The Law of Peoples

"Rawls is different. He’s the first modern political philosopher (probably since Kant ) that tried to answer the question of how just relations between nations and individuals should be organised in a philosophical sense in the era of globalisation. Here we really have the rules of how the world should be run. Well, the rules are that people don’t interact with each other but that nations interact with each other. Each people has different sources of legitimacy for its nation’s constitution. We cannot ask that Saudi Arabia have the same rules as the United States. Liberal democracy and illiberal regimes can coexist but, like in the UN, they should acknowledge each other’s legitimacy but relevant relations are nation to nation not person to person. If there is no direct relationship between individuals and no global government then there is no concept like global inequality because that concept is based on the idea of all individuals belonging to one common society rather than to their respective nations. It’s a very sophisticated mechanism set up here. Relationships between nation states are needed so that one group of people does not impose its institutions on another group of people. When you allow that the world is one polity and there is one set of human rights and rules then immediately people want to impose their own things on you. Rawls wants to prevent that. Writ large with a more just order. Rawls does have a proviso for that because he says war is justified only if you have outlaw states (which he never defines very well – these states don’t accept the overall global agreement). But illiberal but non-aggressive societies can coexist with liberal societies. It is a much more timid book than his famous A Theory of Justice (where the issue is how individuals living in a single political entity should devise their relations and create just institutions). In The Law of Peoples , it is, as I said, peoples (nations) that intermediate relations between individuals; individuals from various nations do not design global institutions directly, dealing with each other, but meet metaphorically through their representatives. (Because the relations between individuals are intermediated by states, no direct duties of justice arise as between individuals from rich and poor countries. Only humanitarian assistance remains.) The book laid down the rules for a peaceful coexistence between nations that espouse various ideologies and use different legitimacy criteria to justify their domestic rule – as, for example, do the United States, Saudi Arabia and China. The peaceful coexistence must also be seen to occur within the context of an overall just global order, to which all nations have contributed. It has many implications because Rawls is a liberal thinker but he comes out against aid. He says aid can only be given up to the point that a society is ‘decent’ and consultative (everyone has some stake or a vote), because after that point there is no reason to give aid. Rawls also comes out strongly against migration. He views each people as being a custodian of the land that it occupies and having the right to exclude others who would like to move there. The only justified migration is the one which has to do with political or religious persecution. But economically motivated migration is not acceptable."

"The fourth book is John Rawls’s The Law of Peoples (1999). In a way, this is the opposite story to Nickel’s book. Jim Nickel’s book entered into an unpopular field where people were telling him that there was no philosophical pay-off in discussing human rights. John Rawls’s influence is so widespread and profound that as soon as he embarked upon this topic, though it only occupied a few pages in The Law of Peoples , it suddenly, for many philosophers, legitimised humans rights as a subject of philosophical concern. It was now acceptable to work on human rights, in fact, in some ways, it maybe even became compulsory to work on human rights because John Rawls had worked in this area. Perhaps that’s an overly cynical view of how my philosophical colleagues operate. I too was influenced, so I can’t say that I’m immune to this myself, but it is remarkable that there has been a real flowering of work on human rights since 1999, the year Rawls’s book was first published. This can’t be entirely a coincidence. It proves that philosophers are human, like everybody else, and subject to fashions and various forms of subterranean influence. Rawls made thinking about issues of global justice and human rights respectable, but he was also influential in two other extremely important ways. His discussion of human rights is very brief, so the degree of impact given the amount of writing is phenomenal. Rawls was very exercised by the problem of ethnocentrism — of whether the rights we affirm as human rights are just parochial Western ideals unjustifiably imposed on other cultures. He tried to address that worry by two kinds of narrowness. First he came up with a very short list of human rights, which was very much a small sub-set of the rights that would be guaranteed in a liberal democratic society. Human rights included rights such as freedom from slavery and serfdom, liberty of conscience, security from mass murder and genocide and a few others. Many of the rights in the Universal Declaration would not count as human rights for him, they would be merely liberal aspirations. He would say, for example, a robust freedom of religion is not a human right. There’s a right to be free from religious persecution but not equal to freedom of religion. There’s no right to free speech or to work. There’s only a right to subsistence, not a right to an adequate standard of living. This is a very exiguous list of human rights. That’s one way of dealing with the question of ethnocentrism: by slimming down the list of human rights. Get the weekly Five Books newsletter The second way he deals with it is by saying we shouldn’t publicly affirm these rights on the basis of some controversial metaphysical or philosophical doctrine. We shouldn’t say, for example, that all human beings possess human dignity or are created in the image of God, or that human flourishing or the most fundamental interest of human beings lead to these rights. This is because other people, especially those in other cultures, might not unreasonably reject these views. He tries to give thin foundations for human rights by a two-step procedure: (i) we can imagine a social contract in which liberal states would agree to the minimal schedule of human rights; and (ii) we can imagine some decent but non-liberal states also agreeing to these rights. The fact that the second step is imaginable, that a decent non-liberal society could also, for its own reasons, sign up to these rights is what is supposed to show that human rights are not ethnocentric. But nowhere did we need to appeal to some claim about ‘objective truth’ in religion, philosophy or ethics to provide them with a public justification. That’s a legitimate worry, and I am not an adherent of Rawls’s attempt to detach human rights from an appeal to objective ethical truths. I think he would press two things in response to your worry. One is to say that we cannot realistically hope for a world composed exclusively of liberal democracies upholding the rich array of rights such societies should uphold. Then the question is, what’s the sort of non-liberal society that, intuitively, a non-liberal democracy should be able to get along with without needing to pressurise it, intervene against it and so forth? He thinks that decent but non-liberal societies fit this bill, and they would respect his minimal schedule of human rights. The second point addresses your concern about what job rights are doing when we water them down to this extent. Rawls argues that they perform two fundamental roles. The first is that any society that isn’t complying with this limited list of rights can’t be legitimate. Its citizens do not have a moral obligation to obey its laws. This minimal list of human rights is a touchstone of the internal legitimacy of a regime. The second role is that the short list of rights regulates when intervention against other societies is justified. In particular, on my interpretation of Rawls, what he’s saying is that this list of rights is so brief because it captures the distinctive importance of human rights for foreign relations. Its distinctive importance is that only the rights on this list are those that are capable of generating a case for coercive intervention if they are extensively violated. His position is that if you want to know about the rights that would be guaranteed in an ideally just society, then look at his main political work, A Theory of Justice, which sets out the rights secured by a fully-fledged liberal democracy. Of course, no such democracy exists in the world, but those are the rights that, in terms of full justice, we’d be entitled to. Human rights, for him, answer different questions. One is a question of which rights have to be respected if a society is to be legitimate internally, and the other is which rights need to be respected to be free from justified forcible intervention by others. Internal legitimacy and freedom from external intervention are two incredibly important matters. Those are the questions that Rawlsian human rights address. He’s been very influential in claiming that we should construe human rights in terms of these two political functions. Not everyone buys both elements of the story but, for example, Charles Beitz and Joseph Raz certainly accept the view that human rights as some sort of trigger for intervention or international concern in their important work on human rights. Meanwhile, Ronald Dworkin agreed with Rawls that human rights are essentially bound up with the conditions of legitimacy. So Rawls has been hugely influential on some of the major political philosophers of our time. They have followed leads established in these meagre pages devoted to human rights in The Law of Peoples . I’ve got a feeling that he probably wasn’t too concerned about the Universal Declaration . Many of us writing on human rights are like Nickel, we’re concerned to make sense of human rights understood as something like the familiar list in the Universal Declaration . Rawls was more interested in completing his liberal theory of justice. When he thinks about the rights that would ideally be accorded people in the most just kind of society, he’s already answered that question without any resort to the Universal Declaration in A Theory of Justice and Political Liberalism . So, the remaining question is: What extra work is the distinctive notion of human rights doing? He thinks they belong fundamentally to the foreign policy of a liberal society, they help us determine those societies that are internally legitimate and properly immune from coercive intervention. Some might say that this is a distinctively American approach to human rights – that human rights are really not so much rights we have to comply with as what others have to comply with on pain of being liable to external coercion. To be fair to Rawls, however, he would insist that America is a long way from being a fully just liberal democracy. The limits of coercive intervention certainly are. If a society is engaged in widespread and persistent violations of human rights, then according to Rawls it is, in principle, liable to coercive intervention. If it respects the minimum schedule of human rights, then it is immune from such intervention, even if it is in various respects highly illiberal, for example, by denying a vote to women or excluding religious minorities from public offices. However, there are also forms of non-coercive humanitarian assistance. Rawls imagines a type of society he calls a ‘burdened society’, one that is incapable for various reasons— cultural, lack of resources and so on—to aspire to being either liberal or decent anytime soon. Regarding burdened societies, liberal and decent societies have a ‘duty of assistance’ to help them become liberal or decent, which consists in more than just complying with the minimum schedule of human rights."