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John Rawls, The Law of Peoples: With the ‘Idea of Public Reason Revisited’. Cambridge, MA: Harvard University Press 1999. Pp. vii + 199.

Published online by Cambridge University Press:  01 January 2020

Kok-Chor Tan
Kok-Chor Tan*
Affiliation:
Queen's University, Kingston, ON, CanadaK7L 3N6
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Critical Notice
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Canadian Journal of Philosophy , Volume 31 , Issue 1 , March 2001 , pp. 113 - 132
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Copyright © The Authors 2001

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References

1 Many thanks to Karen Detlefsen, David Dyzenhaus, Will Kymlicka, Cheryl Misak and two referees of this journal for their very helpful comments and criticisms on an earlier draft. I thank also members of the Political Philosophy Reading Group, Queen's University- in particular, Philippe Constantineau, Jackie Davis, Alistair Macleod, Christine Sypnowich-for a lively discussion on the book under review here. Finally, my gratitude to Erin Kelly whose thoughtful comments on a different (unpublished) paper at the American Philosophical Association Eastern Division 1998 Meeting alerted me to some of the issues that I am now addressing, and to Thomas Pogge for helpful and generous discussion on this topic on several different occasions. This paper is part of a larger postdoctoral project that is being funded by the Social Sciences and Humanities Research Council of Canada.

2 Rawls, John A Theory of Justice (Cambridge, MA: Harvard University Press 1971)Google Scholar. Beitz, Charles Political Theory and International Relations, 2nd ed. (Princeton: Princeton University Press 1999)CrossRefGoogle Scholar; Pogge, Thomas Realizing Rawls (Ithaca: Cornell University Press 1989)Google Scholar.

3 Rawls, Theory of Justice, 15Google Scholar

4 To recall, the two principles are: 1) Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others; 2) Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, consistent with the just savings principles, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity (Theory of Justice, 302). Principle 2(a) is labelled the difference principle.

5 Rawls, ‘The Law of Peoples’ in On Human Rights, Shute, Stephen and Hurley, Susan eds. (New York: Basic Books 1993), 41–82, 220-30Google Scholar; and The Law of Peoples (Cambridge, MA: Harvard University Press 1999). References to The Law of Peoples will be subsequently noted in parenthesis in the text.

6 One issue I will leave aside in this discussion is Rawls's assumption that peoples are more or less coextensive with states as these are currently demarcated, as his remarks on 38-9 suggest. But for the purpose of consistency, I will use ‘peoples’ or ‘societies’ (interchangeably as Rawls does) instead of ‘states.’ To be sure, Rawls took pains to dissociate peoples from states; but his main intention here is to distinguish peoples from ‘political states as traditionally conceived’ (25) in the realist tradition, i.e., as political entities motivated primarily by self-interests and power, rather than to question existing political boundaries (39; see 25-8).

7 The original position, as we may recall, is ‘a device of representation’ where representatives of rational but reasonable individuals deliberate on the appropriate principles of justice for the basic structure of their society. To ensure that this hypothetical deliberation is fair and equal, parties to the original position go behind a ‘veil of ignorance.’ That is, they are asked to imagine that they do not know their actual status and station in society; their talents and conceptions of the good; nor the wealth and the extent of their territory and its population in the case of the global original position (32-3). In this way, no one party could insist on terms biased in her favor according to her own social standing. See Theory of Justice, 17ff. An important difference in the global original position is that the parties to the deliberation are representatives of peoples rather than of individuals. The significance of this anti-individualist shift will be discussed in due course.

8 The eight principles (abridged) are:

  • 1) Peoples are free and independent.

  • 2) Peoples are to observe treaties.

  • 3) Peoples are equal and are parties to the agreements binding on them.

  • 4) Peoples have a duty of non-intervention.

  • 5) Peoples have the right of self-defense, but not the right to wage war other than for self-defense.

  • 6) Peoples are to honor human rights.

  • 7) Peoples are to observe justice in war.

  • 8) Peoples have a duty to assist peoples lacking the resources to sustain just regimes.

These principles are not exhaustive and more may be added (37).

9 This section is adapted from Chap. 7 of my Toleration, Diversity, and Global Justice (University Park, P A: Penn State University Press 2000).

10 Barry, Brian ‘Humanity and Justice in Global Perspective,’ in Ethics, Economics and the Law, Pennock, J. Roland and Chapman, John W. eds. (New York: New York University Press 1982) 219–52Google Scholar, at 248. See also Pogge, Realizing Rawls, 16-17, 68–70Google Scholar.

11 I will not argue for this point here, but see, for some examples, Cunningham, Frank ‘Democracy, Socialism, and the Globe,’ in The Real World of Democracy Revisited (Atlantic Highlands, NJ: Humanities Press 1994) 137–54, at 143-5Google Scholar; Nielsen, Kai ‘Global Justice, Capitalism and the Third World,’ in Justice and Economic Distribution, 2nd ed. Arthur, John and Shaw, William H. eds. (Englewood, NJ: Prentice Hall 1991) 228–41, at 229-32Google Scholar; O'Neill, Onora Faces of Hunger: An Essay on Poverty, Development and Justice (London: George Allen and Unwin 1986)Google Scholar; Pogge, ‘Economic Justice and National Borders,’ ReVision 22.2 (1999) 27–34Google Scholar; and Shue, Henry Basic Rights: Subsistence, Affluence and US Foreign Policy, 2nd ed. (Princeton: Princeton University Press 1996)Google Scholar.

12 Barry, 248. Of course this does not mean that we are never in a position to withhold that which rightly belongs to another- recall Plato's example of not returning a dagger to its rightful owner who has gone mad (The Republic 331c). Barry notes that it is as acceptable to withhold resources justly owed to a country that is violating basic human rights or spending vast quantities of money on arms, as it is ‘to refuse to pay debts to it or to freeze its asset’ (Barry, 248). And certainly such disincentives could be used as a tool for human rights reform, if properly applied. The crucial point here is that treating inequality as a matter of justice shifts the burden of proof away from ‘recipient’ countries and onto the ‘donor’ country.

13 See Kymlicka, Contemporary Political Philosophy (New York: Oxford University Press 1990), 73–6Google Scholar.

14 Pogge, ‘The Bounds of Nationalism,’ in Rethinking Nationalism, Couture, Jocelyne Nielsen, Kai and Seymour, Michel eds. (Calgary: University of Calgary Press 1998) 463–504, at 497-502Google Scholar.

15 Beitz, ‘Social and Cosmopolitan Liberalism,’ 527Google Scholar. My argument here follows closely Beitz's discussion on 526-8.

16 Recall: ‘We want to account for the social values, for the intrinsic good of institutional, community, and associative activities, by a conception of justice that in its theoretical basis is individualistic. For reasons of clarity among others, we do not want to rely on an undefined concept of community, or to suppose that society is an organic whole with a life of its own distinct from and superior to that of all its members in their relations with one another’ (A Theory of Justice, 264).

17 This was suggested to me by Will Kymlicka.

18 See Beitz, ‘Social and Cosmopolitan Liberalism,’ 528Google Scholar; also Pogge, ‘An Egalitarian Law of Peoples,’ Philosophy and Public Affairs 23/3 (1994): 195–224, 202-5CrossRefGoogle Scholar.

19 It might be pointed out that in Rawls's view (if not in all defensible conceptions of justice), efficiency is one of the factors (even if it is not among the most fundamental) to be taken into consideration when deliberating about justice, and so my claim that we can separate efficiency from principle is mistaken. But this objection commits a category mistake by conflating two different accounts of efficiency. To explain: a complete presentation of a theory of justice has to first (a) identify a set of principles that fulfills, inter alia, some stipulated efficiency criterion (e.g., that it does not stunt individual incentive or ambition); then, it has to (b) ask how we can most efficiently realize these principles. The former poses a conceptual question, the latter, a strategic one. Both these efficiency considerations are, of course, highly relevant to the pursuit of justice; but the former bears directly on what our principles should look like, the latter does not. So, unless one wishes to assert that corrupt third-world governments and wastage in cross-border resource transfers are inevitable facts of our world, there is no reason why such contingent and alterable facts alone should compel us to reconceive what justice requires.

20 Miller, David On Nationality (Oxford: Oxford University Press 1995), esp. Chaps 3 and 4Google Scholar; and Walzer, Michael Spheres of Justice (New York: Basic Books 1983)Google Scholar, and Walzer, ‘The Moral Standing of States: A Response to Four Critics,’ Philosophy and Public Affairs 9.3 (1980) 209–29Google Scholar. See also other ‘communitarians ‘like Sandel, Michael Democracy's Discontent (Cambridge, MA: Harvard University Press 1996), 338ffGoogle Scholar; and Macintyre, Alasdair ‘Is Patriotism a Virtue?’ The Lindley Lectures. Dept. of Philosophy, University of Kansas 1984Google Scholar.

21 Rawls, ‘Kantian Constructivism in Moral Theory,’ Journal of Philosophy 77 (1980) 515–72, at 543Google Scholar

22 Pogge, Thus: ‘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’ ('Rawls and Global Justice,’ The Canadian Journal of Philosophy 18.2 [1988] 227–56, at 233)CrossRefGoogle Scholar; and Beitz: 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’ (Political Theory and International Relations, 152).

23 The phrase in quotations is from the essay ‘The Law of Peoples,’ 65. David Dyzenhaus has argued that this rejection of ‘individualist liberalism’ is already evident in Rawls's move from the comprehensive liberalism of A Theory of Justice to the political liberalism defended in Political Liberalism. Dyzenhaus, David ‘Critical Notice: Charles Larmore, The Morality of Modernity; Canadian Journal of Philosophy 28.2 (1998) 269–86, at 280CrossRefGoogle Scholar. If this is right, our criticism of Rawls's Law of Peoples amounts ultimately to a criticism of Rawls's political liberalism. I pursue this point in Toleration, Diversity, and Global Justice.

24 The Law of Peoples includes a reprint of Rawls's most recent account on the idea of public reason, The Idea of Public Reason Revisited,’ previously published in the University of Chicago Law Review 64 (1997).

25 See, e.g., Teson, Fernando ‘The Rawlsian Theory of International Law,’ Ethics and International Affairs 9 (1995) 79–99CrossRefGoogle Scholar; Hoffmann, Stanley ‘Dreams of a Just World,’ New York Review of Books (2 Nov. 1995) 52-7Google Scholar. I discuss this also in ‘Liberal Toleration in Rawls's Law of Peoples,’ Ethics 108.2 (1998) 276-95; and. also Toleration, Diversity, and Global Justice, Chaps. 2 and 4.

26 ‘Law of Peoples,’ 75, my emphasis.

27 This is the case in the real world: nonliberal developing countries want more financial assistance from the developed world (economic equality) while resisting pressures from the developed world that they liberalize their political institutions. A global distributive scheme on a Rawlsian concept would be readily adopted by these nonliberal countries. (H there should be difficulties here, it would be that Rawlsian distributive principles do not go far enough.)

28 These labels are Beitz's. See ‘Social and Cosmopolitan Liberalism,’ 515.

29 This observation was made by Thomas Pogge, ‘An Egalitarian Law of the Peoples,’ 218. I do not imply here that nonliberal states may pick and choose aspects of liberal theory that they find useful and discard aspects that they find troublesome. My point here is that nonliberal states, in general, will not find liberal distributive principles (to regulate relations between countries) to be burdensome and unreasonable, as Rawls thinks. That nonliberal states are also expected to endorse basic civil and political liberties is a position I argued for in ‘liberal Toleration in Rawls's Law of Peoples.'

30 See also Rawls, Political Liberalism (New York: Columbia University Press 1992), 152–3Google Scholar.

31 Dworkin, Ronald A Matter of Principle (Cambridge, MA: Harvard University Press 1985), 361Google Scholar

32 My argument here is indebted to Dyzenhaus, David ‘liberalism After the Fall,’ Philosophy and Social Criticism 22.3 (1996) 9–37CrossRefGoogle Scholar. For Frost's, exact quotation, see The Macmillan Dictionary of Political Quotations (Toronto: Macmillan 1993), 372Google Scholar.

33 Thus Rawls writes in A Theory of Justice: ‘From the standpoint of justice as fairness, a fundamental natural duty is the duty of justice. This duty requires us to support and to comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves’ (115, my emphasis).

34 See also Rawls, Political Liberalism, 146-8.Google Scholar

35 For one such objection, see Hoffmann, 54.

36 Kant, ‘Perpetual Peace,’ in Kant's Political Writings, 2nd ed. Reiss, Hans trans. and ed. (Cambridge: Cambridge University Press 1991), 113CrossRefGoogle Scholar. Rawls supports Kant's view on 35-6.

37 See, for example, Pogge's proposal for a Global Resource Tax (GRT) and his outline as to how this could be put into effect without a world-state. Pogge, ‘An Egalitarian Law of Peoples.’ Other long-term means of redistributing wealth globally that have been seriously advanced in global forums, again without the presupposition of a world-state, include the Tobin Tax (that will both tax and discourage short term international financial speculation) and the recently proposed ‘bit tax’ (to be imposed on internet transmission).

38 The cosmopolitan theorists with whom Rawls is dealing have themselves explicitly rejected the idea of world-state. See Pogge, ‘Moral Progress,’ in Luper-Foy, Steven Problems of International Justice (Boulder: Westview Press 1988).Google Scholar The problem of world-state is thus not relevant to the dispute between Rawls and these cosmopolitans. It is important, in this regard, not to commit the mistake of associating cosmopolitanism with world-statism. I will not pursue this point here but see Beitz, Political Theory and International Relations, 182-3; 199–200Google Scholar.

39 This is not to say that the issue of international law is not an important one in its own right; on the contrary, a complete defense of cosmopolitan justice has to certainly confront this issue. My point here, to repeat, is that this is not central to the dispute between Rawls and the cosmopolitans.

40 To see more clearly why the question of enforceable international law is not the fundamental issue, we may ask this question: would Rawls propose a fully liberal theory of international justice were it possible for liberal states to effectively enforce liberal principles globally, everything else being equal? The answer would still be in the negative, given Rawls's (more fundamental) concern about reasonable pluralism. I thank Thomas Pogge for a helpful discussion on this point and the more general points in this section.

41 Hoffmann, 54. See also Thomas Nagel, ‘Justice, Justice, Shalt Thou Pursue. A Review of Rawls's Collected Papers, The Law of Peoples, and A Theory of Justice, Revised Edition,’ The New Republic (25 Oct. 1999), 41.

42 Theory of Justice, 246