The Law of Peoples.

• Author: Garcia, Frank J.
• Position: Review

THE LAW OF PEOPLES By John Rawls, Harvard University Press, 1999. Pp. 199. $22.50

Since the publication in 1971 of A Theory of Justice, many scholars have sought to apply John Rawls's theory of justice as fairness to international justice problems.(1) Rawls himself refrained from doing so in that work, which disappointed many commentators.(2) Since then, Rawls has steadfastly continued to refuse the international extension of justice as fairness. In 1993, he published an essay in which he attempts to work out an alternative approach to international justice, the so-called "Law of Peoples.(3) This short sketch of his position, again falling well short of a full international application of justice as fairness, continued to disappoint even sympathetic commentators.(4) Despite Rawls' own reticence, interest in the international application of justice as fairness continues unabated.(5)

Commentators hoping that the much-anticipated publication of Rawls's most recent book, The Law of Peoples, would signal a reconsideration of his position need consider only the title alone to realize that they will once again be disappointed. Although this book is a fuller treatment of the issues raised in the earlier essay, the position Rawls holds with respect to distributive justice remains unchanged: international justice is not justice as fairness, but merely "the foreign policy of a liberal people," and some would argue a cribbed one at that.

This review will evaluate, from the perspective of an academic international lawyer sympathetic to Rawls's overall theoretical project,(6) several criticisms which have been made or can be made with regard to the positions Rawls adopts, taking the earlier essay and the new book as one for this purpose. After a brief summary of the theory of justice as fairness, I will summarize the argument of The Law of Peoples. I will then examine two criticisms: first, that the law of peoples is inadequate as a reconstruction of contemporary international law; and second, that the law of peoples is inadequate as a theory of international justice. Put another way, the complaints are that The Law of Peoples fails to account both for what international law is at present, and what it ought to be. I conclude that 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.

1. RAWLSIAN JUSTICE, DOMESTIC AND OTHERWISE

   The "general conception" of justice as fairness as Rawls presents it in A Theory of Justice consists of a single central idea: "All social primary goods--liberty and opportunity, income and wealth, and the bases of self-respect--are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored."(7) This general conception is further developed into two principles, the principle of equal liberty, and the difference principle.(8) It is Rawls's contention that the application of these two principles would be adequate to assure the implementation of a just overall system of allocation of social primary goods. However, in A Theory of Justice, Rawls confines himself to articulating principles of justice for domestic society (more will be said about this later). In The Law of Peoples, by contrast, he explicitly tackles the question of justice between societies, or as he puts it, justice within the "society of peoples."

   Rawls begins by focusing his attention not on states, but on "peoples," a political conception of society as consisting of individuals sharing conceptions of what it means to be a political being (i.e., citizenship) and how individuals, singly and together, act through political institutions.(9) By "law of peoples," Rawls means a particular political conception of right and justice that applies to the principles and norms of international law and practice between and among peoples.(10) In fact, the law of peoples constitutes a "society of peoples," consisting of all those peoples who follow the ideals and principles of the law of peoples in their mutual relations. Rawls acknowledges that there may be more than one law of peoples which might satisfy his criteria, and refers collectively to this set as "The Law of Peoples."(11)

   Rawls takes as his task to articulate how "the content of the Law of Peoples might be developed out of a liberal idea of justice similar to, but more general than ... justice as fairness."(12) To do so, he sets out five types of societies: liberal, decent hierarchical, outlaw, burdened, and benevolent absolutist; and argues for a set of principles which representatives of liberal peoples would choose to govern their associations with certain of the other four types of societies. He characterizes this effort, quite passionately, as "realistic utopianism," whereby political philosophy seeks to expand what is ordinarily considered the limits of practical political possibility. His concern here, and the core of this project, is to articulate a basis upon which liberal and non-liberal but decent peoples can agree on principles of fair coexistence.(13) His project, therefore, is the formulation of normative principles to guide the foreign policy of a liberal people; it is not the reconstruction of international justice for a cosmopolis.

   The argument proceeds in three parts: the extension of domestic justice to a society of liberal societies (Part I); the extension of liberal ideas of political right and justice to relations between liberal and decent hierarchical states (Part II, the most important part of the book); and the special problems posed by the world as we find it, or the realm of "non-ideal theory," i.e., relations between liberal and decent peoples on the one hand, and burdened societies and outlaw states on the other.(14) The methodology followed in parts I and II should be familiar to readers of A Theory of Justice: an original position is constructed, first for the selection of principles of domestic justice, and second for the selection of principles guiding the law of peoples, namely the relations among liberal peoples, and between liberal peoples and decent hierarchical peoples.

   The second part of the argument is the most difficult and most provocative, in that Rawls attempts to identify conditions under which liberal peoples may extend the Law of Peoples to include their relations with non-liberal peoples. Rawls argues that such an extension is possible, and warranted, where the peoples are not liberal but still "decent." By this Rawls means that while they are not organized according to political liberalism, such peoples yet maintain some form of consultative hierarchy whereby the interests of that society's groups are represented to the rulers, and a limited set of basic human rights is respected.(15)

   Rawls's principal conclusion in this part of the argument is that liberalism does not require, as a cornerstone of a just foreign policy, that liberal peoples actively seek that all states be liberal.(16) It is enough that they be "decent," and that they not be so burdened so as to defeat domestic justice. The alternative, Rawls argues, denies the respect due the domestic political choices of decent non-liberal peoples, even if liberal peoples would not consider those choices to result in a fully just society.(17) In effect, Rawls argues that a decent hierarchical society is "just enough," and to require further justice and different choices as a condition of peaceful coexistence and cooperation serves the interests of neither liberal peoples nor decent hierarchical peoples.

   By so extending the Law of Peoples, Rawls argues in effect that among decent peoples the principle of toleration is paramount for the attainment of peace and stability, the twin conditions under which domestic justice best flourishes.(18) This leaves two other cases: relations with burdened societies and with outlaw states. Under the Law of Peoples, liberal states owe a duty of assistance to burdened societies, whose resources are inadequate for the formation of just domestic political institutions. However, in no case do the obligations of the Law of Peoples extend to relations with outlaw states. Such states, by rejecting the Law of Peoples (in particular the principle of non-aggression), expose themselves to the possibility of just armed aggression when they threaten liberal and decent peoples.

2. PROBLEMS WITH RAWLS'S TREATMENT OF INTERNATIONAL JUSTICE

   From an international legal point of view, the issues which may be raised with respect to Rawls's approach sort themselves into two types of complaints: first, that The Law of Peoples is an inadequate account of the doctrinal and normative content of contemporary international law as we actually find it; and second, that The Law of Peoples fails in its vision of what a liberal international law should be from a normative perspective.

   1. Treatment of International Law is Inadequate

      Commentators have raised two criticisms with respect to the adequacy with which Rawls's approach to international law captures the doctrinal and normative structure of contemporary international law: that Rawls's methodology is statist,(19) and that his commitment to tolerance...