No political theorist of the twentieth century has been more celebrated than John Rawls, and none has been more frequently misinterpreted. A Theory of Justice (TJ) was routinely misunderstood because readers were unprepared for the breathtakingly original types of arguments therein.Footnote 1 Political Liberalism (PL) was systematically misjudged because many of us did not understand that it was concerned principally with legitimacy rather than justice.Footnote 2 In this essay, I suggest that many commentators may have also misinterpreted John Rawls's project in The Law of Peoples (LP).Footnote 3 In particular, I raise the possibility that many of the standard criticisms of this work miss their mark by presuming that Rawls sought to offer a comprehensive theory of global justice, when he meant more minimally to respond to a specific, practical problem: “How can we eliminate the great evils of human history?”
I divide this essay into three sections. First, I offer a very brief summary of The Law of Peoples. In the second section, I survey a number of criticisms that have been raised against Rawls's arguments and the conclusions he draws from them. Finally, I suggest an alternative interpretation of LP, one that both squares with Rawls's own description of his project and enables the rebuttal of the standard objections to this work.
I. The Law of Peoples
In LP, Rawls argues on behalf of the following eight principles:
1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples.
2. Peoples are to observe treaties and undertakings.
3. Peoples are equal and are parties to the agreements that bind them.
4. Peoples are to observe a duty of non-intervention.
5. Peoples have a right of self-defense but no right to instigate war for reasons other than self-defense.
6. Peoples are to honor human rights.
7. Peoples are to observe certain specified restrictions in the conduct of war.
8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. (LP, p. 37)
Rawls's defense of these eight principles is reminiscent of the argument offered on behalf of his two principles of domestic justice in A Theory of Justice: he suggests that they would be affirmed by parties in a duly modified version of the original position. The most significant (and controversial) change in the hypothetical contract situation is that the parties choosing the principles to govern international matters represent “peoples” rather than individual persons, where a “people” is a specific type of group with its own state.Footnote 4 Rawls writes: “The term ‘peoples,’ then, is meant to emphasize these singular features of peoples as distinct from states, as traditionally conceived, and to highlight their moral character and the reasonably just, or decent, nature of their regimes.” (LP, p. 27)
Rawls's distinction here between “just” and “decent” is crucial because he maintains that, while only liberal democratic societies are ideally just, a people need be neither fully liberal nor fully democratic in order to be decent or reasonable. More specifically, Rawls suggests that a nonliberal, nondemocratic hierarchical society might qualify as decent as long as it secures basic human rights, takes all of its citizens' interests into account, and is not aggressive against other peoples. Thus, while Rawls never retracts his preference for liberal democracy, he leaves open the possibility that two types of groups might be considered what he calls “well-ordered societies”: liberal democratic and decent hierarchical peoples.Footnote 5 This is pivotal because the core of Rawls's argument is that parties representing all well-ordered societies would affirm the eight principles enumerated above. In other words, neither representatives of liberal democratic peoples nor representatives of decent hierarchical peoples would hesitate to commit to the Law of Peoples. Thus, both because the principles are plausible in their own right and because they would emerge from a duly modified version of the original position, we can endorse the Law of Peoples as those principles that should govern international affairs.
I will not develop this extremely brief summary any further at this stage because I want to remain neutral on the question of interpretation explored in this essay. Hopefully, this skeletal account is at least substantial enough to help the reader appreciate the objections surveyed below.
II. The Critical Response
The Law of Peoples is not without its defenders, but the general reaction to it has been tepid at best. Without attempting to supply an exhaustive recapitulation of the various complaints that have been lodged against LP, I will list what I consider to be eight representative concerns about Rawls's arguments and conclusions: (I) Rawls wrongly focuses on “peoples” rather than individual persons; (II) Rawls is either wrong to include representatives of decent hierarchical peoples or wrong to exclude representatives from nondecent, unreasonable groups from the original position; (III) Rawls fails to offer any competing sets of principles among which the parties might choose; (IV) Rawls's list of basic human rights wrongly omits core rights, including those to democracy, freedom of expression, and equality; (V) Rawls justifies human rights in the wrong way; (VI) Rawls's duty of assistance is far too weak and inegalitarian; (VII) Rawls fails to focus on the global basic structure; and (VIII) Rawls's eight principles say nothing about intrastate conflict.Footnote 6
(I) Why should the parties in the original position represent peoples rather than individual persons, and why do Rawls's eight principles concern exclusively the rights and duties of peoples, as opposed to what might be owed by or to individual persons? Given that individual persons are of fundamental moral importance and groups are valuable only insofar as they contribute to the well-being of individuals, it seems wrongheaded for Rawls to concentrate on peoples as groups. A more natural way to extend the original position to international matters, it might be thought, would be to have the parties in the original position continue to represent individual persons, and to stipulate that the (duly modified) veil of ignorance precludes them from knowing various features of the society in which they live.
Indeed, one might suggest that the primacy of the individual is a core, nonnegotiable element of liberal political thought, and thus any approach focusing so steadfastly on the group as a whole would fail to qualify as liberal. Finally, it is especially surprising that Rawls would turn his gaze from the individual as he does in LP, because his other work has championed this understanding of liberalism. As he says in A Theory of Justice:
The essential idea is that we want to account for the social values, for the intrinsic good of institutional, community, and associative activities, by a conception of justice that in its theoretical basis is individualistic. For reasons of clarity among others, we do not want to rely on an undefined concept of community, or to suppose that society is an organic whole with a life of its own distinct from and superior to that of all its members in their relations with one another.
(TJ, p. 264)It is no surprise, then, that Thomas Pogge objects to Rawls's focus on groups as follows: “The danger here is not merely moral implausibility, but also philosophical incoherence between Rawls's conceptions of domestic and of global justice. According to the latter, a just domestic regime is an end in itself. According to the former, however, it is not an end in itself, but rather something we ought to realize for the sake of individual human persons, who are the ultimate units of moral concern.”Footnote 7 In short, by having the parties in the choice situation represent peoples rather than persons, it is as if Rawls forgot the very liberal lessons that he taught the rest of us.
(II) If the parties are to represent peoples, then it seems as though they should represent all groups, not just the well-ordered societies. Rawls suggests that both liberal and nonliberal decent peoples would affirm the eight principles, but he never argues that all societies would commit to these eight principles. Denying nondecent groups any representation in the original position is worrisome, though, given that the principles putatively affirmed there would profoundly affect them. Since Rawls's principles allow for intervention in cases where basic rights are not being respected, for instance, it seems important to justify these principles to outlaw states who would be vulnerable to military invasion. Without giving these groups representation, Rawls could not establish that they would be unreasonable to reject these principles. And, if this could not be established, then Rawls would not have demonstrated that the coercion licensed by his favored principles could not be reasonably rejected by those liable to this coercion.
Of course, Rawls might respond that outlaw states need not be represented because, insofar as they are unreasonable, their affirmation is irrelevant and they could not possibly reasonably reject the principles. While his response might justify excluding nondecent societies, it raises another awkward question for Rawls: If we may exclude nondecent groups on principled grounds, then why are nonliberal but so-called decent peoples allowed representation in the hypothetical choice situation? Although it is true that not all hierarchical societies are equally tyrannical, it certainly seems as though any society that failed to secure democratic rights, freedom of expression, and equality of all its citizens should not be called reasonable. Again, one can imagine some denying the importance of freedom, equality or democratic governance, but it is hard to imagine a liberal theorist like Rawls doing so. Kok-Chor Tan complains of this tension within Rawls's theory:
… certain views not permitted in domestic liberal society are deemed permissible if expressed in foreign societies. It seems that while Rawls would say that a liberal state should criticize a domestic comprehensive view which forbids its members from exercising their public rights (like the right to vote in public elections), this same state should not criticize a WHS [well ordered society] which denies some of its citizens this same right. This seems blatantly inconsistent to me.Footnote 8
To put it bluntly, if one is in no way being unreasonable in denying these core liberal democratic values, then what was all the fuss about in A Theory of Justice and Political Liberalism?
(III) It seems objectionable that Rawls does not give the parties in the original position any choice among competing sets of principles; only the eight he favors are given. Critics of A Theory of Justice have objected to the lack of options Rawls introduced there (it was common to protest that while the representatives in the original position might admittedly prefer Rawls's two principles over utilitarianism, they would not have favored them over utilitarianism with a guaranteed decent minimum, for instance), but at least there were options. Rawls suggests that the parties would affirm the Law of Peoples, but unless we are given evidence that these principles would be chosen over all the alternatives, we have no reason to believe they are the best proposal for international law. In short, because Rawls does not even introduce alternative sets of principles (let alone argue that they would be dispreferred by those in the relevant choice situation), it is unclear to what extent his arguments support the Law of Peoples.
(IV) Rawls's list of basic human rights is objectionably anemic. Put plainly, it is striking that Rawls would advance a list of rights so truncated as to exclude those to democracy, freedom of expression, and equality. As Fernando Tesón puts it:
But it should certainly count against a liberal theory that in the tension between human rights and states' rights, between freedom and nationalism, between collective forms of oppression and the quest for human progress, between the individual and the government, the theory sides with rulers (provided that they are not ‘demonic’ tyrants) and not with the people. It is as if Rawls believed that the human rights movement had gone too far in recognizing rights such as freedom of expression; those rights are, in some sense, too liberal.Footnote 9
(V) Rawls grounds basic human rights in an objectionable manner. He writes:
It may be asked by what right well-ordered liberal and decent peoples are justified in interfering with an outlaw state on the grounds that this state has violated human rights…. Liberal and decent peoples have extremely good reasons for their attitude. Outlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways. Otherwise, they deeply affect the international climate of power and violence.
(LP, p. 81)Rawls's explanation as to why decent peoples might permissibly interfere in cases of grave rights abuses is stunning. Presumably what is most objectionable about outlaw states disregarding the basic rights of their constituents is the grave harm thereby done to these political subjects, not the potential disruption of international relations. As Charles Beitz puts it:
… whatever might be said about intervention, it is clear that the strategic interest in international stability does not bear on the moral status of human rights. For example, the reason why people have human rights not to be tortured does not seem to be that regimes that torture are dangerous to other regimes: although the latter fact (if it is a fact) might justify intervention, it does not imply anything about the moral situation of the tortured.Footnote 10
Thus, even if Rawls is correct about the broader dangers posed by outlaw states, this observation clearly seems secondary; concern for those individual persons whose rights are being violated presumably must constitute the core of any justification for interfering with outlaw states.
(VI) The so-called duty of assistance is doubly inadequate: Not only does Rawls wrongly conceive of this duty as obtaining among societies rather than individual persons, he demands too little redistribution from the “haves” to the “have-nots.” First, conceiving of the duty of assistance as obtaining among peoples is problematic because it renders one incapable of ensuring that each individual receives what justice requires. This is because, even if the “haves” as a people give all that can legitimately be asked of them to the “have-nots” as a society, there is no guarantee that the “have-nots” will distribute it so as to ensure that all among them have enough to satisfy even their most basic needs. Second, even if Rawls were right to insist that international redistribution should occur between groups, it is not clear why he believes that the wealthy must give burdened societies only as much as they need to become minimally well-ordered. Put another way, why think that no inequality can be objectionable as long as no people is so poor as to be what Rawls calls a “burdened” society? It seems at least curious that the same reasons Rawls invokes in defense of the difference principle at the domestic level would not apply, mutatis mutandis, with equal force to international inequalities.
(VII) Rawls inexplicably fails to focus on the global basic structure, a structure that is a paradigmatic subject of justice. In A Theory of Justice, Rawls writes: “The basic structure is the primary subject of justice because its effects are so profound and present from the start. The intuitive notion here is that this structure contains various social positions and that men born into different positions have different expectations of life determined, in part, by the political system as well as by economic and social circumstances. In this way the institutions of society favor certain starting places over others. These are especially deep inequalities.” (TJ, p. 7) LP appears seriously flawed, then, because Rawls commits either the empirical error of failing to recognize that a global basic structure exists or the normative mistake of thinking that the international basic structure is not as morally significant as its domestic counterpart. Either way, this oversight is thought to be enormously important because if there is a morally significant global basic structure, it would have profound implications for whatever duties of assistance one should posit. Not only would the “haves” be required to give the “have-nots” much more than Rawls currently suggests, these transfers would be under the title of distribution, not redistribution. As Thomas Pogge explains:
… the tenor of his remarks throughout is that a global difference principle is too strong for the international case, that it demands too much from hierarchical societies…. This suggests a view of the difference principle as a principle of redistribution, which takes from some to give to others: The more it redistributes, the more demanding is the principle. But this view of the difference principle loses an insight that is crucial to understanding Rawls's own, domestic difference principle: There is no prior distribution, no natural baseline or neutral way of arranging the economy, relative to which the difference principle could be seen to make redistributive modifications. Rather, there are countless ways of designing economic institutions, none initially privileged, of which one and only one will be implemented. The difference principle selects the scheme that ought to be chosen. The selected economic ground rules, whatever their content, do not redistribute, but rather govern how economic benefits and burdens get distributed in the first place.Footnote 11
In sum, Rawls's failure to attend to the global basic structure leads him to mistakenly advance an overly cautious principle of redistribution instead of an appropriately ambitious theory of international distribution.
(VIII) Finally, it is problematic that none of Rawls's eight principles provides guidance for how we should adjudicate intrastate conflicts. Critics object that not only has Rawls failed to supply this important element, his argument renders him necessarily unable to do so. In particular, by stipulating that the parties in the original position represent not only peoples but unified peoples with their own states, Rawls leaves no room for international law to address matters of intrastate conflict. As Allen Buchanan notes:
The question of whether, and if so how, international legal institutions should respond to intrastate conflicts cannot even be raised within Rawls's framework because the parties who choose the Law of Peoples are understood to be representatives of “peoples,” groups characterized by deep political unity and already possessing their own states. Rawls's political homogeneity assumption is not a mere detail; it shapes his understanding of what international law is for, by eliminating from the Law of Peoples principles designed to cope with important conflicts that arise within states.Footnote 12
This point is particularly worrisome not only because virtually every existing state contains a variety of distinct groups, but also because the divisions between these groups all too often give rise to precisely the types of violence and unrest that Rawls hopes for his Law of Peoples to contain. Indeed, in the real world as it is currently configured, human rights and geopolitical stability seem more acutely threatened by intra- than interstate conflict.Footnote 13
Having enumerated these eight distinct objections, it is worth reflecting on the tone of the critical reaction taken as a whole. Whether or not any of these criticisms is apt, it is striking how lopsided the reception has been. Notice that, by requiring societies to protect human rights, allowing for humanitarian intervention when these rights are not protected, and requiring peoples to provide assistance to burdened societies, the Law of Peoples is in some respects quite revisionist. (Imagine how different our world would be if wealthy societies continued transferring funds until no society remained burdened, or if all states that failed to respect Rawls's list of basic human rights were generally regarded as morally liable to intervention, for instance.Footnote 14) Despite advocating these modestly progressive principles, however, Rawls has been consistently criticized for how little he demands, not how much. And interestingly, it is the Rawlsians who seem most vociferously to criticize LP. Time and again, critics do not merely respectfully point out what strike them as errors, they appear to lament in particular that Rawls, of all people, would write such a conservative text.Footnote 15 Just as Marx reflected that many were “plus Marxiste que moi,” Rawlsians now protest that Rawls's LP is not Rawlsian enough.
For decades, liberal, democratic egalitarians have hailed Rawls's account of justice as fairness as the most compelling theory of domestic justice, and more than a few have suggested how this account can and should be extended to matters of global justice. The disappointment was palpable, then, when Rawls finally turned his attention to the international arena, and his conclusions proved to be considerably less ambitious and egalitarian than anyone could have imagined. Many appeared not merely disappointed, but almost betrayed that the greatest political theorist of the century would so dramatically turn his back on the very same liberal, democratic, egalitarian values that he taught us to understand and admire. Tesón puts the point plainly:
There are two John Rawlses. The first John Rawls is, I believe, the greatest political philosopher of this century. A Theory of Justice is a work that not only set the agenda for political philosophy but, as important, served as inspiration for many who were resisting oppression in many parts of the world. The second John Rawls moved toward a more relativistic, context-based conception of justice and political morality, where rights and liberties no longer have a foundation in higher principles or liberal views of human nature but are merely the result of the peculiar history and traditions of the West.Footnote 16
Such a dramatic retreat demands an explanation, and two candidates immediately present themselves. The most straightforward explanation is simply that Rawls lost confidence in his earlier views. Philosophers constantly modify their positions, so why is it inconceivable that Rawls would not also have evolved? Indeed, it is hard to think of a contemporary philosopher who has endured more criticism for his views than Rawls did for espousing the difference principle, so I suppose it is not altogether unbelievable that he would ultimately shy away from it. Moreover, Rawls seemed gradually but decidedly to grow ever more circumspect about the metaphysical reach of his arguments, so such a shift in values would seem to be merely one component of a more general, wide-ranging conservatism.
A second possible explanation for the disconnect between Rawls's boldly liberal egalitarian domestic theory and his relatively modest international principles is that, while he did not retreat from the core values that led him to embrace justice as fairness, his limited understanding of contemporary international relations interfered with his seeing the implications that these values should have in the international context. The idea here is that perhaps Rawls did not recognize the global basic structure because it is in many ways different from its domestic counterpart, and, as a result, he did not appreciate the implications that his own theory should have globally.
While I cannot rule out either of these explanations, I find neither entirely satisfying. As a consequence, I think it is at least worth exploring alternative interpretations of LP, ones that do not require us to posit the existence of two John Rawlses. Toward this end, in the next section I will propose that perhaps the eight objections to Rawls's theory of global justice miss their mark because Rawls never sought to provide a theory of global justice in LP.
III. An Alternative Reading
I believe that Rawls never intended to supply a full-blown, comprehensive theory of global justice in LP. As he says: “This monograph on the Law of Peoples is neither a treatise nor a textbook on international law. Rather, it is a work that focuses strictly on certain questions connected with whether a realistic utopia is possible, and the conditions under which it might obtain.” (LP, pp. 5–6) But if Rawls understood his project to be more limited than many of his critics conceive of it, this raises the question of what in particular Rawls sought to accomplish in LP.
Here I think we must be less confident and more speculative. One possibility is that Rawls did not believe that it is the job of political philosophy to supply a complete theory of global justice because such an account is more properly the product of morally legitimate international politics. On this view, Rawls sought only to specify the framework within which a morally legitimate international politics can take place.Footnote 17 A second interpretation regards LP as particularly Kantian in spirit. Recall Kant's understanding of the three questions of philosophy: What can I know? What ought I to do? What can I hope for? On this interpretation, Rawls is not offering a theory of international justice because he is addressing Kant's third question about what we can hope for, not his second question about what we ought to do. In particular, just as Kant reflected that “If justice perishes, then it is no longer worthwhile for men to live upon the earth,” (quoted in LP, p. 128) Rawls wonders why we should not despair if a reasonably just Society of Peoples is not possible. Thus, this proposal suggests that Rawls hoped to show merely that we need not despair, if only because we can in our mind's eye picture what he calls a “realistic utopia.”Footnote 18 A third option maintains that LP could not provide a theory of global justice because it is an extension of Political Liberalism, not A Theory of Justice. The central idea here is that because Political Liberalism is concerned principally with legitimacy rather than justice, The Law of Peoples is about what principles it would be morally permissible to impose internationally. The reason for the much less ambitious set of principles, according to this interpretation, stems from Rawls's view that it is illegitimate to force others to comply with principles that they could reasonably reject. The Law of Peoples is by comparison conservative, then, because constituents of nonliberal societies do not necessarily endorse the liberal understanding of society as a fair system of cooperation among free and equal persons. As a result, it would be illegitimate to impose a full-blown liberal theory of justice globally, as this would involve coercing people according to principles that they could reasonably reject.Footnote 19 I think all three of these interpretations are extremely interesting and deserve further exploration. I will not do so here, however. Instead, I introduce a fourth, less orthodox possibility that I believe also merits consideration.
My reading of LP is shaped first and foremost by Rawls's stated motivation for undertaking this project. He writes:
Two main ideas motivate the Law of Peoples. One is that the great evils of human history—unjust war and oppression, religious persecution and the denial of liberty of conscience, starvation and poverty, not to mention genocide and mass murder—follow from political injustice, with its own cruelties and callousness…. The other main idea, obviously connected with the first, is that, once the gravest forms of political injustice are eliminated by following just (or at least decent) social policies and establishing just (or at least decent) basic institutions, these great evils will eventually disappear.”
(LP, pp. 6–7)My suggestion is that we take Rawls here at his word. Let us understand LP not as “A Theory of International Justice,” but rather as a blueprint for solving a limited practical problem: “How can we eliminate the great evils of human history?”Footnote 20
Before defending this interpretation, let me say a little bit about how I understand this “limited practical problem.” First, to see why I call it a practical problem, imagine that Rawls sought not to eliminate history's great evils, but to duplicate history's great achievements. For instance, suppose he asked: “How can we build a pyramid?” As strange at it might initially sound, I think that this is essentially what Rawls sought to do in LP; he hoped to answer a limited practical question that is importantly analogous to how we can duplicate one of human history's great accomplishments, the building of a pyramid.
I appreciate that this reading of the LP might seem wildly implausible both because (1) it would be curious (to put it mildly) for a great political philosopher to be so concerned with an essentially practical problem and because (2) LP is filled with unmistakable moral analysis. Let me address these points in turn. First, while it might be odd for a moral philosopher to be so concerned with a practical problem that involves a merely aesthetic achievement like building a pyramid, it is perfectly understandable that Rawls would care so deeply about a practical problem like eliminating the greatest evils of human history because the consequences of doing so are not merely aesthetic, they are of supreme moral importance.
Second, LP undeniably contains much by way of moral justification, but this makes perfect sense once one recalls that the “we” in “How can we eliminate the great evils of human history?” refers to liberal democratic societies. Just as a liberal society could never regard “with masses of slave labor” as an acceptable proposal for how to build a pyramid, it would not consider something like “by ruthlessly dominating all illiberal, undemocratic groups” an acceptable means to eliminating the great evils of human history. And because Rawls thinks both that (1) a core liberal tenet is that coercion is legitimate only when it cannot be reasonably rejected by those coerced and that (2) an appropriately designed original position can be a reliable heuristic device for discerning what parties would reasonably accept, it is no surprise that Rawls should invoke original position reasoning en route to establishing that liberals need have no worries about imposing upon others their means of eliminating the great evils of human history.Footnote 21 Thus, neither the prima facie implausibility of supposing that Rawls would concern himself with a “mere” practical problem nor the fact that he unquestionably engages in moral analysis ultimately dissuades me from pursuing this admittedly unorthodox reading of The Law of Peoples.
According to my interpretation, then, the reasoning in LP is something like the following:
(1) Rawls cared deeply about the human suffering caused by the great evils of history—war, oppression, religious persecution, the denial of liberty of conscience, starvation, poverty, genocide, and mass murder.
(2) Much of this suffering could be avoided if we were to eliminate political incompetence and oppression.
(3) History confirms that instituting the eight principles is an effective way to eliminate political incompetence and oppression.
(4) Original position reasoning demonstrates that no one could reasonably reject these eight principles.
(5) Therefore, liberal societies may permissibly impose the Law of Peoples upon the world in order to eliminate political incompetence and oppression, thereby eliminating the horrible suffering that has historically attended our greatest evils.
Having explained this alternative interpretation, let us revisit the eight criticisms of LP to see how Rawls might respond if he did in fact conceive of the Laws of Peoples in the manner I suggest.
(I) Rawls wrongly focuses on peoples rather than individual persons. The worry here is twofold: Not only does his argument rely upon the parties in the original position representing groups; his eight principles ignore individuals to concentrate almost exclusively on the rights and responsibilities of peoples. If Rawls's aim is only to suggest a way to eliminate the greatest evils of human history, however, then there is nothing suspicious about focusing on groups with states because (i) politically organized groups have historically been the agents responsible for these great evils (i.e., “unjust war and oppression, religious persecution and the denial of conscience, starvation and poverty, not to mention genocide and mass murder”), (ii) politically empowered groups stand the best chance of imposing the reforms necessary to eliminate these evils, and (iii) international law has traditionally been the law of nations, created by and applied primarily to nation states. Rawls need not be understood as suggesting that individuals do not matter morally or that individuals should be indifferent to these issues (indeed, he would not have cared about these features of human history if they did not lead to individuals suffering, and he would not have penned LP if he were convinced that he, qua individual, was utterly insignificant or impotent). Rather, Rawls focuses on groups here simply because the most realistic way to eliminate the great evils of human history is to have relatively enlightened states both police the abusive states (“rogue” states) unwilling to protect those within their borders and help support those burdened societies (“failed” states) unable to eliminate suffering within their borders. Most importantly, notice that such an empirical assertion about the most effective way to address this practical problem says nothing about whether or not individual human beings are the fundamental units of moral significance, and thus it in no way conflicts with the moral primacy of individuals Rawls endorses elsewhere.
(II) It seems objectionable that Rawls would either leave nondecent societies unrepresented in the original position or give nonliberal but so-called decent hierarchical peoples such representation. The idea here is that either it must be shown that no society affected by the Law of Peoples could reasonably reject the principles or, if only the acceptance of just societies is required, then only liberal peoples should be represented, and there would be no need to represent any nonliberal, nondemocratic, or nonegalitarian society in the original position.
The standard defense against this objection is that a society need not be fully just in order to be reasonable, and thus, establishing that decent hierarchical societies would accept the eight principles is important because such societies are akin to reasonable moral agents. Excluding outlaw states and burdened societies (i.e., those societies with social and economic conditions that undermine their capacity to sustain liberal or decent institutions) is nonetheless appropriate, though, because the former are unreasonable, nonmoral agents and the latter are not agents at all.Footnote 22 If so, then an outlaw state's rejection of the Law of Peoples would not be reasonable and a burdened society could neither accept nor reject the eight principles.
Without commenting on the adequacy of this response, it is worth noting that Rawls has a second rejoinder open to him if his goal in LP is limited in the ways I have suggested. Specifically, while the differences between liberal and decent hierarchical societies might be germane to anyone designing a comprehensive theory of international justice (or legitimacy, for that matter), these differences are not important to the task at hand. Given that his aim is limited to eliminating history's great evils, societies can be sorted into two main groups depending upon whether they are part of the solution or part of the problem. Because decent hierarchical peoples, by definition, do not cause unjust wars, oppression, religious persecution, the denial of liberty of conscience, starvation, poverty, genocide and mass murder, they clearly are not part of the problem. Moreover, insofar as they are able and willing to help assist burdened societies and intervene against outlaw states, they can be part of the solution in eradicating these great evils.
What I am suggesting is that just as a war against a sufficiently evil empire would incline two otherwise unfriendly countries to unite against a common enemy (as the United States and the Soviet Union did to fight Nazi Germany in World War II, for instance), Rawls rightly marshals all well-ordered societies in the effort to eliminate the great evils of human history. Crucially, though, there is nothing about this limited merger that implies that Rawls has abandoned his preference for liberalism, democracy, or egalitarianism. In other words, Rawls might well favor a fully liberal, democratic and egalitarian set of principles if he were crafting an ideal and comprehensive code of international law, but it would be premature to theorize such a code when these great evils still exist. His present, more pressing chore is to offer a more limited set of principles that might effectively eliminate the worst causes of human suffering. Only once this is accomplished can we turn our attention to a more robust theory of global justice, and no one would be surprised if at that point the differences among the well-ordered societies would be paramount (just as the divisions between the United States and the Soviet Union loomed larger after World War II).
(III) Rawls never allows the representatives in the original position to consider alternatives to the eight principles. He suggests that the parties would affirm the Law of Peoples, but, without an argument that they would prefer this set of principles over all competitors, it is not clear how his argument supports these principles over possible alternatives. If I am right that Rawls means for LP to provide a solution to a practical problem, however, then it makes perfect sense that he would feel no need to consider alternatives in the original position because the original position, in this case, would not be needed to determine what is morally best; it is invoked merely to confirm that the practical solution is not morally illegitimate. Given that Rawls advances the eight principles as an effective means to eliminating the great evils of human history, the way in which they would need to be compared to competitors is in terms of their effectiveness. In other words, the key comparative question is not whether moral analysis recommends a competing set of principles as more ideal, it is whether historical evidence indicates that another set could more fully and effectively eliminate the political oppression and such. Once Rawls concludes that the evidence suggests that the Law of Peoples provides the most effective way to eliminate the relevant evils, he needs to utilize the original position device only to establish that there is nothing objectionable (from a liberal's perspective) about imposing these principles internationally—that is, that no party could reasonably object to their imposition. In sum, it may be neither a coincidence nor an oversight that Rawls does not weigh his favored principles against competitors in the original position. If he seeks a set of principles as a solution to a practical task rather than as a moral ideal, moral comparisons are beside the point.
(IV) Rawls advances a list of basic rights that excludes rights to democracy, freedom of expression, and equality. Why in the world would a liberal theorist omit these paradigmatically liberal rights from the list? If Rawls is concerned to provide a practical means to eliminating particularly great evils rather than to supply a comprehensive theory of global justice, then it is no mystery why he would omit some of these rights. The point is not that rights to freedom of expression, democracy, and equality are in general unimportant, it is merely that their protection is irrelevant to the question at hand. The more restricted list of rights is relevant to eliminating the evils in question, however, because Rawls postulates that states which fail to respect these basic rights are the ones responsible for the political injustices (both at home and in war) that cause the profound suffering he seeks to eliminate. Thus, without in any way retracting his support for the more expansive list of rights that he has defended elsewhere, Rawls can exclude those rights to freedom of expression, democracy, and equality in this context simply because their protection is not necessary to eliminate the severe political oppression upon which this project focuses.
(V) Rawls offers an appalling explanation for why we should care about human rights violations. By citing the aggressiveness of outlaw states rather than the well-being and autonomy of individual human beings, Rawls seems to badly miss the core justification of these rights. If Rawls's project is the practical one of eliminating the suffering that flows from political injustice, however, then it is entirely understandable that he might focus on the tendency of rights-violating societies to wage unjust wars. Certainly the bellicosity of outlaw states is beside the point for anyone defending human rights, but it is perfectly on topic for someone concerned with the causes of history's great evils. With this in mind, consider again Rawls's statement that has been so widely regarded as both curious and offensive:
“It may be asked by what right well-ordered liberal and decent peoples are justified in interfering with an outlaw state on the grounds that this state has violated human rights…. Liberal and decent peoples have extremely good reasons for their attitude. Outlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways. Otherwise, they deeply affect the international climate of power and violence.”
(LP, p. 81)In short, my interpretation of LP puts this discussion of rights in a light that shows it to be neither curious nor offensive.
(VI) The duty of assistance is inadequate insofar as it both demands too little redistribution and is wrongly said to obtain between societies rather than individuals. Neither prong of this objection is compelling, though, if Rawls sought to determine, not what each individual in the world is owed as a matter of justice, but what type of distribution would be required to effectively address certain grave evils, chiefly starvation and poverty. Of course, some starvation and poverty exists within outlaw states which abuse their constituents, but Rawls covers these cases by understanding the right to sovereignty and the corresponding duty against intervention to include an exemption in cases of sufficiently malicious governments. The duty of assistance, however, is designed to help burdened groups who, despite being well-intentioned, lack the resources necessary to avoid these sources of suffering. It remains an open question whether these groups as a whole (or the individuals within them) deserve a more equal share of the world's wealth, but Rawls need not speak to what each person is owed as a matter of moral right, if he seeks to say only what the well-ordered societies must do in order to address the great evils of starvation and poverty.
(VII) Rawls scarcely acknowledges the existence of the global basic structure. Footnote 23 This international basic structure is thought to be important because, if Rawls were to remain consistent with his arguments in TJ, international transfers would be a matter of just distribution, not redistribution. As things stand, however, Rawls conceives of TJ's difference principle as a matter of distribution and LP's duty of assistance as a matter of redistribution. However, Rawls must bear the burden of consistency between TJ and LP only if he were engaged in the same type of project in both instances. But if I am right that he sought to answer a moral question in TJ and a practical question in LP, then there would be nothing objectionable about attending to different matters in these two books. Thus, it is open for Rawls to concede that while the global basic structure is undeniably important for anyone developing a comprehensive theory of international justice, he need not focus on it in LP, where he sought merely to design a practical solution to eliminate some of the chief sources of human suffering.
(VIII) None of his eight principles offers instructions for handling intrastate conflicts. What is worse, Rawls appears unable to address this lacuna since he assumes throughout that the parties in the original position represent unified peoples, societies with no cleavages within them. Finally, it would be no good for Rawls to respond that he seeks only to eliminate the world's great evils because, in the contemporary world at least, intrastate conflicts are a lamentably frequent and explosive source of some of humanity's greatest tragedies. Here Rawls could respond by noting that, although none of his eight principles explicitly deals with intrastate conflict, they nonetheless provide guidance for those violent divisions that cause the types of suffering he sought to avoid. In particular, Rawls's interpretation of the duty of nonintervention allows for well-ordered societies to intervene in outlaw states when one group is systematically violating the basic rights of another. To this an objector might respond that, because Rawls's list of human rights is so short and includes no distinct rights for minority groups, the Law of Peoples remains lamentably mute on many of the divisions within states like that between the minority Quebecois and the majority Anglo-phonic Canadians or the Scottish within the United Kingdom.
Here I think Rawls could acknowledge that his eight principles provide no instruction but insist that this is unproblematic since he is concerned only with the great evils of human history, and the relatively tame conflicts like those within Canada and the United Kingdom do not give rise to such extreme evils. In short, Rawls could respond to this objection with the following disjunctive answer: An intrastate conflict either involves the violations of basic human rights or it does not. If it does (as in the case of the former Yugoslavia), then the eight principles clearly speak to the issue. If not (as in the case of Canada), then the Law of Peoples does not offer guidance, but this is not worrisome because the principles are recommended not as a complete theory of international law but more minimally as an effective means to eliminate the worst sources of human suffering.
In light of how this construal of Rawls's project supplies compelling answers to the standard objections, we can now see that there is a strong case in favor of what initially appeared to be a quite implausible interpretation of The Law of Peoples. Let me be clear: I do not claim that my reading is entirely straightforward and uniformly supported by all aspects of the text. On the contrary, there are numerous passages (particularly his accounts of why liberal toleration of other societies requires positing a restricted list of human rights and a severely limited duty of assistance) where Rawls plainly seems to argue for more ambitious conclusions than are consistent with my interpretation. It would be wrong to reject my proposal on this score alone, however, because LP is a rich, complex work which does not univocally recommend any single interpretation. Thus, without pretending that Rawls speaks throughout in one voice that uniquely confirms my interpretation, we can nonetheless see several compelling reasons to regard Rawls's project in LP as offering neither an ideal theory of global justice nor a comprehensive theory of international law, but as more modestly reflecting on how liberal democratic societies might justifiably go about the important practical project of eliminating the world's great evils.
First and most obviously, my interpretation squares with Rawls's own description of the project in two crucial respects: when he insists that his work is “neither a treatise nor a textbook on international law” and when he explicitly describes his main motivation as eliminating “the great evils of human history.” Second, it strikes me as a decided advantage of my view that it is in keeping with Rawls's more gradual and general retreat from metaphysics, whereas the traditional interpretation of LP requires its advocates to construe Rawls as abruptly abandoning (or misinterpreting) his own celebrated values and methods of argumentation. Third and perhaps most important, my reading of LP provides straightforward and plausible responses to the standard criticisms. If Rawls is interpreted as supplying a grand theory of international justice, however, then the commonly-voiced objections seem quite damning; they reveal Rawls's theory to be woefully inadequate and, what is worse, fundamentally inconsistent with what he has argued elsewhere. In other words, charity would seem to recommend my reading of LP because, while the principle of charity often suggests interpreting an author as giving the most defensible answers, in this case it favors understanding the author to be asking a question that best matches his answers.Footnote 24 For all of these reasons, then, I think it is worth considering whether Rawls's project in LP is not to provide a full-scale normative theory of global justice but is more modestly to suggest only how liberal societies could effectively work to eliminate the profound human suffering caused by the worst cases of political malice and incompetence.
IV. Conclusion
Many of the eight objections canvassed in the second section would be compelling if Rawls sought for The Law of Peoples to supply a theory of global justice, but I think we should doubt that he meant to do so. I recommend that we take him at his word when he claims to have a more modest project. What precisely this project involves is more difficult to say with any real confidence, but here I have suggested that perhaps he meant only to answer a relatively limited practical question: How can we eliminate the great evils of human history? I confess that there is much in The Law of Peoples that seems to conflict with this interpretation, but given that there is no clear, straightforward and unproblematic interpretation of this important text, the principle of charity recommends that we take seriously the idea that Rawls's aspirations for this book were far less normatively ambitious than most critics have assumed.
