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The Rawlsian Theory of International Law

Published online by Cambridge University Press:  28 September 2012

Fernando R. Tesón
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Abstract

Tesón critiques a recent article by John Rawls in which Rawls extends his acclaimed political theory to include international relations. Tesón first summarizes Rawls' theory and then presents a critique. With this essay, Rawls joins an already vigorous scholarly reaction against traditional state-centered models of international law and relations. When measured against such models, Rawls' theory of international law moves in the right direction in assigning a role, albeit a modest one, to human rights and political legitimacy. However, to the extent that Rawls' effort purports to be a rational reconstruction of international law for our new era (as he certainly intends it to be), it fails to capture central moral features of the international order. His proposal is still too forgiving of serious forms of oppression in the name of liberal tolerance. The theory thus falls short of matching the considered moral judgments prevailing in today's international community. Moreover, it fails Rawls' own test of epistemic adequacy.

Type
Articles
Information
Ethics & International Affairs , Volume 9 , March 1995 , pp. 79 - 99
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 1995

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References

2 Rawls, , “The Law of Peoples,” Critical Inquiry 20 (Autumn 1993), 36CrossRefGoogle Scholar [hereinafter LP]. Rawls's seminal work is, course, of, A Theory of Justice (Cambridge: Harvard University Press, 1971)Google Scholar [hereinafter TJ]. In his most book, recent, Political Liberalism (New York: Columbia University Press, 1993)Google Scholar, as in his LP article, Rawls departs considerably from the original theory.

3 See, inter alia, Beitz, Charles, Political Theory and International Relations (Princeton: Princeton University Press, 1979)Google Scholar; Brilmayer, Lea, Justifying International Acts (Ithaca: Cornell University Press, 1989)Google Scholar; Tesón, , Humanitarian Intervention: An Inquiry into Law and Morality (Ardsley-on-Hudson: Transnational Publishers, 1988)Google Scholar, chs. 3, 4, and 6; Tesón, “The Kantian Theory of International Law,” Columbia Law Review 92 (January 1992), 53CrossRefGoogle Scholar.

4 See LP, 42, 58 (“a reasonable law of peoples for the present age”).Google Scholar

5 See LP, 37: “What form does the toleration of non liberal societies take in this case [i.e., in the law of nations]?”.Google Scholar

6 See LP, 37, 66. I took the same position in my previous writings. See, inter alia, Tesón, “The Kantian Theory of International Law,” Columbia Law Review 92 (January 1992), 53CrossRefGoogle Scholar.

7 See LP, 43–50.Google Scholar

8 According to Rawls's recent version of his theory, this does not entail adherence to any particular comprehensive doctrine, in particular to metaphysical conceptions of personhood (such as religious, utilitarian, or Kantian). See Rawls, Political Liberalism, xvi, xvii-xviii, 29–35.Google Scholar

9 The principles governing the liberal alliance are listed in LP, 46.Google Scholar

10 See Kant, Immanuel, “To Perpetual Peace: A Philosophical Sketch” [1795], in Perpetual Peace and Other Essays, trans. Humphrey, Ted (Indianapolis: Hackett Publishing, 1983), 107, 107–18.Google Scholar

11 LP, 47.Google Scholar

12 Ibid.Google Scholar

13 See LP, 49.Google Scholar

14 These liberal assumptions are the ones endorsed by Rawls in A Theory of Justice and, to a lesser degree, in Political Liberalism. As I pointed out, they need not entail a particular metaphysics of personhood, such as the one defended by Kant.Google Scholar

15 For a previous attempt to globalize Rawls's theory of justice, see Pogge, Thomas, Realizing Rawls (Ithaca: Cornell University Press, 1989), 246–59Google Scholar. See also Tesón, Humanitarian Intervention, 45–52, 58–71.

16 See LP, 55, 56: “[International human] rights do not depend on any…moral doctrine or philosophical conception of human nature, such as, for example, that human beings are moral persons and have equal worth.” Compare with TJ, 92: all rational persons will seek to maximize a certain number of primary goods, including liberty.Google Scholar

17 Rawls relies expressly on Hegel on this point. See LP, 58.Google Scholar

18 See LP, 58.Google Scholar

19 It is hard to understand what concept of “reasonableness” or “rationality” Rawls is now using. Consider the following: One should allow, I think, a space between the reasonable or fully reasonable, which requires full and equal liberty of conscience, and the fully unreasonable, which denies it entirely. Doctrines that allow a measure of liberty of conscience but do not allow it fully are views that lie in that space and are not fully unreasonable. (LP, 53, n. 27.Google Scholar

20 See LP, 51–53,57. See also Soper, Philip, A Theory of Law (Cambridge: Harvard University Press, 1984).CrossRefGoogle Scholar

21 By “right to a modicum of liberty,” Rawls mentions only freedom from slavery and forced labor, but he means other freedoms as well, such as freedom of conscience and freedom from torture. See LP, 52, 59 (note 45).Google Scholar

22 See LP, 59, n. 45.Google Scholar

23 Rawls first stated this position in Rawls, , “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14 (Summer 1985), 223Google Scholar. See also Rawls, Political Liberalism, xi-xviii.

24 It is worth noting here that in his recent book Rawls confined the domain of political liberalism to the following question: How is a democratic society possible given the fact that people hold incompatible reasonable comprehensive doctrines? His answer is to declare that political liberalism must not take a stand with respect to the truth of these doctrines. Citizens in liberal societies still retain their status as free and equal and as reasonable and rational. See Political Liberalism, 9, 19–20, 48–58Google Scholar. However, Rawls drops these last attributes for the law of nations, because he believes that its task is to devise principles that encompass liberal and non liberal societies.

25 LP, 59.Google Scholar

26 See LP, 59, 67. Rawls also departs from A Theory of Justice on the thorny question of international distributive justice. In sharp contrast to other contractarians like Beitz and Brian Barry, Rawls does not believe that the difference principle holds globally. He does not believe that there are prima facie duties of international transfers aimed at changing the global distribution of resources into a “Rawls-superior” pattern. The most important reason for this conclusion is that well-ordered societies are a varied lot, and “not all of them can reasonably be expected to accept any particular liberal principle of distributive justice.”LP, 63. For different views, see Beitz, Political Theory and International Relations, 143–53 (1979); Barry, , “Do Countries Have Moral Obligations? The Case of World Hunger,” in The Tanner Lectures on Human Values 2 (S. McMurrin ed. 1981), 25.Google Scholar Important as it is, I cannot pursue this issue within the confines of this paper.

27 See LP, 59, 66–6.Google Scholar

28 TJ, 264.Google Scholar

29 LP, 55.Google Scholar

30 This is the position I have taken in my writings. See generally Tesón, The Kantian Theory of International Law, and Tesón, Humanitarian Intervention, chs. 3 and 4. See also Beitz, Political Theory and International Relations, 71–81.Google Scholar

31 These are what Kant calls “anthropological” traits. See Kant, , Groundwork for a Metaphysics of Morals, trans. Paton, H. J. (New York: Harper Torch book, 1964), 57.Google Scholar There are, of course, important differences between the liberal assumptions in Rawls's theory and the metaphysical foundations of freedom found in Kant. Those differences are well explained by Rawls. See TJ, 251–67. But while Rawls tries to avoid the metaphysical puzzles that Kant faced, both A Theory of Justice and Political Liberalism retain important assumptions about moral persons: their capacity to have a conception of their good (“The Rational”) and their sense of justice (“The Reasonable”). See, for example, TJ, 505; and Political Liberalism, 48–58. As I read The Law of Peoples, these two powers of moral personality are no longer universal.

32 LP, 53–54.Google Scholar

33 For a modern defense of this view, see Nardin, Terry, Law, Morality, and the Relations of States (Princeton: Princeton University Press, 1983).Google Scholar See generally Michael J. Smith, Realist Thought from Weber to Kissinger (Baton Rouge, Louisiana State University Press, 1986).

34 He could as plausibly suggest that representatives of hierarchical societies, not being democratically elected, are interested in incumbency, and that is why they would, quite rationally, support a strong principle of nonintervention.Google Scholar

35 LP, 57 (emphasis added).Google Scholar

36 My colleague Michael White has brought to my attention the historical fact that the definition of “right” as a “qualified duty” was commonly accepted prior to the Enlightenment. That pre-Enlighten-ment definition was changed by Thomas Hobbes (of all people!) in favor of “right” as designating a behavior that is morally optional for the agent. See Hobbes, , Leviathan, ed. Macpherson, C. B. (1968; New York: Penguin Books, 1986) ch. 16.Google Scholar

37 For a convincing critique of Soper's theory, see Raz, Joseph, “The Morality of Obedience,” Michigan Law Review 83 (1985), esp. 744–49CrossRefGoogle Scholar.

38 Raz observes: “The divergence of opinion about morality between me and a Nazi government or between me and a fundamentalist Muslim government is so great that I would deny that just because they believe in the rightness of their action there is some joint pursuit in which we are partners.” Ibid., 746. Of course, Rawls would treat these examples as tyrannical, but Raz's observation illustrates the implausibility of the degree of the sincerity of rulers as the basis of political obligation.Google Scholar

39 During the military dictatorship in Argentina (1976–1982), the government responded to criticism by articulating a “worldview” according to which Argentine society was “Western and Christian” in some pre-Enlightenment, medieval version of those words. I do not doubt that, ridiculous and clumsy as such a “worldview” was, the government sincerely believed in it: it was not merely cloaking its evil intents and sadistic impulses. But from a human rights standpoint, why should it matter if the authoritarian government is sincere? Either free speech is a right or it isn't; it should not depend on how sincere and earnest the censors are. In fact, experience shows that “true believers” are the most dangerous tyrants.Google Scholar

40 See LP, 67: “Critical commentary [on hierarchical societies] in liberal societies would be fully consistent with the civic liberties and integrity of those societies.”.Google Scholar

41 LP, 61.Google Scholar

42 LP, 68.Google Scholar

43 On this, see the enlightening discussion by the late philosopher, ArgentineNino, Carlos, The Ethics of Human Rights (Oxford: Clarendon Press, 1991), 38–3, 101–28.Google Scholar

44 See LP, 53 and note 29.Google Scholar

45 Given my view that Rawls's position on international human rights is no longer liberal, I am surprised that in this article he defends himself against possible charges that his endorsement of modest “basic human rights” may be ethnocentric; that is, biased in favor of Western culture. See LP, 51.Google Scholar

46 See Franck, Thomas M., “The Emerging Right to Democratic Governance,” American Journal of International Law 86 (January 1992), 46CrossRefGoogle Scholar.

47 For such an ideal view, see Tesón, The Kantian Theory of International Law.Google Scholar

48 As many commentators have emphasized, international human rights are the result of many philosophical doctrines, the two main ones being liberalism and socialism. See, inter alia, Nickel, James, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration on Human Rights (Berkeley: University of California Press, 1987)Google Scholar; Shue, Henry, Basic Rights: Subsistence, Affluence and U.S. Policy (Princeton: Princeton University Press, 1980Google Scholar).

49 See the preamble to the UN Charter.Google Scholar

50 See Article 21 of the Universal Declaration of Human Rights. This proposition has been cited in numerous recent resolutions of the General Assembly and the Security Council, most recently in the resolutions regarding the situation in Haiti. I discuss the legal status of democracy at some length in “Changing Perceptions of Domestic Jurisdiction and Intervention,” in Farer, Tom, ed., Reconstructing Sovereignty in a Democratic Age: Legitimate Collective Intervention (Washington: Johns Hopkins University Press, forthcoming).Google Scholar

51 1 summarize here the argument I made in The Kantian Theory of International Law, 74–81. The argument relies on the seminal research in Doyle, Michael, “Kant, Liberal Legacies, and Foreign Affairs,” Philosophy & Public Affairs 12 (Fall 1983)Google Scholar, pt. 1: 205, 213; and pt. 2: 323.

52 See LP, 49, n. 20.Google Scholar

53 Another reason is that there are grounds to believe that democratic rule is a necessary condition for enjoying other human rights. While it is always possible to imagine a society in which human rights are respected by an enlightened despot, this has never occurred in practice. This is why the right to political participation is included in the major human rights conventions. For a full discussion and references, see Franck, “The Emerging Right to Democratic Governance,” and Fox, Gregory H., “The Right to Political Participation in International Law,” Yale Journal of International Law 17 (Summer 1992), 539Google Scholar.

54 Rawls writes: “The same equality of the Declaration of Independence which Lincoln invoked to condemn slavery can be invoked to condemn the inequality and oppression of women”(Political Liberalism, xxix.) Rawls thus aligns himself, as one would expect, with liberal feminism. For contrasting views about the usefulness of liberal and radical feminism in the critique of international law, compare Charlesworth, Hilary, Chimkin, Christine, and Wright, Shelley, “Feminist Approaches to International Law,” American Journal of International Law 85 (October 1991), 613CrossRefGoogle Scholar, with Tesón, , “Feminism and International Law: A Reply,” Virginia Journal of International Law 33 (Spring 1993), 647Google Scholar.

55 See LP, 64.Google Scholar

56 See LP, 54 (Members of hierarchical societies accept the basic inequalities among them.) I am convinced, incidentally, that those conceptions of the good that purport to deny human rights in the name of tradition are either misstatements of the traditions they purport to represent or simply self-serving rationalizations for oppression. One cannot but agree with Ann E. Mayer: “In reality, the world's Muslims have never been consulted about what rights they would like to have or about whether they truly prefer to be governed by so called ‘Islamic’ rights norms that fall far below the protection guaranteed to non-Muslims under international law.”Mayer, , “Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash With a Construct?” Michigan Journal of International Law 15 (Winter 1994), 307, 404Google Scholar.

57 See, for example, , “Convention on the Elimination of All Forms of Discrimination Against Women (1979),” International Legal Materials 19 (1980), 33CrossRefGoogle Scholar.

58 See the classical treatment Mill, by, On Liberty (1859; New York: Penguin Classics, 1974), 75–118Google Scholar.

59 See Article 19, “International Covenant on Civil and Political Rights,” United Nations Treaty Series (UNTS) 999 (December 19, 1966), 171.Google Scholar, and International Legal Materials 6 (1977), 368Google Scholar; Ar-ticle 9, African Charter on Human and Peoples' Rights, Organization of African Unity Doc. CAB/LEG/ 67/3, Rev. 5 (1981); Article 13, American Convention on Human Rights, Nov. 22, 1969, reprinted in Organization of American States (OAS), Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.60, Doc. 28, at 29 (1967); Article 10, European Convention on Human Rights and Fundamental Freedoms, UNTS 213 (November 4, 1950), 222. See also Sieghart, Paul, The Lawful Rights of Mankind: An Introduction to the International Legal Code of Human Rights (London: Oxford University Press, 1985), 140–43.Google Scholar (while regulation of free expression may vary, the existence and stringency of the obligation to respect it is beyond doubt).

60 It is ironic that Rawls's article is excerpted from an Amnesty International Lecture: if his law of peoples were implemented, Amnesty International, whose main mandate is to put pressure on governments to release imprisoned peaceful political dissenters (prisoners of conscience), would be largely out of business.Google Scholar

61 At the end of the article Rawls eloquently asserts that democratic pluralism in liberal societies is the outcome “of human reason under free institutions [which] can only be undone by the oppressive use of state power” (LP, 68). I do not understand, therefore, his statement that the law of peoples “is simply an extension of these same ideas to the political society of well-ordered peoples,” given that hierarchical societies can validly use state power to silence the exercise of human reason.Google Scholar

62 Kant, , Perpetual Peace, 113Google Scholar.

63 See, inter alia, Rawls, Political Liberalism, 340–56.Google Scholar

64 See, for example, LP, 67–68 (a belief that liberalism is superior to other forms of political organization does not support a claim to rid the world of illiberal regimes).Google Scholar

65 Rawls correctly concludes that the relationship between well-ordered (that is, liberal and hierarchical) societies and tyrannical regimes can only be a “modus vivendi.” See LP, 61. For the reasons given in the text, I extend that conclusion to the relationship between liberal societies and illiberal ones.Google Scholar

66 Thus I agree with Rawls that humanitarian intervention is permissible only in very serious cases, that is, in what we both call outlaw tyrannical regimes. By definition, Rawls's hierarchical societies, although illegitimate by my lights, have not reached the level of oppression that would justify abandoning peaceful methods of diplomatic pressure to effect democratic reforms. See generally Tesón, Humanitarian Intervention.Google Scholar

67 See Luban, David, “The Romance of the Nation State,” in Cohen, Beitz Marshall, Scanlon, Thomas, and Simmons, A. John, eds., International Ethics (Princeton: Princeton University Press, 1985), 238Google Scholar.