Rawls’s theory of international justice: a brief reconstruction and critical commentary

On the condition that these institutional criteria are satisfied, Rawls maintains that the decent societies can make legitimate claims for their toleration on the part of the liberal ones, though «the decent common good idea of hierarchical peoples is a minimal idea» LoP. P. 67. of justice, much inferior to that of a liberal democratic society in objective terms. However, whereas toleration of decent peoples may be reluctantly endorsed in the name of international peace and stability, the stronger Rawlsian claim that they should be afforded an equal legal and political status to liberal democratic peoples is far more controversial. A considerable number of political thinkers object that societies which do not treat their inhabitants as politically equals do not, in their turn, deserve to be afforded equal status to societies that do secure the equal citizenship of their members.

Rawls' response to this objection is that «equality holds between reasonable or decent, and rational, individuals or collectives of various kinds when the relation of equality between them is appropriate for the case at hand». LoP. P. 69. On this account, he provides as supportive examples the churches and the universities stating that the very fact that the various churches exhibit many structural differences in their internal organization «doesn't rule out the propriety of treating them as equals in certain circumstances». LoP. P. 70. This similarly holds for differently organized universities. However, I don't find the Rawlsian argument convincing at this point. I instead grant that formal equality is to be recognizable, attributable and applicable only to the societies that prize it as a value and enforce it to its members. The internal organization of churches and universities is a matter of civil liberty, indifferent to political regulation in the strict sense; hence, its fairness cannot be measured by the same standards that apply to the political institutions of society. In that regard, politically modernized societies should suspend the assignment of political equality to societies that fail to respectively afford it to their members, until they succeed in reforming their institutions to this direction.

In general, the overplaying of the case of international peace and stability is manifestly detrimental to the integrity of fairness and justice at the global level, since it compels Rawls to be content with a fairly anemic qualification for international toleration, noninterference and equality, failing, in the same vein, to affirm the legitimacy of support that is to be offered to various individual or collective voices within decent hierarchical societies that are being subjected to legal and political impediments in their effort to deny the justice and demand the reformation of institutional forms that rest on unjustified inequalities and restricted civil and political liberties. The case of international justice would be seriously harmed if the criterion of decency were to suffice as a qualification for well-orderedness and therewith as a justificatory reason for tolerating and according equal political status to societies charged with a cultural background that allows for ungrounded, from the universal perspective of our enlightened rationality, inequalities and restriction of liberties in many respects. To be sure, the peaceful conduct to some extend satisfies the minimum standard of toleration; however, the respect for human rights doesn't suffice for equal citizenship in the «Society of Peoples», and this is even more the case since the Rawlsian group of rights that count as human is considerably condensed.

Rethinking the minimal conception of human rights on an international scale

A first, more general point to be made in this connection is the problematic compatibility of any conception of pre-political human rights with a constructivist and contractual political theory. Namely, it is inconsistent to both hold that the principles of justice follow from an agreement and that the content of this agreement should be in accord with an independent of this agreement given set of normative standards, no matter if the latter were interpreted as substantive «perfectionist» values, or as formal rules of correct practical reasoning. This inconsistency, all the more evident in the Lockean affirmation of natural law imperatives and contractual construction at the same time, reflects the theoretical inability to successfully reconcile an immediate ontological and a mediated voluntaristic conception of right and justice, an inability plaguing the Rawlsian position too. In other words, I believe that Rawls' position is marked by an irresolvable antinomy between moral realism and moral constructivism.

Leaving this crucial methodological issue aside, Rawls' account of human rights is tailored to his pivotal normative conviction that society is in its essence a system of cooperation. In that respect, human rights are considered as «necessary conditions of any system of social cooperation». Therefore, their violation is an offense against the hard core of social interaction, degenerating cooperation into rule by brute force, and thus turning society into a «slave system». In his effort to keep with the central theoretical guidelines of Political Liberalism, Rawls suggests that the definition of human rights as necessary conditions of social cooperation should be captured in a purely practical political manner, without reference to any particular comprehensive doctrine, philosophical, religious, or else. On that account, to adduce arguments for human rights relying on comprehensive doctrines charged with western ideological and cultural elements would bring about unnecessary complications, since decent peoples, otherwise approving of human rights in the fundamental sense described above, would not concede to their liberal-oriented justification.

What is most notable at this juncture is that a robbed of any comprehensive doctrine justification of human rights is not employed by Rawls as a merely practical device for the sake of obtaining the decent peoples' consent. He is, more ambiguously, theoretically convinced that this is so unconditionally; hence, his assurance that «these rights do not depend on any particular comprehensive religious doctrine or philosophical doctrine of human nature». LoP. P. 68.But when one considers his conception with regard to the content of human rights at the international level --a conception that is to be described right away, -- one is hardly persuaded that they comprise comprehensiveness-neutral propositions.

We have seen above that Rawls does not regard the set of human rights to be respected by the «Society of Peoples» and enforced by international law as coextensive with the full set of rights enjoyed by citizens of a constitutional democratic society. Rather, he contends that human rights express a special class of «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». LoP. P. 79.

My first observation at this point is that it is probably a beating around the bush to deny that the concept of human freedom, the concept of liberty of conscience, as well as the equal value of ethnic groups, do not rest on deep-seated convictions about human nature, as if the immediate facticity of their presence within our political culture could be a sufficient ground for assigning normative significance to them. The prevalence of these normative tenets, at least in the western world, is the outcome of their victory in a social and ideological battle that has taken place among a plethora of comprehensive doctrines, a victory achieved over a group of comprehensive doctrines that give assurances contrary to those modern ideas. It would certainly be a kind offer on the part of the victorious societies to present their ideological supremacy in the guise of a universally approvable, merely political conception of justice but that could well appear in the eyes of the ideologically defeated as an insincere exercise of rhetoric and an implicit exercise of political force. In any event, what is the main source of controversy here is the fact that in the name of the decent peoples' consent for the sake of international peace and stability, the list of human rights to be enforced in the Rawlsian «Society of Peoples» is dramatically shrunken. Ville Paivansalo in Balancing Reasonable Justice, John Rawls and Crucial Steps Beyond. Ashgate Publishing Limited, 2007. P. 114, observes that «democratic political

liberties were already included in the Universal Declaration of Human Rights (1948). Inclusion of human rights in this sense would not really leave room for decent hierarchical societies. If we also consider that human rights include the rights mentioned in the International Covenant on Civil and Political Rights (1976), it is even clearer that human rights could not work as a minimum basis that decent nondemocratic societies also could endorse».

As a consequence, societies that in one way or another ground their institutions in the most distinctively modern idea of liberty are not given room, not only to legitimately intervene in the domestic affairs, or to impose sanctions on societies that severely restrict individual, social and political rights, but also to officially call into question the substantiality of the self-respect and self-determination of these societies. In a failure to properly appreciate the difference between the conditions of possibility of a free and just social order and the actual existence of that order, whereby a sufficient set of the normative standards of justice is originally established and becomes operative, decent societies are treated with undue forbearance and permissiveness, in the hope that they will finally switch to the modern normative paradigm by their own efforts and on their own responsibility. Among others, Annette Forster casts into doubt even the congruence of the criterion of decency with the veneration of minimal human rights, when she wonders: «Why, for example, should a society neglecting equality between its members honour human rights?». See Forster A. Peace Justice and International Order, Decent Peace in John Rawls's The Law of Peoples. Palgrave Macmillan, 2014. P.44. But, instead of being so tolerant to decent societies in the fear of being accused of paternalistic interference, one could be more determined to serve the cause of substantial global justice, by countering the objection of paternalism with the response that the genetic processes, which lead to the building up of a just modern society, are by no means subsumed to the same standards of normativity, which are enforceable once that society is fully in place, but to much more abstract standards of right and morality. Therefore, it is inappropriate to tolerate substantial injustices in the name of a meager criterion of decency guided by insubstantial considerations about paternalistic interference or about the rights of self-respect and self-determination of these pre-modern societies, rights that should be regarded as having only a conceptual, formal status in this case calling for their actual substantiation by way of right institutional settlements. For instance, I cannot see how the concern of international stability and noninterference could be given precedence to the motive of valuing and protecting fundamental rights owed to the members of decent societies, as full liberty of conscience, equality of opportunity irrespective of religious confession, equal political standing of women and so on. In the same vein, Gary Chartier in his Radicalizing Rawls, Global Justice and the

Foundations of International Law. Palgrave Macmillan, 2014. P.79, rightly observes that «Rawls has suggested that persons should be treated as morally and politically equal at the domestic level because of their possession of the two moral powers. It seems appropriate to treat persons as morally and politically equal at the global level for the same reason. Rawls explicit justifications for affirming the equality of peoples, and so the inequality of persons, at the global level are weak».

This being the case, the robust Rawlsian principle of the priority of justice over other considerations, purposes and goals in the domestic case is seriously compromised when it comes to the international relations. This holds not only for the maximal requirements of his conception of «justice as fairness», but for a possible stock of other reasonable and acceptable liberal positions that are not discouraged in the Political Liberalism, by virtue of the preoccupation with the fact of «reasonable pluralism». A softened theory of human rights and the urgency of their protection in effect overshadow, in the Law of Peoples, the full-blown conception of justice that is reserved for the domestic case, since the realistic care for international peace and stability does in fact here override and project to an indeterminate future the realization of the ideal of global justice. But, in addition to the first principle of justice and its priority, the second principle of justice, namely, the fair equality of opportunity and the highly celebrated «difference principle» is equally compromised. With regard to the equality of opportunity, this is effected by the inclusion in the «Society of Peoples» of societies that fail to pay respect even to the more abstract, formal sense of it. With regard to the «difference principle», a not convincing line of argumentation is employed to exclude this, as much as any other distributive principle, from the political and legal essentials of the international law. In On Rawls, Development and Global Justice, The Freedom of Peoples. Palgrave Macmillan, 2011. P.36, Huw Lloyd William identifies «in the literature that is more sympathetic to Rawls [...] four prominent accounts as to why Rawls rejects either an international difference principle or an alternative, less stringent, international distributive principle. [...] They run as follows: 1) The robust reciprocity captured by the difference principle does not exist in the international context, and therefore does not demand expression through an international analogue; 2) The fraternity captured by the difference principle does not exist in the international context, and therefore does not demand expression through an international analogue; 3) Rawls' political constructivism means that questions of distributive justice are rejected as inappropriate in the international context; 4) The principle of redress does not need to be taken into account in the international context in the same way as in the domestic context: to do so and demand the redistribution of wealth between peoples is to promote more substantive equality that would contradict the values of Rawls' system of democratic equality -it would instead represent a brand of luck egalitarianism inconsistent with Rawls' system of democratic equality». These are issues of major importance that,

unfortunately, cannot be further investigated in this paper.

Conclusion

My overall thought on The Law of Peoples is that it at large fails to provide the appropriate guiding framework for rightful conduct at the international stage. With regard to methodology, I claim that the Rawlsian position is not only hobbled by the major defect internal to the strategy of justification adopted in A Theory of Justice, that is, the epistemologically controversial oscillation between foundationalism and constructivism, but also that this controversial predicament is further sharpened in The Law of Peoples, due to the even more unsatisfactory methodological revisions that in the meantime had been put forth in Political Liberalism. Accordingly, on the substantial level and with regard to the content, the Rawlsian theory of international justice may contain, to be sure, guidelines for the foreign policy of liberal democratic countries that may contribute to the worldwide expansion of peace and stability, but are insufficient for a global peace and stability achieved and secured «for the right reasons», if I am to use his own parlance. The latter would presuppose a much more forceful account of reason in general, and of its systematic unity in particular, which would be well-suited to lay claim to a deeper and more substantive international solidarity than the one based on the formalism undermining Rawls' conception of reason. It goes without saying that the Rawlsian realism at the international level is by no means misplaced, since any inquiry into the conditions of practical applicability of a conception of global justice should not, utopically, lose sight of the real state of international affairs. However, the only truly realistic consideration is the motivation to realize what is real and actual in a deeper sense, which is no other than the rational and the just. Hegel G.W.F. Grundlinien der Philosophic des Rechts. Werke7. Suhrkamp Verlag Frankfurt am Main, 1970. P. 24. At least in the international case, Rawls seems to fall short of this aim.

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