* (c) 2004, Gary Chartier, Assistant Professor of Business Ethics and Law, La Sierra University (GChartie@LaSierra.Edu). I am grateful to Carole Pateman, Seana Shiffrin, Thomas W. Pogge, Richard Steinberg, Charles Beitz, Ponnekanti Samata Chari, and two anonymous readers for comments that have contributed to the development of this Article; to Barbara Herman, Annette Bryson, Roger E. Rustad, Jr., and Linn Marie Tonstad for their willingness to review it; to Deborah K. Dunn for welcome opportunities for helpful interchange during the time it was being edited; to Thomas Ayres, Lindsey Barrett, Ben Dunlap, and María Isabel Guerrero for editorial assistance; and to Thomas W. Pogge and Fernando Tesón for supplying copies of relevant essays. John Rawls died while I was completing this Article; I hope it helps to advance the conversation his work has initiated and serves as a modest tribute to his contributions to contemporary Anglo-American moral and political philosophy.
1 Rawls’s work includes John Rawls, A Theory of Justice (rev. ed., 1999) [hereinafter Rawls, Theory]; John Rawls, Political Liberalism (1996) [hereinafter Rawls, Liberalism]; John Rawls, The Law of Peoples, with The Idea of Public Reason Revisited (1999) [hereinafter Rawls, Law]; John Rawls, Justice As Fairness: A Restatement (Erin Kelly ed., 2000) [hereinafter Rawls, Restatement]; John Rawls, Collected Papers (Samuel Freeman ed., 1999); and John Rawls, Lectures on the History of Moral Philosophy (Barbara Herman ed., 2000). In Theory, at 332–33, Rawls discusses the rudiments of what he later called “the Law of Peoples.”
2 Rawls, Law, supra note 1, at 10; see also id. at 82; Charles Beitz, Rawls’s Law of Peoples, 110 Ethics 669, 675 (2000) (“[T]he Law of Peoples is a body of principles for the foreign relations of liberal democratic societies: it is an extension of liberal political morality to foreign policy.”).
3 See Rawls, Law, supra note 1, at 11–23.
4 See, e.g., id. at 4–5, 58, 85, 89–91, 106.
5 See, e.g., Rawls, Law, supra note 1, at 4–5; Rawls, Restatement, supra note 1, at 13, 65; Rawls, Theory, supra note 1, at 8, 215–18.
6 See, e.g., Rawls, Restatement, supra note 1, at 13; Rawls, Theory, supra note 1, at 216.
7 See, e.g., Rawls, Theory, supra note 1, at 8, 215–18.
8 Rawls, Theory, supra note 1, at 17 n.9.
9 See, e.g., Rawls, Liberalism, supra note 1, at 27.
10 See Rawls, Restatement, supra note 1, at 41–42.
11 Id. at 42.
12 Id.
13 See, e.g., Rawls, Restatement, supra note 1, at 61–72; Rawls, Theory, supra note 1, at 65–73. On the derivation and nature of the basic liberties and the basic norms of justice, see Rawls, Liberalism, supra note 1, at 289–371; Rawls, Restatement, supra note 1, at 39–134; Rawls, Theory, supra note 1, at 47–101.
14 See Rawls, Law, supra note 1, at 17, 23–25; Rawls, Theory, supra note 1, at 331–32. For an alternate interpretation of the cited passages in A Theory of Justice, see Thomas W. Pogge, Realizing Rawls 242–44 (1989) [hereinafter Pogge, Realizing] and Thomas W. Pogge, An Egalitarian Law of Peoples, 23 Phil. Pub. Aff. 195, 205–6 (1994) [hereinafter Pogge, Law].
15 Compare Frank J. Garcia, The Usefulness of Which Rawls?, 6 Int’l Legal Theory 39, 39 (2000) (In The Law of Peoples, “Rawls does not really apply [his norm of justice as fairness] to the international arena in [sic] at all, and that is [the book’s] main shortcoming.”) [hereinafter Garcia, Usefulness], with Joel P. Trachtman, The Law and Economics of Global Justice, 96 Am. J. Int’l L. 984, 988 (2002) (reviewing Global Justice (Thomas W. Pogge ed., 2001)) (“Could it be that the very respect for state sovereignty (including the sovereignty of predatory states) that traditional international law, and to some extent even Rawls’s law of peoples, regards as fundamental is actually a primary cause of the problem?”).
16 In the remainder of this Article, I’ll call representatives of peoples in the second original position Rawlsian deliberators; I’ll refer to a Law of Peoples of the sort to which Rawlsian deliberators would assent as a Rawlsian Law of Peoples. I’ll label representatives of individual persons in an alternative second original position individual deliberators and a Law of Peoples contracting individual deliberators would endorse a cosmopolitan Law of Peoples. I will call a person who supports, or would support, a cosmopolitan Law of Peoples a cosmopolitan liberal. I am not entirely comfortable with the implications of “cosmopolitan,” which may suggest an egoism, a lack of local loyalty, and a class identification that would not, on my view, characterize those I call individual deliberators or a Law of Peoples they could be expected to enact; I use the term, nonetheless, to minimize confusion, because Rawls employs it as well.
For an effective positive statement of the cosmopolitan case, see Martha Nussbaum, For Love of Country: Debating the Limits of Patriotism (Joshua Cohen ed., 1996).
17 Rawls, Law, supra note 1, at 17 n.9. See Allen Buchanan, Rawls’s Law of Peoples: Rules for a Vanished Westphalian World, 110 Ethics 697, 698 (2000) (“To say that the parties [in the second original position] represent peoples is, in effect, to ensure that the fundamental principles of international law that will be chosen reflect the interest of those who support the dominant or official conception of the good or of justice in the society, and this may mean that the interests of dissident individuals or minorities are utterly disregarded.”). But see Trachtman, supra note 15, at 990 (maintaining that “the representatives of peoples should be assumed to represent their principals—individuals—with perfect fairness and accuracy, and not with the public choice and other agency problems that are endemic in the real world. In this sense, there would be little difference between an original position among representatives of peoples, and one among individuals themselves. This integrated two-level original position, then, is not different from a single, global original position.”). Despite Trachtman’s argument, a Rawlsian reason for seeing the deliberators in Rawls’s global original position as fairly representing individuals would also be a Rawlsian reason for endorsing a cosmopolitan account of global justice. It is also unclear that, even if Rawlsian deliberators regarded themselves as representing individuals, they would not, when speaking for their societies, seek to defend the interests of the dominant forces in those societies.
18 Richard Steinberg helped me to see the need to make this point; I am grateful to Seana Shiffrin for forcing me to think about it further.
19 Rawls suggests “that democratic peoples engaged in commerce would tend not to have occasion to go to war with one another.” Rawls, Law, supra note 1, at 46; see id. at 8, 19, 44–54. See generally Dan Reiter & Allan C. Stam, Democracies at War (2002) for some recent empirical support for this view.
20 Rawls may be right that extreme economic deprivation need not threaten those who live in a country with just and democratic institutions. Still, the rules of the transnational game might still be rigged in one way or another to keep some democratic societies marginal. Further, even without rules that deliberately excluded some peoples from the prosperity enjoyed by others, historical and geographic circumstances might still lead to severe imbalances among societies that would be precluded by a cosmopolitan Law of Peoples. There is little indication on the basis of present practice that powerful democratic regimes are prepared to structure transnational economic relations in ways that are fair to other democratic regimes that lack substantial military, political, or economic power.
21 Consider the behavior of the United States, a relatively democratic state, in relation to Nicaragua, also relatively democratic, during the 1980s.
22 William J. Aceves, Critical Jurisprudence and International Legal Scholarship: A Study of Equitable Distribution, 39 Colum. J. Transnat’l L. 299, 393 (2001) (footnotes omitted).
23 Rawls, Law, supra note 1, at 63.
24 Id.
25 See id. at 27–28.
26 Id. at 29.
27 Id. at 17.
28 Rawls, Law, supra note 1, at 27.
29 Id. at 35.
30 Id. at 29. Rawls suggests that the difference between peoples and states is starkest “[i]f rationality excludes the reasonable (that is, if a state is moved by the aims it has and ignores the criterion of reciprocity in dealing with other societies); if a state’s concern with power is predominant; and if its interests include such things as converting other societies to the state’s religion, enlarging its empire and winning territory, gaining dynastic or imperial or national prestige and glory, and increasing its relative economic strength.” Id. at 28.
31 Id. at 27.
32 Id. at 23 n.17 (quoting J.S. Mill, Considerations on Representative Government (J.M. Robinson ed., 1977)).
33 Rawls, Law, supra note 1, at 44.
34 Thanks to Seana Shiffrin for helping me to see the need to address this issue.
35 See Rawls, Law, supra note 1, at 64–68.
36 See id. at 69 (maintaining that representatives of decent hierarchical peoples would adopt the Law of Peoples).
37 See id. at 68–70.
38 See id. at 63–68. I use the plural “peoples” advisedly, since Rawls offers only a single (imaginary) example of a decent hierarchical people, the Central Asian Muslim society he calls “Kazanistan.” See id. at 64.
39 See id. at 72–73 (citing G.W.F. Hegel, Philosophy of Right § 308 (1821)).
40 Rawls, Law, supra note 1, at 71–72.
41 Id.
42 Id. at 72.
43 Id. at 78.
44 Id. For a critique of Rawls’s position that liberal and decent societies can oblige their members, see Carole Pateman, The Problem of Political Obligation: A Critique of Liberal Theory 117–20, 125–29 (2d ed. 1985).
45 See Rawls, Law, supra note 1, at 72 n.12.
46 See id. at 75–78; cf. Antonio F. Perez, The International Recognition of Judgments: The Debate Between Private and Public Law Solutions, 19 Berkeley J. Int’l L. 44, 46 n.13 (2001) (“Rawls’ recognition that even [!] Islam is amenable to participation in public discourse with other comprehensive conceptions suggests that his basic methodology can be extended to global political ordering.”).
47 Rawls, Law, supra note 1, at 77 (footnote omitted).
48 See id. at 75–77.
49 Id. at 75–76.
50 See id. at 74–75.
51 Id. at 59–60.
52 See Rawls, Theory, supra note 1, 39–50 (discussing the reasons why certain principles are selected).
53 Rawls, Law, supra note 1, at 37.
54 See id. at 37–38. For instance, the fourth principle “will obviously have to be qualified in the general case of outlaw states and grave violations of human rights. Although suitable for a society of well-ordered peoples, it fails in the case of a society of disordered peoples in which wars and serious violations of human rights are endemic.” Id. at 37–38.
55 Id. at 38 (footnote omitted).
56 See id. at 41. When he first envisioned extending his theory to the international arena, Rawls made much the same point. See Rawls, Theory, supra note 1, at 332–-33. Rawls said “the principles chosen would, I think, be familiar ones.” Id. at 332 (footnote omitted). Referencing James Leslie Brierly, The Law of Nations: An Introduction to the International Law of Peace (Sir Humphrey Waldock ed., 6th ed. 1963), he observed, “[t]his work contains all that we need here.” Rawls, Theory, supra note 1, at 332 n.27. Of course, the Law of Peoples as Rawls now conceives it does contain more demanding standards for governmental conduct than those commonly regarded as forming part of international law in 1963, when the edition of Brierly’s book that Rawls cites was published; the norms envisioned in The Law of Peoples are more elaborate than those canvassed in A Theory of Justice.
By limiting the options on which Rawlsian deliberators would reflect at the global level to existing norms of international law, Rawls has not freed himself from the need to claim that the principles that form the Law of Peoples are the best available standards. (Thanks to Seana Shiffrin for this point.) But Rawls’s decision to begin with existing norms of international law does highlight, at any rate, his relative comfort with the existing international legal order. But Garcia reasonably characterizes Rawls’s decision to begin with existing principles of international law as a “shortcut.” Garcia, Usefulness, supra note 15, at 41. And Thomas W. Pogge, Rawls on International Justice, 51 Phil. Q. 246, 249 (2001) [hereinafter Pogge, Justice], plausibly suggests that the model Rawls proposes for determining norms of domestic justice “provides more flexibility for adapting social institutions to variable circumstances.” By contrast, the approach Rawls proposes in The Law of Peoples “provides no such flexibility. The members of Rawls’s society of peoples are locked into a particular set of rules which may well prove too rigid to fulfil their interests as peoples under diverse global circumstances.” Id.
57 Cf. Todd Adams, Using Justice as Fairness in Reducing Global Greenhouse Emissions, 16 J. Envtl. L. & Litig. 331, 371–72 (2001) (illustrating “the fundamental difficulty of creating a second original position based on peoples instead of persons”); Lea Brilmayer, What Use Is John Rawls’ Theory of Justice to Public International Law?, 6 Int’l Legal Theory 36, 37 (2000) (Rawls “takes it for granted almost without examination that the morally relevant entities in the international arena are states. International lawyers and theoreticians will recognize this at once to be an enormously problematic assumption.”).
58 See also Antonio F. Perez, On the Way to the Forum: The Reconstruction of Article 2(7) and Rise of Federalism Under the United Nations Charter, 31 Tex. Int’l L.J. 353, 372 n.89 (1996) (observing that “the amorality of international life has infected not only realists but also philosophers drawing from idealist traditions” and noting that Rawls “finds a much lower standard of international morality than his methodology locates in domestic regimes”) (footnote omitted); Gerry J. Simpson, Is International Law Fair?, 17 Mich. J. Int’l L. 615, 618 n.20 (1996) (reviewing Thomas M. Franck, Fairness in International Law and Institutions (1995)) (noting drily that “Rawls [appears] to have confirmed Franck’s thesis” that “parts of Rawlsian theory [cannot] be applied to international law”); Ian Ward, International Order, Political Community, and the Search for a European Public Philosophy, 22 Fordham Int’l L.J. 930, 933 (1999) (observing that, substantively, “Rawls does indeed abandon the automatic priority of classical liberalism”) (footnote omitted).
59 Rawls, Law, supra note 1, at 120 (emphasis added).
60 Id.
61 Id. at 17 n.11.
62 Cf. Pogge, Realizing, supra note 14, at 247–48.
63 Rawls, Theory, supra note 1, at 17; see also Rawls, Liberalism, supra note 1, 79–81; Rawls, Restatement, supra note 1, at 20, 87; Rawls, Theory, supra note 1, at 441–49; cf. Rawls, Liberalism, supra note 1, at 19 (“Since we start within the tradition of democratic thought, we also think of citizens as free and equal persons. The basic idea is that in virtue of their two moral powers (a capacity for a sense of justice and for a conception of the good) and the powers of reason (of judgment, thought, and inference connected with these powers), persons are free. Their having these powers to the requisite minimum degree to be fully cooperating members of society makes persons equal.”).
64 Rawls, Theory, supra note 1, at 442.
65 See Rawls, Law, supra note 1, at 82. Rawls notes the obviousness of this sort of argument, see id., but rejects it without careful consideration. See infra Part I.D.2 (“Rawls’s Explicit Arguments for the Equality of Peoples”).
66 See Brilmayer, supra note 57, at 38, 39 (stating that Rawls “is surely aware that his decision to base his contractarian analysis on the preferences of states is deeply controversial. Rawls recognizes the problem, without offering any satisfactory response. . . . The world is not composed only of states, or of peoples, but also of people. There are non-governmental organizations, universities, human rights organizations, churches, mosques and many other institutions that have just as much independent validity internationally as states do, from a purely theoretical point of view. There is no reason theoretically to start with states as the relevant actors. Or if there is a reason, Rawls does not provide it.”). But cf. Harry D. Gould, A Response to Professor Brilmayer on Rawls, 6 Int’l Legal Theory 42, 43 (2000) (“The detailed discussions on Human Rights which this generates (§ 10), and its concomitant challenge to traditional notions of sovereignty surely indicate that while peoples are primary in the formulation of principles, people are the guiding concern.”).
67 Rawls, Law, supra note 1, at 17 n.9.
68 Id. (“Part of the answer is given in § 2, in which the idea of peoples is specified; but the fuller explanation is given in § 11. Those who are troubled by this question should turn to it now.”).
69 Id.
70 See id. at 23–25.
71 Id. at 17 n.9.
72 Rawls, Law, supra note 1, at 82–83.
73 Id.
74 Id. at 82.
75 Id. at 83.
76 Id.
77 In a broad sense, of course, this is true of contractarian theories of all sorts (thanks to Carole Pateman for this point). This kind of circularity is not necessarily a fatal flaw in Rawls’s argument. However, given his argument’s circular character, it provides little support for his starting point. See, e.g., Pateman, supra note 44, at 7, 14–20.
78 Rawls, Law, supra note 1, at 60.
79 Cf. id.
80 Rawls makes a similar move earlier in The Law of Peoples. He notes an apparent conflict between the equality of people in the first original position and the equality of peoples in the second but does little to justify it. In the first original position, he says, “we counted citizens as free and equal because that is how they conceive of themselves as citizens in a democratic society.” Rawls, Law, supra note 1, at 33–34. Similarly, “[i]n the Law of Peoples . . . we view peoples as conceiving of themselves as free and equal peoples in the Society of Peoples (according to the political conception of that society).” Id. at 34. He observes only that “[t]his is parallel to, but not the same as, how in the domestic case the political conception determines the way citizens are to see themselves according to their moral powers and higher-order interests.” Id. Current transnational society, in which peoples theoretically conceive of themselves as equals, is treated as a given. Again, Rawls begs the question. See id. at 33–34.
81 Id. at 82 (“To proceed in this way . . . takes us back to where we were in § 7.2 (where I considered and rejected the argument that nonliberal societies are always properly subject to some form of sanctions), since it amounts to saying that all persons are to have the equal liberal rights of citizens in a constitutional democracy.”).
82 Id. at 60.
83 Rawls, Liberalism, supra note 1, at 25.
84 Rawls, Law, supra note 1, at 32. In the passage quoted, “you and I, here and now” are “citizens of some liberal democracy, but not of the same one.” Id. at 32 n.35. Subsequently, Rawls argues that persons who are “members of decent hierarchical societies, but not the same one” would endorse the same eight principles of justice as Rawlsian deliberators (listed in Part I.C, infra, “The Content of Rawls’s Law of Peoples”). See id. at 69 n.8.
85 Id. at 32.
86 Id. at 61.
87 Gould, supra note 66, at 44 (alteration in original).
88 Id. at 44.
89 Beitz, supra note 2, at 681, considers and rejects as circular the argument that “a cosmopolitan approach would necessarily be less tolerant of the diversity of political traditions and cultures.” After all, the question at issue is in part precisely “whether or to what extent international institutions and the foreign policies of liberal states should tolerate nonliberal cultures.” Id.
90 Charles Larmore, The Morals of Modernity 146–51 (1996); see Rawls, Law, supra note 1, at 62.
91 See Gary Chartier, Righting Narrative: Robert Chang, Poststructuralism, and the Possibility of Critique, 7 Asian Pac. Am. L.J. 105, 116–17 (2001).
92 Rawls, Law, supra note 1, at 62; see also Gould, supra note 66, at 44.
93 Rawls, Law, supra note 1, at 62.
94 See id.
95 Id.
96 See id. at 61–62; cf. Mark Tushnet, The Law of Peoples by John Rawls, 38 Alberta L. Rev. 1069, 1073 (2001) (book review). Tushnet does not elaborate this argument in order to defend it; he is, indeed, unabashedly skeptical.
97 Cf. Tushnet, supra note 96, at 1074–75.
98 See id. Rawls’s belief that liberal societies ought to respect decent nonliberal societies does not depend on the conviction that the institutions of decent nonliberal societies are as satisfactory as those of liberal societies. Rawls, Law, supra note 1, at 62.
99 Cf. Pogge, Justice, supra note 56, at 248.
100 Rawls, Law, supra note 1, at 69–70. Rawls rightly notes that various kinds of decision-making mechanisms may exist in different kinds of organizations, but that we may nonetheless regard these organizations as equal for some purposes. But this observation could be challenged on the basis that a university is easy to leave, as a nation is not, and that it is much less obvious that there is a single appropriate form for university organization than it is that democracy is of great moral importance.
101 Fernando R. Tesón, The Rawlsian Theory of International Law, 9 Ethics & Int’l Aff. 79, 85 (1995) (italics supplied).
102 Id.
103 Cf. Pogge, Justice, supra note 56, at 247 (“By accepting an account that makes the interests of peoples morally fundamental, liberals compromise their conviction that social institutions should be assessed by appeal to the interests of individuals (normative individualism), and by appeal to their freedom and fundamental equality in particular. (Decent [nonliberal] societies, by contrast, are so well accommodated by Rawls that they seem to pay no price of accommodation at all.)”).
104 Cf. Trachtman, supra note 15, at 989 (“A reasonable conclusion is that Rawls’s position is not merely mistaken but is so weak that it leaves one searching beyond Rawls’s text for an explanation.”).
105 Rawls notes that “[t]he basic principle of the law of nations is a principle of equality. Independent peoples organized as states have certain fundamental equal rights. This principle is analogous to the equal rights of citizens in a constitutional regime.” Rawls, Theory, supra note 1, at 332. But this is best seen, not as an argument for the design of the second original position, but simply as a brief elaboration of the principles that might form part of a Law of Peoples (though he doesn’t use the term) and as an example of the unsurprising congruence between such a Law of Peoples and currently accepted norms of international law.
106 Rawls, Restatement, supra note 1, at 13 (footnotes omitted); cf. Rawls, Law, supra note 1, at 36.
107 See Rawls, Restatement, supra note 1, at 13.
108 Immanuel Kant, Perpetual Peace 1st. supp., para. 2 (1795).
109 See id.
110 Cf. Pogge, Realizing, supra note 14, at 247–59.
111 For details regarding some possible structural arrangements, see generally Richard Falk & Andrew Strauss, On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty, 36 Stan. J. Int’l L. 191 (2000) (proposing a practical democratic mechanism for international governance) and Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273 (1997). For a broader and more theoretical account of the international system and a possible democratic future, see generally Michael Hardt & Antonio Negri, Empire (2000).
Arguably sympathetic with Rawls, Edward Foley believes that the principles of global justice should be determined by what I have termed individual deliberators rather than Rawlsian deliberators. See Edward Foley, Human Rights Theory: The Elusive Quest for Global Justice, 66 Fordham L. Rev. 249, 263 (1997). Foley maintains that “recognizing the unacceptable threats to human liberty that a unified global state would present, the parties to the original position would adopt principles of global justice that call for the existence of separate, sovereign nation-states.” Id. at 263. Though this conclusion is possible, it is not obvious. A range of possible alternatives would be open to individual deliberators: they might endorse a loose global confederation of nation-states, a much stronger federation, or even a unitary world-state committed to protecting local autonomy. Even if individual deliberators endorsed the existence of nation-states, they might surely raise questions about the existence of such large numbers of states and about current state boundaries. Indeed, Foley argues that “the scale of government should be as large as is humanly feasible, without creating an exclusive monopoly of power in a single global state.” Id. at 268. Foley also suggests that continent-wide governments would be appropriate. See id. at 266–71. Compare Trachtman, supra note 15, at 991 (“It is difficult to see why the correct extension of Rawls’s theory is not for each individual to enter into a global original position, recognizing that in the real world, the satisfaction of each individual’s preferences takes place at many different levels and utilizes many different kinds of governance: family, church, workplace, locality, substate, state, regional, and global. With multiple centers of authority, we would seem to require multiple, and interrelated, original-position analyses. Each original position would involve some decisions about what is not to be addressed within the particular center of authority in question, and may thus be retained by individuals or assigned to other centers of authority.”) (footnote omitted). See generally Stefan Gosepath, The Global Scope of Justice, in Global Justice (Thomas W. Pogge ed., 2002). A variety of ad hoc non-governmental arrangements can obviously make a difference as well. See, e.g., Roger E. Rustad, Jr., What Lessig (Almost) Gets, at http://www.kuro5hin.org/story/ 2002/10/4/23856/9235 (last visited Oct. 19, 2003) (arguing for an international treaty governing unsolicited bulk commercial email).
112 Valuing cultures and traditions and recognizing the practical as well as existential significance of local loyalties, global deliberators might even choose a global system featuring peoples with demarcated borders. They might doubt that an organization above a certain size would prove manageable without the creation of an excessively powerful state apparatus that could become tyrannical. They might also consider the value to persons of participating in self-governing local communities with traditions of independence.
113 Rawls makes clear that concern with the problem of stability lies at the root of the transformation undergone by his theory between its initial formulation and its subsequent development. See generally Rawls, Liberalism, supra note 1, at xvii–xxxi, xxxix–lxii.
114 See id. at xviii.
115 Id. at 36–68; Rawls, Restatement, supra note 1, at 3–4, 40, 84.
116 Rawls, Liberalism, supra note 1, at xviii–xx.
117 See id. at xvii–xxxiii.
118 Id. at 143 (footnote omitted).
119 See id. at 141–42.
120 Id. at 36–68; Rawls, Restatement, supra note 1, at 3–4, 40, 84.
121 Rawls, Liberalism, supra note 1, at 147.
122 See id. at 158–68.
123 See id. at 166–67.
124 Id. at 156.
125 See id. at 147–49.
126 Rawls, Liberalism, supra note 1, at 169; see id. at 169–71.
127 Id. at 148.
128 Id. at 143.
129 Id. at 386–87.
130 Id. at 386.
131 Rawls, Liberalism, supra note 1, at 386.
132 Id. at 387. But Rawls doesn’t seem to require unanimity elsewhere—for example, once “the principles of justice . . . [have been] provisionally selected . . . . [W]e have to check whether, when realized, just institutions as specified by those principles can gain sufficient support.” Id. at 65 (emphasis added). And he can’t really mean to require universal agreement here. Perhaps he should distinguish between “public justification,” which would occur once a consensus had emerged, and “full public justification,” which would occur only in the unlikely event that everyone had adopted the position supported by this consensus.
133 Id. at 388.
134 Id. at 390 (footnote omitted).
135 Id.
136 Rawls, Liberalism, supra note 1, at 137.
137 Id.
138 Id. at 137 n.5; cf. id. at 225.
139 See Rawls, Liberalism, supra note 1, at 168, 390.
140 See id. at 161.
141 See id. at 162.
142 See id.
143 Id. at 163.
144 See Rawls, Liberalism, supra note 1, at 163.
145 See id. at 165.
146 See id. at 165–68.
147 Rawls’s political conception of justice “tries to put no obstacles in the path of all reasonable doctrines endorsing a political conception by eliminating from this conception any idea which goes beyond the political, and which not all reasonable doctrines could reasonably be expected to endorse.” Id. at 389. But even if this refers only to the bare-bones structure of the original position, it is hard to say that all comprehensive doctrines would be likely to endorse it. As far as possible, citizens in a politically liberal regime decline—while engaging in political discourse, not necessarily in their non-political lives—to reject as false any particular comprehensive religious or philosophical doctrine; taking these issues off the table is a crucial part of respecting other citizens and maintaining a stability-preserving consensus. See id. at 150–-52. However, if “someone insists, for example, that certain questions are so fundamental that to insure their being rightly settled justifies civil strife,” it may be necessary to insist, in practice if not explicitly, that doctrines on the basis which she insists that strife is appropriate are incorrect. See id. at 152–53.
148 Alternatively, of course, they might simply reject or reformulate these underlying principles because of their undesired implications.
149 See Rawls, Liberalism, supra note 1, at 225.
150 The idea of public reason is a politically liberal idea. See Rawls, Law, supra note 1, at 143–44. (“[T]he content of public reason is given by the principles and values of the family of liberal political conceptions of justice meeting these conditions. To engage in public reason is to appeal to one of these political conceptions—to their ideals and principles, standards and values—when debating fundamental political questions.”).
151 Id. at 59; see id. at 54–58. Interestingly, Rawls devotes almost no attention to the operation of the norms of public reason in the section of The Law of Peoples concerned with decent nonliberal peoples. Id. at 54–58.
152 Rawls, Liberalism, supra note 1, at 226.
153 Id. at 137 (footnote omitted).
154 Rawls, Restatement, supra note 1, at 27 (emphasis added).
155 Rawls, Liberalism, supra note 1, at 65.
156 Id.
157 Id. at 65–66.
158 See id. at 66.
159 See Rawls, Law, supra note 1, at 105–13. Note that while some burdened societies may have democratic political institutions, helping a burdened society change its political culture is part of what aiding such a society entails; therefore, it follows that not every burdened society necessarily offers even the relatively minimal human rights protections afforded by the Law of Peoples. See id. at 109-–10.
160 See id. at 94–97; Rawls, Theory, supra note 1, at 332–35.
161 See Rawls, Law, supra note 1, at 91. Though Rawls notes that outlaw states are “aggressive and dangerous,” id. at 81, he does not regard self-defense as the only appropriate reason for confronting outlaw states. See id. at 81 n.26, 93 n.6.
162 See id. at 93 n.6; cf. id. at 80–81.
163 See infra Parts I.D.3.b.iii.B (“Legitimacy Without Consensus”), II.D.3.c.iii (“A Cosmopolitan Law of Peoples Could Bind Absent a Fair System of Cooperation”).
164 See Rawls, Restatement, supra note 1, at 5–8; Rawls, Theory, supra note 1, at 4; cf. Rawls, Restatement, supra note 1 at 50, 95–96.
165 See Rawls, Restatement, supra note 1, at 7.
166 See Rawls, Liberalism, supra note 1, at 15.
167 See id. at 15–16. At one point, Rawls frames the fundamental question in which he is interested as “What is the most appropriate conception of justice for specifying the fair terms of social cooperation between citizens of a democratic regime regarded as free and equal?” Id. at 391 n.27.
168 See Rawls, Law, supra note 1, at 36.
169 Perhaps this sort of analysis lies behind some observations offered in (at least partial) explanation of Rawls’s preference for peoples over persons. See Brilmayer, supra note 57, at 38 (“Rawls transposes his familiar domestic methods to construct a ‘Law of Peoples’ and justifies this by observing that peoples as corporate bodies organized by their governments already exist in some form all over the world. These existing entities must agree to any proposed political reforms. This being the case (Rawls believes) all principles and standards proposed for the law of peoples must be acceptable to the considered and reflective opinion of ‘peoples’ and their governments.”). But this makes little sense as a basis for an account of justice.
170 See generally id.; Buchanan, supra note 17.
171 Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L.J. 2599, 2603 (1997) (review essay) (footnote omitted).
172 See generally Thomas M. Franck, Fairness in International Law and Institutions (1995).
173 See Koh, supra note 171, at 2645–58.
174 Joseph Heath, Immigration, Multiculturalism, and the Social Contract, 10 Can. J.L. & Jurisdiction 343, 347 (1997) argues that “even if social contract principles would recommend a system of global relations in which freedom of movement among nations was guaranteed, there is no reason to think that such principles should be respected by any state in the absence of an effective institutional structure that can provide reasonable guarantees of compliance among the others.” This international structure need not, however, be a global state; a variety of other possibilities are readily imaginable.
175 Cf. infra Parts I.D.3.b.iii.A.1–2 (“A Surprising Current Consensus,” “A Possibly Emergent Consensus”), I.D.3.c.ii.A–B (“Fostering Cooperation Under a Cosmopolitan Law of Peoples,” “The Extent of Support for a Cosmopolitan Law of Peoples”).
176 Rawls explicitly acknowledges that there might be
many who do not find a sense of justice for their good; but if so, the forces making for stability are weaker. Under such conditions penal devices will play a much larger role in the social system. The greater the lack of congruence, the greater the likelihood, other things equal, of instability with its attendant evils. Yet none of this nullifies the collective rationality of the principles of justice; it is still to the advantage of each that everyone else should honor them. At least this holds true so long as the conception of justice is not so unstable that some other conception would be preferable.
Rawls, Theory, supra note 1, at 505.
177 Id. at 434–35; cf. Trachtman, supra note 15, at 989 (observing that “some measure of social proximity is necessary for solidarity” but noting that “[t]his position is more a behavioral insight about human nature than a philosophical or logical principle” and thus should not be used “as a basis for determining what human action or what institutional arrangements would be just” (footnote omitted)). Of course, judgments about human nature cannot directly lead to conclusions about justice. However, if certain psychological characteristics of a population make a particular scheme of justice difficult to implement, this might be an especially strong argument against implementing it, despite its moral attractiveness. See generally Bernard A.O. Williams, Ethics and the Limits of Philosophy (1985).
178 Rawls, Law, supra note 1, at 80–81.
179 Id. at 37.
180 Rawls, Theory, supra note 1, at 333; see also Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311, 321 n.40 (1996) (“Natural duties do not depend on the presence of institutions for their very existence, while artificial duties do.”).
181 Rawls, Theory, supra note 1, at 333.
182 Id.
183 See id. (characterizing justice in war).
184 Id. at 98; cf. Jeremy Waldron, Redressing Historic Injustice, 52 Toronto L.J. 135, 138 n.11 (2002) (“Rawls used a contractarian device to illuminate the content of justice; but the duty to be just was understood by him as a categorical natural duty, not as a contractually incurred obligation.”).
185 Rawls, Theory, supra note 1, at 99. This idea might seem more at home in the intellectual world of A Theory of Justice than in that of Political Liberalism. But the political conception of justice as fairness is still, in a limited but important sense, a moral conception. There is no reason a proponent of political liberalism, as Rawls characterizes and defends this idea in his later work, should object to the notion of natural duties (as elaborated in A Theory of Justice) provided that these duties are understood and grounded as part of a political conception.
Rawls’s reference to treaty obligations should not be read as implying that the duty to observe the requirements of justice in war depends on the existence of international agreements embodying these requirements. It is apparent that he believes that a soldier might offer a justification rooted in a reasonable political conception of justice for refusing to “engage in certain illicit acts of war.” Rawls, Theory, supra note 1, at 333. His purpose seems to be to note a further justification (superfluous but still important) that the soldier might offer for conscientious refusal. Rawls does not suggest, I think, that a soldier would be free to, say, violate the principle of noncombatant immunity in a given case if no treaty provision constrained her conduct in a particular case.
186 See Rawls, Law, supra note 1, at 62. While Rawls is not a relativist, it is easy to misread him as if he were (“a liberal constitutional democracy is, in fact, superior to other forms of society”). See id. Thus it is understandable that Tesón observes that the post-Theory of Justice Rawls “embraced a more relativistic, context-based conception of justice and political morality, in which rights and liberties no longer had a foundation in higher principles or liberal views of human nature, but were merely the result of the peculiar history and traditions of the West.” Tesón, supra note 101, at 98. My sense is that Rawls believes that the liberal rights he defends happen to have been discovered and defended in the West and that it might prove difficult to construct an overlapping consensus in support of such rights outside the West. But I do not believe he supposes that liberal claims about justice are only “true for” people in the West. Rawls may be a relativist about justification, but he is not a relativist about truth. See Jeffrey Stout, Ethics After Babel: The Languages of Morals and their Discontents 24–28, 93–94, 244–55 (2d ed. 2001) (distinguishing relativism about justification and relativism about truth).
187 See Rawls, Theory, supra note 1, at 507 (“[T]he principles of justice are argued for on the basis of reasonable stipulations concerning the choice of such conceptions. I urged the naturalness of these conditions and presented reasons why they are accepted, but it was not claimed that they are self-evident, or required by the analysis of moral concepts or the meaning of ethical terms.”).
188 See, e.g., id. at 18–19, 42–45, 104, 507–08 (discussing reflective equilibrium). We as citizens engage in deliberation leading to reflective equilibrium as we assess the appropriateness of the norms governing the original position and ask whether these norms adequately reflect of our general sense of fairness and our considered judgments about particular issues. The participants in the original position engage in such deliberation as they evaluate proposed principles of justice. See Rawls, Liberalism, supra note 1, at 28.
189 Rawls, Restatement, supra note 1, at 39.
190 Id. at 5.
191 Id. at 7 (emphasis added).
192 Id. at 19; cf. Richard M. Rorty, Postmodern Bourgeois Liberalism, 80 J. Phil. 583 (1983); Richard M. Rorty, The Priority of Democracy to Philosophy, in Prospects for a Common Morality 254–78 (Gene Outka & John P. Reeder, Jr. eds., 1993).
193 It obviously would not do to note that, on this interpretation of Rawls, the principles in question would be ultimately arbitrary and unwarranted, since the sort of relativism implied in this interpretation suggests that all deep normative judgments are similarly relative, including the contention that it is inappropriate for liberals to act with respect to nonliberals on the basis of liberal principles.
194 To use Oliver Wendell Holmes’s phrase:
[A]ll I mean by truth is what I can’t help believing—I don’t know why I should assume except for practical purposes of conduct that [my] can’t help has more cosmic worth than any other—I can’t help preferring port to ditch-water, but I see no ground for supposing that the cosmos shares my weakness.
Letter from Oliver Wendell Holmes to John Gray (Sept. 3, 1905), quoted in Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes 283 (1989). This quotation was brought to my attention by Albert W. Alschuler, whose book is an informative and provocative exploration of legal and moral skepticism. Albert W. Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes 24 (2000).
195 There are good reasons for them not to do so. See, e.g., Chartier, supra note 91, at 118–21.
196 Rawls, Liberalism, supra note 1, at 62 (emphasis added).
197 Rawls, Law, supra note 1, at 62.
198 Id. at 74–75.
199 The same argument for equality is articulated in Rawls, Theory, supra note 1, at 441–49; Rawls, Restatement, supra note 1, at 19–20.
200 Rawls, Restatement, supra note 1, at 5 n.5 (emphasis added).
201 Id. at 31.
202 Rawls, Liberalism, supra note 1, at 44.
203 Letter from Oliver Wendell Holmes to John Gray, supra note 194, at 283.
204 Rawls, Liberalism, supra note 1, at 44–46.
205 Further, even if the validity of claims for democracy and liberal equality were ultimately grounded in nothing more than a Western consensus, this would have no implications for the particular foreign policy choices of liberal societies. If all norms are culturally dependent, liberal states remain perfectly free to act on the norms prescribed by their culture; relativism affords no support for tolerance. If liberalism dictates that its adherents pressure other societies to create democratic institutions and foster social and economic equality, the fact that liberalism is understood as a Western idiosyncrasy gives liberals no reason to ignore their “can’t helps” when determining how best to interact with illiberal societies. However, if liberal principles demand effort and sacrifice from liberals, recognizing that these principles were fundamentally arbitrary might lead liberals to choose less strenuous alternatives. But this would be a reflection of liberals’ preference for sloth, not of the support for tolerance purportedly provided by relativism. Cf. Bernard A.O. Williams, Morality: An Introduction to Ethics 14–37 (1972).
206 See Rawls, Law, supra note 1, at 37, 65, 80–81.
207 See id. at 80–81.
208 Rawls, Theory, supra note 1, at 331.
209 See Tushnet, supra note 96, at 1074; see also Frank J. Garcia, The Law of Peoples, 23 Hous. J. Int’l L. 659, 667 (2001) (book review) [hereinafter Garcia, Peoples] (“[Rawls’s] approach is statist not because he is necessarily enamored of states or their track record (he clearly is not), but because they remain the primary delivery vehicles for domestic justice, which is for Rawls the sine qua non of international justice.”).
Similarly, Charles Beitz, supra note 2, at 682, suggests that Rawls may be arguing “that a people should be treated as having special ethical significance because its flourishing as a people is essential to its capacity to manage its human, material, and cultural resources, and, thus, to sustain its institutions, for the benefit of present and future members.” But again, even if a world state were impossible or undesirable, a cosmopolitan could justify treating peoples as having “special ethical significance” without conceding that the principles of international justice should reflect the conclusions of Rawlsian rather than individual deliberators. See id. at 683.
210 Cf. Pogge, Justice, supra note 56, at 248.
211 I mean “rational” here in its ordinary sense—consistent with reason—rather than in the increasingly popular sense associated with the “theory of rational choice” (a sense not attested at all in the 1989 Oxford English Dictionary), which Rawls seems to endorse. See Rawls, Theory, supra note 1, at 123–25, 359–72; Rawls, Restatement, supra note 1, at 6–7, 81–82. For a recent philosophical example of the use of “rational” with its ordinary meaning, see generally Faith and Rationality: Reason and Belief in God (Alvin Plantinga & Nicholas Wolterstorff eds., 1983).
212 Rawls, Law, supra note 1, at 82 (footnotes omitted).
213 Rawls, Theory, supra note 1, at 53; cf. Rawls, Liberalism, supra note 1, at 291–99; Rawls, Restatement, supra note 1, at 112–14.
214 See Rawls, Liberalism, supra note 1, at 291; Rawls, Restatement, supra note 1, at 42. It would also probably incorporate a global version of Rawls’s difference principle, or something similar. On the difference principle globally applied, see infra Part III (“The Duty of Assistance and the Just War”).
215 For a broader defense of extensive international human rights norms, see Robert D. Sloane, Outrelativizing Relativism: A Liberal Defense of the Universality of International Human Rights, 34 Vand. J. Transnat’l L. 527 (2001).
216 See Rawls, Law, supra note 1, at 65, 78–80.
217 Id. at 80. Rawls also identifies a third function: to set a limit to “the pluralism among peoples.” Id. (footnote omitted).
218 Id. at 27.
219 Id. at 79.
220 Id.
221 Rawls, Law, supra note 1, at 65 (footnotes omitted).
222 Id. at 80 n.23. Rawls gives two examples of “human rights proper” contained in the Universal Declaration of Human Rights: Article 3 (rights “to life, liberty and security of person”) and Article 5 (rights to be free from “torture or . . . cruel, inhuman or degrading treatment or punishment”). Id. (citing Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948) [hereinafter Univ. Dec. Hum. Rights].
223 Rawls, Law, supra note 1, at 79–81.
224 Id. at 79–80. Recall that the members of “associationist” societies “are viewed in public life as members of different groups, and each group is represented in the legal system by a body in a decent consultation hierarchy.” Id. at 64.
225 Id. at 80 n.23.
226 See id.
227 See id.
228 See id.
229 Univ. Dec. Hum. Rights, supra note 222, arts. 19–21. “The will of the people shall be the basis of the authority of government; this will shall be expressed 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.” Id. art. 21.
230 Rawls, Law, supra note 1, at 80 n.23.
231 See id.
232 Univ. Dec. Hum. Rights, supra note 222, art. 20.
233 Id. art. 17.
234 Id. art. 18.
235 Id. art. 19.
236 See Robert Justin Lipkin, In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism, 45 DePaul L. Rev. 263, 275–76 (1996) (characterizing as arbitrary Rawls’s specification of the rights a decent nonliberal society would necessarily respect).
237 Rawls, Law, supra note 1, at 79.
238 Rawls suggests that non-religious factors may account for the subordination of women in Islam. See Rawls, Law, supra note 1, at 110 (citing Leila Ahmed, Women and Gender in Islam (1992)); cf. Joelle Entelis, Note, International Human Rights: Islam’s Friend or Foe? Algeria as an Example of the Compatibility of International Human Rights Regarding Women’s Equality and Islamic Law, 20 Fordham Int’l L.J. 1251 (1997).
239 Rawls, Law, supra note 1, at 75; cf. id. at 78, 110.
240 Id. at 75.
241 Id. at 159–63.
242 Id. at 80 n.23. Rawls’s main focus here may well be on the subsequent claim in Article 1 that all human beings “are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Id.; Univ. Dec. Hum. Rights, supra note 222, art. 1.
243 Univ. Dec. Hum. Rights, supra note 222, art. 7.
244 Rawls, Law, supra note 1, at 65 (footnotes omitted).
245 See id. at 78–81.
246 Id. at 78–79 (“Human rights in the Law of Peoples . . . [are] urgent rights, such as freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide.”) (emphasis added).
247 Id. at 42. (“It is these interpretations, of which there are many, that are to be debated in the second-level original position.”).
248 This fact leads, from different premises, to Lipkin’s tart observation that “in Rawls’ view, some very nasty countries might be reasonable.” Lipkin, supra note 236, at 304.
249 Rawls says this explicitly with respect to liberal societies and comprehensive doctrines and says nothing to imply that the same would not be true for decent nonliberal peoples in the original position. Rawls, Law, supra note 1, at 34. That individual deliberators behind the veil of ignorance would be unaware which national human rights norms were theirs seems to flow naturally from Rawls’s conception of the function of the veil of ignorance and the original position.
250 This does not mean that human rights protections will not be afforded at all. The level of human rights protection afforded in a given society will not be determined solely by the ideology dominant in that society. Each society has an interest in its own stability, and significant human rights abuses can lead to instability. Each society has some reason to protect human rights simply as a means of promoting stability, even if respect for some of the rights it protects might not be required by—or might even be inconsistent with—the ideology dominant in the society. I owe this point to Seana Shiffrin.
251 Perhaps Rawls intends the claim that “[w]hat have come to be called human rights are recognized as necessary conditions of any system of social cooperation,” to provide a basis for a kind of transcendental argument enabling us to distinguish human rights from other kinds of rights. Rawls, Law, supra note 1, at 68. He explains: “When they are regularly violated, we have command by force, a slave system, and no cooperation of any kind.” Id. Rawls could argue that the quality of being essential to a system of social cooperation is what makes a given guarantee a human right, but it is unclear how this criterion would work in practice. Read as a strong claim about the voluntariness of schemes of social interaction, it seems to impose more limits on decent nonliberal societies than Rawls wishes to suggest are legitimate. Read loosely it seems to require very little in the way of restraint on state power. Rawls provides no guidance for the use of this criterion if he designs it as such. See id.
252 Id. at 59–60.
253 Id. at 60.
254 Id. at 84–85.
255 Id. at 61.
256 Rawls, Law, supra note 1, at 62.
257 Id. at 83.
258 Id.
259 Id. at 62.
260 Id. at 75 n.16.
261 Experience, however, suggests that sanctions will often constitute abuses of human rights.
262 See Rawls, Law, supra note 1, at 93 n.6.
263 Alec Walen, The Significance of Rawls’s Law of Peoples, 6 Int’l Legal Theory 51, 53 (2000).
264 Such associations can, of course, impose sanctions that are exceptionally costly from the standpoints of their members; consider, for example, a religious community that claims the right to determine its members’ ultimate destinies. Cf. Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (2001).
265 Thanks to Seana Shiffrin for helping me to see the need to stress this point. As Rawls himself observes:
By contrast with associations within society, the power of the government cannot be evaded except by leaving the state’s territory. . . . [N]ormally, leaving is a grave step: it involves leaving the society and culture in which we have been raised, the society and culture whose language we use in speech and thought to express and understand ourselves, our aims, goals, and values; the society and culture whose history, customs, and conventions we depend on to find our place in our social world. . . .
The state’s authority cannot, then, be freely accepted in the sense that the bonds of society and culture, of history and social place of origin, begin so early to shape our life and are normally so strong that the right of emigration . . . does not suffice to make accepting its authority free, politically speaking, in the way that liberty of conscience suffices to make accepting ecclesiastical authority free, politically speaking.
Rawls, Restatement, supra note 1, at 93–94 (footnotes omitted). “[I]t is,” says Rawls, “no defense of the principles of political justice to say to those protesting them: You can always leave the country. The analogue of this may hold for associations but not for political society itself.” Id. at 94 n.15; see also Rawls, Liberalism, supra note 1, at 136 n.4.
266 As, of course, are many would-be liberal societies; consider the widespread use in the United States of execution as a tool of public policy.
267 I’m not sure one could reach the conclusion that decent nonliberal regimes were legitimate on the basis of arguments that “take the interests of persons as morally fundamental,” Pogge, Justice, supra note 56, at 248, in a cosmopolitan second original position. Cosmopolitan deliberators might well recognize the appropriateness of more communitarian variants of liberalism, but—provided they accepted Rawlsian canons of public reason—it is not obvious that they would have any reason at the global level to avoid protecting the rights of expression, association, assembly, and democratic participation, which they would regard as essential components of justice at the domestic level. They might well, of course, regard the tolerance of nonliberal regimes as appropriate, but that would be quite different from affirming the legitimacy of such regimes.
268 Rawls, Law, supra note 1, at 84–85. I ignore in the text Rawls’s treatment of the International Monetary Fund (IMF) or its equivalent in his imagined Society of Peoples. He notes that the IMF often does attach conditions to loans that have the effect of promoting liberalism and democracy, but I suspect even the IMF’s practice can be made consistent with his general point on the thesis that its putative goal is not to promote democracy but to foster political conditions that seem to conduce to loan repayment, an economic objective which any country supporting the Fund would presumably share. See id. at 85 n.30. In any event, not all countries belong to the IMF and there might be less ideological conflict of the sort to which Rawls alludes within a less inclusive organization.
269 Id. at 85.
270 Id.
271 Id. at 84–85.
272 Rawls notes that ensuring “equal justice for women” is among the simplest ways to address the problem of population growth. Id. at 110. And he stresses the importance of “prevent[ing] violation[s] of [t]he human rights of women.” Id. But the kind of consultation procedure he imagines would not ensure the equality of women.
273 Rawls, Law, supra note 1, at 85.
274 Id. at 75.
275 Id. at 110.
276 Thanks to Seana Shiffrin for challenging my thinking on this point.
277 Rawls, Law, supra note 1, at 72, 78.
278 Id. at 85.
279 According to Rawls, “a religion cannot claim as a justification for its subjection of women that it is necessary for its survival. Basic human rights are involved, and these belong to the common institutions and practices of all liberal and decent societies.” Id. at 111 (footnote omitted). It may well be that the same is true of an ideologically motivated marginalization of those involved or disposed to be involved in same-sex romantic or romantic-and-sexual relationships. I have no doubt that Rawls’s inclination would be to say that it is, but he provides no reason in the text for assuming that the human rights protected by his Law of Peoples include the rights of sexual minorities.
280 Cf. Mortimer Sellers, The Law of Peoples, 6 Int’l Legal Theory 44, 48–49 (2000)(“There may well be nonliberal states that deserve the protection of Rawls’ eight principles of international law, but their governments should be tolerated (in the ordinary sense of the word), not praised. Contrary to what Rawls’ [sic] believes, states that disenfranchise their peoples should be stigmatized as wrong, even when they must be tolerated, for prudential reasons. . . . Rawls’ conception of toleration betrays the oppressed by denying the reality of their oppression. It encourages liberal peoples to collude with foreign injustice.”).
281 For an extended critique of Rawls’s notion of toleration, see id. at 48–51.
282 Rawls, Law, supra note 1, at 106. I will assume in the text that a burdened society is also economically deprived.
283 See, e.g., Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (2d ed. 1996); Stanley Hoffman, Duties Beyond Borders: On the Limits and Possibilities of Ethical International Politics (1981); James S. Fishkin, The Limits of Obligation (1982); Thomas Nagel, Poverty and Food: Why Charity is Not Enough, in Food Policy: The Responsibility of the United States in the Life and Death Choices (Peter Brown & Henry Shue eds., 1977); Onora O’Neill, Faces of Hunger: An Essay on Poverty, Justice, and Development (1986); The Ethics of Assistance: Morality and the Distant Needy (Deen K. Chatterjee ed., 2003); cf. Lea Brilmayer, International Justice and International Law, 98 W. Va. L. Rev. 611 (1996) (discussing a range of possible international justice claims and arguing, in particular, for international corrective justice).
284 This presumption has been questioned by, e.g., James Fishkin, Tyranny and Legitimacy: A Critique of Political Theories 105–20 (1979).
285 Rawls, Law, supra note 1, at 120.
286 See id. at 106.
287 Scholars in general sympathy with Rawls have argued for norms of international justice more like those Rawls suggests should obtain domestically than those he defends in The Law of Peoples. Cf. Brian Barry, The Liberal Theory of Justice: A Critical Examination of the Central Doctrines in A Theory of Justice by John Rawls (1973); Charles R. Beitz, Political Theory and International Relations 127–43 (1979) [hereinafter Beitz, Political Theory]; Thomas Franck, Fairness in International Law (1995); Pogge, Realizing, supra note 14, at 240–80; Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, 41 Nomos 12, 35–36 (1999); Ethan B. Kapstein, Distributive Justice and International Trade, 13 Ethics & Int’l Aff. 175 (1999); David A.J. Richards, International Distributive Justice, 24 Nomos 275, 292 (1982). As Frank Garcia states bluntly: “the failure lies not with Rawls’s basic enterprise, but his failure to follow it through as rigorously with respect to international justice as he does for domestic justice.” Garcia, Peoples, supra note 209, at 660.
288 Garcia, Peoples, supra note 209, at 660. Rawls, Law, supra note 1, at 106.
289 See Rawls, Law, supra note 1, at 119. Rawls suggests that there may be little difference between Thomas W. Pogge’s global egalitarian principle and his own conception of a duty of assistance. See id. at 118 n.53 (citing Thomas W. Pogge, Human Flourishing and Universal Justice, 16 Soc. Phil. 333 (1999)). Earlier, Rawls says he doesn’t endorse a version of the egalitarian principle offered by Pogge as an attempted internationalization of the account of distributive justice offered in A Theory of Justice. See id. at 116.
290 Id. at 113–20.
291 Id. at 107.
292 Id. at 111. It is perhaps not surprising that one commentator implies that for Rawls’s position, “the existence of injustice between individuals in different states” may seem to be a consequence of “a deep theoretical stance on the nature of justice.” Thomas Christiano, Secession, Democracy and Distributive Justice, 37 Ariz. L. Rev. 65, 68 (1995).
293 Rawls, Law, supra note 1, at 111.
294 Id. at 107, 107–08 n.33.
295 Id. at 108, 117 (citing David S. Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor (1998)).
296 Id. at 108.
297 Id. at 109–10.
298 Rawls, Law, supra note 1, at 109.
299 Id. at 114.
300 Id.
301 See id.
302 See id.
303 See Rawls, Law, supra note 1, at 114–15.
304 See id. at 113–15.
305 Id. at 114.
306 Id. at 116 (summarizing a state of affairs that provides the basis for an argument in Beitz, Political Theory, supra note 287, at 137–42).
307 Id. I have attempted to spell out the premises of an argument Rawls presents in elliptical form.
308 Rawls, Law, supra note 1, at 108.
309 Id. at 117.
310 See id.
311 Id.
312 Id.
313 Rawls, Law, supra note 1, at 117–18.
314 The limit Rawls proposes here is, it is fair to note, arguably consistent with some of our moral intuitions. Cf. Michael J. Graetz, Taxing International Income: Inadequate Principles, Outdated Concepts, and Unsatisfactory Policies, 26 Brook. J. Int’l L. 1357, 1399 (2001) (noting, after a reference to Rawls, that “accepting that the international obligations required by justice, or by simple humanity, are less than those domestically does not render them nonexistent”).
315 See Thomas W. Pogge, “Assisting” the Global Poor, in The Ethics of Assistance: Morality and the Distant Needy (Deen K. Chatterjee ed., 2003).
316 Cf. Pogge, Justice, supra note 56, at 251–53.
317 See Beitz, supra note 2, at 690; Buchanan, supra note 17, at 705–09.
318 See Beitz, supra note 2, at 691.
319 Rawls, Law, supra note 1, at 117.
320 But see id.
321 See id. at 692 (noting that successive generations always bear the costs and reap the benefits of the choices of their predecessors, but they are not always treated as responsible for those choices).
322 See Pogge, Law, supra note 14. I believe Todd Adams is still ultimately correct that “[g]rounding the law of peoples on a social contract between peoples and not individuals raises the danger of a just society making foreign policy without regard to how it affects the least favored members of the societies involved.” Adams, supra note 57, at 368. The point is even clearer, as I have tried to suggest, in connection with international violence.
323 They might also, of course, opt for a variety of related or similar but nonetheless distinct principles more demanding than the one Rawls endorses; Buchanan suggests that Rawlsian deliberators would opt for “at least three types of principles of global distributive justice that go far beyond the duty to aid burdened societies: a principal of global equality of opportunity, a principle of democratic participation in global governance institutions, and a principle designed to limit inequalities of wealth among societies.” Buchanan, supra note 17, at 711.
324 Foley argues that they would do no such thing. Foley, supra note 111, at 264–65. He suggests that, having opted for independent states (even if continent-wide ones), they would opt against substantial global redistributive measures (aside from a resource extraction tax). See id. at 258–60.
[T]he parties in the original position would recognize that the responsibility for distributive justice must lie with the separate, sovereign nation-states and not with any unified global regime. Each nation-state must be free to determine its own population growth and education policies, as well as other policies concerning savings rates and capital investments, and thus each must be free to establish its own separate income-sharing programs.
Id. at 264 (footnote omitted).
Foley’s argument appears to be that if the members of one group are responsible for providing financially for the well-being of the members of another, they will understandably demand the right to ensure that the members of the group they are supporting are prevented from making choices that will worsen their circumstances and require more support than would otherwise be necessary. Because no group could exercise this right without possessing dictatorial or near-dictatorial power, and because actors in the original position would not wish to invest anyone with such powers, they would opt against an extensive aid requirement because it would require giving some global actors excessive authority (and perhaps the creation of a global state that could use taxation to effect global wealth redistribution). Id. at 254–56. Focusing on two imagined nations, Barbaria and Acadia, Foley says: “The implication of this conclusion is that the Acadian children may be left in misery, but this misery is the price of the freedom that Acadia must have to choose its own destiny, without the imposition of Barbarian colonialism.” Id. at 255. The knowledge that their misery is the price of national independence may not provide much comfort to the children of Acadia. Nor should it. This is not the place to provide a detailed response to Foley. But it seems to me that individual deliberators might prove less troubled by the prospect of global governance than he believes they would be. See infra Part I.D.3.a (“The Rejection of a World Government”). In any case, individual deliberators would presumably preclude unjust impositions on those receiving public assistance when framing the rules governing institutions in particular nation-states; they would presumably do the same when designing an international legal and political order.
Even absent a global government, significant wealth redistribution would obviously, in any case, be possible. If Foley’s proposed resource tax is viable, a variety of other redistributive measures would be as well, cf. Pogge, Law, supra note 14, including trade regulations designed to change the global allocation of wealth. See Frank J. Garcia, Building a Just Trade Order for a New Millennium, 33 Geo. Wash. Int’l L. Rev. 1015 (2001). Garcia elaborates an account of the version of Rawls’s difference principle he believes would be chosen by global individual deliberators in Trade and Inequality: Economic Justice and the Developing World, 21 Mich. J. Int’l L. 975, 1015–18 (2000).
325 They might well also impose requirements on aid recipients to ensure that they acted responsibly to do their part in reducing their own and others’ economic deprivation.
326 Rawls might say that the feeling of not belonging would be illusory in such a case. See Rawls, Law, supra note 1, at 114.
327 Rawls speaks explicitly only of the retention, not of the use, of nuclear weapons. I assume throughout, however, that he regards the use of such weapons against outlaw states as at least potentially appropriate. Nuclear weapons will not restrain outlaw states, as Rawls says they will, see Rawls, Law, supra note 1, at 9, if they are retained as museum pieces. And if their use were prohibited without exception by a Rawlsian Law of Peoples, outlaw states aware of this fact and inclined to assume that well-ordered societies would adhere consistently to their own norms of international justice would not be restrained by their mere possession. Rawls’s position does not make sense, therefore, unless it implies that, in a limited number of circumstances, nuclear weapons might licitly be used against outlaw states.
328 Id. at 99.
329 Darrell Cole, 09.11.01: Death Before Dishonor or Dishonor Before Death: Christian Just War, Terrorism, and Supreme Emergency, 16 Notre Dame J.L. Ethics & Pub. Pol’y 81, 93–98 (2002) (arguing provocatively that a putative democracy’s disregard for the demands of justice when faced with a “supreme emergency” renders its morals almost indistinguishable from those of many modern terrorist movements).
330 Cf. Rawls, Theory, supra note 1, at 333.
331 Even if tactical nuclear weapons proved easier to deliver or less costly than conventional weapons, it seems clear that individual deliberators would not regard these considerations as justifying their use, given the risk employing them would pose to noncombatants.
332 Rawls’s account of just war doctrine depends on Michael Walzer, Just and Unjust Wars (1977). Rawls says of this book: “This is an impressive work, and what I say does not, I think, depart from it in any significant respect.” Rawls, Law, supra note 1, at 95 n.8. For an earlier version of Rawls’s understanding of just war norms, minus the “supreme emergency” exception to which I object in the text, see Rawls, Theory, supra note 1, at 332–35.
333 Rawls, Law, supra note 1, at 96.
334 Id. at 95–97.
335 Id. at 95.
336 Id. at 101. Rawls is explaining Churchill’s own self-assessment here and criticizing him for allowing passion to cloud his insight and moral sensitivity. So Rawls does not say unequivocally that the assault on Dresden violated the Law of Peoples as he understands it. But his characterization of Churchill’s remarks—in a paragraph reflecting on other “violations of the principles for the conduct of war” (vis-à-vis Japan)—makes me confident that Rawls shares Churchill’s retrospective assessment. Id. at 100.
337 As Rawls notes, this expression comes from Walzer, supra note 332, at 255–65.
338 Rawls, Law, supra note 1, at 98.
339 Id. at 9. Rawls does not say whether the mere possession of nuclear weapons would keep outlaw states at bay; it is unclear whether they might in principle be detonated for this purpose. He notes that “[t]here remains . . . the great moral question of whether, and in what circumstances, nuclear weapons can be used at all,” before referring the reader to his later discussion of the just war. Id.
340 Cole, supra note 329, at 90.
341 Rawls, Law, supra note 1, at 98.
342 Id. at 99.
343 Id. at 98.
344 Id. at 105.
345 Id.
346 Rawls, Law, supra note 1, at 104.
347 Id.
348 Id. at 105 (footnote omitted).
349 According to Rawls, “political liberalism does not say that the values articulated by a political conception of justice, though of basic significance, outweigh the transcendent values (as people may interpret them)—religious, philosophical, or moral—with which the political conception may possibly conflict. To say that would go beyond the political.” Rawls, Restatement, supra note 1, at 37. Rawls might be inclined to argue that the stateswoman is free to regard certain religious norms as overriding the claims of her society, and that she might even be right, but that she should resign if faced with a conflict between her principles and the obligations associated with her office.
350 See generally John M. Finnis et al., Nuclear Deterrence, Morality, and Realism (1987). To be sure, Finnis, Boyle, and Grisez are theologically conservative Catholics. But it does not follow that their argument depends on Catholic theological premises; indeed, the moral position they collectively defend is offered in deliberate opposition to divine command views of ethics.
For a Kantian, as opposed to a natural law, justification for the rule of double effect that is reflected in just war thinking, see, e.g., Warren Quinn, Morality and Action 175–97 (1993). Standard natural law accounts include Joseph M. Boyle, Toward Understanding the Principle of Double Effect, 90 Ethics 527, 527–38 (1980) and Germain Grisez, Toward a Consistent Natural-Law Ethics of Killing, 15 Am. J. Juris. 64, 64–96 (1970); see also Lucius Iwejuru Ugorji, The Principle of Double Effect: A Critical Appraisal of Its Traditional Understanding and Its Modern Reinterpretation (1985); Jeffrey M. Ross, Proportionalism and the Principle of Double Effect (1994) (M.A. thesis, Graduate Theological Union).
351 Rawls, Law, supra note 1, at 105 (emphasis added). Rawls also maintains that someone who “oppose[s] all war” cannot “in good faith, in the absence of special circumstances, seek the highest offices in a liberal democratic regime.” Id. at 105. But is it so obvious that a liberal democratic regime must be prepared, if necessary, to go to war under some circumstances? No doubt political liberalism on its own is compatible with a variety of answers to this question, but it cannot, I think, be reasonably understood as imposing a duty on a liberal society to opt for war. Cf. Stanley Hauerwas, Against the Nations: War and Survival in a Liberal Society (1985).
352 Rawls, Law, supra note 1, at 155.
353 See id.
354 I am therefore uncomfortable with Darrell Cole’s way of putting the matter. Cole maintains that “Rawls’s liberalism makes liberal society, if not an absolute good, then certainly a good to be sought above God.” Cole, supra note 329, at 91. I understand why Cole frames matters as he does, but it seems just as true, and more to the immediate point, to stress Rawls’s disregard for persons.
355 Cf. id. at 92 (noting that the proponent of traditional just war norms “argues that it is better to be occupied by a people such as the Nazis than to behave like Nazis”).
356 I avoid the question of the stateswoman’s responsibility should her conscience simply dictate action contrary to her duties as a leader of a liberal state, since my concern here is with the demands of liberalism itself. On the responsibilities of public servants with dissenting consciences, see Arthur Isak Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life 207–39 (1999).
357 Rawls, Law, supra note 1, at 9.
358 Id. at 17 n.9.
359 For one example, compare Adams, supra note 57, at 369 (asserting that the standards articulated “in The Law of Peoples provide a promising method for addressing equity in setting the baseline for greenhouse emissions”).
360 See Rawls, Law, supra note 1, at 62; cf. Rawls, Liberalism, supra note 1, at 62 (“Political liberalism does not question that many political and moral judgments of certain specified kinds are correct and it views many of them as reasonable.”).