192292

Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons Author(s): Andrew Kuper Source: Political
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RAWLSIAN GLOBAL JUSTICE Beyond The Law of Peoples to a Cosmopolitan Law of Persons
KUPER ANDREW CambridgeUniversity
John Rawls's The Law of Peoples (LP) representsa culminationof his

reflectionson how we mightreasonablyandpeacefullylive togetherin a just world.' My aim in this articleis partlyto pay homageby being more royalist than the king: I argue that Rawls's theory of justice can and should be proconstructivist extendedin a way thatis morein keepingwith the Kantian cedures that he employs for domesticjustice in Political Liberalismand A The resultis a conceptionof globaljustice thatis morelibTheoryof Justice.2 is thatRawls has begged some eral in Rawls's own terms.My core argument of the centralquestionsof globaljustice by adoptingat the outseta "thinstatist" conception of the legitimate divisions between persons who share a assumptionis removed,the natureandboundworld. Once this ungrounded ariesof the basic politicalunitsthatthe principlesof globaljustice coordinate might look quite different,as might the principlesthemselves.Althoughthe focus is on ideal theory,on formulatinga moral vision of a cosmopolitan world order, the closing section does discuss relevant implications for nonideal theory. methsectionoutlinesRawls'sprojectandconstructivist The introductory It his thin statismin particular. odology in LP,with a view to characterising for his position. Each of the next four secfour arguments briefly articulates tions explicates and then criticises one of those four argumentsand in so conceptionof globaljustice. Sections 1 develops an alternative doing further
AUTHOR'SNOTE:I am deeply indebtedto Onora O'Neill for incisive commentson earlier Hawthorn, drafts.My thoughtswerealso enrichedby discussionswithSeylaBenhabib,Geoffrey from Sandra Badin, David and AmartyaSen. Finally, I greatly appreciate writtencomments Bilchitz, Zeev Emmerich,Nim Geva, Nancy Kokaz, Melissa Lane, Morag Patrick, Michael SimonStacey,as well as StephenWhiteand two MarcSchattenmann, Pitman,David Runciman, for Political Theory. anonymousreviewers
Vol. 28 No. 5, October2000 640-674 THEORY, POLITICAL C 2000 Sage Publications,Inc.
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Kuper/ RAWLSIANGLOBALJUSTICE
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and 2 arguefor a global ratherthana two-stage (domestic and then international) original position. Section 3 explores the cosmopolitan institutional implicationsof this modifiedRawlsianprocedureandelaboratesa politically Section 4 defendsthe pluralsovereignty." liberalconceptionof "functionally relevanceof thatideal conceptionofjustice for realisticpoliticalactionin the world. The most crucial decidedly nonidealconditions of the contemporary differencesbetween Rawls and me arethe following: (1) he effectively supwith limitedsovereignty,while I reject portsa system of unitarynation-states and thatwhole idea in favourof a more pluralnesting of political structures; (2) he disavows democraticrights at the global level, while my argument establishesthatthe rightsto full free speech anddemocracyarefundamental of globaljustice. We arethus led to supportquite differentlibrequirements eral approachesto the aims and methods of world politics.
CONSTRUCTIVISM RAWLS'S THINSTATIST politicalconceptionof right In LP,Rawls attemptsto provide"aparticular law andpracandjustice thatappliesto principlesandnormsof international tice" (p. 3). The questionto which this conceptionanswersis the following: how can the conceptionof justice as fairness,elaboratedin Political Liberalism for a closed and self-sufficient liberal democraticsociety, be convincingly "extended" to cover relations between societies, including some nonliberalsocieties (p. 9)? This questionemerges since, afterthe principles of domesticjustice havebeen decidedon, manyissues of justice remainto be resolved-namely, those thatarise once the assumptionof a closed society is dropped.How is a domesticallyjust society to interactwith othersocieties? Rawls thinks the extension of political liberalism to global justice can be achievedby runninga second session of the originalposition.At this "second level," the partiesin the originalposition representpeoples, with the result that the constructivistproceduremodels conditions for arrivingat terms of cooperationthatare "fairto peoples and not to individualpersons"(p. 17, n. 9). Persons are not the relevant"(moral)actors"precisely because persons' basic claims to justice have alreadybeen takeninto account(p. 10): the principles of domestic justice are establishedpriorto and independentlyof the or compatible)andare principlesof globaljustice (which areeitherderivative given lexical priority.This is the methodologicalheartof LP: Rawls works from sufficientlyjust societies (peoples) to a just upward and "outward" Society of Peoples (pp. 3, 23). A Rawlsian constructivistprocedurehas three steps. If each step of the procedurecan be justified, then the principleschosen will be fair.3The first
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step is to say for whomjustice is being derivedby answeringthe question, "whatis a people?";the second is to identifywhatalterations mustbe madeto the originalpositionif accountis to be takenof the changein moralagents at this second level; andthe thirdis to determinewhich principlesof globaljustice would be chosen by representatives of those agents, deliberatingunder those proceduralconstraintson argument. In his 1993 Amnestylecture"TheLaw of Peoples,"which servedas a prelude to the book, Rawls initially defined a people as "persons and their dependantsseen as a corporatebody and organisedby theirpolitical institutions, which establishthe powersof government."4 In the book, he providesa more extensive characterisation of peoples as having, in ideal theory,three basic features-institutional, cultural,andmoral.Institutionally, eachpeople
has a "reasonably just . . . government that serves their [a people's] funda-
mentalinterests": protectingtheirterritory; preservingtheirpolitical institutions, culture,independence,and self-respectas a corporate body; and guaranteeing the safety, security, and well-being of their citizens (pp. 23-29, 34-35). Eachpeople's citizens arealso culturally"unitedby whatMill called 'commonsympathies'";Rawlsclearlymeansby this "anideaof nationality," generally based on "a common language and sharedhistoricalmemories" in thateach is firmly (pp. 23-25).5Finally,each people has "amoralnature," attachedto a moral conceptionof rightandjustice thatis at least not unreasonable (pp. 23-25, 61-68). Each is prepared-in rationallyadvancing its interests-to proposeas well as abideby fairtermsof cooperafundamental tion, as long as otherpeoples do so as well.6 idea of a "notunreasonable" and"reasonably This normative just"people is less demandingthanthe idea of a reasonableandfullyjust society as specified in Political Liberalism. Politically liberal societies are certainly liberalsocieties (such as thatspecified in included,butso arecomprehensive and "decent A Theoryof Justice) peoples."The latter are also schemes of in that persons are respected but are associationist social cooperation, they as reasonableandrational not directlyas free andequalindividualsbutrather membersof theirrespectivegroups"(p. 64). This minimalcri"co-operating terionof respect,whichdefinesa decentpeople,is derivedfromthe basic idea of a bona fide system of law (and not from the idea of persons as free and equal)as follows: a law-governedschemeof social cooperationdiffersfroma "schemeof commandsimposedby force"preciselybecausepersonsareable andbe moved to act on the law withoutnecessarily to recognise,understand, being coerced (p. 65).7 Yet, without some reassurancethat domestic institutions of justice take some account of citizens' importantinterests-at the very least as members of groups that each cleave to a comprehensive doctrine-a legal systemcannotimpose suchmoraldutiesandobligationson
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all members of society since citizens will not be thus (morally) motivated. The pursuitof the commonaims of a decentpeople must thus be constrained by "a common good idea of justice,"which at least takes citizens' important interests into account, thus allowing them all to play a responsible role in public life (pp. 66-68).8Most significantamong persons' interestsare those in having their human rights secured and in having laws nonarbitrarily administered(pp. 78-81).9 The idea of a decentpeople is a centralinnovationof LP.As with any construct,it is createdto serve a particular analyticpurpose;Rawls's main aim is to develop liberalprinciplesof globaljustice thatare also tolerantof peoples with othermoral and political traditions.(The idea of tolerationin LP is the subject of section 2.) To generate these liberal principles and ensure their acceptability"froma decent non-liberalpoint of view" (p. 10), the second session of the originalposition is runin two stages-once for liberalpeoples for decentnonliberalpeoples. As in the case of establishingthe andthereafter fairtermsof cooperationfor a closed society,partiesto each stage aresituated symmetricallybehind a veil of ignorancethat screens out information(this time it is territorysize, level of development,common good conception of justice, etc.) thatmight make them less thanimpartialin the rationalpursuit of the good of those theyrepresent. The strongclaim thatRawlsmakesis that, in virtue of sharingthe three minimal featuresof decency describedabove, delegates in both stages would independentlycome up with the same law of peoples. This result may not seem at all intuitively obvious: why should every decent nonliberalpeople accept a liberal law of peoples? Rawls remindsus thatdecent peoples are not unreasonable and so do not engage in aggressive warsorpursueexpansionistends orfail to respectthe civic orderandintegrity of otherpeoples;thus,the delegatesof decentpeoples would acceptthe symmetrical (equal) situation of the original position as fair (p. 69). He also remindsus of the commongood conceptionofjustice, which takesaccountof persons' important interests,ensuringthatdecentpeoples would acceptprinciples honouringhumanrights(pp. 78-8 1). Finally,a decent people's fundamentalinterests-in security,independence, the benefitsof trade,andso onwould lead it to acceptandadoptthe laws of peace (nonintervention, waronly in self-defence, restrictionson conductin war)anddutiesof contract(observing treatiesandundertakings, mutualassistancein times of need) (pp. 30-43, 89-113).1o Accordingto Rawls, these are nothingless thanliberalprinciples of global justice. Notably missing from such a law of peoples are principlesfor respecting personsas free andequalcitizens with constitutional democraticrights;if the latter were included, decent peoples would certainly not accept them. But
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Rawls wants to draw a clear line between urgenthuman rights (to bodily integrity,etc.), on one hand,andmoreextensiveliberaldemocraticrights,on He regardssuch an exclusion as requiredby liberalconceptions the other."' themselves: liberal peoples must express toleration for decent nonliberal ways of orderingsociety (see section 2). Drawingthe line in this place does concern by identifying what allow Rawls to addressa majorprogrammatic liberals should not tolerate:
the powers of sovereigntyin light of a reasonableLaw of Peoples We must reformulate intemal autonomy. . . rightsto warand to unrestricted and deny to statesthe traditional law for the threecenturiesafterthe ThirtyYears' includedin the (positive) international War.(Pp. 25-27)
lest it appearmore radicalthanit is. This claim needs carefulinterpretation, state Rawls endorsesthe existence of sovereignstatesandof an international caveatthatsuchsovereigntyis not absolute.When system, with the important conceived,"he means he writes thatpeoples are not "statesas traditionally thathis conceptionof states is very far from the tradionly to "emphasise" concernedwith power tional Realist conception of states as predominantly (pp. 25-27). Realist states pursue their "rationalprudentialinterests" in andarethusunmovedby the criteby "thereasonable," power,unconstrained rion of reciprocity;Rawlsianpeoples have moralconceptionsof justice and but regimes that "limit their basic interestsas requiredby the reasonable," theyarestill states(pp.28-29). Indeed,as we haveseen, theyarenation-states, each with a single independentlyderived system of law and a "so-called monopoly of power"on the enforcementof thatlaw andon the pursuitof perinterestsin a particular territory(pp. 23-26, esp. sons' politically important nn. 20, 22). The differenceis thatin Realist theory,the shell of state sovereignty may not be piercedor removedif and when a regime acts unjustlyor unreasonably-this exemplifieswhat I shall call "thickstatism"-whereas in Rawls's theory,the law of peoples reasonablyconstrainswhat a state may rightlydo to its own people andotherstates;this exemplifieswhatI shall call "thinstatism." The crucial methodologicalquestion, which Rawls himself asks, is why this issue of extension-from justice within a closed society to international justice-is what a theoryof globaljustice oughtto address.Why arepeoples assumed to be the politically relevantsubjects with which to start?Rawls it be himself once pointedto much the same question,as follows: "Wouldn't betterto startwith the worldas a whole, with a global originalposition, so to speak, and discuss the question whether,and in what form, there should be At the time, he had "no clear initial answerto this states or peoples at all?"'2
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question";indeed, he saw no reason why such a startingpoint would not In the book, however, result in the adoptionof exactly the same principles.'3 can now be discerned.I term a thinstatistprocedure his reasonsfor preferring them the argumentsfrom incorporation,toleration,cohesion, and realism:
1 if peoples are stipulatedto take members'interestsinto account,andall Incorporation: personsare membersof peoples, then all persons' interestsare fully accountedfor and given due consideration. Toleration:liberal principles requirerespect for other cultures and ways of ordering society, andso imposingon thema conceptionof globaljustice basedon the idea of persons as free and equal would be wrong. Cohesion: the alternativeto a society of peoples is an illiberal, strife-tomworld state; thus, even if the formerinvolves some injustice,it is preferable. Realism:as a practicalmatter,to securethe greatgoods of world peace and respectfor than humanrights,liberalregimesshouldfully engage decentnonliberalpeoples rather forums and law. excluding them from international
2.
3. 4.
In the ensuing four sections, I explicate and rebutthese argumentsfor thin statism in turn;in doing so, I show how an alternativeconception of global justice might be developed from less unsatisfactorybasic assumptions.To put it anotherway, Rawls has not gone farenough in distancinghimself from the Realists; he still toleratestoo much.'4I sketch a theory of global justice that is not statist at the outset and is, I argue,more in keeping with political liberalism.
DIFFERENTINTERESTS 1. INCORPORATION: OF PERSONSAND STATES

In laying out the Law of Peoples,we begin with principlesof politicaljustice forthe basic structureof a closed and self-containedliberaldemocraticsociety (P. 86).
Familiaritywith Rawls's theoryof justice should not maskjust how odd it is to take "society ... as a closed system,""self-containedand . . . having no relations with other societies,"'5as the founding assumptionof a theory of internationalor, better, global justice. As Onora O'Neill points out, this thatRawls claims it is abstraction" assumptionis not the mere "considerable "since abstractions(takenstrictly)omit or bracketcertainpredicatestrue of the matterfrom which they abstract.Ratherthe idea of a closed society is an idealisation, that assumes predicateswhich are false of all existing human societies."'16Now, like the idea of a frictionless surfaceused in science, this idealisationis not necessarilyobjectionableso long as thereare very strong argumentsfor why the false constructioncan, by resemblance(for no strict
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inference to a true conclusion is possible), show something useful about cases thatarenot idealised.17Rawls will maintainthathis idealisationshows the following: (1) if peoples were to always conscientiously protect their members' rights, and (2) if all persons are membersof peoples, then (3) all rights claims would be fully accountedfor and protected.No one is left out; thereforepersonswould in no way be disadvantaged by startingfrom societies andnot frompersons.'8 But I now arguethatthereis a strongpresumption againstRawls's idealisation:the assumptionof a closed society obscuresthe fact thatthe interestsof personsand of peoples do not necessarilycoincide. So even if a confederation of peoples securesrights,it may well do so in a less than optimal way; other institutionalconfigurationsmay bettersecure persons' rights as well as otherfundamental interests. Do peoples' and persons' interestsnecessarily coincide? There is good reasonto thinknot:dependingon how subjectsaredividedinto sets atthe outset, the outcomes of reasonableandrationaldeliberation-about what interests are and how to best pursue them-will differ. Considerthe following example.'9In a world of two states, U and D (underdevelopedand developed), the governmentof each intends to act rationallyso as to secure the to themaximalextentpossible. Itmight interestsof personsin theirterritories be rationalfor D to restrictimmigrationbecause it would result in a loss of capacity to secure the rights and well-being of its citizens; and it might be If two partiesreprerationalfor U to restrictemigrationfor similarreasons.20 sentingthese states,althoughthey did not know which, hadto establisha law governing their relations, it would be one that allows for only highly restrictedmovementof persons between the two from U to D. Yet, it is not truein principlethatthis law best securesthe rightsand well-being of all the personsin bothcountries.It may be the case thatallowing some more movement of people betweenthe two wouldresultin a gainfor those who areworst off or even in a moreextensivescheme of basic libertiesfor all: a minorworsening of the well-being situation of those who were citizens of D and for fromU significantlybetteroff, those left behindin U mightmakeimmigrants sufficiently to justify the movement. This is not, however, a consideration thatcould countfor partiesrepresenting U andD (sets of citizens) butonly for partiesrepresentingall the personsin U and D as individualpersons. This exampleevidences a more generalpoint aboutsocial choice: whatis two sets of interrationalto agree on at the level of two partiesrepresenting ests (thattogetherexhaustthe set of existing interests)is not the same as what is rationalif it is the interestsof each personthatarebeing considered.Thus, thereis no reasonto thinkthatwhatproves-as Rawlsputit2'-"more or less sound"for one domain(e.g., justice for personsin a closed society) is appropriateto another(e.g., globaljustice for persons)any more thanthereis rea-
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son to thinkthatthe principlesforpackingeggs into paddedboxes areextendable to the principlesforpackingegg boxes into a crate.Nor is it apparent that the sequence shouldbe to design egg boxes firstand only laterask any questions about how to design the crate. Therefore,Rawls's theory of domestic justice might provide tools for the independentconstructionof a theory of globaljustice, butit cannotsimply be incorporated as the firststep in thatconstruction.Since the idea of decent peoples as a startingpoint embodies two layers of distortion(comprehensiveassociations,thin states) in representing individuals'interests,liberals-for whom individualpersonsarethe ultimate locus of concern-should be deeply wary.22 We have seen thatthe interestsof all humanindividualsand those of the same personsassumedto be groupedas membersof statesdo not necessarily coincide andthatwe may come to have good reasontojettison thinstatismin favour of a global original position that representsall the persons of the world. But Rawls might object thatmy example concerns intereststhat are and so risks impugning a possible global humanrights not "fundamental" orderby raisingless urgentsocioeconomic claims. This objectionis telling if one acceptsthe implausiblestipulationthatthe important interestsof persons can be narrowlyconfined to sufficientdomestic justice only. But it is proto assumethatpartiesshouldtakeno interestat all in foundly counterintuitive of living of persons"beyondthe minimumnecesthe well-being or standard Rawls himself acknowledgedthata sary for [minimally]just institutions."23 just regime cannot be a final and circumscribedend in itself; ratherit is ''somethingwe ought to realise for the sake of individualhuman persons, who arethe ultimateunits of moralconcern.... Theirwell-being is the point of social institutions."24 Of course, some interestsare more importantthan others,and it might be thoughtthata thin statismsecuresthe most important interestsof all persons,in worldpeace andrespectfor humanrights(on these interests, see sections 2 and 4). But this begs the question: it cannot be assumed thatthin states best secure persons' importantinterests;if they do, then thatis somethingthatwill count for partiesrepresenting individualpersons; thus, partieswill endorsethin states (as the basic institutionsof global justice). Thereis the greatestdifferencebetweena liberalconstructivism that takesthinstatesas a possible outcomeof the procedure, on one hand,andthin statism-which assumes them as foundationalto global justice-on the other.The formerleaves two things open: (1) thin statesmay not best secure those importantinterests;and (2) there may be an alternativethat secures those interestsand more, such as addedsecurityand increasedwell-being. I offer such an alternativein sections 3 and 4; here I have simply established thatthese arelive issues. In sum, becauseof its potentiallysuboptimalresults for persons,any initialdemarcation of groupsmust be justified. Rawls's first
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main argument-that persons' fundamental interestsare alreadyaddressed by peoples since peoples takemembers'interestsinto account-fails to justify his basic assumptionof thin statism.
2. TOLERATION: THE UNIVERSAL SCOPE OF GLOBAL JUSTICE We have seen thatthe law of peoples may represent the fairtermsof cooperation for peoples, but it certainly does not necessarily representthe fair termsof cooperationfor all the personsof the world;this is a seriousconcern for the liberal. But Rawls's most powerful and explicit argumentmight be thoughtto providereasonsto overridesuch concernsince it stressesthe overwhelmingimportance of recognising-by startingwith the idea of peoplesthe value of national-cultural affiliation:
Leaving aside the deep question of whethersome forms of cultureand ways of life are good in themselves (as I believe they are), it is surely, ceteris paribus, a good for individuals and associations to be attachedto their particularcultureandto take partin its common public and civic life. In this way political society is expressed and fulfilled. This is no small thing. It arguesfor preservingsignificantroom for the idea of a people's andfor some kindof loose or confederativeformof a Society of Peoself-determination ples. (P. 61)
The common sympathiesarisingout of a sharedhistoryandtradition areprofoundlyvaluableto individuals,andanadequate theoryof globaljustice must recognise and respect that fact-rather than insensitively and destructively ignoring it. I am in full agreementwith Rawls that it would be foolish and wrong not to recognise the value of culture to individualpersons; but the how to do so. In this secquestionis not whetherto tolerateculturesbutrather tion, I argue-from politically liberalpremises-that the Rawls of LP seeks tolerationof the wrong kind. Only an originalposition that includes all the personsof the worldas freeandequalpersonscanbe tolerantin the rightway. Rawls's argumentfor toleration of decent nonliberalpeoples seeks to establishthattolerationis requiredby featuresinternalto liberaljustice theory. The argumentproceeds by analogy to domesticjustice:
If all societies were requiredto be liberal,then the idea of political liberalismwould fail to express due tolerationfor other acceptableways (if such there are, as I assume) of orderingsociety. Werecognisethata liberalsociety is to respectits citizens' comprehensive doctrines-religious, philosophical,and moral-provided that these doctrinesare pursuedin ways compatiblewith a reasonable politicalconceptionof justice andits pub-
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lic reason.Similarly,we say that,provideda nonliberalsociety's basic institutionsmeet certainspecified conditions of political right andjustice and lead its people to honor a reasonable and just law for the Society of Peoples, a liberal people is to tolerate and accept that society. (Pp. 59-60)
A law of peoples, then, embodies "principlesof theforeign policy" of a libof tolerationof comprehensiveconceperalpeople, in which the requirement tions held by othersocieties is met by ensuringthatsuch a policy could also be acceptable "froma decent non-liberalpoint of view. The need for such assuranceis a featureinherentin the liberalconception"(p. 10). This argumentis unconvincing because it trades on a partial analogy between peoples and persons-organising their respective "lives" around reasonablecomprehensivedoctrines-that Rawlsianconstructivismcannot sustainand liberalsshouldnot endorse.States,even thinstates,institutionalise political coercion, and any coercive institutionraises questions aboutits legitimacy.Rawls recognisesthis elementof disanalogyandtriesto deal with it by stipulatingthat each people simply is legitimate in virtue of having decent institutionalfeatures.To toleratedecent societies is, then, to tolerate what is sufficientlytolerantof persons already,all with a view to achieving broad agreementon common principlesof justice. But here Rawls is misis not simplya pale approximation taken."Sufficient tolerance" of full liberal tolerance; rather the two are deeply contradictory. Liberal tolerance expresses ethical neutrality betweenparticular moral by remainingimpartial conceptionsof the good; for this veryreason,liberalismmustrejectanypolitical neutrality,that is, neutralityin respect of justificationsfor coercion: "a commitmentto ethical neutralitynecessarilyentails a commitmentto a particulartype of political arrangement, one which, for one, allows for the pursuit of differentprivateconceptionsof the good."25 As ThomasPogge put it, while a society or worldcan containnumerousassociationsand conceptions of the good, its basic political structure"can be structuredor organisedin only one way.... Thereis no room for accommodationhere"since it is precisely the characteristicof a liberal fundamentallaw backed by coercive force that it must apply to and be justifiableto all.26 The idea of tolerance in LP is, then, fundamentallydifferent from and opposed to-and not simply a less demandingversion of-the idea of a liberal regulatoryframeworkpresentedin Political Liberalism.There, Rawls argues repeatedly that it would be intolerant,oppressive, and unjustfor a liberal political frameworkto be organisedaroundany one comprehensive doctrine-precisely because such endorsementfails to respect other such doctrinesand the persons that hold them.27 And there he is correct.It is the essence of a politically liberalregulatoryframework thatit expressestolera-
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any comprehensivedoctrineinto the principlesof tion by not incorporating to eliminateliberaltolerance. justice; to fail to do so is not to extendbutrather peoples arenot ethicallyneuDecent is mistaken. hand, he other InLP,on the doctrineeththeir comprehensive that recognises Peoples tral,noris a Law of saying that what is for any basis is there stage at neither thus, ically neutral; being expressedcounts as liberaltoleration.28 One can imagine Rawls makingthe following reply.The idea of ethical tolerationin a liberalsociety is all very well, but it is much too stringentfor global toleration.For one thing, it is simplistic to regarddecent nonliberal as ethically "not they arebettercharacterised peoples as ethicallyintolerant; states,decent Unlike outlaw in spirit]. though Rawlsian term, [my intolerant" human honouring only by for not persons show respect significant peoples rightsbutalso by allowing associationsin civil society which hold a rangeof the political structureof a Furthermore, comprehensivemoral doctrines.29 decent society, althoughorganisedarounda comprehensivecommon good conception of justice, does not entirelyreject citizens' comprehensivedoctrines. One condition stipulatedfor a decent people is, as we saw, that citizens' interestsmust be takeninto account;but for this to be the case,
bodies whose of the society must include a family of representative the basic structure of consultationandto look is to takepartin anestablishedprocedure role in the hierarchy interestsof afterwhatthe people's commongood idea of justice regardsas the important all membersof society. (P. 71)
This is a strongdemandfor whatmightbe called a "decentconsultationhierachy"(pp. 71-78). It cannotbe saidthatwherepeoples merelyhavethese features,there is no bona fide system of law: extensive consultationensuresan basis for protectingthe rightsandduties of the membersof the "institutional people";thus,personshavetheirintereststakeninto accountandcan be morally motivatedto obey the law (p. 71). These protective,expressive,and deliberativefeatures"deserverespect,even if their institutionsas a whole are fromthepointof view of politicalliberalism" (p. 84). reasonable notsufficiently around Ethicaltolerationis not an on-off affair:a decent people is structured one comprehensivedoctrineonly in a very limitedway anddoes pass an adequate thresholdof respect for persons; we must, in turn, respect the basic institutionsof such a people. appearsto be appealingin thatit seems to takeculturalpluThis argument ralismseriously,but-I now wantto argue-it does so by not takingseriously the reasonablepluralismof individualpersons.Consider,for one thing,some as specified in LP: profoundlyantiliberalimplicationsof "toleration"
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hierarchies will be free of nativeswho are The fact is thatnone of Rawls's "well-ordered" themselves inspiredby liberal ideas of liberty and equality.There is no Islamic nation without a woman who insists on equal rights;no Confuciansociety without a man who denies the need for deference. Sometimes these liberals will be in a minority in their it is even possihierarchy, nativelands;butgiven the way Rawlsdefinesa "well-ordered" ble thatthey might be a majority.... [Why]should we choose to betrayour own principles and side with the oppressorsratherthanthe oppressed?30
framework regime Whena liberalregulatory recognisesa decenthierarchical as sufficientlyjust, it participatesin the denial of freedom and equality to such individuals.Dissenting individualswith liberal views would surely, it of reasonablepluralismrequires seems, disputethe idea thataccommodation thattheirindividualmoralclaims be takenless seriously.But then one could not really know whatthey would thinksince theirviews could well be sealed off from view by the decent consultationhierarchy. To take only one significantinstance,a regime with a decent consultation hierarchydoes not allow free speech: personsmay only dissent as members of associations and only with referenceto the common good conception of justice (pp. 72-75). It follows thatcitizens must arguewithin the conceptual of a group;this closes terms of the regime and only throughrepresentatives off largedomainsandnumeroustypes of discussion.The most seriousexclusion is thatit preventspropercriticaldiscussionof how the rulesof discussion of the might be altered-the latter are determinedby some interpretation dominantculturaltraditiononly (althoughit must make some room for the of speech but"not survivalof others).A claim thatthis represents"freedom" perequal"freedomof speech is thusfarcical,as is Rawls'sclaim thatbarring sons of certainreligions from occupyingpublic offices represents"libertyof conscience, but not equal liberty"(p. 65, n. 2). These so-called inequalitiesare in fact serious restrictionson libertythat thatthey should would rightlyhorrifya liberalat home, andit is not apparent be any less rightly horrifyingwhen perpetrated against people that are not partof one's liberal society. This would certainlybe apparentto partiesin a single global originalpositionwho, when the veil lifts, mightfindthemselves dissentersin a nonliberalsociety. Rawls might say thatothersocieties do not shareandcannotbe expectedto shareourconceptionof the personas free and butthis misses the equal, andso no such originalpositioncan be constructed, point. From a liberalperspective-for reasonsRawls himself has done most to elaborate-the geographicallocation and group membershipstatus of a woman borninto a nonliberalIslamic society, or indeed anyoneelse, is morShe does not suddenlycome to be a free andequalpersonfor us ally arbitrary. as Charles when she crosses the borderinto a liberalsociety. On the contrary, Beitz points out,
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Althoughthe basis of the [liberal]conceptionof the personmay be parochial,the conception itself... is not.... One mightsay thatwe are compelledto take a global view in howto ourconceptionof moralpersonality, mattersof socialjustice bt featuresinternal ever parochialit may be.
It is this most basic internalfeature-the respectfor personscapturedby the of a consistentglobal idea of ethicaltoleration-that mustbe the cornerstone could not agree peoples hierarchical liberal regulatoryframework.Decent not groundsto and them with problem with it, butthatis preciselythe ethical in some partsanddisof respect mixture seek theiragreementon some lesser of Justice, A Theory of at the beginning Rawls argues As respect in others. uncompromisare justice and truth of activities, human virtues first "Being ing" (p. 4). liberalismthan The foregoing points are no less trueof nonmetaphysical they are of a metaphysicalliberalism.Political liberalismstartsfrom ideas implicitin a liberaldemocraticculture,butnone of themajorintellectualprogenitorsof thatculture-Locke, Rousseau,Kant,Mill, to name but a fewdoes not begin with some idea of all personsas free and equal. Each thinker then goes on to justify the state or somethinglike it on the very groundsthat formationis in some way rationalto will for personsthus such aninstitutional Indeed, even such a vociferous opponentof liberalismas Carl construed.32 Schmittis clear thatliberalcommunityrests on the idea of a "democracyof mankind"-which, althoughit may not be practicallyachievable,is philosophically universalistat its core: "Every adult person should eo ipso be To the extentthatthe moralclaims politically equalto every otherperson."33 of states have any normativeforce in liberalism,it is derivative-it must be justified.In politicalliberalism,we do not close off the possibilitythatparties free andequalpersonsin a globaloriginalpositionwoulddecide representing in favourof thin states or even in favourof an inferiorposition for a woman we say thatthin state(althoughI doubttheywould);rather, withina particular states, and her occupying this position, must be justified.34 What then aboutthe good of community?It would be a mistaketo interpretmy cosmopolitanposition as a form of abstractindividualism.A global original position does not rule out people bandingtogetherin communities with special bondsof sentimentandobligationbetweenthem;all it demands is thatsuch a formof organisation-as Rawlshimself once wrote-cannot be assumedas foundationalor not subjectto justification:"we wantto account for the social values, for the intrinsicgood of institutional,community and associativeactivities,by a conceptionof justice thatin its theoreticalbasis is cul If loyalties and sentimentsof affiliationto particular individualistic."35 turaland nationalgroupshave value for the membersof those communities (andI believe theydo), then"ona cosmopolitanpointof view, this factshould
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matter for practical reasoning. The importantquestion is not whether it This is the questionthat-I have argued-LP does should matterbut how."36 not even countenance.The fact that community and solidarity enrich and partlyconstitutea valuablehumanlife should not block considerationof the implicationsof such arrangements for nonmembersand dissenters.37 A liberal backgroundcultureimplies universalist justification.That is to say, the importance of culturaldifferencesdoes not obviatethe requirement to referin the last instance to individual lives and not to a social formation as "an organicwhole with a life of its own distinctfromandsuperiorto thatof all its membersin theirrelationto one another."38 These areRawls's words.To say that a social milieu or institutionalformationis not automaticallysealed away from critical scrutiny-by minimal gesturestowardhumanrights and consultation-is not to abstract fromrealindividuals; it is to treattheir rather, claims to moral consideration, including their cultural claims, entirely seriously.
3. COHESION:TOWARD NONSTATIST PRINCIPLES OF GLOBAL JUSTICE Rawls might be taken to impugn all my conclusions above, in one fell as follows: on the secondpage of A Theoryof swoop, with his thirdargument, Justice,anotherstatementcanbe found:"aninjusticeis tolerableonly when it is necessaryto avoid an even greaterinjustice."39 Now, although"the social world of liberal and decent peoples is not one that, by liberal principles,is fully just,"there are "strongreasons"for "permitting this injustice"(p. 62). One primary reasonis thata worldstate-which Rawlsmightalso thinkis the outcome of a global originalposition-would have even greaterdrawbacks (i.e., cause even more injustice)than a law-governedSociety of Peoples:
These principles. . . will not affirma world-state.HereI follow Kant'slead in Perpetual Peace (1795) in thinkingthat a world government-by which I mean a unifiedpolitical regimewith the legal powersnormallyexercisedby centralgovernments-would either be a global despotismor else would ruleovera fragileempiretornby frequentcivil strife as variousregionsandpeoples triedto gaintheirpoliticalfreedomandautonomy.(P.36)
He also approvinglycites Kant's dictum that "laws always lose in vigour what governmentgains in extent."40 Rawls seems then to be making one or bothof the following psychologicalclaims:personsas they arewould not, on an ongoing basis, morally affirma world state; and the centralisationand cumulationof power in a worldstate would encourageadministrative abuse, laxity, or ineffectuality.It follows that althougha confederationof peoples
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may have some illiberalconsequences,these are farless severe-given perpowerexcessively sons as they are-than the consequencesof concentrating in a world state. But leaving aside whetherthis is a plausiblemoralpsychology, we must ask, arethese the only two options?We need not debatethe relativemeritsof two illiberal conceptions of the outcomes of the global original position if there is anotheralternativethat does not fail to be liberal. In this section, I at this phase albeit a modest sketch.As is appropriate presentan alternative, of Rawlsiantheory,my conceptionis an ideal;its relevanceandfeasibilityin nonideal conditionsfor justice are consideredat length in the next section. We want principles of justice to regulate a global institutionalscheme, principlesthatare not statistin theirassumptions.It will be a cosmopolitan conceptionbecauseit requiresinstitutionsto meet threecriteria:takingindividual human persons as the ultimate units of concern (individualism), andregardattachingthatstatusto everyhumanbeing equally(universality), It will ing personsas the ultimateunitof concernfor everyone(generality).41 be a Rawlsianconception in that it uses the originalposition as a device to representconditions for agreeing on fair terms of cooperationfor all. But will not be defined as a closed community,involved in a scheme for "'all" mutualadvantage,who need to agreeon rules of engagementwith otherpeoassumptionsof liberalismrequirethatpartiesin ples. Rather,the "parochial" all humanpersonswho sharethis the originalpositionact as if theyrepresent world and affect one another.These partieswill be far more concernedwith individuals'abilities to pursuetheirreasonableconceptionsof the good and with individuals'well-beingthanwouldbe delegatesof peoples (thinstates). It is not possible in this limited space to considerthe many issues on which on one centralissue: the nature partieswould decide; thereforeI concentrate moralbases and political extent. and limits of sovereignty-its appropriate In constructinga law of persons to answer the sovereignty question, I begin by recallingwhatthe originalpositiondoes: it embodiesconstraintson for principlesof justice; it tell us whatkinds of reasons substantiveargument points aboutwhy the notion of a cannotcount. By makingsome substantive people cannot be assumed to groundeven thin state sovereignty,I want to show what reasons cannot count for parties in a global original position. reasons are Thereafter,I argue, by considering what kinds of nonarbitrary left-as legitimatebases for principlesof global justice-we can get a surprisingly long way towardan outline of just cosmopolitaninstitutions. The firstthingto note is thatthereis a veritablecatalogueof empiricaldifficulties in identifying any people that is not contested in practice or that Eachdifficultycan be politicalboundary.42 clearlycoincides with a particular cannot idea of a the a reason justify legitimate people seen to underpin why
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Now, it might be thoughtthat divisions between sovereign political units.43 such a catalogue,while sufficientto rejectclosed and organicistviews of the nation, does not constitute an argumentagainst Rawls's liberal account of peoplehood. For one thing, Rawls fully acknowledgesthat
if those [common] sympathieswere entirely dependentupon a common language,history, and political culture, with a shared historical consciousness, this feature would rarely,if ever, be fully satisfied.... Notwithstanding,. .. [thereis a] need for common sympathies,whatevertheirsourcemay be. My hope is that,if we begin in this simplified way, we can work out political principlesthat . . . enable us to deal with more difficult cases where all the citizens are not united.(Pp. 24-25)
For another,
It does not follow from the fact thatboundaries[of thin states] are historicallyarbitrary to fix on their that their role in the Law of Peoples cannotbe justified. On the contrary, is to fix on the wrong thing. In the absence of a world state, there must be arbitrariness and boundaries of some kind, which when viewed in isolation will seem arbitrary, depend to some degree on historicalcircumstances.(P. 39)
Such argumentsdo not, however,answer the empiricalcatalogue of critique: it may be necessaryto have simplifying assumptionsand historically assumpcontingentboundaries,but this does not show thatthese particular tions (those of Rawls in LP) are not bad ones. For instance,it is not apparent betweencitizens of thin states.It is thatbonds of sympathyneed be primarily truethatmanypeople haveculturalallegiances,butpersonshavemany other legitimate allegiances too, and the idealisation of a homogenous nation removes the possibility of any basic political considerationof how those claims ought to be prioritised.Those other claims are only accommodated once the basic regulatoryframeworkhas been determinedin favour of an international thin state system-to which those with otherallegiances must adjust(gainingas much respectas is possible withinthatsystem). Rawls has confused the putativevalue of commonnationalsympathieswith theirmoral primacyfor establishingpolitical institutions.The effect is to give peoples or nationsa veto on whatidentitiesandbondspersonsmay taketo be of predominantpolitical significance.Yet, this cannotbe assumedto be just: "Acentral of politicalidentities,the separaobjectiveof politics may be the reconstrual tion or the merging of destinies ratherthanthe workingout of principlesof justice to be sharedwithin a closed society."' It is not apparentthat sovereigntyhas to be located at one level, nor is it evident that there are not betterbases for borders-bases thattake different historicalcontingencies into accountand for good reasons.One of the most
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the notion of sovereigntyso as to encominterestingattemptsto reformulate and pass these complexities is that of Thomas Pogge in "Cosmopolitanism Sovereignty." He proposesa multilayeredinstitutionalscheme in which the powers of sovereignty are "verticallydispersed"ratherthan concentrated almost entirely at the level of states:
anddecentralization.... Thus,personsshouldbe citWhatwe need is bothcentralization izens of, and govern themselves through,a numberof political units of various sizes, role of the state. withoutany one unit being dominantandthusoccupyingthe traditional And theirpolitical allegianceand loyalties shouldbe widely dispersedover these units: neighbourhood, town, county,province,state,region,and world at large. People should be politically at home in all of them, withoutconvergingupon any one of them as the lodestarof their political identity.45
authorityover such "nestedterritoHe arguesthatdispersinggovernmental rial units"would have significantbenefits, such as reducingthe stakes and hence the intensityof the "strugglefor power and wealth within and among not to states,therebyreducingthe incidenceof war,poverty,andoppression," mention environmental degradation.46 Hobbesian claim (which An obviousobjectionto this idea is thetraditional thattheremust makesits way into muchof the latersocial contractliterature) be a final decision mechanismthat uniquelyresolves any dispute-thereby preventing formal, ongoing, destructiveconflict-and this can only be a supremeagency of violent last resort.As Pogge points out, though, the hisyears-particularly the success of the division of toryof the pasttwo hundred powers within states-attests to the possibility of law-governedcoexistence even when ultimate conflicts between legitimate powers are theoretically possible. The three branches of government within liberal states rarely crises engage in all- outpowerstruggles,andwhenmoreminorconstitutional do arise,they tend to be rapidlyresolved.47Similarly,the verticaldivision of sovereigntyin federalregimes-in ways thatleave open some conflict over constitutionalallocationof powersandhence no authoritative pathof resoluof robustand endureffective underpinning tion-has proveda remarkably ing institutionsin manycases (includingthe United States,the United Kingthe list is long). It thereforeseems mistakento dom, Switzerland,Germany; rigidly insist that sovereigntymust be located in the last instance.Dispersed sovereignty- what might be called "takingregionalismseriously"48-may Rawls thinkswe must rid ourselves well be effective andhighly beneficial.49 statesovereignty,buthe does not see thatthe cult of of the cult of unqualified unitarysovereigntymay similarlydeserve to be consigned to the flames of history.In any case, Pogge's suggestion standsas at least one broad,plausito both a world ble, nonstatist(in its assumptionsand outcomes) alternative
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stateand a state-dominated system. Rawlscannotassumethatthe problemof a world state provides, by process of eliminationof alternatives,a justification for representing peoples in the originalpositionor for endorsingthem as the primarypolitical configurationsin the principlesof globaljustice. It seems to me, though, that even Pogge does not go far enough in that he has importedan unjustifiedassumptionthat sovereigntycan and should definedunits. It seems thatwe may have only be exercised over territorially andunitarystatesovereigntyonly to fall prey escaped the cults of unqualified to the lesser cult of territorial sovereignty.Why shouldthe partiesin the origirestrictionon the domain of government? nal position accept this arbitrary Why should sovereigntynot be dispersedhorizontallyas well as vertically? of governmendemarcations Consideringthe numerousissues thatterritorial tal functions could not (best) resolve-for example, crime on the Internet, prosecution of violators of human rights, and environmentalprotectionthere seems to be good reason to divide the tasks of governmentson functional ratherthan territoriallines.50Some functions may be best exercised and some groupsof functionsmay coincide within territorial demarcations, at variouslevels of Pogge's verticalscheme;butit is unlikelythatthey would exhaust all governmentalfunctions. My argument,then, aims to extendboth the classical doctrineof the diviof the "thepolitical"(of sion of powers and contemporary reinterpretations what can constitute a regulatoryinstitution).What are needed are political agencies that appropriately regulatedifferentspheresof humanaction, and since not all actionis primarily territorially based,neitherwill those agencies always be. Personswould still bandtogetherover variousfunctions,manyof them territorially andcommunallybased,buttherewould by no meansbe the concentration of legitimatepower in states or a state system. overweening The rapidpace of globalisationand technological innovationsuggests that nonterritorial"spaces" of interaction (such as Web pages) will have an increasinglysignificantrole in humanaffairs.It may thus be more appropriate to thinkof sovereigntyas legitimatepower over kindsof humanpractice and resources.5'In this way, we could imagine a universalistaccount of global justice that avoids assuming territorial boundarieswhile still taking the particularityof human practices into account.52 One model for such a world order is to be found in the literatureon polyarchy,which looks to smaller, diverse metropolitanareas such as New Yorkor Los Angeles as a guide to a more cosmopolitanvision:
These megalopolises comprise numerousmunicipaland special-purpose jurisdictions, many of which overlap,but they lack a strongcentralgovernmentfor the whole metropolitanarea.The polyarchic'globalcity' couldexhibitan analogousstructure.... Trans-
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andspansof controlcongruentwith the interdenationalinstitutions,with memberships pendent relationships,could be accorded with responsibility for co-ordination,rule making, and even rule enforcement.53
In such a world order,the dispersalof jurisdictionalauthorityover a plurality of agencies would of course be limited, on functionalgrounds,by a Each will operate"on the lowest possible need for effective coordination.54 be advantagesto assigningjurisdictionover will generally there but level," several functions to each agency and benefits to creating agency clusters-not least thatit is thenpossible to exercise some formof director indirect democraticcontrolover governance."Groundsof this kind for allocating authorityare alreadyrecognised in Article 5 of the TreatyEstablishing the EuropeanCommunity,which endorses both a Principleof Democracy and a Principle of Subsidiarity(this is the principle that powers and tasks should be vested in effective subunitsunless a more encompassingunit can reasonsfor Thereare,then,nonarbitrary betterachievethe specifiedgoals).56 drawingboundariesof sovereignty-boundaries thatarehistoricallycontinmeansto reach gent only in the sense thattheytakeaccountof the best current The resultwould be what I am calling a the ends of free andequal persons.57 system of functionallypluralsovereignty.This is merely to sketchthe broad outlines of anotheralternativeglobal institutionalconfiguration,one that assumedout of parties'purviewby stipulatingpeoples cannot be arbitrarily subjectsor as the necessaryinstitutional (thinstates)eitheras the represented constrainedpracticalreasoning. outcomes of appropriately
APPLICATION PRACTICAL 4. REALISM: INA NONIDEALWORLD But, an imaginedcriticmight say, your liberalprinciplesof globaljustice regimes:they will not acceptthe privilegwill putus at odds withhierarchical ing of the individualas free andequal, andso will not endorsethe same principles, and we will surely come into conflict. WhereasRawls at least recognises pragmatic limitations and strategic difficulties, the cosmopolitan idealistic and of little help scheme you have providedis uncompromisingly as a guide to political action. What are you going to suggest that liberal regimes do to decent nonliberalregimes?Are they to be subjectto military in theirdomestic affairs?Are they to be attack,colonisation,or intervention schemes altogether?Rawls gives international from ostracised cooperative us good reasons why liberal regimes must-by their own principles-rule out these kinds of action. Not only that,he gives us good reasonsto engage
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such societies so as at least to ensureminimaladherenceto international legal rules of nonaggressionand respect for humanrights. And he even gives us reasons to think that nonliberalregimes would accept engagementon these anddisilterms.In any case, settingthe ideal too high may lead to frustration lusionment for liberals, and that would adversely affect progress on peace and humanrightsissues. Finally,toleranceof this injusticeis not as distasteful as you claim. Liberals are still able to criticise nonliberalregimes since acceptance of decent peoples in internationallaw by no means implies endorsementof theirprinciplesby liberalsmoregenerally,nordoes it require that nonliberalregimes are viewed as beyondreproach.Rawls has provided us with a "realisticutopia"(pp. 7, 11-23);you have given us an impracticable pipe-dream.58 This forcefulcriticwould surelybe rightin one important respect:the distancebetween an imaginedcosmopolitanworldandcurrent grimrealities"is so greatthatit would be madnessto use the conclusionsof ideal theoryas the unmediatedbasis for a practicalapplication program.'59 However,in this section I wantto arguethatthe schemeI havepresentedis morefeasible thanthat of LP on two grounds:Rawls is neithersufficientlyutopiannor sufficiently realistic. This may seem paradoxical,but careful considerationof the relationship between ideal and nonidealtheoryreveals that Rawls has createda unitaryterm-"realistic utopia"-by wateringdown both its elements; furthermore,a perspectivethatmaintainsthe distinctrole of each element is far more practical.In what follows, I discuss each element in turn. Rawls's argumentfor his (in my view, limited) utopianismis in part an argumentfrom stability:the situationof idealjustice must generateongoing supportand not be subject to "assuranceproblems"arising out of shifts in power.It mustbe a sustainableideal. But if this is to be achievedat the global of the reasonableneed to be "relaxed" level, the standards since treatingall personsas free andequal-as havingthe two moralpowersregardlessof cultureor location-"makes the basis of the law of peoples too narrow."60 Actual peoples do cleave so strongly(and not unreasonably) to their"differentcultures and traditionsof thought," and a liberalworld orderwill constantlybe faced with civil strifeif it expects them to sacrificewhatis most dearto them to endorse global legal rules and institutions(p. 11): "Historicallyspeaking, all principlesandstandards proposedfor the law of peoples must, to be feasible, prove acceptableto the consideredand reflectivepublic opinion of peoThis is not simply a matterof toleration(fortuples andtheirgovernments.",61 nately for Rawls, since in section 2 we saw that this argumentmust fail); ratherit is a matterof "speculation"on what is "feasible and might actually exist,"given thatpersonsdo in generalorganisethemselvesinto peoples (pp. 12-13). Liberals should thus adopt "a minimum standardof realism
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which requiresthatthe law of peoples not call into questionthe existence of statesystem,"at least wherethatrefersto a confederationof the international 62 thin states. if we recall the areimmediatelyapparent The fatal flaws in this argument is when "memstable regime a Liberalism: Political meaning of stabilityin judgements and its principles accept time to bers will tend increasinglyover in the law among expressed of justice ideas the as they come to understand there, writes Rawls of agreement, Breadth its benefits."63 themandappreciate conon prudential based agreement can establisha wide modus vivendi-an consensus, overlapping an not siderationsandthatis thereforeunstable-but which is the only kindof agreementthatis stable.The formeris a questionin nonideal theory of how assent could be won from within currentsocieties given that so many are organisedinto states that cleave to comprehensive doctrines;the latteris a questionof ideal theoryandinvolvesa moralaffirmaregulatedby tion by the politicallyrelevantsubjectsof the social framework principles of justice.64Who those subjects are is not settled by the ease of thanindividualpersons.Ratherit is setachievingassentfrompeoples rather tled by (1) who is an authenticsourceof moralclaims in this domainand (2) whetherthose agents would continueto supportthe resultantconception of global justice even if shifts occurredin theirconceptionsof the good. Regarding(1), I have triedto show not only thatpeoples (thin states) are sources of valid moralclaims but also thattheirhavnot self-authenticating ing takeneach person in each territory'simportantinterestsinto account is insufficientto securethatnormativestatus.It is in any case deeply questionable whethera historicalanalysiswould guide us to an acceptanceof peoples as the politically relevantsubjects.The horrorsof nationalisticwars, xenomightmotivateinsteada greaterfocus on phobia,andunnecessarystarvation humanindividualsregardlessof theirgeographicallocation and-as Pogge argues-on loweringthe stakes(andhence incentivesto abuse)thatattachto If history suggests anything,it is that each institutionallevel and domain.65 we should scrupulouslyinterrogateand dismiss assumptionsthat might be destructively"trappingus in the buildings and boundaries"of the past or utopianpolitical theory of global The goal of any Kant-inspired present.66 relationsthus cannotbe to show which principlesarelikely to be acceptedat with all ourdistorting present(by the powersthatbe or by personssimpliciter, prejudices).Rather,it is to specify which principlesought to be acceptedby those subjectsin this domain,consideredin termsof theirmoral status,and institutionsto bejust. theirplausiblemoralpsychology were the background In this sense, the Rawls of LP fails to heed Kant's injunctionin Perpetual Peace not to end up tailoringa politicalmoralityto the concernsof those currently in power:
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I can easily conceive of a moralpolitician,i.e. one who so chooses politicalprinciplesthat butI cannotconceiveof a politicalmoralist,one they areconsistentwiththoseof morality; who forges a moralityin such a way thatit conformsto the statesman'sadvantage.67
A vital task of the liberal political theorist is to subject the status quo to (sometimes speculative) critique:"One finds no great concern to stabilise every existing order,norshouldone. Thereis no reasonto mournthe destruction of unjustsocial and political orders."68 As for the question(2) of whetherthe ideal presentedin LP is sustainable, it seems quiteevidentthatdecentnonliberalpeoples-and thus a law of peoples-are profoundlyunstablesince they are organisedaroundcomprehensive conceptions of the good. Theremay be demographicor doctrinalshifts such that a majorityno longer cleaves to thatconception,or (perhapsdue to individualsmay liberal supportfor liberalswithin these societies) particular of such a society,leadingto civil strenuouslyoppose the existingorganisation strife. Because persons (even the majority)can reasonablyclaim that they should be treatedequally, such fundamentalstrife can occur even within an ideal society in which everybodyacts reasonably(as we haveseen, the decent consultation hierarchydoes not provide any negotiating mechanisms for such fundamentalconflicts).69Worse still, illiberal reactions to, say, the of one religion might be arousedwhen such historically institutionalisation contingent shifts occur.Civil strife is hardlythe basis for consistent perforMy mance of one's duties in respect of a global scheme of cooperation!70 global scheme does not face the same problems:if functionallydifferentiated persons change their comprehensivedoctrines,or there are shifts in demographics or power, an ethically neutral scheme of political structuresis equally and always accommodating.As Ackermanpoints out, liberalsmust insistently not accommodatethe exigencies of currentpower relations in ideal theory:
a dominant officials[representing Of coursegovernment view] religionor comprehensive will not accepta fundamental critiqueof existing boundaries-their politicalpower presupposestheirlegitimacy.Givingthema veto on the questionof boundariesis like giving the rich a veto on the distributionof wealth.... Rawls proposes a disastrouspolitical compromise.... [Evenif illiberalregimes]satisfythese very minimalminima... I fail to see why it justifies anythingmore than a modus vivendi with oppressorstates.71
to keep in view the fact thatthis supposed"'overlapWhy is it important ping consensus' is reallyjust a modus vivendi among quite differentmodels One reason is to be found in Kant:to limit a conception of of society"?72 global justice to a "hybridsolution such as pragmaticallyconditionedright A the violationof right."73 halfway betweenrightandutility"is to "eternalise
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practical foreign policy is one thing; sacrificing the proper ideal is quite another.It was in this spiritthatRawls wrotein "TheIdea of an Overlapping Consensus"that "Thepolitician looks to the next election, the statesmanto This is what is the next generation,andphilosophyto the indefinitefuture."74 meant when I say thatthe Rawls of LP is insufficientlyutopian:his conception is neitherrobustnor aspirantenough. But there is an even greaterpragmaticdangerthan limiting our distant realistic, if we do not keep the future-a dangerof not being appropriately correctregulativeideal in view. We need, as Rawls put it in A Theoryof Jusinstitutionsand for guidingthe overalldirecfor appraising tice, "a standard right,we will misand if we do not get the standard tion of social change"75; judge how to pursuejustice in the presentnonidealconditions:"Non-ideal theoryis ... more immediatelyrelevantto practicalproblems,but ideal theestablishingtheultimategoal of social reformanda ory is morefundamental, A from the ideal."76 basis for judging the relativeimportanceof departures modus vivendi with hierarchicalregimes may be the best that is achievable rules;butlet us be aware rightnow, andit will haveits own special prudential of what we arecompromising,and let us be able to judge which are the least offensive such rules. It is well, then,to constantlybearin mind an injunction from ThomasPogge, which is very much in the spiritof Kantand the early Rawls:
Realism hardlyrequiresthatthe principlesof justice conformthemselvesto the prevailing sordidrealities.Wedon't feel justifiedto give up ourideals of domesticjustice or personal honesty just because we despairof achieving them fully. We cannot reasonably demandof moralprinciplesthatthey vindicatethe statusquo. All we may ask is that a conceptionof justice providea criterionfor assessing our global orderthat allows us to changeandthusspecifies our choose fromamongthe feasible ... avenuesof institutional moraltask graduallyto improvethe justice of this order.77
I now wantto completethis reply to my imaginedcriticby demonstrating that Rawls's conception in LP leads him to prioritisethe wrong things and that my "relevantutopianism"serves as a betterguide to political action.78 Above all, I wantto focus on the omissionof free speech anddemocracyfrom Rawls's list of basic humanrights. Considerthe following two statements from LP aboutpolitical strategy:
With confidencein the ideals of constitutionalliberaldemocraticthought,it [the law of peoples] respectsdecent peoples by allowingthem to findtheirown way to honorthose ideals. (P. 122)
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andthe meritsof its basic structure The Law of Peoples considersthis widerbackground political climate in encouragingreformsin a liberaldirectionas overridingthe lack of liberaljustice in a decent society. (P. 62)
These points suggest that peoples are more likely to come roundto liberal and areincludedas membersin views if they areengagedas full participants law.79 good standingof the Society of Peoples underinternational But, insofar as we can make informedjudgementsaboutthese matters,is any partof rationalthis claim plausible?Why shouldthe liberalexpect thatdeliberative of the decentconsultaity-leading to a liberaloutcome-is a characteristic tion hierarchy?The most that dissent can expect to achieve, according to Rawls, is that the government"spells out how the governmentthinks it can both reasonablyinterpretits policies in line with its common good idea of justice and impose duties andobligationson all membersof society" (p. 78). Thereis no reason thatconstrainedinternalcritiquewithin a comprehensive notion should have liberalresults;if anything,it is more likely to result in a spiral of doctrinal self-confirmation.So perhaps Rawls means only that engagement will encouragedecent peoples to respect humanrights and the laws of peace-the limited"liberal" aims of a law of peoples-on an ongoing basis. There are extremely strong empiricalreasons to doubt this latterclaim. The single most extensive analysis of the effects of nondemocratic political on therightsandwell-being of personsis to be foundin the workof structures In wide-rangingdiachronicand synchronicstudies, Sen and AmartyaSen.80 his collaboratorshave demonstrated repeatedlythatnondemocratic regimes are in fact almost unfailinglydetrimentalto humanrights and well-being.8" The most significantreasonfor this-although therearemany-is thatthere are insufficient political incentives for the regime to secure decent social, economic, and legal conditionsfor persons.Rulersowe theirlegitimacy to a tradition,a way of life, andnot so muchto theirefficacy in achievingthe present importantinterests of individualpersons; states are thus insufficiently attentiveand unresponsiveto persons' plights:
[Thereare] extensive interconnections between political freedomsand the understanding and fulfilmentof economic needs. The connectionsarenot only instrumental (political freedomscan have a majorrole in providingincentivesandinformation... ), but also constructive.Ourconceptualization of economic needs [as well as, he goes on to say,our interpretation andapplicationof rightsclaims] dependscruciallyon open publicdebates and discussions.... Furthermore, to expresspubliclywhat we value andto [effectively] demandthat attentionbe paid to it, we need free speech and democraticchoice.82
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The highly likely and disturbingresultsof not having democraticfreedoms are dramatic:social disintegration,famine, and abuse of rights. This is not good for culturesor ways of life either.Sen addsthatrespectfor humanrights valuesor impositions as well as democraticideas areby no means "Western" but thatelements areto be found in all majorculturesandtraditions,despite rulers(who have an interestin personsthinking the claims of nondemocratic He also makesthe crucialepistemologicalandeminentlypracotherwise).83 tical point that withoutdemocracy,it is impossible to tell which interpretarulersand which are tions of a cultureare the impositionsof semiautocratic widely held andjustifiable.84 So we can accept,with Rawls, the notionthatwe shouldrespectcultures, and even that"thecrucialelement in how a countryfares is its political culture"(p. 117), while strenuouslyinsistingthata political cultureought to be liberal and democratic.This seriously underminesRawls's projectsince he writes that,
Should the facts of history,supportedby the reasoningof social and political thought, regimesarealways, or nearlyalways,oppressiveanddeny human show thathierarchical rights,the case for liberal democracyis made. The Law of Peoples assumes, however, peoples exist, or could exist. (P. 79) that decent hierarchical
The case for liberaldemocracyhas been made:thereare no secure minimal humanrights without(a rightto) democracy.Humanrights and democratic And it might even be argued-although I rightsare inextricablyintertwined. shall not do so muchhere-that withoutthe political incentivesthata liberal democraticpolitical cultureprovides,(thin) states are likely to be unreasonable andhence potentiallyaggressive.The less powerfulsections of the populationsufferthe full ravagesof war,not the leadersof associationsor states so giving everypersona say is (unless they aresubjectto popularjudgement); andincentives,to be moreconduciveto the perpetlikely, due to information ual peace we seek. As Rawls himself notes, democraciesdo not fight one I have suggestedthatdecent regimes, on the otherhand,might. In another85; sum, my argumentsand the best evidence availableestablishthatthe notion thathasthe featuresof decency is unstaof an ongoing scheme of cooperation ble, unrealistic,and undesirablefrom the point of view of justice. At this point,my criticthrowsuphis orherhands:"Fine,ourliberalprinciples do not lead us to acceptdecent peoples as sufficientlyjust. But what do you proposeto do?!"My answeris thatdecentregimesmust be engaged in a global legal structurebut only to a limited extent. First, the conditions for thanavoidingthis entrymustrequirereformsin a democraticdirectionrather thatis increasinglythe practiceof transissue. Farfrombeing impracticable,
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nationalbodies such as the Commonwealth(which excludedPakistan'smilitary rulersfrom the 1999 conference in South Africa), the EuropeanUnion (which makes democraticreforms a condition for entry), and the International MonetaryFund(which, whateverelse it does wrong,does put democratising conditions on loans). Ratherthan being a pipe dream,this kind of perspectivehas won the supportof-and has been implementedby-numerous hardenedpragmatists. Moreover,the theoryandpracticeof international law increasingly,andrightly,invokessuch democratisingimperatives.Since the initial United Nations endorsementof those imperativesin Article 19 of Covenant on Civil and Political Rights,"full free the 1966 "International speech and democracy requirementshave been increasingly crisply and in broadAfrican,American,andEuropeanconvendemandinglyformulated In tions on humanrights and are now to be found in most such charters.86 Rawls's scheme, thereis, on the contrary, no "politicalcase for intervention [of anykind]basedon the publicreasonof the Law of Peoples"(p. 84). While liberals can express their private views about the injustices in nonliberal societies,
of liberalsocilaw principlesdo not even authoriserepresentatives Rawls's international eties to publicly (thatis, in an intemationalforumsuch as the United Nations) criticise the non-liberalpractices(for example, suppressionof speech) in hierarchicalsocieties, when such practicesare consistent with hierarchical conceptions of the good.87
Ourcomplaintshave the same political statusthatcomprehensivedoctrines have in Rawls's idea of a domestic society; that is, they carry no political weight whatsoever.While minimal humanrights remaina nationaldutyratherthan a global obligation-rights to free speech and democracy are removed from global view entirely.It seems to me deeply regrettablethat Rawls has takena seriousstep backward fromrecenthard-wonadvancesand from the possibility of using global forumsto bringaboutchange in a liberal democratic direction-especially since political practice has shown this compromiseto be unnecessary.88 This leads to my second point about the practicalapplicationof ideals, which is that Rawls and my imagined critic seem to have confused two things. It is one thing to treat illiberal regimes as outlaws-to a greateror lesser extent, dependingon the extentof violation, thatis, on where they fall on the decent-tyrannical continuum-but it is quite anotherto thinkthatit is morally permissible to colonise or eliminate them by force. The legitimacy of a regime is only one among many reasons that preclude war and the use of force:
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to the goal sought.Even in War[maybe] excludedbecauseit is grossly disproportionate (such as the presentChineseregime)waging cases wherethe regimeis overtlytyrannical cost of victory,thatis for warwould be wrongbecauseof the impossibilityor prohibitive (thatis, warsto liberateoppressed intervention reasons.So humanitarian purelyprudential populations)is subjectto a numberof moralconstraintsthat counsel moderation.89
The use of force mustbe reservedfor cases in which force is the only realistic way to achieve democracyor to preventegregious abuses of humanrights. Clearly,if force will do more harmthan good, it is not to be adopted, and Every effortshould clearly thereare othermethodsthatshouldbe preferred. be made firstto bringmoralsuasionanddiplomaticpressureto bearon illiberal regimes. It follows that there are independentgrounds for rejecting the efficacyof less drasticandmorFurthermore, intervention. heavy-handed ally vexing meansthanforce is increasedby the existence of a global law that recognises the underlyingvalue of the ends thatliberalspromote. bodies such as the World Trade Finally, where there are transnational (WTO),the WorldCourt,andthe WorldBank,liberalsshouldOrganisation following the scheme I have outlined-do everythingin their power to enTherehavebeen some couragethe entryof playersotherthannation-states.90 advancesin this areatoo. Forinstance,a WTOjudicialpanelruledagainstthe those therebytrumping countries, banningof Britishbeef by severalEuropean countries'putativesovereigntyover basic issues like food safety laws.9'The of nongovernmental organisaWTO also increasinglyaccepts participation tied like that are not to any one countryor set of and the tions, companies, countries.But the workingsof thejudicialpanelsof the WTOareproblematically shroudedin secrecy. It is absolutelycritical that these shifts in sovereignty be encouragedalong with a focus on how such bodies can be made otherwisewe may be left with eithera nondemdemocraticallyaccountable; global order. ocraticfunctionallydispersedsovereigntyor a state-dominated Neither sortof global regime is an appealingprospect.Thereis every reason to develop a relevantlyliberaland realisticutopiandemocraticalternative. Commitmentto such an ideal vision is entirely consistentwith and even requires realism about practical obstacles, constraints,and opportunities. by creatOurpracticaltaskis to graduallypluralisethe global basic structure ing a varietyof forms of democraticallyresponsive,semiautonomouslegal authority;they will in turn develop a texture of relationshipsthat is suffirangeof needs so thatthe entire ciently complex andthatmeets an important scheme is widely acceptedandstable.It is time to end the dominanceof what and to discern David Lubanhas called "the romanceof the nation-state"92 principlesfor a more complex and more promisingglobal institutionalconfiguration.Those principles will take individualsto be the normativeepi-
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centre of a system of functionallypluralsovereignty.In this article, I have critically utilised the profoundwork of John Rawls to constructa sketch of such a cosmopolitanLaw of Persons.
NOTES
1. John Rawls, TheLaw of Peoples (Cambridge,MA: Harvard UniversityPress, 1999). 2. John Rawls, Political Liberalism(New York:ColumbiaUniversityPress, 1993; paperback edition with a new introduction,1996); andA Theoryof Justice(Cambridge,MA: Harvard University Press, 1971). Also see his "Kantian Constructivismin MoralTheory,"in Collected Papers (Cambridge,MA: Harvard UniversityPress, 1999), 303-59. 3. This constructivistprocedurerelies on the idea of pureprocedural justice developed by Rawls (see esp. A Theoryof Justice, 83-90). 4. JohnRawls, "TheLaw of Peoples,"in OnHumanRights: TheOxfordAmnesty Lectures, 1993, ed. Steven Shute and Susan Hurley (New York:Basic Books, 1993), 41, n. 5. 5. "[J.S. Mill] uses anidea of nationality to describeapeople's culture" (p.25, n. 20); and"I think of the idea of nation as distinct from the idea of governmentor state, and I interpretit as referringto a patternof culturalvalues of the kind describedby Mill" (p. 23, n. 17). Rawls in which Mill writes of approvinglyquotes Considerationson RepresentativeGovernment, common sympathies,which do not exist between them and any others-which make them co-operate with each other more willingly than with other people, desire to be underthe same government, anddesirethatit shouldbe a government by themselves,or a portionof themselves, exclusively. (Ibid.) 6. Rawls's ideas of the reasonableand rationalarediscussedextensively in Political Liberalism, esp. 48-54. 7. Here,Rawls follows Philip Soper'sA Theoryof Law (Cambridge, MA: Harvard University Press, 1984), esp. 125-47. On problemsin Soper'stheory,see JosephRaz, "TheMoralityof Obedience,"Michigan Law Review 83, no. 4 (1985): 732-49. 8. "Well-ordered societies with liberalconceptionsof politicaljustice also have a common good conceptionin this sense: namely,the commongood of achievingpoliticaljustice for all its citizens over time andpreservingthe free culturethatjustice allows"(p. 71, n. 10). The idea of a comprehensive"commongood conception,"which includes a "decentconsultationhierarchy," is discussed at length in section 2. 9. These arediscussed in sections 1 and 2. In additionto liberalanddecentsocieties, Rawls discusses "outlawstates"(those thatfail even to be decent), "burdened societies" or "statessuffering from unfavourable conditions"(to which decent and liberalpeoples have duties of assistance), and "benevolentabsolutisms"(which honourhumanrightsbutin which citizens play no majorrole in publiclife) (pp.4 and90-112). The principlesfor dealingwith each type aredifferent and important,but my focus is the liberal-decentdivide. 10. These areunpackedin LP as eight principlesof international justice, summarised at 37. 11. The primacyof this aim is repeatedly emphasisedin LP andis basedon a stipulationthat all personsin a decenthierarchical society arenot regarded as free andequalcitizens, nor as separateindividualsdeserving equal representation ... they are seen as decent and rationaland as capable of morallearningas recognised in their society. (p. 71)
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In section 2, I evaluateand criticise the basis for this stipulation. 12. Rawls, "Lawof Peoples, 42. In the book, he writes, Why does the Law of Peoples use an originalposition at the second level thatis fair to peoples andnot to individualpersons?Whatis it aboutpeoples thatgives themthe status of the (moral)actorsin the Law of Peoples?"(Rawls, Law of Peoples, 17, n. 9) 13. "Offhandit is not clear why proceedingin this way should lead to differentresultsthan proceeding,as I have done, from separatesocieties outwards.All things considered,one might reachthe same law of peoples in eithercase" (Rawls, "Lawof Peoples,"54-55). relationsthe14. I use the termRealismto denote schools of powerpolitics in international ory; realistic and realismdenote practicalworkability. 15. Rawls, A Theoryof Justice, 8; Political Liberalism,12. 16. Onora O'Neill, "Political Liberalism and Public Reason: A Critical Notice of John Philosophical Review 106 (1997): 411-28, at 417. Rawls, Political Liberalism," 17. O'Neill thinks,however,that there are still considerabledisanalogiesbetween uses of idealizationin practicaland theoreticalreasoning, becausethe directionof fit is reversed.In theoreticalreasoningidealizationsthat are wide of the markwill reveal theirfailure,or are likely to. In practicalreasoningwe but may concludethatwe oughtto live upto the idealizations.(Personalcorrespondence, see ibid.) 18. Rawls will also replythatthe idealisationof a closed society is justifiedbecause it recognises and representsthe existence and value of common sympathiesor nationhoodwhile it at least forms a constructivistbasis to secure persons' importantinterests (especially in human andshow thatRawlstoleratescommonsympathiesin rights).In section 2, I assess this argument the wrong way. in Rawls's 19. This exampleobviously raises variousissues aboutthe statusof immigration work andaboutthe social embeddednessof persons'identities.These underlyingissues arediscussed extensivelylaterin the article.Forthe moment,I use this exampleto illustratea moregento boundary forthepurposes setting. eralpointabout(grouping of) socialchoice-in a wayrelevant fromU wouldrequireadditional resourcesthatreducegeneralstandards 20. Say,immigrants of living and securityof currentcitizens in D, while emigrationwould result in a "braindrain" from U, reducingthe skills base the governmentcan deploy to secure rights and well-being. Manysuch scenariosareimaginable;indeed,some would arguethatAmerica-MexicoandSouth conceptual). Africa-Zimbabwerelations,among others,fit this model (my point is, rather, 21. Rawls, "Lawof Peoples,"43. friend of mine puts it, "the answer depends where you place the 22. As a mathematician claim too; see brackets!"There is a historicalstory to be told that impugns the incorporation HannahArendt, The Origins of Totalitarianism (New York:HarcourtBrace, 1973), 290-302. She writes that afterthe FrenchRevolution,humankind was conceivedin the image of a family of nations,[andiit graduallybecame self-evident that the people, and the individual,was the image of man. The full implicationof this identificationof the rightsof man with the rightsof peoples [was "severe"].(P. 291) The consequenceswere especially awful formarginalised (notto mentionstateless)individuals and minorities(pp. 291- 93). Rawls's vision would avoid manybut arguablynot all of these adverseconsequences.
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23. This pointhas been madeeloquentlyby severaltheoristswho criticise Rawls's refusalto justice (my focus lies elsewhere).The quoextend the differenceprincipleto global distributive Law of Peoples,"Philosophyand Public Affairs tation is from Thomas Pogge, "AnEgalitarian Journal 23, no.3 (1994): 195-224, at 209- 10. Also see BruceAckerman,"PoliticalLiberalisms," of Philosophy 91, no. 7 (1994): 364-86, at 381-82; Charles Beitz, "CosmopolitanIdeals and Journal of Philosophy 80, no. 10 (1983): 591-600, at 594. National Sentiment," 24. Rawls, A Theoryof Justice, 115. 25. Kok-ChorTanmakesthis pointin respectof Rawls's earlier"Lawof Peoples"article,in "LiberalTolerationin Rawls's Law of Peoples,"Ethics 108 (1998): 276-95, at 283. 26. Pogge, "AnEgalitarianLaw,"217. Suchjustificationmust apply to all regardless-for moralconception), or the like. the liberal-of their colour, creed (particular 27. Rawls, Political Liberalism,10,37, 60, 137, and 154. It is especially evident at 190-200 that politically liberaltolerationis of an ethically neutralsort. 28. Which is why, contraRawls's assertionat 82-83, we can know that decent regimes are unacceptable.Respect for persons' comprehensiveconceptions of the good precisely does not translateinto respect for comprehensiveregimes. 29. A law of peoples respectspersonsas reasonableandrationalandas capableof (sharing)a conception of the good and of moral learning as defined by their society; but they are "not regardedas free andequalcitizens, noras separateindividualpersonsdeservingequalrepresentation"(p. 71). 382-83. 30. Ackerman,"PoliticalLiberalisms," 31. Beitz, "CosmopolitanIdeals,"596. 32. The assumptionthat persons are free and equal is more complex and varied than this makes it sound; only one notoriousinstanceis Mill's refusal of political equality to those in a culturalstate.But leavingaside suchbadlyjustifiedandunjustifiable exceptions,the "primitive" broadidea canbe foundalike in Locke, Rousseau,andMill;it is statedmost clearlyby Immanuel in Practical Philosophy(Camand"TheMetaphysicsof Morals," Kantin "TheoryandPractice" bridge, UK: CambridgeUniversityPress, 1996). 33. Carl Schmitt, The Crisis of ParliamentaryDemocracy (Cambridge,MA: MIT Press, 1986), 11. See also Schmitt, The Conceptof the Political (Chicago:Chicago University Press, 1996). 34. There is some question as to the natureof the cooperativeactivity that gives rise to the global originalposition. BrianBarryandCharlesBeitz initiallydisagreedover whetherinternational society "constitutesa scheme of co-operationin Rawls's sense";OnoraO'Neill andBeitz now both think that in any case, since "humanbeings possess these essential [moral]powers regardlessof whether,at present,they belong to a common co-operativescheme,"there is no social co-operaneed to "dependon any claim aboutthe existence or intensityof international tion"(Beitz, "Cosmopolitan Ideals,"595; andO'Neill, Towards Justiceand Virtue: A Constructive Account of Practical Reasoning [Cambridge,UK: CambridgeUniversity Press, 1996], 91-121). Beitz and O'Neill discuss these debates,and I will not do so here:my argumentsconcerning political liberalism'suniversalismstronglyendorse their position. 35. Rawls, A Theoryof Justice, 264. Liberalism 36. CharlesBeitz, "Cosmopolitan andthe StateSystem,"in PoliticalRestructuring in Europe:EthicalPerspectives,ed. ChrisBrown(London:Routledge,1994): 123-36, at 129. see JosephCarens,"Aliens 37. For a brilliantexercise in this type of sensitive consideration, Reviewof Politics 49, no. 2 (1987): 251-73. and Citizens: The Case for Open Borders," 38. Rawls,A Theoryof Justice,264. Itis notthe case thatthe cosmopolitanpositionnecessarily assumesa self thatis not embeddedorthatis priorto its ends, as is claimedby MichaelSandel
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UniversityPress, 1982) and UK:Cambridge in Liberalismand theLimitsof Justice(Cambridge, thinkers.Rather,the cosmopolitanposition demands that a several so-called communitarian "criticalmoment"be possible for persons living in differentsocieties, that the value of social Justbecausecultureis practicesanda way of life forpersonsshouldnot be fixed anddetermined. significantin thatit providesus with a contextfor becomingwho we aredoes not meanthatit has what it is aboutpeople thatwe respect.Politicalcommunityhas normativevalue in determining no a priori legitimacy.Yet, it seems quite evidentthatfor thereto be a criticalmoment,persons all the way down. musthavethe minimalfreedomsthatallow for such reflectionanddeliberation positionsoften ignoreandwronglysign awayin theirenthusiasmto Thatis whatcommunitarian have culturerespected.Thereis no need to pay such a heavy price. 39. Rawls, A Theoryof Justice, 4. Peace,"Ak:VIII:367(quotedin LP, 36, n. 40). 40. Kant,"Perpetual 89-122, in PoliticalRestructuring, andSovereignty," 41. ThomasPogge, "Cosmopolitanism at 89. 42. The catalogueincludesthe following:(1) realpersonsareoften unsureabouttheir(political) identityor have multiplesuch identities(they may "belong"with no people or many);(2) society are not identicalwith those persons"mayfindthose whom they live with in a particular whom they regardas of their own cultureor people" (O'Neill, "PoliticalLiberalism,"16); (3) there is no clearcut distinctionbetweenpeoples, cultures,andotherkindsof groupings(Pogge, containsonly the membersof a sin197); (4) virtuallyno nationalterritory "Cosmopolitanism," thatarenorgle people (ibid.);(5) officialbordersdo not coincide with "themaincharacteristics mally held to identify a people.. . such as a commonethnicity,language,culture,history,tradisome groupdoes or does not constitutea people would seem ... to be a tion"(ibid.);(6) "whether thaneither-or" (ibid.);(7) appealsto "amythicalpast"or a "desired matterof more-or-lessrather conception of national future"as constitutinga people beg the question of why thatparticular in Political Restruc(OnoraO'Neill, "JusticeandBoundaries," identityoughtto be constructed turing, 69-88, at 76); and (8) "nationaland communityidentity is always framedin terms of" boundaries,and hence cannotprovidea basis for sharpdemarcaconcepts that have no "sharp tions such as political boundariesbetween states"(ibid.). This list is hardlyexhaustive. of peoples to self-determina43. For defences of the nation-statepremisedon the "rights" tion, see David Miller, "The Nation-State:A Modest Defence," in Political Restructuring, Journal of Philoso137-62; Avishai Margalitand Joseph Raz, "NationalSelf-Determination," phy 87, no. 9 (1990): 439-61; and severalarticlesusefully collected in both Will Kymlicka,ed., The Rights of Minority Cultures (Oxford, UK: Oxford University Press, 1995) and Gopal Balakrishnan, ed., Mappingthe Nation (London:Verso, 1996). I do not thinkthat any of these argumentsdefeat all the criticisms in my catalogue above. The collections by Kymlicka and Balakrishnanalso contain articles disputing-to my mind, convincingly-the validity of follow. Especially notions of nationand nationalismand the normativeclaims thatpurportedly in The Culturesand the CosmopolitanAlternative," "Minority worthwhileis JeremyWaldron's Rightsof MinorityCultures,93-122. Carens,"AliensandCitizens,"also refutesa rangeof arguments for exclusivist statismthat are based on culturalistand nationalistclaims. 44. O'Neill, "PoliticalLiberalism,"16. Identity-and its motivationalforce-is not essenshouldeven seem plausibleto us is due largelyto the contingent Thatunipolarity tially unipolar. (now changing and changeable)configurationof Europe after 1648. Those who remainin the grip of a picturethatallows only a state system or a world statewould do well to recall thatthe stateis such a historicallyrecentphenomenon,andthusevidentlynot a necessary,eternalunitof or exclusive unit. and psychological affiliation,let alone the fundamental political organisation Rawls does say that the "psychologicalprinciple [of limits on affinity]sets limits to what can sensibly be proposedas the contentof the Law of Peoples"(112, n. 44) andthat"themorallearn-
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ing of political concepts and principlesworks most effectively in the context of society-wide political and social institutions" (p. 112). But this mereassertionrests on an implausiblynarrow moralpsychology to which we have very little reasonto subscribe(for one thing, "society"and "nation"come in so many sizes that stipulatingnumericlimits on affinityis dubious).For persuasive argumentsto similareffect, see the contributions and by Martha Nussbaum,"Patriotism Cosmopolitanism,"and AmartyaSen, "Humanityand Citizenship,"in For Love of Country: Debating theLimitsof Patriotism, Nussbaumet al., ed. JoshuaCohen(Boston:Beacon, 1996). 99-100. 45. Pogge, "Cosmopolitanism," 46. Ibid., 89 and 102-5. 47. Ibid.,100-1. ContraWeber,it is not the case thatthe threatof force is foundational of sovereignty,as numerousempiricalexamples attest:who has the monopoly on legitimateviolence The EuropeanUnion?NATO?The UnitedNations Security over Bavaria-the state?Germany? Council?! And contraSchmitt,it is not the case that the absence of a unitarysovereign makes decisive action impossible (see my nn. 49, 55, 56). 48. I owe this phraseto OnoraO'Neill. anddeliberativedemocratsmay well be correct,at least in the sense that 49. Here, Habermas we must focus on proceduresof resolutionratherthanon findingone supreme,legitimate,and This issue is discussedagainin section 4 (see also my nn. 47, 55, 56). On incorruptible authority. deliberativedemocracy,see the excellent essays in James Bohman and William Rehg, eds., Deliberative Democracy: Essays on Reason and Politics (Cambridge:MIT Press, 1997). 50. O'Neill, "JusticeandBoundaries," 72. Rawls cleaves to anentirelyterritorial ideal on the following grounds: Unless a definite agent is given responsibilityfor maintainingan asset and bears the responsibilityandloss for not doing so, thatasset tendsto deteriorate. On my accountthe role of the institutionof propertyis to preventthis deterioration from occurring.In the andits potentialcapacityto supportthem presentcase, the asset is the people's territory in perpetuity;and the agent is the people itself as politically organised.(LP,p. 8) Not only does Rawlsherebeg thequestion as to why peoplesshouldbe thatresponsible agentas has and will become increasingly apparent, they shouldnot (at least, not necessarily)-it also shifts spuriouslyfromthe idea of propertyto thatof closed territories. Yet, it is not the case that all or even most property is underpinned by territorial regimesor-as will also become evidentthatthe kinds of propertywe taketo be important arebest conservedby the political regimes of peoples. 51. An agency for regulating the Internet, forexample,would havejurisdictionover all material regardlessof whether that materialwas posted from space. An environmentalagency for safeguardingforests,whereverthey may be, mightbe functional(i.e., best achieve thatend) and would workin conjunctionwith otherunitswith which it is "nested." The literature on "non-state actors"is illuminatingin this regard;see, for instance, Thomas Risse-Kappen,"Structures of Governanceand Transnational Relations:WhatHaveWe Learned?" in Bringing Transnational Relations Back In: Non-StateActors, Domestic Structuresand InternationalInstitutions,ed. Thomas Risse-Kappen(Cambridge,UK: CambridgeUniversityPress, 1995): 280-313. 52. On why the so-called differencesbetweenparticularists anduniversalistsarewidely misunderstoodand largely bridgeable,see O'Neill, Towards Justice and Virtue. 53. Seyom Brown, "The World Polity and the Nation-StateSystem," in Perspectives on World LittleandMichaelSmith(London:Routledge,1991):263-72, at271. Politics,ed. Richard See also Steven Krasner, "PowerPolitics, Institutions andTransnational Relations," in Bringing TransnationalRelations Back In, 257-79.
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and cross-territorial units;but, in consider54. Therewould certainlybe moretransnational functions,partiesto the origiing the politicalagenciesthatwould best fulfilvariousgovernment nal position may considerterritory-global or restricted-as a secondaryor muchless relevant factor.My argument-that dispersalwould be beneficial-is even strongerif CarlSchmittis at necessarilyleads to conflict (Schmitt,Crisis,53,69-71). In all correctthatboundedterritoriality my pluralsystem, neitherthe "foundingmoment"northe unitsof dispersedsovereigntyarenecessarily violent. 55. I cannot take the question of democratic institutionalresponsiveness very far here, althoughit is discussedin section 4 (andsee my nn. 47,49,56). The centralconcernis thata costhe kind of demomopolitantheoryshould not be so complex and unwieldy thatit undermines craticcitizenshipit is introduced to promote.On solutionsto the problemof democraticcontrol over dispersedagencies, see Michael Walzer,Spheresof Justice:A Defence of Pluralism and Equality (Oxford, UK: Robertson,1983); and Thickand Thin:MoralArgumentat Home and Abroad(NotreDame, IN: Universityof NotreDame Press, 1994). His solutionsarediscussedin Political TheGovertden Hartogh,"TheArchitectonicof MichaelWalzer'sTheoryof Justice," ory 27, no. 4 (1999): 491-522. Walzer,however,has an exclusivist conceptionof membership with which I stronglydisagree.A more inclusive approachcan be found in JurgenHabermas's extensive corpus, especially in his recent text, The Inclusion of the Other (Cambridge:MIT Press, 1998). of the TreatyEstablishingthe 56. Article 5 of the ConsolidatedVersion(post-Amsterdam) EuropeanCommunity.Although the treatyretainsan element of unjustifiedbias in favourof allocatingpowers (includingpowers to shapedecision rules) to states-to the detriment,in my view, of otherlevels andkinds of politicalformations-it is a pioneeringpracticaldocumentfor sovereignty. organisingnonunitary 57. Rawls is quite clear that these kinds of general facts, including economic theory, are allowed behind the veil (A Theoryof Justice, 136-42). I amindebtedto one of my anonymousreviewersfor 58. This criticis not entirelyimaginary; taxing me on the questionsof stabilityand feasibility. 377-78. 59. Ackerman,"PoliticalLiberalisms," 60. This is his most succinct, explicit statementof the stabilityargument(Rawls, "Lawof Peoples,"55). 61. Ibid., 43. the Law of Peoples,"Pacific Philosophical Quar62. DarrelMoellendorf,"Constructing Rawls's position only to dispute its terly,77 (1996): 132-54, at 135. Moellendorfcharacterises force. 63. Rawls, PoliticalLiberalism,48. See also ibid., 133-72;Rawls,A Theoryof Justice, 336; the Law,"147-48. and Moellendorf,"Constructing 64. Rawls, Political Liberalism,64. Realistsinsist thatit 65. Indeed,Rawls has answeredone set of Realistsbutnot all: structural to statesperse thatgenerateconflict. is the interaction betweenstatesandnot featuresinternal Justice and Virtue,212. 66. This felicitous constructivistphraseis from O'Neill, Towards the Law,"139. 67. Beck's 1957 translation, quotedby Moellendorf,"Constructing the Law,"147. 68. Moellendorf,"Constructing 69. Rawls surely cannotbrandpoliticallyliberalpersonsin comprehensivesocieties unreascheme of cooperation,butwantingthe benesonable!They may not agreewith this hierarchical as uncooperative. fits and burdensto be sharedmore equally is surely wrongly characterised of cooperation,andit does Those personswould be holdinga perfectlyreasonableinterpretation not cease to be so because they happento be unluckyenough to be borninto a less than liberal
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society. To say otherwisewould be to repudiatethe value of even the minimallyfree exercise of reason, and to characterisesuch liberal dissentersas obstructionistmisfits. 70. Here again we note the deep disanalogy between tolerating persons as opposed to regimes with comprehensivedoctrines:internalstrifein the formerover adherenceto rivalconceptions of the good tendsnot to affectthe broader system of cooperation,whereasinternalstrife within the latteroften impacts far more adversely. 381-83. 71. Ackerman,"PoliticalLiberalisms," New York Reviewof Books42 (1995): 52-57, 72. StanleyHoffman,"Dreamsof a JustWorld," at 54. 73. Kant,"Perpetual of Hans Reiss, ed., Kant'sPolitical WritPeace";this is the translation ings (Cambridge,UK: CambridgeUniversityPress, 1991): 93-130, see 119-25. 74. See Pogge's interesting discussion of this statement in "An EgalitarianLaw," 224. Rawls's essays on the overlappingconsensus are reprintedin his Collected Papers. 75. Rawls, A Theoryof Justice, 263. 76. Carens,"Aliensand Citizens,"225. 77. Thomas Pogge, Realizing Rawls (Ithaca,NY: Cornell UniversityPress, 1989), 260. 78. The termrelevantutopiawas suggestedto me in conversation by StanleyHoffmann.For Hoffmann'sremarkably historicallyinformedviews, see especially Duties beyondBorders: On the Limitsand Possibilitiesof InternationalPolitics (Syracuse,NY: SyracuseUniversityPress, 1981). 79. In particular, theirdomestic institutionsof public reasoning-their decent consultation hierarchy-should be supportedby thatlaw. The idea seems to be that cultureshave their own modes of argument andprocessesof change,andwherethese aresufficientlydeliberativewe not only have groundsto believe that they will lead to more liberalprinciplesfor regulatinga people's common life but groundsto respectthose modes themselves. is withoutdoubtthe most widely acceptedand substantiated 80. Sen's contribution in both academic and policy circles, as evidencedby the Nobel Committee'sstatementon the awardof his 1998 Prize in Economic Science and by his work's foundationalimportanceto the UNDP HumanDevelopmentReports (which haveacknowledgedhis centralityeveryyearsince 1994). 81. Therearenumerousrelatedand confirmingstudies, andthereis simply no moreimpressive body of theoryandevidence forthe empiricaljudgementsI discuss. Among Sen's books are his recent monographsDevelopment as Freedom (New York: Knopf, 1999) and Inequality Re-examined(Oxford,UK: OxfordUniversityPress, 1992);his collections of essays Resources, Valuesand Development(Cambridge,MA: Harvard UniversityPress, 1984) and Choice, Welfare and Measurement(Cambridge,MA: Harvard UniversityPress, 1982); and his analyses of famine Povertyand Famines:An Essay on Entitlement and Deprivation(Oxford, UK: Clarendon, 1981) and-together with Jean Dreze-Hunger and Public Action (Oxford,UK: Clarendon, 1989). Editedvolumes confirming the accuracyandfecundityof this approach includeJean Dreze andAmartyaSen, eds., ThePoliticalEconomyof Hunger(Oxford,UK:Clarendon,1995); MarthaNussbaumand AmartyaSen, eds., The Qualityof Life (Oxford,UK: Clarendon,1989); and MarthaNussbaumandJonathan Glover,eds., Women, Cultureand Development:A Studyof Human Capabilities (Oxford,UK: Clarendon,1995). 82. Sen, Developmentas Freedom, 147-48 and 154-55. I am in full agreementwith Sen's argumentsfor democratic rights as intrinsicallyimportanttoo. Rawls mentions Sen's work repeatedly(see esp. 108-11) but fails to see that Sen's "insistenceon humanrights"includes a "foundational" insistence on democraticrights.Sen's perspectiveon this is borne out by other commentators,including Thomas M. Franck, "The Emerging Right to Democratic Governance,"AmericanJoumal of InternationalLaw 86, no. 1 (1992): 46-91.
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83. Sen, Developmentas Freedom,227-48. TheNewRepublic,July 14 and21, RightsandAsianValues," 84. Ibid.;also see Sen, "Human TheNew Republic,April 1, 1996. 1997; and Sen, "OurCulture,TheirCulture," 85. Rawls arguesfor the democraticpeace thesis at 44-54. Law,"Ethics and Inter86. See FernandoR. Teson, "TheRawlsianTheoryof International national Affairs 9 (1995): 79-99, at 95. turnin Rawls Theory," 88-89. This marksan increasinglyconservative 87. Teson,"Rawlsian all butintrastatal effortsto changecultures(exceptingminimalrights)-he since-in debarring socileaves liberalswringingourhandsaboutsocially oppressiveminoritiesbeyondourcurrent ety's borders.Culturesare difficultto change and must be treatedwith sensitivity,butthatdoes to approach not imply a counsel of despairso muchas a carefulandinclusive(proto-democratic) the process of change. in Internadiscussion,see GregoryFox, "TheRightto PoliticalParticipation 88. For further tional Law,"YaleJournalof InternationalLaw 17, no. 2 (1992): 539-607. 97. In morephilosophicalterms,it is a simpleandunfortunate Theory," 89. Teson,"Rawlsian on one hand,withjudgementsof regimeillecategoryerrorto confuse illegitimateinterventions, gitimacy, on the other. the prevalenceandpervasive 90. In doing so, it would be a seriousmistaketo underestimate based, communallyjustified states: appeal of the ideology of territorially thereis exactly one Fornearlyeveryhumanbeing, andforalmostevery piece of territory, responsibilityfor,this person authority over,and primary governmentwith pre-eminent Andeach personis thoughtto owe primary politicalallegianceandloyalty to or territory. dominateandcontrolthe decision-makingof this government.... Nationalgovernments decisions, which tendto be madethrough smallerpoliticalunitsas well as supranational 99) bargaining.(Pogge, "Cosmopolitanism," intergovernmental Pogge overstatesthe case here,especially given developmentsin Europe,NATOexpansion, and shifts broughtaboutby dramatictechnologicalchange.Thereare also large swaths of territory over which no governmenthas clear control(e.g., in the so-called DemocraticRepublicof is precarious anduncertain. Nevertheless,we the Congo) andin whichthepositionof inhabitants do live in a state-dominated global system;the pointis thatit is not immutableandthatwe have good moralreasons to change it. 91. Adherenceto rulings of this kind is often entirely voluntary(for example, France has peoples, I have argued,must not be given a veto on defied several rulings);thatis unfortunate: decisions. this or on numerousother governmental in InternationalEthics, ed. Charles 92. David Luban,"TheRomanceof the Nation-State," Beitz, MarshallCohen, ThomasScanlon,andJohnSimmons(Princeton,NJ: PrincetonUniversity Press, 1985).
AndrewKuperis a memberof TrinityCollege and of the Facultyof Social and Political He is also the 1999-2000 visitingHenryFellow in the Philosophy Sciences, Cambridge. Departmentat Harvard University.His researchinterestsinclude moral and political philosophy,theoriesof democratictransition,and globalpolitics. Thisarticle is partof a broaderproject to constructa nonstatisttheoryof justice and democracy.

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Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons Author(s): Andrew Kuper Source: Political

John Rawls's The Law of Peoples (LP) representsa culminationof his

POLITICAL THEORY/ October2000

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DIFFERENTINTERESTS 1. INCORPORATION: OF PERSONSAND STATES

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