The law of peoples ... is a family of political concepts along with principles of right justice, and the common good that specify the content of a liberal conception of justice worked up to extend to and apply to international law. It provides the concepts and principles by reference to which that law is to be judged. (43)In contrast to the reception A Theory of Justice received, his work on the international part of the theory has not had much influence, and was roundly criticized for being too accepting of international inequalities. Philip Pettit put the point this way in his contribution to Rex Martin and David Reidy's Rawls's Law of Peoples: A Realistic Utopia:
John Rawls's work on the law of peoples is notorious for its anti-cosmopolitan stance: roughly, its insistence that those of us in well-ordered societies do not owe to the members of other societies the sort of justice we owe to one another. (38)This is exactly the critique that Philippe van Parijs offered to Rawls prior to publication of the book (link).
Given that Rawls's intuitions seem to have been solidly progressive in other spheres, it is worth considering why he took this very limited view of the obligations of justice in the global context. Why did he begin with the perspective of peoples rather than persons? (Here I'll make use of the 1993 statements of the view.)
A number of the critics put their cases in terms of Rawls's anti-cosmopolitanism. "Cosmopolitanism" is the view that we are all citizens of the world, and we have positive moral relationships with each other no matter what nation issues our passports. No one would deny that everyone has some kinds of moral relationships to everyone else -- for example, the obligation not to impose harm on innocent people. But cosmopolitanism extends to the idea of positive obligations -- the obligation to render assistance as well as the obligation to refrain from gratuitous harm. The contrary to cosmopolitanism might be called "nationalism", but this implies assumptions that Rawls would presumably not have accepted. So let's call it "bounded people-ism": the claims of justice that a person has against other persons extend only to other members of his/her people and government.
One deep reason for the direction that Rawls took was the assumption he made about how to make use of the original position and the veil of ignorance in arriving at principles of international justice. If this framework involved all human beings, then the results would have been very similar to the argument made in the case of a well-ordered society: inequalities need to be the least system possible consistent with maximizing the position of the least-well-off stratum of society. However, Rawls chose instead to include "peoples" rather than "persons" in the argument from the original position in the case of international justice. What is a people?
By peoples I mean persons and their dependents seen as a corporate body and as organized by their political institutions, which establish the powers of government. In democratic societies persons will be citizens; in hierarchical and other societies they will be members. (41)And he directly addresses the question of why it should be peoples rather than persons whose perspectives are represented in the original position for international justice:
Wouldn't it be better to start with the world as a whole, with a global original position, so to speak, and discuss the question whether, and in what form, there should be states, or peoples, at all? ... I think there is no clear initial answer to this question. We should try various alternatives and weigh their pluses and minuses. Since in working out justice as fairness I begin with domestic society, I shall continue from there as if what has been done so far is more or less sound. So I simply build on the steps taken until now, as this seems to provide a suitable starting point for the extension to the law of peoples. A further reason for proceeding thus is that peoples as corporate bodies organized by their governments now exist in some form all over the world. (42-43)So his reasons for beginning with this premise are, first, we have to start somewhere and there isn't a philosophically compelling reason to favor persons over peoples in this setting; and second, peoples (and states) exist as actors in the world, so it is feasible to begin the analysis at this level. This way of formulating the original position is designed to establish fair terms of interaction between societies -- or in other words,
... fair conditions under which the parties, this time as representatives of societies well ordered by liberal conceptions of justice, are to specify the laws of peoples and the fair terms of their cooperation. (45)This formulation, of course, immediately precludes certain questions, including all questions of difference in outcomes for the least-well-off in the various societies. The fact that the LWO in country X are worse off than the LWO in country Y cannot be a factor in this deliberation, and therefore there cannot emerge a positive obligation to transfer resources from society Y to X to ameliorate this difference.
Here are the principles that Rawls arrives at through this construction:
- Peoples (as organized by their governments) are free and independent, and their freedom and independence is to be respected by other peoples.
- Peoples are equal and parties to their own agreements.
- Peoples have the right of self-defense but no right to war.
- Peoples are to observe a duty of nonintervention.
- Peoples are to observe treaties and undertakings.
- Peoples are to observe certain specified restrictions on the conduct of war (assumed to be in self-defense).
- Peoples are to honor human rights. (46)
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.Later in 1993 he comments on the idea of a human right:
Human rights have, then, these three roles:Several things are evident from these lists. First, the obligations represented here are indeed minimalist; basically, they are limitations on the use of coercive means by peoples (states) to achieve their ends. Even the 8th principle added in the 1997 version creates an obligation only to assist other peoples in achieving a just political regime. Second, there are no requirements of distributive justice in this list of principles. Each society has internal requirements of distributive justice; but there is no inter-society requirement of distributive justice. The fact that there are large inequalities of resources between countries is not a basis for a claim of injustice, according to these principles.
1. Their being fulfilled is a necessary condition of a regime's legitimacy and of the decency of its legal order.
2. Their fulfillment is also sufficient to exclude justified and forceful intervention by other peoples, say by economic sanctions or, in grave cases, by military force.
3. "They set a moral limit to pluralism" among peoples. (59)
This framework has been strongly criticized by philosophers and others who found that it was far too accepting of global inequalities. Alan Buchanan focuses on the global inequality part of the story in his 2000 contribution in Ethics. Buchanan holds that even representatives of peoples would not have overlooked the significant inequalities imposed on peoples by the global economic system. He maintains that the original position concerned with international justice would have to take into account two important facts:
There is a global basic structure, which, like the domestic basic structure, is an important subject of justice because it has profound and enduring effects on the prospects of individuals and groups, including peoples in Rawls's sense.
The populations of states are not "peoples" in Rawls's sense and are not likely to become so without massive, unjustifiable coercion, but rather are often conflicting collections of "peoples" and other groups. (700-1)The first fact, if recognized, would ensure that the international original position would necessarily take into account the inequalities created by this system for different peoples. He also believes that the second fact raises salient issues for the international original position. Essentially the issue here is this: what happens when the multiple peoples of a single state come into conflict? By making the assumptions that "peoples within unified states" are the agents within the international original position, Rawls makes it impossible to arrive at principles of international justice that would specify just behavior in the face of civil war or secessionist movements. This approach makes it impossible to address intrastate conflict.
Tom Pogge extends his own critique of Rawls's position on international distributive justice in a Fordham Law Review article (link) (also included in Martin and Reidy's Rawls's Law of Peoples: A Realistic Utopia). Fundamentally, Pogge is highly critical of Rawls's failure to arrive at an international theory of justice that provides a basis for critique of global inequalities. In this piece he argues that Rawls's two theories are in fact inconsistent with each other.
As indicated above, much of this body of criticism has to do with the view that Rawls's Law of Peoples creates only the most limited obligations across peoples. His view is not "cosmopolitan". But a more fundamental criticism, which Buchanan hints at, is that there is a major strand of injustice embedded within the world system that is wholly invisible within Rawls's formulation of the law of peoples. This is the fact that global institutions may create systematically imbalanced economic relations among states, with the result that some states are in a position to take unfair advantage of other states. This is a form of injustice that would not be accepted within the terms of a domestic society. But there is no basis within the framework of the law of peoples to identify and criticize these types of injustices.
These criticisms are surely correct. As a theory of global justice, the Law of Peoples doesn't begin to provide enough of a normative basis to arrive at sound judgments about international arrangements. I began by asking how it came to pass that Rawls presented such a limited theory of international justice. The best answer I can offer is that he was focusing on the wrong issues. He focused on issues of war and interstate violence, and he did not sufficiently bring into his view the empirical realities associated with a highly unequal world economic structure. And this is puzzling, since questions of global inequalities -- of resources, of power, and of self-determination -- were certainly widely debated at Harvard in the 1970s and 1980s while Rawls's thinking on this subject was developing.
(In addition to critics, Rawls has some defenders in this area. Samuel Freeman provides an extensive and reasoned response to many of these criticisms of Rawls's theory of international justice here (link).)