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REINTERPRETING RAWLS'S THE LAW OF PEOPLES*

Published online by Cambridge University Press:  14 December 2011

Christopher Heath Wellman
Christopher Heath Wellman
Affiliation:
Philosophy, Washington University and Centre for Applied Philosophy and Public Ethics, Charles Sturt University
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Abstract

In this article I argue that critics of John Rawls's The Law of Peoples wrongly presume that Rawls sought to offer a comprehensive theory of global justice, when he meant more minimally to respond to a specific practical problem: “How can we eliminate the great evils of human history?” I concede that my reading is not uniformly supported by all aspects of the text, but The Law of Peoples is a rich and complex work that does not univocally recommend any single reading, and my construal squares with Rawls's own description of the project. More importantly, my interpretation is recommended by the principle of charity, insofar as it provides Rawls with plausible responses to the commonly-voiced objections. In other words, if Rawls is understood as offering a comprehensive theory of global justice, then many of the standard criticisms appear quite damning. But if his aim is the more modest one of recommending how liberal (and decent) societies might permissibly organize their foreign policies so as to help eliminate unjust war, oppression, religious persecution and the denial of liberty of conscience, starvation, poverty, genocide and mass murder, then Rawls's book is not problematic in the ways that so many have supposed.

Type
Research Article
Information
Social Philosophy and Policy , Volume 29 , Issue 1 , January 2012 , pp. 213 - 232
Copyright
Copyright © Social Philosophy and Policy Foundation 2012

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Footnotes

*

I am grateful to Andrew Altman, Thomas Pogge, Carl Wellman and especially Leif Wenar for generously commenting on an earlier version of this paper. I am also indebted to the other contributors to this volume, and to Ellen Paul for her many helpful suggestions for revision.

References

1 Rawls, John, A Theory of Justice (TJ) (Cambridge, MA: Harvard University Press, 1971)CrossRefGoogle Scholar. One of the most common early mistakes was the failure to appreciate that Rawls's analysis was institutional, rather than interactional. In particular, not everyone understood that the difference principle is meant to shape the basic structure of society, not each of our individual interactions therein.

2 Rawls, John, Political Liberalism (PL) (rev. ed.; Cambridge, MA: Harvard University Press, 1999)Google Scholar. On this interpretation, see Estlund, David, “The Survival of Egalitarian Justice in John Rawls' Political Liberalism,” The Journal of Political Philosophy 4, no. 1 (1996): 68–78CrossRefGoogle Scholar.

3 Rawls, John, The Law of Peoples (LP) (Cambridge, MA: Harvard University Press, 1999)Google Scholar.

4 In my view, the best way to think of Rawls's use of the term “people” is to understand a people as occupying the same relationship to a state as an individual with the two moral powers occupies in relationship to a person in Rawls's work on domestic justice and legitimacy. (An individual possesses the two moral powers if she has “a capacity for a sense of justice and for a conception of the good” [PL, p. 19]). I should acknowledge, though, that this reading is in tension with his note 45 on page 38 of LP, where Rawls apparently considers blacks in the Antebellum South to be a people, despite the fact that they lacked their own state.

5 Rawls uses the example of a decent hierarchical society, but presumably there could be decent nonhierarchical societies that nonetheless were illiberal and/or undemocratic.

6 My list of objections draws heavily upon the following articles: Beitz, Charles, “Rawls's Law of Peoples,” Ethics 110, no. 4 (2000): 669–96CrossRefGoogle Scholar; Buchanan, Allen, “Rawls's Law of Peoples: Rules for a Vanished Westphalian World,” Ethics 110, no. 4 (2000): 697–721CrossRefGoogle Scholar; Caney, Simon, “Cosmopolitanism and the Law of Peoples,” Journal of Political Philosophy 10, no. 1 (2002): 95–123CrossRefGoogle Scholar; Kuper, Andrew, “Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons,” Political Theory 28, no. 5 (2000): 640–75CrossRefGoogle Scholar; Moellendorf, Darrel, “Constructing the Law of Peoples,” Pacific Philosophical Quarterly 77 (1996): 132–54CrossRefGoogle Scholar; Pogge, Thomas, “An Egalitarian Law of Peoples,” Philosophy and Public Affairs 23, no. 3 (1994): 195–224CrossRefGoogle Scholar; Tan, Kok-Chor, “Liberal Toleration in Rawls's Law of Peoples,” Ethics 108, no. 2 (1998): 276–95CrossRefGoogle Scholar; and Tesón, Fernando R., “The Rawlsian Theory of International Law” in his book A Philosophy of International Law (Boulder, CO: Westview, 1998)Google Scholar.

7 Thomas Pogge, “An Egalitarian Law of Peoples,” 210.

8 Kok-Chor Tan, “Liberal Toleration in Rawls's Law of Peoples,” 283. Simon Caney shares Tan's worry: “Rawls's argument presupposes an unsustainable contrast between domestic and global contexts. His defence of neutral principles of justice in Political Liberalism (and his requirement that these be applied to non-liberal peoples) clashes with his defence of the Law of Peoples (and his refusal to apply the very same liberal values to the very same non-liberal peoples)” in his article, “Cosmopolitanism and the Law of Peoples,” 107.

9 Fernando R. Tesón, “The Rawlsian Theory of International Law,” 121.

10 Charles Beitz, “Rawls's Law of Peoples,” 685.

11 Thomas Pogge, “An Egalitarian Law of Peoples,” 212.

12 Allen Buchanan, “Rawls's Law of Peoples: Rules for a Vanished Westphalian World,” 716.

13 Witness the atrocities that tragically occurred during the violent disintegration of the former Yugoslavia, for instance.

14 It should be noted that not everyone is sanguine about either of these proposals. For a discussion of the potentially negative consequences of relaxing the international legal restrictions on armed intervention, for instance, see my article (coauthored with Andrew Altman), “From Humanitarian Intervention to Assassination: Human Rights and Political Violence,” Ethics 118, no. 2 (2008): 228–57CrossRefGoogle Scholar.

15 In calling Rawls's views in LP surprisingly “conservative,” I mean to emphasize that they are both less ambitious and less egalitarian than students of his earlier work would have predicted.

16 Fernando R. Tesón, “The Rawlsian Theory of International Law,” 121. In quoting Tesón in this context, I do not intend to portray him as a liberal egalitarian.

17 Reidy, David A. defends this proposal in “Rawls on International Justice: A Defense,” Political Theory, vol. 32, no. 3 (June, 2004): 291–319CrossRefGoogle Scholar.

18 Thomas E. Hill, Jr. suggested this possibility to me in conversation. I do not know that he would describe it precisely as I do here.

19 Although Kok-Chor Tan speaks (on page 279) of Rawls arriving at “the global principles of justice,” I understand Tan to interpret LP this way in his article, “Liberal Toleration in Rawls's Law of Peoples.” Wenar, Leif also affirms this general approach in his excellent essay, “The Unity of Rawls's Work,” The Journal of Moral Philosophy 1, no. 3 (2004): 265–75CrossRefGoogle Scholar.

20 I cannot claim that Leif Wenar would embrace the details of the following account, but it should be noted that he highlights the importance of the “great evils” quote in his entry on Rawls for the Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/rawls. Of those accounts in the literature with which I am familiar, my emphasis on the limits of Rawls's ambitions in LP is most reminiscent of Samuel Freeman's insistence that “The Law of Peoples is not a general theory of global justice that is designed to address all of the problems that arise in the contemporary world. Rather, it is set forth as part of political liberalism, to provide principles of foreign policy for a well-ordered society.” (“The Law of Peoples, Social Cooperation, Human Rights and Distributive Justice,” in Paul, Ellen Frankel, Miller, Fred D. Jr., and Paul, Jeffrey, eds., Justice and Global Politics [Cambridge: Cambridge University Press, 2006], 29–68, at 33CrossRefGoogle Scholar.) Still, there are elements of Freeman's account about which I am skeptical (e.g., the emphasis he places on the fact that Rawls is doing ideal theory and the importance of the putative qualitative difference between a society's basic structure and the global basic structure), and there is ample reason to think that Freeman would distance himself from much of what I say here.

21 On (1), which Rawls labels the “liberal principle of legitimacy,” Rawls writes: “Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.” (PL, 137)

22 Reidy develops this response in “Rawls on International Justice: A Defense.”

23 While Rawls by no means fastens upon the importance of the global basic structure, he certainly seems to acknowledge it. As Leif Wenar has emphasized in personal correspondence, Rawls repeatedly refers to the global basic structure in LP on pages 33, 62, 114, 115, 122, and 123. For an interesting interpretation of Rawls's take on the existence (but relative insignificance) of the global basic structure, see Samuel Freeman, “The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice, especially pages 39–41.

24 As Thomas Pogge has pointed out to me, there is a sense in which this interpretation is decidedly uncharitable to Rawls, because if Rawls's project in LP is really as I speculate here, then it seems uncharitable to think that he could not have articulated this more clearly than he did.