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Human Rights and Liberal Toleration

Published online by Cambridge University Press:  20 July 2015

David Reidy
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Extract

Jim Nickel has criticized the account of human rights Rawls gives in The Law of Peoples as “ultraminimalist” and as wrongheadedly grounded in an excessive desire to accommodate illiberal and nondemocratic polities and in a confused identification of human rights with the regulation of coercive intervention in the international order. I show that Rawls’s position is not “ultraminimalist” and, more importantly, that it is more complex and attractive than Nickel (and other critics) recognizes. Rawls distinguishes between the human rights necessary and sufficient to there to being no principled grounds for coercive intervention into a state and those necessary and sufficient to there being a principled ground to accord a state status recognition and respect in the international order. This distinction reflects a distinction in The Law of Peoples between two forms of liberal toleration: toleration as mere non-interference and toleration as recognition or status respect. I discuss the role of each in the law of peoples and show how each is both principled and liberal.

Keywords

James NickelThe Law of PeoplesRawlsinternational orderhuman rightsultraminimalismliberal tolerationliberalism
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 287 - 317
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010 

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References

For helpful comments on earlier drafts of this paper, I want to thank Joshua Cohen, Matt Lister, Jon Mandle, Rex Martin, James Nickel, Walter Riker and Huw Williams. I want to thank also those who provided helpful questions and comments during the presentation of an earlier draft at the Central Division meeting of the American Philosophical Association.

1. See Nickel, James, Making Sense of Human Rights, 2nd ed. (Oxford: Blackwell, 2007) esp. at 98–102 Google Scholar and Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999).Google Scholar

2. Making Sense of Human Rights, ibid. at 100-01.

3. Law of Peoples, supra note 1 at 65.

4. Convention on the Elimination of all Forms of Discrimination Against Women, 18 December 1979, 1249, U.N.T.S.13 (entered into force 3 September 1981) [CEDAW].

5. Article 16 reads:

  • 1.

    1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family They are entitled to equal rights as to marriage, during marriage and at its dissolution.

  • 2.

    2. Marriage shall be entered into only with the free and full consent of the intending spouses.

  • 3.

    3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

6. Article 18 reads:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

7. Article 19 reads:

Everyone has the right to freedom of opinion and ex Pression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

8. Article 20 reads:

  • 1.

    1. Everyone has the right to freedom of peaceful assembly and association.

  • 2.

    2. No one may be compelled to belong to an association.

9. Article 21 reads:

  • 1.

    1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

  • 2.

    2. Everyone has the right of equal access to public service in his country.

  • 3.

    3. The will of the people shall be the basis of the authority of government; this will shall be ex Pressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

10. Law of Peoples, supra note 1 at 65, n. 1.

11. Ibid. at 80, n. 23.

12. Ibid. at 68.

13. Ibid. at 80.

14. See, for example, Making Sense of Human Rights, supra note 1 at 87-88.

15. See Griffin, James, On Human Rights (Oxford: Oxford University Press, 2008) at 37–39.CrossRefGoogle Scholar

16. See Walzer, Michael, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, IN: University of Notre Dame Press, 1994)CrossRefGoogle Scholar; Ignatieff, Michael, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2003)Google Scholar; Cranston, Maurice, What Are Human Rights? (New York: Basic Books, 1964).Google Scholar

17. Like Nickel, James Griffin and Allen Buchanan also each complain that Rawls’s view is too minimalist and that Rawls’s minimalism is not well-motivated. See Griffin’s On Human Rights, supra note 15 at 22-27 and Buchanan’s, Allen Justice, Legitimacy and Self-Determination (Oxford: Oxford University Press, 2004) at 159–76.Google Scholar

18. On Human Rights, supra note 15, and Buchanan, ibid. each Press similar charges.

19. On the distinction between reciprocity of advantage and reciprocity of justification, see Reidy, David A., “Reciprocity and Reasonable Disagreement: From Liberal to Democratic Legitimacy” (2007) 132 Phil. Studies 243.CrossRefGoogle Scholar

20. See Rawls, John, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999)Google Scholar and Rawls, John, Political Liberalism, rev. ed. (New York: Columbia University Press, 1996).Google Scholar

21. I realize, of course, that Rawls distinguishes between a “people,” a “state,” and the “government” of a state. These are important distinctions. Indeed, I have emphasized their import elsewhere. See, e.g., Reidy, David A., “Rawls on International Justice: A Defense” (2004) 32 Pol. Theory 291 CrossRefGoogle Scholar [“Rawls on International Justice”]. Nothing in this essay is meant to diminish the import of these distinctions. But for present purposes there is nothing significant lost by speaking of a “just state” rather than a “liberal people,” and so on. And there is something gained insofar as ordinary English inclines toward speaking of “states” rather than “peoples.” Readers need only keep in mind that there are important differences between a people, a state, and a government and that by a “just state” I mean simply a “liberal democratic people.”

22. For a sympathetic reconstruction of the key doctrines in Rawls’s LoP, see “Rawls on International Justice,” ibid.; see also Reidy, David A., “An Internationalist Conception of Human Rights” (2005) 36 Phil. Forum 367 CrossRefGoogle Scholar and Reidy, David A., “A Just Global Economy: In Defense of Rawls” (2007) 11 J. of Ethics 193.CrossRefGoogle Scholar See also many of the essays collected in the volume I edited with Martin, Rex, Rawls’s Law of Peoples: A Realistic Utopia? (Oxford: Blackwell, 2006).CrossRefGoogle Scholar

23. The Law of Peoples, supra note 1 at 23-27.

24. See, e.g., ibid. at 57.

25. Ibid. at 37.

26. It is worth noting here that Rawls’s argumentative strategy alone undermines Nickel’s charge that Rawls is moved by an excessive desire to accommodate the self-determination of non-liberal and/or non-democratic states—Rawls’s argumentative strategy unfolds within ideal theory and under the favorable assumption of a world within which all states are just, that is, at least gener-ically liberal and democratic.

27. The law of peoples is not “human rights-based” in this way. This represents no departure for Rawls; his theory of domestic or social justice is not “rights-based” in this way either. While Rawls’s theory of domestic or social justice commits itself the priority of basic liberties, the commitment itself is not “grounded in” or set on the “foundations” of some notion of individual rights that is antecedent to, that is in hand before one has worked out the content of, an ideal of fair and well-ordered social cooperation between persons who confront one another politically as free equals. So, for example, Rawls does not “ground” justice as fairness in some fundamental or natural right to “equal concern and respect.” The two principles no doubt ex Press what it would be for persons to show one another equal concern and respect within the basic institutions of social and political life. But they are not inferentially justified from a right to any such thing taken as a first or basic premise.

28. A decent and well-ordered state need not secure for its members all the political participation rights covered by UDHR Article 21. But it must secure political participation rights adequate to members playing some meaningful role in political decision-making. For example, members must have the right to be heard directly or through elected representatives, to demand public justifications of official actions, and to dissent publicly and thus to assemble and organize for such purposes. See, e.g., The Law of Peoples, supra note 1 at 61, 66-67, 72. A decent, well-ordered state will secure for its members at least the rights covered by UDHR Article 21(1). It will also secure a great deal of what is covered by UDHR Articles 19 and 20, for without access to and a right to share information relevant to political events and decisions, political participation rights are merely formal and of no meaningful value. All this is clear enough from both Rawls’s general discussions of the decent, well-ordered state and his particular examples of the decent consultation hierarchy, as a type or species, and Kazanistan in particular, as a token or instance.

29. For a helpful discussion see Riker, Walter, “The Democratic Peace is not Democratic: On behalf of Rawls’s decent societies” Political Studies [forthcoming in 2010]Google Scholar. For a skeptical doubts about the tendency of liberal democratic peoples toward peace, see Wenar, Leif & Milanovic, B., “Are Liberal Peoples Peaceful?” (2009) 17 J. Pol. Phil. 462–89CrossRefGoogle Scholar. Together, the Riker and Wenar essays suggest that the institutional forces inclining a polity toward peace likely range over both liberal democracies and other decent, well-ordered polities, such that there is no easy categorical distinction between the two when it comes to an institutionally driven tendency toward peace.

30. For a fuller discussion of this point, see Reidy, David A., “Three Human Rights Agendas” (2006) 19 Can. J. Law & Juris. 237.CrossRefGoogle Scholar

31. The Law of Peoples, supra note 1 at 81.

32. I say “or at least deliver the content of” because I am inclined to agree with Henry Shue that while a benevolent absolutism might deliver to subjects the content of Rawls’s human rights proper, it cannot secure for them that content as a matter of right, or as a matter of their rights. Insofar as they lack meaningful political participation rights, they enjoy the content of Rawls’s human rights proper simply as a contingent matter of the benevolence of their ruler, not as a matter of right, or of their rights. For discussion see Shue, Henry, Basic Rights, 2nd ed. (Princeton, NJ: Princeton University Press, 1996) esp. at ch. 3.Google Scholar

33. Rawls’s standard for toleration as respect functions in roughly the same way as does Allen Buchanan’s standard for recognitional legitimacy. See Buchanan, Justice, Legitimacy and Self-Determination, supra note 17. To be sure, Buchanan demands more by way of recognitional legitimacy than Rawls demands by way of toleration as respect. Indeed, Buchanan and Nickel seem to agree that Rawls does not demand enough when it comes to nondiscrimination or equality norms, to liberal freedoms, and to democratic political participation rights. Yet, like Rawls, Buchanan acknowledges the need for a standard that is minimal when set against the standard of generically liberal constitutional democracy, though some of his reasoning for this acknowledgment derives from his commitment to theorizing the matter within non-ideal rather than ideal theory.

34. For an instructive discussion on this point, see Martin, Rex, “Political Toleration and Coercive Intervention in the International Sphere” in Young, Shaun, ed., Reflections on Rawls (Aldershot, UK: Ashgate, 2009)177.Google Scholar