John Rawls is the only prominent contemporary philosopher I know of who is trying to construct a theory of international affairs. Moral and political philosophy, on the whole, has had little to say about the subject. Rousseau and Kant wrote that we would never be truly free beings as long as wars pitted societies against one another and made it easier for authoritarian leaders to rule arbitrarily. But political and moral philosophers have been mainly concerned with the quest for the good life within a domestic society and for a definition of the just political state. Insofar as international affairs preoccupied them at all, some of them, the Realists, from Thucydides and Machiavelli to George Kennan and Hans Morgenthau, claimed that the “state of nature,” in which states compete for power, ruled out moral behavior. Others, beginning with Kant and continuing through Woodrow Wilson, said that the triumph of representative government at home and of the principle of national self-determination would produce a harmonious liberal world of cooperating nation-states. Still others, the Marxists, claimed that the revolutionary triumph of the proletariat would result in the “withering away” of the state and, therefore, of the division of the world into competing states as well.
The failure of both the liberal and the Marxist prophecies seemed to abandon the field to the cheerless tenets of Realism, which holds that the need for order is always threatened by conflicts between states, and that establishing a balance of power takes precedence over the quest for justice.1 Far from stifling the hunger for a philosophy that might offer some picture of a better international society, Realism, rejuvenated since World War II by E.H. Carr, Hans Morgenthau, George Kennan, and Henry Kissinger, exacerbated it. Realism seemed inadequate in a world with nuclear weapons: the struggle for power now risked destroying all the players on the field, and not just some of them. Even Hans Morgenthau concluded that a nuclear world of states without any central power above them had become intolerable, although he had no alternative to it. As the advocates of human rights pointed out in the years following World War II, the very notions of state sovereignty and national self-determination that nineteenth-century liberalism had endorsed were being used by governments and militant nationalists as a shield to protect appalling violations of individual and group rights from being punished or prevented.
In other words, the time had come to apply the traditional concerns and queries of political and moral philosophy to international society as a whole. Debates about which principles to apply to the issues I have mentioned were mainly over what John Rawls in his Theory of Justice calls “nonideal theory.” As with most moral commentary on world affairs, such theory tries to deal with actual situations, those, for example, that prevent, as Rawls puts it, “the poorer and less technologically advanced societies of the world” from attaining “historical and social conditions that allow them to establish just and workable institutions,” and with ways to handle evil and aggressive regimes.
The ideal theory that Rawls has tried to construct for both domestic and international societies is quite different. It aims to provide “the principles that characterize a well-ordered society under favorable circumstances.” When it deals with international society, it wants to set the rules of behavior for relations among “well-ordered” societies, i.e., societies whose citizens accept the same principles of justice, whose institutions satisfy those principles, and whose governments comply with the rules of conduct they have endorsed. Why engage in such an exercise? Such a theory, or so Rawls hopes, would serve as a yardstick with which the existing international society could be judged, and provide us with directions for reform.
It is not surprising that Rawls should be the one contemporary philosopher who is trying systematically—if so far only in a short set of lectures, which were delivered at Oxford and published in a collection of lectures on human rights sponsored by Amnesty International—to provide us with an ideal theory for international society. In these lectures, he uses his “social contract doctrine” in order to develop what he calls “the law of peoples.” This is not international law, but “a political conception of right and justice,” based on liberal ideas of justice “similar to but more general” than his central idea of “justice as fairness” presented in A Theory of Justice, and applied to international affairs. In his famous earlier book, and in his more recent essays in Political Liberalism,2 Rawls had tried something that might seem impossible: to define principles of justice that would apply to the “main political, social and economic institutions” of society, conceived as a “fair system of co-operation over time,” and would also be acceptable to men and women who hold very different conceptions of ethics and metaphysics.
The principles are articulated in a hypothetical social contract among “free and rational persons concerned to further their own interests.” They are derived by Rawls’s famous procedure in which he imagines representatives of the individual members of society as being in an “original position” of equality, behind a “veil of ignorance.” They don’t know their place, class position, social status, political strength, or even “their conceptions of the good or their special psychological propensities,” and therefore they will not be able to assert selfish interests to favor particular kinds of persons. They have only “the two powers of moral personality, namely the capacity for a sense of justice and the capacity for a conception of the good.” In this state they are to choose the principles of justice they prefer.
Rawls writes that he devised this procedure to apply to free and equal citizens in the “public political culture of a constitutional democratic regime.” The principles that emerge from it would grant to each person an equal claim to personal “rights and liberties,” and would tolerate inequalities—this is the famous “difference principle”—only if “they are to be to the greatest benefits of the least advantaged members of society.”
These principles, Rawls argues, are strictly “political not metaphysical.” That makes it possible for believers in a wide variety of “reasonable” moral and religious doctrines to accept and endorse his conception of justice. A “reasonable” person is one who is “ready to propose principles…as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so.” Furthermore, a reasonable person is willing to recognize what Rawls calls the “burdens of judgment”—the inevitability of “reasonable disagreement,” in view of the different weight people give to values. In this way, he hopes to reconcile a variety of reasonable conceptions of the good (for instance, different beliefs about the role of religion in society) with a single political conception of justice. It is itself a conception of the good, but one limited to the political life. By endorsing it, citizens come to share “one very basic political end”: supporting just institutions and seeing that they act justly.
Rawls had already sketched what the extension of this conception to an international law of peoples would look like in a couple of pages of his Theory of Justice, and had disappointed several of his disciples.3 The new, longer version does not overcome all their disappointments, and the reasons why it does not do so reveal something about the limitations of contemporary philosophy in dealing with international relations.
For his theory of international justice, Rawls returns to the method of the original position of equality and the veil of ignorance. But this time, the “parties” who, behind this veil, are to adopt the principles of justice for international society are not persons who stand in for you and me. They are delegates of democratic “peoples”: “representatives of societies well-ordered by liberal conceptions of justice.” They would not know “the size of the territory, or the population, or the relative strength of the people whose fundamental interest they represent,” or “the extent of their natural resources, or level of their economic development.” Rawls does not ask them to ignore their political culture, whereas he had asked the representatives of individuals in a democratic political culture to ignore their conceptions of the good. For Rawls, the diversity of political cultures, and their hold on people’s minds, seem irremediable—a highly debatable and unexplored assumption.
What principles would these representatives decide to adopt? Rawls argues that they would arrive at fairly classical principles of international law: “peoples” are to be free, independent, equal, entitled to defend themselves but not to wage aggressive war, obliged to respect treaties, to honor human rights, and not to intervene in each other’s affairs. This is close to what Michael Walzer, in Just and Unjust Wars,4 has called the “legalist” model—a morality of and for states.
But this approach begs a fundamental question both for social contract theorists and for other theorists. An international society includes not only states but individuals who can move across borders to disrupt states. They can also act across borders to invest in other countries and take part in the formidable and uncontrolled growth of a global, transnational economy. They can seek protection from abroad from the acts of their own government. Are we seeking principles for states or for individuals, and do the delegates behind the veil of ignorance represent states, or the world’s individuals?
Rawls’s “peoples” are “corporate bodies organized by their governments,” i.e., states. To be sure, the “original position” devised by Rawls in the first part of his essay is a position for representatives of liberal democracies whose states are based on citizens’ consent and respect for citizens’ rights. But even among liberal societies, the state is not a mere agglomeration of citizens, an association comparable to, although larger than, all the others. The state shapes the individual and group interests it chooses to defend, and the state has the monopoly of coercion. Thus, the law of “peoples” runs immediately into three obstacles.
First, what is a “people”? Rawls says that one of his reasons for not starting with “a global original position” in which individuals would ask “whether, and in what form, there should be states, or peoples, at all” is that “peoples as corporate bodies organized by their governments now exist in some form all over the world.” Indeed they do—but in the nonideal world to which he thus refers many of these “corporate bodies,” such as the former Yugoslavia, the former Soviet Union, the Sudan, Algeria, and Rwanda, are disintegrating because they are racked by opposing conceptions of what constitutes a people: not only multinational versus national conceptions of a people, but rival philosophies of nationality and citizenship. Moreover, states are also increasingly porous, penetrated by refugees and immigrants, and, as Rawls briefly acknowledges, the right of “peoples” to regulate or exclude immigration is a source of intense ethical controversy among politicians and philosophers in Europe and the US.
In other words, before we can have an ideal “law of peoples,” we need a theory that would define legitimate political units; if they are states, we need to know what groups of persons are entitled to establish one, and who is entitled to become a citizen. Such a theory of state formation and membership would have to say something about self-determination, secession, the treatment of minorities, population movements, the regulation of entry and exit. Rawls merely states that the rights to independence, selfdetermination, and secession require certain limits, such as respect for the freedom of another people; he acknowledges a people’s “qualified right to limit immigration.” But without much deeper consideration of such subjects, “ideal theory” risks, in the philosopher Onora O’Neill’s words,5 being not just abstract but “idealized,” in the sense of applying only to agents that could not exist in the real world, in this case sovereign states whose sovereignty is simply accepted without question, when we know that, in our increasingly interdependent and turbulent world, sovereignty is often open to many questions. Here we already find one difference between ideal theory for domestic society and ideal theory for “peoples”: the former may provide guidance for the solution of political problems, while the latter tends to leave out some of the more fundamental issues from the beginning, e.g., what is a people and what is its relation to a state.
The “peoples” organized into democratic states, moreover, very often promote across borders the rights and interests of their members in ways that lead to clashes, as with Japanese-American trade relations and Canadian and Spanish fishing practices. Their governments also pursue what are called “state interests” of a geopolitical nature that are often risky and turn out to be unpopular with their citizens, as with America’s cold war interventions in Central America or Vietnam, French manipulations in Africa, and American and French support for a variety of repressive regimes.
How should states pursue their objectives? Rawls’s “law of peoples” gives us only limited guidance. He tells us that states are not supposed to wage wars other than for self-defense, and that they are to comply with obligations to other states they have accepted. So far so good: the representatives of democratic “peoples” may well agree on such obligations. However, Rawls goes on to say that “we must reformulate the powers of sovereignty,” so as to get rid not only of the right to war but also of the “right to internal autonomy” (i.e., to freedom from external intervention), which “fails in the case of disordered societies in which wars and serious violations of human rights are endemic.”
But now we notice that the principles Rawls proposes—not surprisingly, since they were arrived at by imaginary representatives of organized “peoples” interested in protecting their own people from the intrusion of others—entail no such “reformulation.” They offer far too abstract and conservative a code of behavior, especially in a world in which interdependence empties sovereignty of much of its substance. Rawls has only a few sentences recommending but not specifying “principles for forming and regulating” possible associations of democratic societies and “standards of fairness” for trade and other cooperative arrangements. How demanding would these principles be, and who would enforce them?
A world of “peoples” would have no world government to enforce them; the peoples’ delegates would, in Rawls’s view, reject such a government on the same grounds as Kant: it would be either tyrannical or excessively fragile. If this is so, then a theory of international justice has to address far more specifically the issue of the methods states should use in their relations with one another. This issue was not central to Rawls’s ideal theory of a “well-ordered” democratic society based on just principles. He plausibly assumed that in such a society the state would be acting on our behalf and would have a monopoly on coercion. But it is a crucial issue for a world of competing states, even democratic ones.
Moreover, any world of “peoples,” democratic or not, is likely to remain a highly unequal world of rich and poor states. A Theory of Justice offered drastically egalitarian guidelines for distributive justice within a democratic state—the “difference principle” requires that inequalities be “adjusted so that…they are to the greatest benefit of the least advantaged members of society.” Rawls’s ideal theory for international relations makes no such demands. It simply, and very optimistically, assumes that the “peoples” he is writing about exist in well-ordered societies maintaining “decent political and social institutions” and that they will agree on “certain provisions for mutual assistance between peoples in times of famine and drought” and, “were it feasible, as it should be,” on provisions for ensuring that in all “reasonably developed liberal societies people’s basic needs are met.” This seems timid since, unlike Rawls’s theory for liberal societies, it lacks any principle for establishing distributive justice among rich and poor people.
Such are the flaws of a theory for “peoples.” However, suppose an ideal theory was derived from a “global original position” not of peoples, but of individuals, as some of Rawls’s disciples, such as Thomas Pogge, have suggested. It, too, would run into serious trouble. An ideal “law of peoples,” as we have seen, looks empty; but it is hard to imagine an ideal theory for international society that begins not with “peoples” but with “abstracted” individuals placed behind the veil of ignorance. Would it concern itself with principles acceptable to all “reasonable” persons whatever their political culture? These risk being both few and elementary, if they are supposed to accommodate cultures that restrict or deny basic individual rights or liberties. Does it only seek principles acceptable to reasonable persons who share the political culture of democracy? Such people would have a more extensive list of rights, but these would not apply to people from other political cultures. (Indeed, Rawls’s second reason for rejecting a global original position for individuals is that it would treat “all persons, regardless of their society and culture, as individuals who are free and equal,” and that this would make the basis for the law of peoples too narrow. Treating all citizens as free and equal is a liberal conception not shared by many peoples.)
Suppose that abstract Rawlsian individuals striving for an ideal theory applicable to the entire world would adopt principles comparable to, or identical with, those of A Theory of Justice, including a global “difference” principle dealing with the huge economic and social inequalities that now exist internationally. This would require a drastic redistribution of the world’s resources, and it would thus be extremely difficult to carry out in practice in the absence of some kind of a world government or of some highly unlikely consensus of states to enforce such provisions.
On the other hand, it remains unclear what such a theory would have to say about the fundamental problem of international politics: the division of the world into a maze of separate states and nations. In A Theory of Justice, the parties behind the veil of ignorance are asked only to define principles of justice for an already constituted society and state. In a global original position the parties would have to decide how international society should be constituted: should it be a single society, a society of different societies organized as states, or a society of societies less endowed than the present states with the powers usually associated with state sovereignty (such as the right to wage war, to be safe from external interference, to close its borders)?
Would individuals who, behind their veil of ignorance, would have “lost”their nationality along with their other distinctive characteristics choose to reduce boundaries to mere administrative divisions in a global polity? This, too, would be utopian. Would those denationalized persons, if they were aware of the material, cultural, and psychological advantages that membership in a close-knit society (such as, say, Japan) entails, reaffirm the need for separate states on moral grounds—such as the human need to belong to a political society smaller and less remote than humanity as a whole? (In this case, when could a foreign state intervene legitimately to protect the “equal basic liberties” to which each person has an equal right?)
A global original position for individuals raises the issue of the moral significance and importance of state boundaries. Such boundaries take on great significance for “communitarian” thinkers such as Michael Walzer and Charles Taylor, and for all those who consider peoples and states as the necessary starting points for any discussion of international justice. By contrast, state boundaries tend to be dismissed as arbitrary and without moral authority by “globalists,” such as Martha Nussbaum. Other writers, such as Yael Tamir, argue that borders are morally important only if they are open and if what happens behind them is just. There is no moral consensus on state boundaries. It seems clear that any attempt to use Rawls’s method to arrive at a social contract among individuals for international affairs would lead to an impasse.
A key element of Rawls’s law of peoples is his emphasis on human rights. How widely would peoples accept them? Following his attempt, in his earlier work, to distinguish a “political conception” of justice from a “comprehensive” philosophical doctrine, Rawls avoids raising the controversial problem of the foundation of human rights: are they derived from God’s will expressed in natural law? from human nature? from the dictates of reason? Each comprehensive doctrine has its own answer. Moreover, as Rawls writes, many of the world’s societies would reject all these ideas as “in some way distinctive of the Western political tradition and prejudicial to other cultures.” And just as he has, in his previous work, derived the principles of justice not from any “comprehensive” doctrine but from the idea of society “as a fair system of cooperation” among philosophically diverse individuals, Rawls wants human rights not to depend “on any particular comprehensive moral doctrine or philosophical conception of human nature.” Instead, he states that human rights “express a minimum standard of well-ordered political institutions for all peoples who belong…to a just political society of peoples”—i.e., they are a requirement for a just international society. But the problems that arise here suggest once again the dramatic differences in ideal theory between a domestic society and international society.
The “domestic” Rawls wanted to show that the principles of political justice derived from the original position could be endorsed by individuals who believe in a variety of “reasonable” comprehensive doctrines—for instance, a Catholic doctrine that accepts the principle of toleration and a constitutional regime, a “comprehensive liberal moral doctrine” such as Kant’s, and an “unsystematic,” pluralist view. Such agreement coming from different perspectives provides what Rawls calls an “overlapping consensus”—without which political liberalism would be merely a doctrine, not a conception providing for political legitimacy and stability.
Rawls has a very special definition of consensus: he insists on the difference between subscribing to principles that are arrived at independently of any comprehensive doctrine—which is what he seeks—and a modus vivendi, i.e., a mere compromise among such doctrines or among group interests, which he deems unstable, since each party will keep trying to push forward its own views or interests (the example he gives is that of Catholics and Protestants in the sixteenth century).6 The object of the “overlapping consensus” is a moral conception “affirmed on moral grounds” and limited to the political sphere, i.e., the basic liberties and the “basic structure” of the main political, social, and economic institutions. (Of course, critics have pointed out that the distinction between the political and the nonpolitical spheres is elusive, that few moral and religious “comprehensive doctrines” are likely to endorse a liberal conception of the political life, and that many such doctrines have their own conception not only of how we should live but also of how we should govern ourselves.)7
In his Oxford lecture, Rawls wanted to show that the liberal principles of international behavior, the “law of peoples” devised by representatives of democratic “peoples,” could be freely endorsed also by nondemocratic states, so that this liberal conception could not be denounced by representatives of other traditions as paternalistic or imperialistic. But this time, in order to build his “overlapping consensus,” he departed from his previous approach in two ways.
First, Rawls defines the principles of the law of peoples so that they would be acceptable to states that are not liberal democracies. Even though he presents these principles as an extension of the liberal conception of justice to international relations, they turn out to be very impoverished when they are applied internationally. This is obvious in two respects. First, he abandons “the three egalitarian features” of his earlier conception of justice: “the fair value of…political liberties,…fair equality of opportunity, and…the difference principle.” Thus the aim of acceptability now shapes and weakens the principles of justice. He is explicit about this when he explains why the difference principle, appropriate for a democratic society, is not valid for international society (even though we’re dealing with ideal theory). The reasons he gives are that the principle wasn’t “framed for our present case” (a rather insufficient explanation) and that many societies—even liberal ones—would find it unacceptable.
Moreover, the list of basic human rights is, insofar as liberty is concerned, restricted to “the right to life and security,” the right to emigration, and “freedom from slavery, serfdom and forced occupations.” Only “a certain liberty of conscience and freedom of association” are mentioned. Freedom of expression and freedom of the press do not appear. The rights that he does include are said to be “distinct from the rights of democratic citizenship,” i.e., there is no right to vote. They are “politically neutral,” not “peculiarly liberal or special to our Western tradition”—a weird statement, for there is nothing “neutral” about human rights. And while non-Western states have signed treaties that commit them to respect these rights, they are clearly liberal in origin and substance.
Why is Rawls’s list skimpier than the rights covered in many of these treaties? He evidently wants to make such rights acceptable to a second category of “peoples”: non-liberal societies, which Rawls calls “hierarchical.” Like “well-ordered liberal societies,” they are an ideal type. Unlike the former, however, they have, as Rawls describes them, no (or barely any) empirical, nonideal counterparts in the real world; one might perhaps think of Jordan, or Singapore, or Tunisia, but Rawls’s category is an idealization (in the sense of beautification) of a very tiny group of real states. These hierarchical societies, to be well-ordered, must be peaceful, “guided by a common good conception of justice” (i.e., a conception “founded on certain religious or philsophical doctrines”), must have a legal system which “takes impartially into account…the fundamental interests of all members of society” and imposes “moral duties and obligations on all persons within its territory,” and must respect basic human rights. Even though they may have an established religion, they don’t persecute other religions; even though persons are not seen there as free and equal, and even though there are no elected legislatures, there is “a reasonable consultation hierarchy” and all persons are treated as “responsible members of society.”
Rawls argues that the representatives of such societies, placed behind a veil of ignorance, would accept the same “law of peoples” as democratic societies. As one critic of Rawls has pointed out,8 this is far from obvious: Are societies whose governments are dogmatically committed to ideology or religion likely to respect basic human rights at all? Since there are no free elections, how would we know that their “system of law” meets “the essentials of legitimacy in the eyes of [their] own people”? Whatever the answers, what is clear is that Rawls’s law of peoples has been shaped so as to appeal to a purely hypothetical group of peoples.
The fallacy here is in the parallel Rawls seems to draw between an “overlapping consensus” of comprehensive doctrines that endorse a single conception of justice within a democratic political culture (and do so after the domestic principles of justice have been set), and an “overlapping consensus” of societies based on very different political conceptions of justice. Such different societies could only endorse a very weak “law of peoples.” The reasons for its weakness are implicit but clear enough: this “overlapping consensus” is really just a modus vivendi among quite different models of society. In Rawls’s “law of peoples,” we are asked not only to tolerate certain non-liberal regimes, but to set up principles of world order that would accommodate them.9 It is as if Rawls had taken too seriously the argument, made by so many repressive regimes, that the liberal conception of justice is “ethnocentric”—as if one couldn’t find believers in liberal values, believers who are often repressed, everywhere, and many anti-liberals in the West.10
When Rawls develops his “ideal conception of a society of well-ordered peoples,” his principles are meant to include in that ideal conception regimes that are “not unreasonable”—neither expansionist nor regimes of terror. An international law of peoples that goes out of its way to suit at least some of the non-liberal ones may be a political necessity. It may be a stage toward the realization of an ideal world. But, as Rawls presents it, it is impossible to see in it an adequate conception for an ideal world.11
What lessons can we derive from the failures of Rawls’s approach? First, the social contract method is difficult to apply to international society because it is both a society of separate states (or peoples) and a society of individuals, who play an increasingly important role in world affairs. This difficulty is magnified by a second problem. Theories of social contract, whether Locke’s, Rousseau’s, or Rawls’s, yield an “ideal theory.” But in thinking about international affairs the best we can come up with, in “ideal theory,” is very thin. It may produce the utopia of world government, or else take the form of Rawls’s meager law of peoples, which does not add much to old liberal notions of world harmony, and particularly to Kant’s recipe for peace, in which he called for an end to war and standing armies and for the establishment of a league of constitutional regimes.
By contrast, most of the philosophical and ethical problems of world affairs are the concern of non-ideal theory: how to produce both order and justice in a world of different “corporate bodies” and regimes, which reflect different conceptions not only of the social good but of political justice, and are based at least as often on coercion and repression as on consent. Rawls, having spent most of his essay on ideal theory, devotes only seven pages to what to do “about the highly nonideal conditions of our world with its great injustices and widespread social evils.” He examines what he calls noncompliance—how to handle “outlaw” regimes that “refuse to acknowledge a reasonable law of peoples”—and how to deal with societies that lack the traditions, human capital, know-how, and resources that are needed to be “well-ordered.”
What he says here seems irreproachable, if very limited. First, well-ordered societies must eventually bring all other societies to honor the law of peoples and to secure human rights—but these are matters of foreign policy and political wisdom to which political philosophy has not “much to add.” He can only suggest a “federative center” of well-ordered peoples—such as the United Nations—to expose the cruelties of outlaw regimes, and he authorizes war against these regimes if they attack “the society of well-ordered peoples” and, “in grave cases,” if they violate the human rights of their innocent subjects. But hugely important issues are left in the dark: What is “a grave case”? Is forcible intervention also justified when human rights are crushed in a civil war? Secondly, well-ordered societies must see to it that basic human needs are met everywhere, even though, in his view, economic injustice results less from international advantages of some nations over others than from domestic factors. These include “the public political culture and its roots in the background social structure”—oppressive governments, corrupt elites, religions that repress women.
But if “the duty of assistance” is not based on “some liberal principle of distributive justice” but merely on “the ideal conception of the society of peoples itself as consisting of well ordered societies,” what kind of assistance should the rich nations give and how can it be made to reach the poor in poor countries? How much of a priority should be given by a state to helping its own poor? How should non-citizens and minorities be treated?
Another problem seems even more perplexing. In A Theory of Justice, Rawls’s domestic ideal theory assumed “strict compliance” with the principles of justice—a not unreasonable assumption, for in a liberal democracy, once citizens agree on a policy, the judicial system and the state would have the means of coercion that will ensure compliance. In “The Law of Peoples,” Rawls relegates noncompliance to the short section devoted to nonideal theory, in which he merely tells us how well-ordered societies should try to deal with outlaw regimes. But in a world of formally sovereign states, and of individuals who trade freely across borders, the issue of compliance is fundamental—even among democratic regimes. An ideal theory for “peoples” should no more leave out the issue of compliance than Rawls’s ideal theory of domestic justice left out the issue of inequality. When a state violates the obligations that result from its agreements or from a World Court decision, what can be done to stop it? Rawls has no specific advice to give here, and any theory that does not deal with the central issue of compliance is left up in the air. Rawls may eventually find ways to bring his theories closer to international reality, but he has a long way to go.
How, then, is a moral and political philosophy of international behavior to proceed? Those who have tried to find common ground among existing ethical traditions have so far not been convincing.12 Attempts to work out a comprehensive doctrine along Kantian lines have so far been fragmentary.13 More promising may be the possibility of extending to international society the ideas of the late Judith Shklar on the “liberalism of fear.”14 The main theme of her argument is the protection of the individual from cruelty, oppression, and fear. Like Rawls, she wanted to show that there were liberal principles on which people could increasingly agree without their having to accept particular philosophical formulations such as Mill’s or Kant’s or, for that matter, Rawls’s own. Unlike Rawls, she wanted to ground liberalism not in a procedure undertaken by abstractly conceived free and equal persons seeking “fair terms of cooperation,” but in what she deemed a fundamental, common, and immediate emotional experience: the fear of cruelty and tyranny. The liberalism of fear is based on the memories that are common to the men and women of this century: memories of “the history of the world since 1914” and its atrocities. It is, she thought, the only kind of liberalism that can still have a broad appeal, now that the liberalism of hope, of faith in reason, progress, and harmony, has been largely destroyed.
Shklar saw human rights as necessary “licenses and empowerments that citizens must have to preserve their freedom and to protect themselves against abuse,” just as the prohibition of cruelty is a universally necessary “condition of the dignity of persons.” She put the emphasis on the moral needs people have as individuals, not, as Rawls does, on the idea of persons as “responsible and cooperating members of society.” (One of her continuing concerns was about refugees, exiles, members of minorities, i.e., involuntary misfits who have fallen between society’s cracks.)15 Certainly, as Stephen Lukes points out in his own spirited Oxford lecture, individuals want and need to belong to associations and communities. But human beings need not to be crushed, confined, or defined by them. Associations or communities can, in other words, be dangerous—and the most dangerous of them is the state.
From the liberalism of fear and the imperatives of protection from cruelty and tyranny, important principles can be derived. Shklar mentioned both negative liberties—protecting the weak from harm, from excesses of power and the kind of inequality that amounts to oppression—and positive measures about the kinds of institutions “without which freedom is unimaginable.” She recommended the division and dispersion of power, effective voluntary associations, procedural fairness, a well-in-formed and vigilant citizenry. Shklar’s approach is less hypnotized than other liberalisms by the problem of philosophical and religious pluralism. There are many views of the supreme good, she thought, but one ultimate evil that she persuasively argued was central: “cruelty and the fear it inspires, and the very fear of fear itself.”
She did not have the time before she died to develop these ideas and to apply them to world affairs. But the liberalism of fear, conceived for a non-ideal world, may provide us with the guidelines and principles needed to curb the pretensions and excesses of states and would-be “peoples.” It may supply criteria for such issues as the protection of human rights, the treatment of minorities and migrants, the problems of famine and poverty. It seems likely, moreover, that such principles of protection would appeal to a “consensus” of those she was most concerned about, “the likeliest victims, the least powerful persons,” who are to be found in all societies and cultures. The liberalism of fear modestly aims at “damage control”—but today that in itself is a revolutionary aspiration. Many people, and their political representatives, may conceivably come to share it and to support the measures and institutions needed to turn it into a plan of action.16
November 2, 1995
See my essay “The Crisis of Liberal Internationalism,” Foreign Policy, Spring 1995. ↩
Columbia University Press, 1993. ↩
See especially Charles Beitz, Political Theory and International Relations (Princeton University Press, 1979) and Thomas Pogge, Realizing Rawls (Cornell University Press, 1989). ↩
Basic Books, 1977. In Walzer’s conception, states derive their rights from the consent of their citizens, and he assumes a “fit” between the former and the latter. But if there was no such fit, foreign states could intervene only to help a national group secede, not to help a people overthrow its tyrannical government (thus, they could help East Timor or Chechnya or Tibet, but not, say, the Shi’ites in Iraq—or the fundamentalists in Algeria). ↩
“Justice, Gender, and International Boundaries,” in Martha C. Nussbaum and Amartya Sen, editors, The Quality of Life (Clarendon Press/Oxford University Press, 1993), pp. 303–323, at p. 312. See also Nussbaum’s essay “Ethical Reasoning and Ideological Pluralism” in Ethics, July 1988, pp. 705–722. ↩
See Political Liberalism, pp.146–147, 171. ↩
See Stephen Holmes, “The Gatekeeper,” The New Republic, October 11, 1993, pp. 39–47. ↩
Thomas Pogge, in “An Egalitarian Law of Peoples,” Philosophy and Public Affairs (Summer 1994), pp. 195–224. ↩
This point is made by Thomas Pogge (see note 8) and by a young French philosopher, Bertrand Guillarme. His critique is in Chapter 10 of his still unpublished doctoral thesis, Rawls: La Justification contractualiste de la démocratie libérale (1994), a careful and systematic exegesis of Rawls’s thought. ↩
For an Asian’s refutation of the so-called “Asian” point of view, see Yash Ghai, “Human Rights and Governance: the Asian debate,” Australian Yearbook of International Law 15 (1994), pp. 1–34. ↩
A similar thought is expressed by Fernando R. Tesón in his critique of Rawls’s essay from a Kantian perspective, “The Rawlsian Theory of International Law,” Ethics and International Affairs, Volume 9 (1995), pp. 79–99, at p. 98: “For the Kantian, the relationship between liberal and illiberal states can only be a peaceful modus vivendi and not a community of shared moral beliefs and political commonalities.” ↩
See, for instance, Sissela Bok, “The Search for a Shared Ethics,” Common Knowledge (Winter 1992), pp. 12–25, and Frances V. Harbour, “Basic Moral Values: A Shared Core,” Ethics and International Affairs, Volume 9 (1995), pp. 155–170. ↩
One (partial) attempt is Onora O’Neill’s Faces of Hunger (London: Allen and Unwin, 1986). ↩
See her essay “The Liberalism of Fear,” in Nancy Rosenblum, editor, Liberalism and the Moral Life (Harvard University Press, 1989), pp. 21–38. ↩
Guillarme remarks that Rawls’s formulation leaves dangling the issue of the rights of exiles and stateless people, who are not “clearly the members of any given society” (p. 416). Judith Shklar had planned to write a book on exile. ↩
I am grateful for the comments and criticisms of Bertrand Guillarme, Percy Lehning, and Daniel Philpott (whose essay “Sovereignty,” Journal of International Affairs (Winter 1995), pp. 353–368, raises important issues for international theory). ↩