The law of peoples, social cooperation, human rights, and distributive justice

Social Philosophy and Policy

Volumn 23, Issue 1, 2006, Pages 29-68

  Freeman, Samuel ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 33644912578     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S026505250606002X     Document Type: Review

References (65)

1. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971; revised edition, 1999), cited as TJ in the text. References will be made to the 1999 revised edition.
2. John Rawls, Political Liberalism (New York: Columbia University Press, 1993; paperback edition, 1996);
3. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), cited as PL and LP respectively in the text.
4. Here I have in mind particularly Rawls's last paper, "The Idea of Public Reason Revisited," in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999).
5. For Rawls, the human rights all persons have under the Law of Peoples are a subset of the basic liberties all societies should provide. "Among the human rights are the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to insure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly." Rawls, The Law of Peoples, 65.
6. See Simon Caney, "Cosmopolitanism and the Law of Peoples," The Journal of Political Philosophy 10, no. 1 (March 2002): 95-123, at 102, where he says: "Rawls's schema, thus, allows racial discrimination, the political exclusion of ethnic minorities, the forcible removal of members of some ethnic communities (that is, ethnic cleansing), the reduction of some to just above subsistence whilst other members of that society luxuriate in opulent splendor, and the perpetuation of grossly unequal opportunities and political power." None of these accusations is correct, for these practices are unjust, according to Rawls's principles of justice, wherever they occur. Moreover, some of them violate human rights, and all are difficult, if not impossible, to reconcile with any reasonable common-good conception, which is a condition of decency of peoples.
7. Rawls, The law of Peoples, 117.
8. The idea of "fair distribution" was current among nineteenth-century non-Marxian socialists. Marx himself disdained the French socialists' idea of fair distribution, along with the idea of "equal right," calling them "obsolete verbal rubbish." See Karl Marx, "Critique of the Gotha Program," in Karl Marx: Selected Writings, ed. David McLellan (Oxford: Oxford University Press, 1977), 569.
9. Aristotle distinguished distributive justice from commutative justice, but the term was not used in the contemporary sense. For a discussion, see Samuel Fleishacker, Distributive Justice (Cambridge, MA: Harvard University Press, 2005).
10. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 149.
11. Principle number 8 of the Law of Peoples says: "Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime" (LP, 37).
12. As a gloss upon this principle, Rawls says: "Certain provisions will be included for mutual assistance among peoples in times of famine and drought, and, insofar as it is possible, provisions for ensuring that in all reasonable liberal (and decent) societies people's basic needs are met. [Note:] By basic needs I mean roughly those that must be met if citizens are to be in a position to take advantage of the rights, liberties, and opportunities of their society. These needs include economic means as well as institutional rights and freedoms" (LP, 38).
13. Evidently, Rawls does not mean this list to be exclusive, for he says, "Among the human rights are .. ." - after which follows the quotation in the text above.
14. See Charles Beitz, "Rawls's Law of Peoples," Ethics 110 (July 2000): 669-96, at 683-86;
15. and Allen Buchanan, "Rawls's Law of Peoples: Rules for a Vanished Westphalian World," Ethics 110 (July 2000): 697-721, at 718-19 (on Rawls's "rather lean set of individual rights").
16. The two moral powers are a capacity for a sense of justice (to understand, apply, and act from principles of justice) and a capacity for a rational conception of the good (to form, revise, and pursue a rational conception of the good). See Rawls, Political Liberalism, 19, 81, 103-4. Rawls calls these powers, respectively, the capacities to be reasonable and to be rational. They are, in effect, the capacities for practical reasoning as applied to matters of justice, which, Rawls believes, are necessary for social cooperation.
17. See Rawls, Political Liberalism, lecture 8, "The Basic Liberties and Their Priority."
18. Thomas Pogge conjectures that Rawls's account of human rights is based in a concern to accommodate nonliberal peoples' rejection of liberal rights, in the hope that they can at least accept a smaller list of human rights. See Thomas Pogge, "An Egalitarian Law of Peoples," Philosophy and Public Affairs 23, no. 3 (Summer 1994): 195-224. This implies that the Law of Peoples is a modus vivendi between liberal and decent peoples, a claim that Rawls denies. Pogge's interpretation discounts the centrality of social and political cooperation to Rawls's account of human rights, and also to his account of distributive justice. Pogge's interpretation also ignores the fact that human rights are agreed to among liberal peoples themselves, as being among the conditions whose violation is necessary to justify intervention in the affairs of other liberal peoples. If respect for human rights is adequate for the ideal case of a Society of Liberal Peoples, then how can it be a compromise designed to accommodate decent peoples?
19. Cf. Rawls, The Law of Peoples, 17, 28-29:
20. "A difference between liberal peoples and states is that just liberal peoples limit their basic interests as required by the reasonable" (Rawls, The Law of Peoples, ibid., 29).
21. The primary basic institutions that constitute the basic structure of society are the following: the political constitution; the legal system of trials and other legal procedures it supports; the institution of property; markets and the myriad laws and conventions making economic production, exchange, and consumption possible; and the institution of the family, which enables a society to raise and educate children and reproduce itself as an ongoing system over time. See Rawls, A Theory of Justice, 6-7;
22. and Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001), sections 4, 15, and 16.
23. Allen Buchanan asserts this and sees the existence of a global basic structure as sufficient grounds for a global distribution principle. See Buchanan, "Rawls's Law of Peoples," 705. As I argue in the text, this conclusion does not follow.
24. Rawls, Justice as Fairness: A Restatement, 11.
25. See Samuel Scheffler, "Conceptions of Cosmopolitanism," in his Boundaries and Allegiances (Oxford: Oxford University Press, 2001), 116.
26. G. A. Cohen challenges Rawls's reliance on facts in justifying the principles of justice. See G. A. Cohen, "Facts and Principles," Philosophy and Public Affairs 31, no. 3 (Summer 2003): 21.1-45.
27. See, for example, Pogge, "An Egalitarian Law of Peoples," 214-16; K. C. Tan, Toleration, Diversity, and Global Justice (State College, PA: Penn State Press, 2000), 28, 79-80.
28. See Pogge, "An Egalitarian Law of Peoples," 199ff.;
29. and Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979; 2d edition, 1999), 138, 141.
30. Here there is an important point of interpretation. Earlier in section 2.3 of The Law of Peoples, Rawls sets forth four fundamental interests of liberal peoples: "They seek [1] to protect their territory, [2] to ensure the security and safety of their citizens, and [3] to preserve their free political institutions and the liberties and free culture of their civil society. Beyond those interests, a liberal people [4] tries to assure reasonable justice for all its citizens and for all people" (LP, 29).
31. In section 3.3 Rawls adds a further interest, [5] "a people's proper self-respect of themselves as a people" (LP, 34).
32. It is important to my argument above (and, I believe, to Ravvls's argument as well) that a distinction be drawn between the fundamental interests of liberal peoples, and the motivations of their representatives in the original position. It is a fundamental interest of liberal peoples "to assure reasonable justice . . . for all people"; this is what it means for a people to "have a moral nature." But as for the representatives of peoples in the original position, they are not moved by this moral motive. Like the parties to the domestic original position, they are "modeled as rational" in Rawls's sense (LP, 32, 33),
33. which means they are not morally motivated and are indifferent toward the interests of other parties and peoples they do not represent (except insofar as it promotes the fundamental interests of their own people). This motivational assumption of mutual indifference of the parties is necessary for the structure of the original position, in order for it to do the work Rawls assigns to it: namely, to regulate rational judgments (regarding the interests of those one represents) by reasonable constraints (the veil of ignorance and other constraints of right). Nevertheless, the fact that the parties' representatives are modeled as purely rational and indifferent to one another and other peoples does not by any means imply that liberal peoples themselves are purely rational and indifferent. Indeed, Rawls is careful to emphasize in section 9 that what primarily distinguishes peoples from states is that peoples have a moral nature; thus, they are not moved solely by their own interests and are not indifferent to one another, but do seek "to assure reasonable justice ... for all peoples" (LP, 29).
34. The reason this is an important point of interpretation is that, if the parties to the original position were motivated to do justice, not just for their own people, but for all peoples, then this would open the way for the argument that the representatives of liberal peoples should also be concerned that nonliberal peoples accept liberal justice, including all the liberal basic liberties. If so, then liberal peoples would not have reason to tolerate nonliberal decent peoples, at least not for the reasons Rawls suggests. K. C. Tan, among others, has made this argument, and my remarks here are intended as a response to him. See Tan, Toleration, Diversity, and Global justice, chap. 2.
35. Charles Beitz raises considerations along these lines in "Rawls's Law of Peoples," 685.
36. Rawls says, "Liberal and decent peoples have extremely good reasons for their attitude. Outlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways. Otherwise they deeply affect the international climate of power and violence" (LP, 81).
37. Rawls says that for a government to allow its people to starve when starvation is preventable reflects a "lack of concern for human rights" (LP, 109).
38. It is fairly clear that Rawls sees the duty of assistance as providing more than basic means of subsistence for people. He says that the aim of the duty of assistance "is to help a people manage their own affairs reasonably and rationally" (LP, 111),
39. and to help them "to be able to determine the path of their own future for themselves" (LP, 1.18).
40. "When the duty of assistance is fulfilled, and each people has its own liberal or decent government... each people adjusts the significance and importance of the wealth of its own society for itself. If it is not satisfied, it can continue to increase savings, or, if that is not feasible, borrow from other members of the Society of Peoples" (LP, 114). Either alternative assumes that a people is in a position to create wealth well above what is needed to provide means of subsistence for all its members. Here again, the argument cannot be made that Rawls's reliance on a duty of assistance and his rejection of a global distributive principle allows corrupt governments to borrow money and saddle their people with poverty for generations. This criticism, based on contemporary practices by corrupt regimes and their relations with affluent nations, refuses to acknowledge that the Law of Peoples is formulated for the ideal feasible case of well-ordered decent societies governed by a common-good conception of justice. Nothing in the Law of Peoples implies that peoples now should tolerate the exploitation of less-developed peoples either by their own governments or by multinational corporations. Quite the contrary: since the aim of the Law of Peoples is that all peoples should be members of a well-ordered Society of Peoples, the implication is that historical practices of exploitation of one people by another or by private interests should be prohibited, since such practices impede the development and independence of burdened peoples.
41. Here is it important to emphasize that Rawls does not say that people do not deserve their natural talents. This is a common misreading, and it leads to much criticism of Rawls (e.g., claims to the effect that Rawls rejects natural rights to one's own talents and abilities). What Rawls in fact says is that we do not deserve to be "better endowed" than others (TJ, 13), and that "[i]t seems to be one of the fixed points of our considered judgments that no one deserves his place in Hie distribution of natural endowments, any more than one deserves his initial starting place in society" (TJ, 89, emphasis added; see also 274, where Rawls repeats this claim). He means here simply that people do not deserve the differences in natural talent or social position they are born with. No one deserves to be born smarter or richer than anyone else. This seems obvious to Rawls, a "fixed point in our considered judgments" (TJ, 274). It is a very different claim from the one often falsely attributed to Rawls, namely, that no one deserves his or her natural talents.
42. Beitz, Political Theory and International Relations, 139.
43. Beitz, Political Theory and International Relations, Ibid., 141.
44. Here it might be said that these are simply questions of the application of a global resource principle. However, if we accept the publicity condition on principles, then I think that more is involved here than simply the application of a vague principle. Why should representatives of peoples want to accept a principle that inevitably will give rise to interminable disputes among peoples?
45. Beitz, "Rawls's Law of Peoples," 690.
46. Cf. Beitz, Political Theory and International Relations, 137-38.
47. On this issue, see Samuel Scheffler, "What Is Egalitarianism?" Philosophy and Public Affairs 31, no. 1 (Winter 2003): 5-39.
48. For a more general discussion, see Susan Hurley, Justice, Luck, and Knowledge (Cambridge, MA: Harvard University Press, 2003).
49. For example, Thomas Pogge says: "Taken seriously, Rawls's conception of justice will make the life prospects of the globally least advantaged the primary standard for assessing our social institutions." Thomas Pogge, "Rawls and Global Justice," The Canadian journal of Philosophy 18, no. 2 (1988): 227-56, at 233.
50. And Charles Beitz has said: "It seems obvious that an international difference principle applies to persons in the sense that it is the globally least advantaged representative person (or group of persons) whose position is to be maximized." Beitz, Political Theory and International Relations, 152.
51. T. M. Scanion also once suggested that the difference principle should apply globally. See T. M. Scanion,"Rawls' Theory of Justice," in Reading Rawls, ed. Norman Daniels (Palo Alto, CA: Stanford University Press, 1989), 202.
52. Pogge, "An Egalitarian Law of Peoples," 212-13.
53. See also Pogge, "Rawls and Global Justice," where he says that Rawls leaves international economic interactions up to "libertarian rule-making" (250) and that "[t]he economic order of Rawls's utopia... is shaped by free bargaining" (252).
54. I refer. here to Rawls's graphical depiction of the difference principle in A Theory of Justice, sec. 13, figure 6,
55. and in Justice as Fairness: A Restatement, sec. 18, p. 62, figure 1.
56. As K. C. Tan argues: On Rawls's account of distributive justice, "Citizens of disadvantaged countries are collectively held accountable for their country's unsound domestic policies, even when a majority of them had no part in the making of these policies. And this is clearly inconsistent with Rawls's own moral individualism. On Rawls's own reasoning, a person born into a society with poor population control and economic policies cannot be said to deserve her fate any more than another born into more favorable circumstances deserves her[s]. These are mere accidents of birth, and are as morally arbitrary as is being born into wealth or poverty in the domestic context." K. C. Tan, "Critical Notice of John Rawls, The Law of Peoples," Canadian Journal of Philosophy 31 (March 2001): 113-32, at 122.
57. Buchanan, "Rawls's Law of Peoples," 706.
58. Buchanan, "Rawls's Law of Peoples," Ibid.
59. See Pogge, "An Egalitarian Law of Peoples," 213.
60. Pogge further argues against the inequality of wealth allowed by Rawls's account, saying that "[r]elative poverty breeds corruptibility and corruption," and that "[i]t is entirely unrealistic to expect that such foreign-sponsored corruption can be eradicated without reducing the enormous differentials in per capita GNP" (Pogge, "An Egalitarian Law of Peoples," ibid., 213, 214).
61. Cf. Rawls's claim: "It is surely a good for individuals and associations to be attached to their particular culture and to take part in its common public and civic life.... This is no small thing. It argues for preserving significant room for the idea of a people's self-determination" (LP, 111).
62. For a more in-depth discussion of this issue, see my "Distributive Justice and the Law of Peoples," in Envisioning a New International Order: Essays on Rawls's "The Law of Peoples," ed. Rex Martin and David Reidy (Oxford: Basil Blackwell, 2006).
63. See, for example, Justice as Fairness: A Restatement, 176, where Rawls endorses Mill's idea of worker-owned cooperatives as part of a property-owning democracy. On Mill,
64. see also LP, 107n.
65. Rawls, Justice as Fairness: A Restatement, 139.