles of Social Justice (1999), and Citizenship andNational Identity (2000).david.miller@nuffield.oxford.ac.uk

James Nickel is Professor of Law and Affiliate Professor of Philosophy at ArizonaState University. He is the author of Making Sense of Human Rights (1987,revised edition forthcoming from Blackwell) and many articles and chapters inpolitical philosophy, human rights, and normative international relations. Hehas held several visiting positions and several research fellowships including aNational Endowment for the Humanities Fellowship, a Rockefeller FoundationHumanities Fellowship, an ACLS Fellowship, and a National Humanities CenterFellowship.james.nickel@asu.edu

Philip Pettit is L. S. Rockefeller University Professor of Politics and HumanValues at Princeton, where he teaches political theory and philosophy. He is theauthor of many articles and numerous books in social and political theory. Hisrecent books include Republicanism: A Theory of Freedom and Government (1997),A Theory of Freedom: From the Psychology to the Politics of Agency (2001), and TheEconomy of Esteem, with Geoffrey Brennan (2004). A collection of his papers,Rules, Reasons, and Norms, was published in 2002, and a collection of collabora-tions with Frank Jackson and Michael Smith, Mind, Morality and Explanation,was published in 2004.ppettit@Princeton.EDU

xii Notes on Contributors

Thomas Pogge, since receiving his PhD in philosophy from Harvard, has beenteaching moral and political philosophy at Columbia University. His recent pub-lications include World Poverty and Human Rights (2002) and the edited vol-umes Global Institutions and Responsibilities (2005) and Real World Justice (2005).He is editor for social and political philosophy for the Stanford Encyclopedia ofPhilosophy and a member of the Norwegian Academy of Science. His work hasbeen supported, most recently, by the MacArthur Foundation, the PrincetonInstitute for Advanced Study, All Souls College, and the National Institutes ofHealth. He is currently a professorial fellow at the Center for Applied Philosophyand Public Ethics at the Australian National University.tp6@columbia.edu

David Reidy is Assistant Professor of Philosophy at the University of Tennessee.He is the author of many articles and chapters in political philosophy and thephilosophy of law and on Rawls in particular. He is the co-editor, with MortimerSellers, of Universal Human Rights: Moral Order in a Divided World (2005) andthe author of On the Philosophy of Law (forthcoming).dreidy@utk.edu

Markus Stepanians studied philosophy at the University of Hamburg and was aVisiting Scholar at Harvard from 1991 to 1993. He received his doctoral degreein Hamburg in 1994. Since 1998 he has taught philosophy at the University ofSaarland in Saarbruecken. He is the author of Frege und Husserl über Urteilenund Denken (1998) and Frege – Eine Einführung (2001). Currently he is prepar-ing a collection of essays on “Rights” as well as a new book, Analysing Rights:A Defence of the Classical View.m.stepanians@mx.uni-saarland.de

Kok-Chor Tan received his PhD in philosophy from the University of Toronto(1998). He is Assistant Professor of Philosophy at the University of Pennsylvania.He is a past Faculty Fellow at the Center for Ethics and the Professions atHarvard University. His area of research is in moral and political philosophy, withspecial interests in issues of global justice, nationalism, and human rights. Inaddition to many articles and chapters, his books include Toleration, Diversity,and Global Justice (2000) and Justice without Borders (2004).kctan@sas.upenn.edu

Leif Wenar received his PhD from Harvard in 1997. Since 2005 he has beenProfessor of Philosophy at the University of Sheffield. His work in political and

Notes on Contributors xiii

legal philosophy has appeared in Philosophy and Public Affairs; Ethics; Mind;Analysis; Politics, Philosophy and Economics; The Columbia Law Review; ThePhilosopher’s Annual, and several edited collections. He has been a fellow atthe Princeton University Center for Human Values, the Murphy Center ofPolitical Economy at Tulane University, and the Carnegie Council on Ethics andInternational Affairs. Previous articles on Rawls include “Political Liberalism: AnInternal Critique” (1995); “The Legitimacy of Peoples” (2002); and “The Unityof Rawls’s Work” (2004).wenar@shef.ac.uk

xiv Notes on Contributors

Preface

Citizens and officials within contemporary liberal democracies face innumerablepractical political problems every day. These include familiar issues of domesticeconomic, educational, cultural, environmental, and social policy. Of course, withinliberal democracies citizens and officials disagree, often reasonably, over thesematters. But their disagreements are, at least when reasonable, typically framedby a generally shared, even if also abstract and indeterminate, liberal and demo-cratic moral vision. This vision makes possible between them a politics of publicreasons.

But what about matters of foreign policy? Citizens and officials within contem-porary liberal democracies daily face the practical political problem of whetherand how to interact as corporate agents, through their states or governments,with individual persons as well as other corporate agents, states and governments,economic corporations, and so on, beyond their borders. Of course, citizens andofficials within liberal democracies, and between them, will again disagree overthese matters. Within and between the United States, France, Denmark, Aus-tralia, Costa Rica, and so on, citizens and officials disagree over many currentmatters of foreign policy. These disagreements often lead to different and some-times conflicting foreign policies between liberal democratic states. This muchis obvious.

What is less obvious is whether and how these disagreements, like thoseover matters of domestic policy, might be aired and resolved by the citizens andofficials of liberal democracies within a politics, domestic and international, ofpublic reasons. In liberal democracies, public discussion of the general principlesof a liberal democratic moral vision has been rather robust for the last severaldecades. But it has been largely an inward-looking discussion focused on mattersof domestic policy.

Only recently has a vigorous public discussion erupted over the general prin-ciples of a liberal democratic moral vision for matters of foreign policy. The 1989transformation of the geopolitical landscape carried in its wake a wide range ofnew foreign policy challenges and opportunities for liberal democracies. These

have perhaps come too fast. Citizens and officials in liberal democracies still findthemselves without much of a shared moral vision, even at the level of abstractand indeterminate general principles, when it comes to matters of foreign policy.Accordingly, disagreements are generally resolved not through a politics of publicreasons, but simply through politics. The suspicion and distrust that follows is asubstantial cost to effective international action, whether unilateral or multilateral.

Meanwhile, the practical political problems of foreign policy faced by liberaldemocracies continue to mount both in number and severity. Desperate povertyaround the world and international terrorism are just the two most obviousproblems. Global environmental degradation, growing economic inequalities,the absence of transparency, stability and nondomination within many globalmarkets, the nonproliferation of nuclear and other weapons of mass destruction,and systemic and regular human rights violations are problems perhaps less visiblebut equally pressing. All these are made more difficult by the fact that they arisewithin a larger context within which liberal democracies must determine how tointeract with states either illiberal or undemocratic or both. And these states area pretty diverse lot. They range from Afghanistan, Brunei and China throughCuba, Iran, Jordan and Nigeria to North Korea, Sudan, Venezuela and Zimbabwe.It’s literally from A to Z.

What moral vision ought to guide the citizens and officials of liberal democraciesas they take on the many practical political problems of foreign relations in aworld that includes all these states? For what kind of world can liberal democraticpeoples reasonably hope, and thus purposefully and rationally work?

These are demanding questions. Among the leading contemporary philoso-phers, John Rawls has attempted to outline an answer to them. In a series ofimportant books he attempted to lay out a moral vision appropriate both toliberal democratic societies and to their place within the international community.Rawls’s overall contribution is so ambitious and so important and his inter-national theory is so contested, even by sympathetic readers, that David A. Reidyand Rex Martin organized two panel sessions: one for the World Congress of theInternational Association for Philosophy of Law and Social Philosophy (IVR) inLund, Sweden, in 2003; the other for the Conference on Global Justice heldin conjunction with the American Philosophical Association, Pacific Division,meeting in Pasadena, California, in 2004.

Because the public response to these sessions was so enthusiastic, a volume ofpapers focusing on Rawls’s international theory, a volume that was both criticaland balanced, seemed a good idea. Such a volume would carry the conversationsbegun in Lund and Pasadena to a much wider audience. Many of the papers fromthese sessions, all of them considerably revised after several drafts, are included inthe present volume. In addition, the volume includes papers from a number ofadditional people – scholars and thinkers who would be numbered among themost distinguished political philosophers and theorists of international relationsand international law working today. Taken together the papers here should serve

xvi Preface

those, beginners and experts alike, working in philosophy, law, political science,international relations, government, and advocacy and with a serious interest inissues of global justice, human rights, and the nature and content of a properliberal democratic foreign policy.

We appreciate the help provided to our editorial efforts by Dusan Galic, DonnaMartin, Walter Riker, and Jeppe von Platz.

David A. Reidy and Rex Martin

Preface xvii

List of Abbreviations usedfor Rawls’s Books

CP John Rawls: Collected Papers

JasF Justice as Fairness: A Restatement

LoP The Law of Peoples

PL Political Liberalism

TJ A Theory of Justice

Full bibliographical details of the books are provided in the notes in each chapter,along with any additional comments individual authors may wish to make regard-ing editions used.

Introduction 1

Part I

Background andStructure

2 Rex Martin and David A. Reidy

Introduction 3

1

Introduction: ReadingRawls’s The Law of Peoples

Rex Martin and David A. Reidy

Background

The post-Second World War international order has not been a peaceable one.However, the great powers for the most part did avoid direct military confronta-tion, and for the last sixty years or so the world has been free of the scourge ofworld war that so troubled the first half of the past century.

After the Second World War a number of important changes occurred in theinternational state system, a system that had, by 1945, been in existence for aboutthree hundred years. Among the most important of these changes were: (1) thegradual but increasing international recognition of human rights; (2) changingattitudes about war (with a growing recognition that wars are justifiable only ina limited number of cases – in self-defense, including collective defense, and, inextreme cases, in the protection of human rights); (3) the establishment anddevelopment of the United Nations and of other supranational organizations, suchas the European Union (EU); and (4) concomitant with these developments, thedemise of colonial rule.

One of the greatest challenges posed by this new international order has beenthat of providing appropriate standards of justice for this emerging system(including, of course, the attempt to characterize and to justify human rights).The theory of political justice developed by John Rawls, whose work has beenenormously influential in the last thirty years or so, has been the source of one ofthe main lines of reflection on developing a solution, or at least the beginnings ofone, to the problem of standards of international justice. However, as we shallsee, there has been a good deal of controversy as to how, exactly, Rawls’s theoryis best to be applied and set out in an international or global context.

4 Rex Martin and David A. Reidy

John Rawls

During the period since the original publication in 1971 of his book A Theoryof Justice, John Rawls (1921–2002) has been the dominant theorist of justice inthe English-speaking world and in much of Western Europe. A Theory of Justicehas been translated into twenty-seven languages, and Rawls has come to have aworldwide audience.1

The heart of A Theory of Justice is Rawls’s idea that two principles of justice arecentral to a liberal and democratic society, arguably to any society: (i) the principleof equal basic rights and liberties; and (ii) a principle of economic justice, whichstresses (a) equality of opportunity and (b) mutual benefit and egalitarianism.This latter principle – of mutual benefit constrained by egalitarianism – Rawlscalls the difference principle; it indicates when differences (inequalities) are accept-able. The difference principle, assuming a continuing conscientious effort at achiev-ing equality of opportunity as backdrop, is designed to reach an optimum goalpoint at which no further mutually improving moves are possible; at this pointthe difference in income and wealth between the topmost and bottom-mostgroups would be minimized, and those least well off would here have theirgreatest benefit (without making any group worse off in the process).

What is distinctive about the arguments Rawls develops for his two principlesof justice is that he represents them as taking place ultimately in an ideal arenafor decision making, which he calls the “original position.” The features of theoriginal position (in particular, the so-called veil of ignorance and the require-ments of publicity and unanimity) taken together provide a setting for structuringthe competition between potential governing principles (for example, the Rawlsiantwo principles versus various forms of utilitarianism) in a fair and objective wayand then for determining a preference, if possible, for one of the candidateprinciples of justice over the others. Rawls maintained in A Theory of Justice thathis two principles of justice not only would be unanimously chosen over alternativesin such an original position, but in time would also be universally or near univer-sally endorsed by real persons in a real society governed by those two principles.

In time, Rawls came to feel considerable dissatisfaction with this approach andhe began to reconfigure his basic theory in new and interesting directions. Rawlsloosened things up in two distinct ways. First, he moved the focus away from hisown two principles and toward a “family” of liberal principles (which included histwo principles as one possible option). And, second, he developed for this familyof principles a background theory for justifying them that did not require peopleto come to any sort of unanimous foundational agreement. In short, peopledidn’t have to hold one and the same basic moral theory or profess one and thesame religion in order for the family of liberal principles to be conclusivelyjustified; rather, the issue of background justification (by moral or religious prin-ciples) could be approached from a number of different angles, and this would

Introduction 5

work out all right, he argued, if a sufficient overlapping consensus developed overtime among such principles. Rawls thought that this new theory (which he devel-oped in his second book, Political Liberalism) solved the main problem he hadseen in his own earlier theory of justice.2 It did so by taking account of the factthat in a free and open society, such as one governed by his two principles, thereis very likely going to be an irreducible and continuing pluralism (a reasonablepluralism, Rawls called it) of ultimate moral and religious beliefs as well as reason-able disagreement over the precise demands of justice itself.

In his third book, The Law of Peoples, Rawls then took this new theory (whichhe called political liberalism, with its important idea of reasonable pluralism) andtried to outline a constructive place for it in the international order that hasemerged since the Second World War.3

History of The Law of Peoples

In his teaching at Harvard Rawls began a course (Spring Term, 1969) on “Prob-lems of War,” which was concerned with issues of jus ad bellum and jus in belloin reference to the Vietnam War, but “the last quarter of this course was cancelleddue a general strike of the Harvard student body.”4 In A Theory of Justice, section58 included a brief discussion of just war and other principles of the “law of nations.”

Rawls says in the Preface to his The Law of Peoples, “Since the late 1980s, I havethought occasionally of developing what I have called ‘The Law of Peoples’. . . In the next years I devoted more time to the topic, and on February 12, 1993– Lincoln’s birthday – I delivered an Oxford Amnesty Lecture entitled ‘The Lawof Peoples’” (LoP: v).5

Two brief asides here are in order. Rawls had included an independent section(called Part VI, about forty pages in typescript) on the Law of Peoples in hisHarvard political philosophy lectures of 1989; this material was not included inthe published version of those lectures.6 And, though it is not widely known,Rawls published under the same title that year another version of his 1993lecture.7 It is described in this second version (Critical Inquiry, p. 36n) as “ex-cerpted from” the Amnesty Lecture; but in fact it is full length and differs onlyslightly, in phrasing and in footnoting, from the better-known Amnesty version.Internal evidences suggest that the Critical Inquiry version is the later of the two,and thus constitutes a slight revision of the better-known version of the AmnestyLecture, published in the book, On Human Rights, edited by Shute and Hurley.

Rawls continued his account, in the Law of Peoples Preface, by saying, “I wasnever satisfied with what I said or did with the published essay” (of 1993).Accordingly, he set to work on what became the book The Law of Peoples. “Thepresent version, completed during 1997–1998 (a rewriting of three seminars Igave at Princeton in April 1995), is fuller and more satisfactory” (see LoP: v, forboth quotes).

6 Rex Martin and David A. Reidy

Rawls’s Law of Peoples

The post-Second World War order, like the international orders that came beforeit, is a world of disparate peoples and of often conflicting and apparently incom-mensurable values; but it also exhibits much more worldwide economic and evenpolitical integration than was ever the case before. One notable example of this isthe widespread human rights culture that has emerged since the UN’s UniversalDeclaration of Human Rights (1948).

The law of peoples, about which Rawls’s third book is written, includes thetraditional international relations view of states – that they are independent andautonomous, have supreme political authority over the respective domestic areasubject to them, exercise control over a particular territory and have responsibilityfor it, can make treaties with other states, and are formally equal with them asmembers of the international state system. (This all adds up to something like theold Westphalian world order, in short.) But the law of peoples adds to thistraditional content certain conditions or constraints on it. These derive from thepost-Second World War settlement (as outlined earlier in this introduction). Themost important are the prohibition on waging war except in self-defense (or incollective defense) and the idea that human rights are to be respected (and evenenforced by international action in the case of grave violations); to this Rawlsadds that nations have a duty to provide economic and development aid to“burdened societies.”

In Rawls’s view both decent liberal democratic societies and what he calls“decent” nonliberal or nondemocratic ones can accept the same international lawof peoples: they can accept the same short list of fundamental human rights, canaccept a policy of nonaggression toward neighbors, and, finally, can accept a dutyto assist societies that are not well ordered, desperately poor societies that are soill ordered that the great bulk of their populations are condemned to extremepoverty, disease, and often early death. This last duty (of assistance to burdenedsocieties), interestingly, was not included in Rawls’s original article version of“The Law of Peoples.”8

The Importance of The Law ofPeoples and its Reception

Rawls’s The Law of Peoples has attracted significant attention for several reasons.The first and most obvious is that it is a carefully set out position on internationaljustice, one intended to guide and inform practical judgment, by perhaps themost important twentieth-century political philosopher in the English-speakingworld. It merits close attention for this reason alone. Nevertheless, this is perhapsthe least compelling reason for the attention it has attracted. A second and more

Introduction 7

compelling reason is that Rawls claims that the book is meant in the first instanceto complete his domestic theory of liberal democratic justice; it is meant to setout the moral principles by which a liberal democratic people is to conduct itsforeign policy. This means that understanding The Law of Peoples is, by Rawls’sown account, vital in understanding his domestic theory of justice, and vice versa.Given the deep and serious interpretive and evaluative debates surrounding Rawls’sdomestic theory of justice, especially as it has developed over time, similar debatesover The Law of Peoples were perhaps inevitable. Rawls himself offers no easyrecipe for resolving such debates, insisting only that any inconsistencies betweenhis theories of international and domestic justice must be resolved in a mannerthat brings the two into equilibrium with one another.

A third compelling reason The Law of Peoples has attracted so much attention isthat it did not meet the already well-developed expectations or predictions ofmany careful readers of Rawls’s earlier works. In the latter half of his seminal1979 book, Political Theory and International Relations, Charles Beitz drew onRawls’s domestic theory of justice to develop what he regarded as a Rawlsianliberal cosmopolitanism, one with radical implications, especially with respect toglobal economic justice. Thomas Pogge’s influential 1989 book, Realizing Rawls,unfolds in its final chapters in a similar spirit.9 Together these books (inter alia)served to generate within the world of political philosophy a strong expectationthat when Rawls did finally speak to issues of global or international justice, hewould deliver something like a globalized or international version of his ownfamiliar domestic theory of liberal democratic justice, complete with a robustconception of human rights and a global or international difference principle toregulate economic inequalities worldwide. Of course, Rawls did not deliver sucha theory of international or global justice at all in The Law of Peoples. And thisproduced much consternation and disappointment in many readers who thoughtthey had correctly understood the structure, spirit, and implications of his earlierwork. That Rawls failed to deliver such a theory in 1999 after receiving significantcriticism on a first article-length draft, published in 1993 and delivered as anOxford Amnesty Lecture, only exacerbated the confusion and disappointmentexperienced by many of his readers, since it left no doubt that Rawls indeedmeant what he said.

A fourth, and for present purposes final, compelling reason Rawls’s The Law ofPeoples has attracted so much attention is that it seeks middle ground on a hotlycontested and deeply divided battlefield. Like Beitz and Pogge, Rawls rejects so-called realism in international relations. But at the same time he endeavors to setout the principles governing a “realistic utopia,” as he calls it, one that takes humannature as we find it. Unlike Beitz and Pogge, Rawls rejects liberal cosmopolitanism.But at the same time he characterizes his theory of international justice as fullyfaithful to liberal democratic commitments and as both universal in scope andobjective in justification. Naturally enough, Rawls’s position has attracted criticsfrom all sides. Some have accused him of endorsing realism with a human face.

8 Rex Martin and David A. Reidy

Others have attacked his view as a kind of dangerously naïve moralism. Somehave seen in his view simply a more tepid version of the overly ambitious liberalcosmopolitanism advanced by Beitz and Pogge. Others have accused him of aretreating to an indefensible relativism (a charge leveled by some critics againsthis second book, Political Liberalism, as well). And, finally, some have seen TheLaw of Peoples as an exercise in liberal imperialism (as a form of old-style colonial-ism). They see it as a present-day incarnation of the Enlightenment project, andas an attempt to impose modern Western values worldwide. Whether the middleground Rawls seeks to occupy exists and whether he in fact successfully articulatesand defends his own position from within it remains a central and divisive issueamong political philosophers working on issues of justice.

For all these reasons, and many others, The Law of Peoples has become some-thing of a North Star, or a series of several moving North Stars, within manydebates central to contemporary political philosophy. In matters of internationaljustice, whatever your understanding of Rawls’s position, and whether you’rewith it or against it, it is one of the pole stars by which you set the course of yourargument.

So The Law of Peoples has already generated or reshaped numerous importantdebates. It is not, as a text, likely to put an end to any of these debates in the nearterm. It is, first of all, a sketchy book; it also presupposes real familiarity withRawls’s domestic theory of justice and is accordingly difficult to interpret. Further,its method, that of political constructivism, challenging enough to philosopherswhen applied to relations between peoples taken as corporate moral agents, isgenerally foreign to many working in traditional international relations theory.Rawls’s commitment to reciprocity, at once substantive and methodological, isalso a source of difficulty. Reciprocity requires, for Rawls, that moral agents beprepared to settle practical issues regarding how they act toward one another interms of principles each might accept from a common human reason. As Rawlsputs it, practical political justification is public justification and public justificationis not simply valid argument from given premises. It is justification addressed toothers; it thus aims at premises and conclusions acceptable to others, as well asoneself, in light of their considered convictions.10 This is, on Rawls’s view, a coreliberal democratic commitment. In Rawls’s view, however, it demands of liberaldemocratic peoples that they act only on principles of international justice accept-able not merely to other liberal democratic peoples but also to decent nonliberalpeoples as well. This has generated significant confusion for many readers sinceRawls appears to be claiming simultaneously, first, that it is unreasonable fromwithin a common human reason for liberal democratic peoples to insist on theliberalization or democratization of other not yet liberal or democratic peoples(even though he regards liberal societies as more reasonable and more just thanmerely decent ones; see LoP: 83), and, second, that it is reasonable from within acommon human reason for liberal democratic peoples to insist on liberal democraticinstitutions internally as binding on their own members (for how else could they

Introduction 9

enforce their own domestic conceptions of justice?). Rawls’s position here is notnecessarily incoherent. But it is complex and difficult.

Political philosophers, theorists of international relations and internationallaw, and others engaged in scholarship and debate over issues of internationaljustice thus find themselves in something of a pickle at present. It is nearlyimpossible to engage in any serious debate over these matters without takinga view with respect to Rawls’s The Law of Peoples. And it is nearly impossibleto arrive at a cogent and well-grounded view merely by reading The Law ofPeoples itself or a small sample of secondary literature. The early secondaryliterature was generally quite dismissive and critical of The Law of Peoples – butoften overly and wrongly so, as even some early critics now admit. The currentsecondary literature is more balanced, with several strong sympathetic voicesrising in defense of Rawls. To the nonexpert and even to some experts, this is allquite confusing.

A collection of original essays, both sympathetic and critical, seemed calledfor. Such a collection needed to be carefully and well balanced in order to engagethe main elements of Rawls’s book The Law of Peoples: its substantive doctrinesof human rights, of global economic justice, and of liberal foreign policy andhumanitarian intervention. It should also be a book that takes account of thehistorical background of The Law of Peoples, its methodology, and its commit-ment to navigating the narrow straits between an overly ambitious (in Rawls’sview) liberal cosmopolitanism and an underambitious (again in Rawls’s view)cultural relativism or international realism – a book, in short, that gives duemeasure to Rawls’s distinctive view of an ideal global order under conditions ofreasonable pluralism.

How the Book is Organized

The essays in this volume are designed to meet this challenge. They are arrangedin five sections. The sections track neither Rawls’s general division in The Law ofPeoples between ideal and nonideal theory, nor his division within ideal theorybetween the law of peoples as binding only between liberal democratic peoplesand as extended to all decent and well-ordered peoples, even those that areneither liberal nor democratic. Instead, the sections track what we suppose to bea standard and sound approach to reading and teaching The Law of Peoples. Issuesof ideal and nonideal theory (and their relationship) are taken up in each sectionas appropriate. So too are issues concerned with how liberal democratic peoplesought to relate to nonliberal and nondemocratic peoples.

The essays in Part I take up general background and methodological issues.David Boucher places Rawls’s approach to international morality in historicalcontext by examining its various relations to the last several centuries of normativetheorizing of international relations. Philip Pettit focuses specifically on Rawls’s

10 Rex Martin and David A. Reidy

social ontology, emphasizing the key notion of a people and its methodologicalcentrality to Rawls’s project in LoP.

The essays in Part II examine Rawls’s internationalism against two classes ofalternatives, the first more starkly local or ethnic or even relativist, the secondmore robustly cosmopolitan. Catherine Audard inquires into whether Rawls’s lawof peoples is little more than old-fashioned Western imperialism repackaged for anew day. Kok-Chor Tan inquires into whether it is not in the end too closelybound up with a nationalist or relativist ideal of toleration in the internationalorder. Leif Wenar defends Rawls’s thinly cosmopolitan internationalism againstthe charge that it is not cosmopolitan enough.

Parts III and IV take up Rawls’s positions in LoP on human rights and onglobal economic justice. Wilfried Hinsch and Markus Stepanians begin Part IIIwith a sympathetic and careful reconstruction of Rawls’s doctrine of humanrights. Alistair Macleod challenges Rawls’s human rights minimalism, arguingthat it is not consistent with his domestic commitments to liberal democraticjustice. Allen Buchanan surveys several arguments suggested or given by Rawlsfor his human rights minimalism and concludes that it cannot be justified; it issimply the unhappy result of Rawls trying too hard to avoid charges of Westernimperialism or parochialism. David Reidy draws Part III to a close by followingup on some suggestive references by Rawls regarding political authority andarguing that Rawls’s human rights minimalism is both justified and consistentwith more robustly liberal democratic commitments regarding domestic justice.

With respect to global economic justice, the essays in Part IV all affirm andemphasize the substantial demands imposed by Rawls’s duty of assistance. The mainpoint of contention concerns not Rawls’s commitment to a global economicminimum, but rather his lack of commitment to a global difference principle orany other substantial distributional constraint on international or transnationaleconomic inequalities. David Miller begins this section with a general, if not yetconclusive, defense of Rawls’s position regarding the collective responsibility ofwell-ordered peoples for their own levels of wealth. Thomas Pogge rejects Rawls’spermissive stance toward global economic inequalities and the explanatory na-tionalism upon which it apparently rests. Rex Martin carefully reconstructs andsharply criticizes the arguments Rawls gives in The Law of Peoples against a globaldifference principle, though he does not himself endorse a global differenceprinciple. And Samuel Freeman brings the section to conclusion by arguing thatadvocates of a global difference principle misunderstand the nature of both Rawls’sdomestic difference principle and the international economic order to which it ispurportedly to be extended.

The volume closes, in Part V, with a more focused discussion of the implicationsof Rawls’s The Law of Peoples for the foreign policies of, and the contemporarypractice of international relations by, liberal democratic peoples. Jim Nickel arguesthat by virtue of adopting an overly simplistic account of toleration and interven-tion Rawls missed an opportunity to inform and guide the ongoing development