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Wagner Artur de Oliveira Cabral

THE RAWLSIAN LAW OF PEOPLES AND THE COSMOPOLITIST CRITIQUE

Paper presenting a brief summary of graduate thesis O Direito dos Povos de John

Rawls e a Crtica Cosmopolitista presented before Universidade Federal de Minas

Gerais (UFMG) as a final requirement for the title of Master of Laws.

Wagner Artur de Oliveira Cabral is a Bachelor in Law from Universidade Federal do Rio Grande do Norte (UFRN) and Master of Laws from Universidade Federal de Minas Gerais (UFMG). Has served as professor in UFMG from 2009 to 2011, teaching Philosophy of Law, Legal Psychology and Ethics and Politics. Currently teaches Environmental Law at the Fundao Educacional Vale do Jequitinhonha (FEVALE).

Full resum can be found at http://lattes.cnpq.br/7188431619135054.

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THE RAWLSIAN LAW OF PEOPLES AND THE COSMOPOLITIST CRITIQUE1

Wagner Artur de Oliveira Cabral2

INTRODUCTION

This paper3 aims to present an introduction to the theory laid by John Rawls on

international governance. It has been commonly deemed as his incursion in the field of

International Law, but that, as I will try to point out, it is not an adequate description.

Ralws Law of Peoples does not present aset of rules governing the relations among

states, but, in a different mindset, those regarding the commitments peoples4 liberal

above all should partake.

On the other hand, I should also try to summarize some of the criticism this

theory has received, especially from those scholars who defend the idea of

Cosmopolitism. The reason for the selection of these specific thinkers is that they

advocate a much broader role for the human person, as a single entity or citizen, than

rawlsian Law of Peoples or even regular traditional International Law theory does. It

1 This paper is a summary of the main points covered by the authors graduate thesis, presented in

August 2011, at Universidade Federal de Minas Gerais. It certainly would not be possible without the funding from the Conselho Nacional de Desenvolvimento Cientfico e Tecnolgico (CNPQ). It was written for appreciation at the Imagining Global Governance Change and Continuity conference, held by Basillie School of International Affairs, Octover 20 to 22, 2011 at Waterloo, Ontario, Canada. I would like to thank this institution especially Mr. Ricardo Trajan for their continuous support. 2 The author is graduate in Law by the Universidade Federal de Minas Gerais (UFMG) and undergraduate

from the Universidade Federal do Rio Grande do Norte (UFRN). Currently teaches Law at Fundao Educacional do Vale do Jequitinhonha (FEVALE). 3 I would like to thank all the help and comments from Agatha Brando, especially all revisions regarding

the use of the English language. 4 The traditional post-Westfalian International Law approach its centered in the norms and actions

between Nation-states, while the human person is left without any legal personality per se, but seen as a member or its collectivity.

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seems to me that they are three points in the same scale. What varies is the role

attributed to both the state and the individual in each case, and it focus on the person,

community or state.

After presenting the fundamentals of the rawlsian theory, I shall point some of

its alleged shortcomings5, and conclude it with a brief remark about the need of

reengineering the infrastructure of International Law.

JOHN RAWLS, A CUNNING MAN

John Bordley Rawls (1921-2002) was an American law professor, teaching in

great institutions such as MIT and Harvard. Rawls had a deep interest in Ethics, Kant

and J. S. Mills Utilitarianism (Pogge 2007, 10). His magnum opus is somehow a medley

of these passions. Gazing upon modern moral philosophy, Rawls describes himself as

facing a quagmire: is that possible to avoid both the utilitarianism whose

consequences are frequently unbearable and intuitionism which lack of systematic

thinking impairs any real contribution to the consolidation of an alternative? At one

corner, a school of thinking fueled by some of the most remarkable philosophers of

our age, such as David Hume, Adam Smith, Jeremy Bentham or Mill himself. On the

other side, many proponents that, even with some apparent reasonableness, are

5 I will mention, in this paper, for the sake of space, only the works of Charles Beitz, Seyla Benhabib and

Thomas Pogge. But the underlying research that supplies this paper could not have been done without the recourse to authors like: Kwame Anthony Appiah, Hannah Arendt, Andr Bergen, Antnio Augusto Canado Trindade, Will Kymlicka, Josu Emlio Mller, Phillip Petit, Luiz Paulo Rouanet, Michael Sandel, W. M. Sibley, Peter Singer, Kok-Chor Tan, among several others. I am profoundly grateful for their work and inspiration. Whether I have or not made them justice, it is clear that those are the giants in whose shoulders I have stood.

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rendered unverifiable, due their unclear premises. Rawls argues that, in order to

adequately deny Utilitarianism, a theory with the same power and eloquence is

needed. A theory which would needed to be strongly rooted in clear arguments and

affirmations. That was the ambitious objective of his most famous work, A Theory of

Justice.

In his massive6 book, Rawls defends that life in society must be seen as a

cooperative arrangement among citizens seen as free and equal, from one generation

to the next (Rawls 2001, 5)7. To achieve such aims, it is necessary to establish some

egalitarian principles of justice that can build a fair Basic Structure of the society.

Having this background justice being adequately set, than every member of the society

would be free to follow their personal life project at it seem fit.

The model of egalitarian justice envisaged by Rawls if mainly worried about the

danger of arbitrariness. Each uneven treatment must to be rationally grounded,

exposed in its motivations and benefits to those involved in the collective

arrangement. And more: every each one of any social distinctions that result in a

situation of inequality distinction which, being subject of rational justification, is not

held as arbitrary must always work in favor of those who need the most, the least

advantaged members of our society (Rawls 2001, 57). It makes no sense, to Rawls, to

think of a collective system designed to restrict its profits to only a few of its members.

It is a matter of simple logic, that those involved in the arrangement should benefit

from it.

6 The original edition ran well over 500 pages.

7 Rawls argues that Justice is the first virtue of social institutions, as truth is of systems of thought.

(Rawls 1999, 3)

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There is a complex practical situation that arises from that question. Being a

system with presumed stability and continuity, there is a heavy burden over the

arrangement inflicted by sheer injustice (Rawls 2001, 8).

A clearly unfair social structure is not only morally questionable, but, in fact,

hard to keep it from crumbling apart. Unless there is any ulterior widely accepted

justification for the injustice, strong enough to sew a new layer of social cohesiveness

through the collective notion of the importance of this social contract, there is no

proof that such arrangements will be kept at least without coercion. Even coercion

have limits: history is full of those that, even before the most authoritarian societies,

chose to rebel before injustice.

Rawls affirms the importance of the construction of political values of justice,

values which are rooted not only in the tradition of political culture, but in practice,

through democratic action. These values are not metaphysic in their source, but are

set on the common congregation of opinions and decisions over the sphere of the

political. Those specific beliefs that build our individuality like creed, ideology of

personal philosophy should be kept, but in a domain that is separate from the political,

in a private level (Rawls 2001, 21).

This separate political sphere is what guarantees that every man or woman is

free to maintain his or her beliefs, casting any judgment or opinion. That nothing a

citizen can say or do is able to change the fact that the social life is mandatory: it is a

collective arrangement that you enter upon your birth and leave at the moment of

your death. In the in-between of those two points you are, in present democracy,

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preserved from the destruction of your civic persona8. Inasmuch as how offensive,

derisive our unpopular your opinions or actions may be, you will always be a citizen

even when, in the case of a criminal condemnation, you face any penalty. There will be

a criminal citizen, facing the burdens of his social duties, having by his side his legal

rights.

As long as there is this social minimum, this sphere where the citizens are

recognized as free and equal, and there is a fair society set according to principles of

justice, designed in order to minimize overall inequalities, there will be social justice in

Rawlsian terms. If not a completely just society, at least a well ordered one.

To assess the correct set of principles necessary for a society to be considered

well ordered, Rawls developed a device of representation called Original Position

(Rawls 2001, 14). It is an intellectual exercise aimed to avoid our natural prejudices and

conceptions that are bound to our cultural and educational background. In the Original

Position the parties of the social agreement are behind a Veil of Ignorance and each

one have no further detail of their part on society, as of any distinctive detail such as

skin color, wealth, education, etc. While completely unaware of such traits, the

objective is that the parties strive to reach the better solution for everyone, since one

could be allocated, theoretically, in any role of the society. Thus, by trying to achieve

the best result for himself, the party of the Original Position is also pushing for the best

result for everyone else as well.

8 Like Socrates, who was offered the option to symbolically die as a citizen and be separated from the

polis, or the Jews that during the Nazism were disqualified as human beings, having a legal status (with consequent rights) more related to property than personality.

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From this experiment Rawls derives two principles of justice. They are

presented (Rawls 2001, 42,43) as follows9:

(a) Each person has the same indefeasible claim to a fully adequate

scheme of equal basic liberties, which scheme is compatible with

the same scheme of liberties for all; and

(b) Social and economic inequalities are to satisfy to conditions: first,

they are to be attached to offices and positions open to all under

conditions of fair equality of opportunity; and second, they are to

be to the greatest benefit of the least advantaged members of

the society (the difference principle).

The first principle basically defines a common set of basic liberties as complete

as possible. The second is divided in two: the first part regards open access to public

offices preventing any kind of static caste-like society to exist and the following

ensures that every difference and inequality in society should always work for the

good of those in the most fragile situation. The society described by John Rawls is

similar to a chain, having citizens free and equal connected into a web of social

relations. As weaker any link get, the weaker is the chain as a whole. A strong society is

one where everyone is respected in its freedoms, but is also freed from need10.

PEOPLES, NOT NATIONS

9 These principles have several different wordings in different books, since Rawls was used to frequently

reassessing and improving his own work. I am currently enunciating those as last presented, in the most recent version. 10

Franklin Delano Roosevelts Four Freedoms speech is a memorable defense of this holistic freedom approach.

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It took about three decades for Rawls to sketch the layout of how the

international society would be seen under his theory. He originally warned that his

theory of justice was not designed to relate to any kind of configuration of

international affairs, only the situation of a state and its citizens. Amidst much

anticipation, his contribution in this area was only published in 2002, a small book

originally thought as a chapter of Justice as Fairness a restatement, but who grew too

much, and was published independently named as Law of Peoples.

The Law of Peoples is set according to the standards of the A Theory of Justice.

Recall that a society is a juxtaposition of citizens reciprocally seen as free and equal, in

a scheme of cooperation that lasts from one generation to the next. The international

society, in its turn, is a composition of peoples. Peoples are collectives bound by a

common moral character and divided in the following categories: there are two well-

ordered peoples, the Liberal peoples and Decent peoples. Liberal peoples are those

organizes following those standards defined in the theory of justice and Decent

peoples are those who, while short from being strictly democratic, do possess some

kind of consultation hierarchy and respect for some of the basic Human Rights.

Apart from these two, there are also the Outlaw states, Burdened societies, and

Benevolent absolutisms. Outlaw states have belligerent behavior, frequently harassing

other states and even their own nationals. Burdened societies are under great distress

by any background factor, such as widespread famine or disease, and, thus, incapable

of sustaining an appropriate well-ordered society. Benevolent absolutisms are those

governments that, whilst monarchic, or despotic, still keep some limited respect for

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Human Rights, despite the lack of consultation hierarchy that would configure them as

a Decent people.

These peoples are the citizens in Rawls Law of Peoples international arena,

coexisting in the same physical world and being subject to some of the same global

problems. Then there is also the question of how exactly they should relate to each

other. Rawls theory is admittedly a liberal one, drafted for liberal peoples and devoted

to find a rational way to deal with other peoples in a clear and rational way, restricting

the importance of Human Rights to the domain of practicality. What does it mean to

demand a paladin behavior from other countries if their adherence to our western

ethos on the issue is unlikely? Then probably would be better if, even though they are

not liberal, they at least fulfill some standards of accountability, representation and

protection of the human being. These are the so-called Decent peoples. They exist as

sort of a complimentary rhetorical figure: they are what else can be deemed

acceptable by the liberal societies. The other peoples must be dealt with in their own

way, specific to their case. The part of the theory where Rawls explains the usual

setting of his Law of Peoples is the Ideal theory. The part where he leads with those

peoples who have not reached a status of a well-organized yet is the Non-Ideal theory.

Hypothetically, after some time the Non-Ideal theory would no longer be necessary,

since, with the due assistance from other peoples, they would all become, at least,

Decent Peoples.

The design of the international society under the Law of Peoples pretty much

mimics the one that happens in the national sphere. Rawls actually describes it as a

double-phased Original Position. At the first stage, there is the Original Position that

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happens inside the national state. There the parties would choose several principles of

justice and features that would define the society as being free and fair. But then

comes the second part: there things move a little differently. The parties at the second

Original Position then are representatives of the peoples, who are asked to choose and

to define principles among a fixed list of eight, listed (Rawls 2002, 37) as follow:

1. Peoples are free and independent, and their freedom and

independence are to be respected by other peoples.

2. Peoples are to observe treaties and undertakings.

3. Peoples are equal and are parties to the agreements that bind

them.

4. Peoples are to observe a duty of non-intervention.

5. Peoples have the right of self-defense but no right to instigate war

for reasons other than self-defense.

6. Peoples are to honor Human Rights.

7. Peoples are to observe certain specified restriction in the conduct

of war.

8. Peoples have a duty to assist other peoples living under

unfavorable conditions that prevent their having a just or decent

political and social regime.

These are the fundamentals of the Law of the Peoples. It can be easily assessed

that is a basic set of rules for a somehow organized world. It is organized, though,

around the symbolic figure of the people. Peoples should refrain from waging war,

honor Human Rights, and even offer some occasional assistance. All the

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argumentation laid before regarding the necessity of the public sphere as a way to

safeguard every citizens existence as a free en equal is then put aside. And that

characteristic is one of the most problematic in this aspect of rawlsian theory.

When one understands the role that the state has as a tool for the

empowerment of the individual, allowing, through the public sphere, its existence and

flourishing, it is clear that the usual understanding of the International Law is

unsuitable at least. The conception of the state as a sovereign entity that relates to

other sovereign entities in the same fashion as individuals do is anachronistic (Ferrajoli

2007). It belongs in a world of kings and absolutist powers isolated not only

geographically, but, most importantly, culturally. Such profound abyss among nations

has been reduced by centuries of trade, information and people flux.

There is no reason to believe that a world grounded in peoples, instead of

states, would be any better. Rawls grounds his preference by declaring that, unlike

states, peoples have moral affinities. Not led by the raison dtat11, but capable of

sympathy, and are more likely to establish emotional connections with other peoples

(Rawls 2002, 28). But if the goal is to establish some kind of similarity that goes beyond

foreign policy, maybe we should go all the way, and start seeing the global reality as a

collectivity of persons, subject to several different contingencies. The present state of

affairs against which Rawls presents his theory is that the international society is

akin to a Hobbesian world, where States fight for survival in the Natural State.

However, the United Nations and its Charter have already placed a milestone towards

something different, a real world order, similar to Kants Perpetual Peace. The notion

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Rawls alludes to Thucydides and the conception of power at that time. There he demonstrates amazement before the quote that precedes this paper.

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of unlimited sovereignty is a remnant from the ancien rgime of international affairs. It

needs to be discussed, as Rawls painstakingly did, but maybe on a more progressive

manner.

It seems clear that the duty of the State towards its citizens has changed, but

the question raised is of if a duty towards nationals of other sovereignties have arisen.

Did the international society evolved into a true cosmos polis, a city of the world?

COSMOPOLITANISM: A WORLD WIDE BROTHERHOOD

An alternative to both the traditional thinking and rawlsian peoples-oriented

idea is that presented by cosmopolitanism. This view is derived from the idea that the

basic component of the international order, just as it is in the national order, should be

the human person, the citizen. That same citizen that is the basis of the polis should

also be the measure of the cosmos. As pointed out by Charles Beitz (Beitz 2000, 688):

At the deepest level, cosmopolitan liberalism regards the social

world as composed of persons, not collectivities like societies or

peoples, and insists that principles for the relations of societies should

be based on a consideration of the fundamental interests of persons.

The term cosmopolitanism is of wide significance. The etymological meaning

aside, it has several meanings. Seyla Benhabib defines the main academic branches

discussing this concept as three (Benhabib 2006, 17-18). The first understands

cosmopolitanism as the moral attitude to hold the so-called love for humanity

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before love for the country. Another interpretation is that of perceiving the human

nature as too complex to be reduced to the concepts of frontiers and nation-state. The

last one is that which sees cosmopolitanism as a complementation of the Critical

Theory, aiming to elaborate a philosophical basis to analyze discourse beyond the

national boundaries. Behabib herself defends a modified version of the third branch

(Benhabib 2006, 18):

Every person, and every moral agent, who has interests and whom

my actions and the consequences of my actions can impact and affect

in some manner or another is potentially moral conversation partner

with me: I have a moral obligation to justify my actions with reasons

to this individual or to the representatives of this being. I respect the

moral worth of the other by recognizing that I must provide him or

her with a justification for my actions. We are all potential

participants in such conversations of justifications.

The historically developed affirmations of the Human Rights, the prohibition of

the recourse to the force and the developing doctrine Responsibility to Protect (R2P)

of humanitarian intervention are example of an evolution that the concept of state

sovereignty has been subject of. The westphalian idea of an unabridged power has

mutated into something of a chained Leviathan, tied both internally due the

constitutional constraints and internationally because of the obligations arisen

from the Charter of the United Nations and its possible consequences.

It seems that the contemporary role of cosmopolitism is connected to the

examination of the limits of the possible in this conjunction of elements traditionally

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considered to be of strong opposition. The elements of the human person, the

international order and the State in whichever model or version it may suit best -

must be equated in one single normative proposition.

Following that idea, the Law of Peoples proposed by John Rawls is a great

intellectual exercise, probably more useful today than classic studies such as Kants

Perpetual Peace. It is more complete and it deals with several questions that were not

even plausible at the 18th century while Kant was still being intrigued by the French

Revolution. This pale blue dot we see today through the lenses of your space

telescopes and that have witnessed global wars and the atomic threat has much more

possibilities and challenges that law must bear in conscience.

But, as I have already repeatedly stated, his works has many shortcomings. The

separation in different peoples is arbitrary to say the least, let alone unfeasible in the

real world. He defends some degree of international toleration with Human Rights

abuse that would sound atrocious if suggested as a standard in domestic affairs (Pogge

2001, 247). He fails to define clear criteria for humanitarian intervention and

completely overlooks the debate on international economic justice (Pogge 2001, 253).

It is a liberal proposition that sometimes is afraid of condemning Human Rights

violations and in other occasions has a lukewarm stance supporting tyrannies.

Nevertheless, it is an interesting starting point for research. As stated by

Thomas Pogge (Pogge 2001, 253):

The Law of Peoples cannot match the great strengths of A

Theory of Justice the very elaborate, precise and rigorous statement

of its central argument and its sophisticated treatment of economic

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justice. Still, the new work provides a modestly progressive

articulation of general views about international justice that are

widely held among political scientists, economists and the general

public. It is extremely useful to have a detailed, sophisticated,

authoritative defence that gives these popular views some depth and

unity, and allows their systematic comparison to more cosmopolitan

alternatives.

Much on the current debate on international for a should convey the question:

What is right on an global scale? How can we define it, beyond the procedural

answer The right is what the law says. International Law, with its virtues and flaws,

has been a product of its time, a time of reducing wars and increasing flux of goods

and people. A different time needs different answers, and before different answers be

delivered we need essentially different questions. Scholars such as Immanuel Kant or

John Rawls have been through great lengths to pave the way that leads to many new

doubts. Contemporary thinkers such as the cosmopolitists present new answers. This

is a debate essential to the development of international law on the XXI century.

REFERENCES

Beitz, Charles. "Rawls' law of peoples." Ethics 110, no. 04 (July 2000): 669-696.

Benhabib, Seyla. Another Cosmopolitanism. New York: Oxford, 2006.

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Buchanan, Allan. "Rawls Law of Peoples: Rule for a Vanished Westphalian World."

Ethics, July 2000: 697-721.

Ferrajoli, Luigi. A soberania no mundo moderno. So Paulo: Martins Fontes, 2007.

Freeman, Samuel. Rawls. Abingdon: Routledge, 2007.

Kant, Immanuel. A Paz Perptua. Um Projecto Filosfico. Traduzido por Artur Moro.

Covilh: Universidade de Beira Interior, 2008.

Pogge, Thomas. John Rawls his life and theory of justice. New York: Oxford, 2007.

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