The Law of Peoples

Huw Williams

The Work

With respect to the ideal of social justice, one might suggest there is no more important name than John Rawls. This relates in part to his place in the world. A Harvard Professor in an academic world dominated to a large degree by the American University, it is inevitable that one of its leading lights should be a ubiquitous global figure. Yet his achievements, on any measure, are undeniable, in particular with respect to his seminal work, A Theory of Justice (hereafter TJ). This relates not only to how it has defined philosophical, political, and legal debates around social justice ever since but also in terms of its place within the development of Western thought. Most famously it represented a return to grand theory in the subject of political philosophy, which had been experiencing a period of crisis after the group of philosophers known as the logical positivists cast doubt on the veracity of such projects. It was also, however, a text that was presented successfully as the inheritor of the Western, social contract tradition, one which deposed the predominant utilitarianism of political thought and which brought together the liberal and socialist tradition. It was also a text that was situated within and influenced both legal and philosophical debates heavily at a more fundamental level - and can be read as a response to figures such as H.L.A. Hart and Ludwig Wittgenstein. With respect to political debates, it is true that Rawls’ work has not been as influential beyond academia, but his ideas in particular on the distribution of resources remain a touchstone that is still contemporary and relevant and lends itself to a raft of debates.

It may be slightly unorthodox to begin an introduction to a leading work by introducing another leading work. However, it is impossible to understand the significance of the work under discussion in this chapter - namely Rawls’ later work, The Law of Peoples (LP) - without some appreciation of his standing as a philosopher and the all-encompassing importance of TJ. In political philosophy, in particular, Rawls has defined the debate for the last half century, and philosophers are still trying to extract themselves from his shadow. In this way, he stands shoulder to shoulder in the pantheon with figures such as Kant, Hegel, Marx -and perhaps Russell and Wittgenstein as a thinker that has defined a generation.

Born in 1921 in Baltimore to a father who practised law and a politically active mother, it is difficult not to read his work with two aspects of his childhood in

The Law of Peoples 67 mind: firstly the segregated and unequal nature of the racially divided city he was raised in and, secondly, the double tragedy that afflicted him and his family, where not one but two of his brothers died from different diseases contracted from John himself. The mitigation of the contingencies of life and the deep commitment to the idea of a just society that can rid us of the great evils carry through all of his work.

The Law of Peoples, to which this chapter is dedicated, was Rawls’ attempt to apply the insights, values, and philosophical method of his work on social justice to the international context. It applies the spirit of his idea of ‘justice as fairness’ to international society and the relation between states - in particular paying attention to basic principles of justice to regulate their relationships, as well as delineating the extent of co-operation that should typify a just international society. His vision of such a society is based on a Kantian idea of a federation of peoples, that is a surrogate for an overarching sovereign, and provides the basis for a robust body of international law.

As will be discussed, it is the extent to which the original reformist spirit is carried through into this later work which has been at the heart of the debate around the book. Indeed, the critical response to this work, published in essay form in 1993 and then presented in extended form in 1999, was critical at best, vicious at worst, to the extent that there was a prevalent view in the academy that it was a flawed afterthought to his political philosophy and sorry’ reflection of his previous work. This response will be dealt with in a moment, but it is worth noting that this interpretation has been inflected over time and that those who have approached the work with a more sympathetic eye have demonstrated how it represents the third key stage in the development of his thought - and in this regard represents the completion of his project. In particular, in keeping with the Kantian spirit of the text, the sense in which the internal social justice of the domestic order is intertwined with the external global (social) justice of the international order is made explicit. Of particular interest in my own research, and what will be given the most attention in this piece, are the ideas and principles applied to the relation between the global north and south and the implications in terms of the practice of distributive justice on a global level.

The Context

A straightforward view of LP would be that the text represented a natural development of Rawls’ thought, when, after 20 years of developing and debating his original idea of justice as fairness, he extended his purview beyond the discussions brought together in his second volume, Political Liberalism (hereafter PL) (1993), and engaged with matters of political philosophy on a global plane. This was simply a case of following a well-trodden path of philosophers over the ages who discussed affairs of the state and would then turn to international affairs. In the context of Rawls ‘system’ we might look at TJ as the initial statement of the ideal of justice as fairness, followed by PL, which attempted to set out the basic grounds for legitimacy in a liberal society and where justice as fairness wouldfeature as the most just form of liberalism. With the basics of political liberalism set out, and the idea of justice as fairness in hand, LP would be an attempt to set out what a legitimate international society looks like from the perspective of political liberalism, with an expression of ideas and concepts that would set out the direction for achieving a just international society in the spirit of justice as fairness.

In this regard it would apply the same approach set out in justice as fairness, transposing Rawls’ famous ‘original position’ and ‘veil of ignorance’ to international politics, whilst deploying a similar approach to political liberalism in outlining the baseline of legitimacy for an imagined international society (although how the two projects of justice as fairness and political liberalism come together precisely in LP is a question that requires further working through). What is perhaps the more important point here is the sense in which it represents a very obvious and explicit development of his wider theory of social justice, and the interconnection between ‘domestic’ and ‘international’ perspectives can be recognised in the discussion of just war that appears in TJ, where Rawls sketches the outline of a just international society - in order that he can work through a discussion of conscientious objection and a theory of civil disobedience. This makes explicit the connection between these two aspects of politics, not only in Rawls’ work but in the everyday reality of politics.

In summing up simply how we might view LP, we can think of it as a text that views the global context as one defined by a loosely integrated international society of states. As such a society that embodies elements of social co-operation behoves us to discuss it from the perspective of justice - albeit a heavily revised form given the disaggregated nature of the society in question. This is a helpful starting point in terms of placing the text in the context of the wider debate, and a key work in this respect is Charles Beitz’s Political Theory and International Relations published in 1979, which in many ways can be regarded as the starting point for the discussion in political philosophy today recognised as ‘global justice’, an analogue to social justice on the global plane. Central to Beitz’s work is an attempt to transpose Rawls’ justice of fairness to the global context, but with a different starting assumption: namely that the relevant context is one of a tightly integrated global society where sovereign borders are increasingly secondary with respect to the economic, legal, and social order. For this reason Beitz suggests that the relevant approach is to apply Rawls’ two principles of justice to this global order, whereby Rawls’ arguments for (1) the most extensive set of liberties possible and (2) fair equality of opportunity and redistribution of resources (benefiting the worst-off most) should apply as an ideal, regardless of wherever we are in the world. Such an ideal sanctions not only the idea that an extensive package of ‘liberal’ individual rights are to apply everywhere but also that of a hugely developed redistributive global regime akin to the domestic welfare state.

This, therefore, was a powerful articulation of the ideal that a liberal egalitarian in the Rawlsian tradition should aspire to: social justice on the global plane does not mean in the first instance principles for ‘international’ justice between states regarded as the primary actors. Rather it means first principles of ‘global’ justice

The Law of Peoples 69 for a global society, which apply to individuals as individuals, regardless of state borders. States are legitimate and relevant only insofar as they work towards this transnational, global ideal.

A particularly important reason to take the context into consideration is because of the initial reception of LP that has coloured debate since it was largely rounded upon by cosmopolitans who were foremost amongst the critical response. Figures such as Beitz, Allen Buchanan, Simon Caney, Pogge, and Tan railed against the work because they regarded it not as a liberal egalitarian response to the challenges of global politics, rather a libertarian view of international society. In particular they viewed Rawls as positing a far too tolerant and regressive approach to human rights and arguing for far too little in the way of redistributive measures. Therefore, those that may have been expected to view it as a welcome and timely intervention in the discussion on global justice rejected it outright, and this was, as to be expected, followed by the text being assailed from a more realist perspective with Robert Jackson - who is not even regarded as a realist and identified rather with the pluralist strand of the English School -amongst those accusing Rawls of an overly ambitious and cosmopolitan view of world politics.

What might have been expected to be a much read and respected account of international politics was therefore cast as a work that was to be of little relevance to wider debates and of interest only to Rawlsian scholars who might hypothesise about how this great mind had gone awry'. Given this initial response, how is it that LP finds its way into a collection of this nature? Well, in the first instance it is important to note that the response was not wholly negative and those who (one might suggest somewhat guardedly) did not have a vested interest in undermining his arguments set about providing a more balanced account of the text. Such figures as Catherine Audard, Chris Brown, Percy Lehning, David Miller, David Reidy, and LeifWeinar can all be seen to have engaged sympathetically or positively with LP and, whilst acknowledging the limits of a relatively short text, demonstrated that there was much to be gained from a constructive engagement. Over time, these responses paved the way towards, if not a complete rehabilitation of the text, certainly a tacit acknowledgement even from previous critics that the arguments and contours of Rawls’ work had much to contribute, Beitz’s work on human rights being one such example.

In very' general terms, 20 years on from its publication in its complete form, we might suggest that LP has a central role in the development of global justice as a field of debate (particularly in Rawls’ ‘home’ discipline of political philosophy), that a great deal of discussion still occurs in this context in reference to or with LP as a key' aspect of the intellectual landscape, and that in international relations more generally it is a structuring background presence in terms of today’s debates. The approach of the book makes it a work that gives it wider and continuing relevance, in particular, the fact that its ‘realistic utopianism’ is a much-needed antidote in these times to the pessimism wrought by' global events, where the utopian leanings of cosmopolitan thinkers seem too far detached from present realities. Moreover, whilst Rawls does not stray too far from the style hedeveloped in PL, and whilst it is certainly not a ‘treaty’ in the same tradition as the Kantian text it draws inspiration from (Towards Perpetual Peace), the combination of political philosophy, international history, and global sociology' - all framed within a legal lexicon - makes it a work of enduring appeal and relevance.

The Text

The most obvious point of entry into Rawls’ LP is the work which it claims to emulate, namely Kant’s Toward Perpetual Peace. This was the text that serves as the touchstone for the ideal of a lawful international order, determined by right - rather than power and self-interest. Kant’s arguments focused on the need for an equivalent of the social contract at an international level where individual states would cede elements of their sovereignty through an agreement that would act as a ‘surrogate’ for the domestic social contract and would ensure that relations between states would become peaceful and lawful. Broadly speaking, Kant believed the overwhelmingly destructive nature of wars and that the emergence of republican political orders provided a route to such a society: the threat of the graveyard of humanity compelling us to leave the international ‘state of nature’ and participatory nature of republics creating political orders where the ‘people’ would be averse to the costs of war.

Rawls takes up these ideas and seeks to apply the spirit of justice as fairness and his political liberalism to such an order. He too envisages a ‘Society of Peoples’ governed by the charter of the ‘Law of Peoples’ that has the potential to ultimately bring all peoples into a peaceful international order determined by right. He applies his philosophical method and concepts to this Kantian ideal of an international social contract in order to determine the content of the law of peoples. Before explicating the content briefly, it is important to grasp the basics of Rawls’ philosophical method and to note the reasons for Rawls using the term ‘peoples’.

Rawls’ method - or in more specific terms - his justification for his theory' of justice, is important in understanding how he generates the content of the law and the role of key concepts such as the ‘original position’ and the ‘veil of ignorance’. He deploy's an idea termed ‘reflective equilibrium’, which legitimates any' given moral theory (of which a political theory such as his justice as fairness is a variation) by showing how its key' principles are attuned to the broad beliefs of the society' in question. This is what we might describe as a ‘coherentist’ approach to moral theory', which rejects the idea that moral principles can be eternal and universal but instead aims at elucidating those principles that are coherent with the broader ideas of the society. These are not any random ideas however; rather in Rawls’ terms we seek to reflect on our ‘considered judgements’, which are those moral beliefs that can be shown to exist in our everyday ideas and habits. It is very important to acknowledge the critical nature of Rawls’ method, however, because whilst these considered judgements are taken as the starting point, the point of reflective equilibrium is to reflect back and forth on our formal, theoretical principles and these considered judgements. Where those judgements are

The Law of Peoples 71 found to be problematic on the basis of the rational debate around our principles, then they are to be criticised and reformed. Thus, it is not the case that we simply blindly accept prevailing ideas. We must look at their coherence both from an internal view (do they hang together rationality) and an external view (in light of ideas that challenge our principles from outside the prevailing considered judgements). The analogy given by Rawls is that of the relationship between language and grammar - whilst grammar formalises our everyday language into rules, we are continuously in the process of reflecting back and forth between principles and everyday use, and sometimes where the principles no longer hold in terms of that everyday use, they are reformed.

On this basis we can read Rawls’ TJ as an expression of principles that he believes are in reflective equilibrium with extant beliefs and the considered judgements of liberal democracy of our day - and the original position is his device for generating the appropriate principles. With respect to The Law of Peoples, he thus presents it as formalising emergent practices in international society. He also suggests that it is an explicitly liberal view of The Law of Peoples, but whilst the idea is generated within a specific cultural context, he believes the content of the law can be arrived at from numerous reasonable perspectives. Indeed, a test of the politically liberal nature of the theory is whether or not it would be accepted from the perspective of non-liberal orders. In setting out this normative vision of a legal international order, Rawls is assuming that it does not reflect the reality of everyday politics but that it represents instead an example of ‘ideal theory’ where actors are assumed to act in compliance with principles.

It is therefore an ideal - a ‘realistic utopia’ in his terms - a vision that is based upon ideals that already exist and are already practised to certain degrees, and the role of such an ideal theory is to clarify the underlying normative commitments of international society and set out clearly the aspirations that we must work towards. In this context we can understand why Rawls deploys the concept of a ‘people’, because for him this is symbolically important in replacing the term ‘state’, one that is redolent with the values of a historical order where self-interest, violence, and absolute sovereignty predominate. Peoples, instead, are characterised not only by their rational, self-interested nature but also by their reasonableness, which leads them to recognise the rights and freedoms of other peoples, by their capacity for moral learning and thus internalising of international norms, and by their preparedness to work with others on the basis of reciprocity.

In determining the content of the law, these are some of the background assumptions that Rawls is deploying, and in keeping with TJ he frames the international social contract in terms of the device of the original position. In the domestic context, Rawls described a thought experiment where those deciding on the principles of justice as fairness are to be considered rational, self-interested actors, dispossessed through a veil of ignorance of any substantive information about their nature, capacities, social group, religious belief, or gender. This would be in order to ensure neutrality when deciding on the principles because in being denied any such knowledge they would be unable to frame an order favouring themselves, and so they would likely seek to institute principles that would createa social order providing the same rights and opportunities for all and a distribution of resources that would allow all people to pursue their ends. If the choosers of the principles don’t know their place within the order, they are likely to want to ensure an order that favours them wherever they are placed within it. In the international context, these rational contractors are notional representatives of peoples, where they are set the task of deciding on what principles are required for a just and equitable international order, where peoples are assumed to be the relevant primary actors and the principles are to apply to their comportment and inter-relations.

Two points of significance here are that Rawls’ choice in of itself was a point of contention for cosmopolitans, who believe that the principles of justice for the global order should issue from the needs and requirements of individuals and not states or peoples (such as Beitz had originally suggested); this decision is of course in keeping with Rawls’ method of reflective equilibrium, acknowledging the primacy of states in current practice, and as such suggests an inherent element of conservatism in contrast to a cosmopolitan vision, where state borders, sovereignty, and interests are regarded as secondary', and which by its very' nature allows for imagining a more radical reordering of the global order. In particular, of course, it would lay the basis for advocating extensive individual rights that might be in conflict with certain societal practices and would also open up the possibility of economic and political orders that are more radically' integrated and that weaken the sovereignty' of states. On the one hand this leads to Rawls advocating less ambitious ideals, whilst on the other hand it places a big emphasis on the idea of a people - an ethical state - that will carry' forward the nevertheless radical changes that Rawls himself envisages. In this context of driving reform within an international order of states inclined towards the status quo, Rawls also places a big emphasis on ‘statesmen’ that look to the next generation - as well as the philosopher as someone who influences the public political culture of states.

The second point of note is the ‘situatedness’ of Rawls’ theory, in as much as he posits this as a liberal theory' of international politics that is embedded in the liberal world view. In this way, Rawls acknowledges the issue of ethnocentricity by' suggesting in the first instance that we must accept and acknowledge that normative ideals are generated within certain contexts, but at the same time arguing strongly' that there can be a convergence around such ideals from numerous normative perspectives. Such was the burden of a great deal of PL, where he sought to demonstrate that liberal orders (justice as fairness being the most just example) are applicable to and can be agreed to by' all reasonable citizens; in this sense his political liberalism is political and not metaphysical, in as much as the principles it embodies are ones that do not rest on a particular underlying conception of the good (liberal, religious, or otherwise) but that they' are freestanding in that they are principles that everyone can endorse - insofar that they are reasonable and are willing to relate to others on the grounds of reciprocity.

For Rawls, therefore, what he does in the first instance in the international context is to argue that the international original position should first of all be imagined from a liberal point of view, where we suppose that we have representatives

The Law of Peoples 73 from liberal peoples together behind a veil of ignorance. Once agreed, this charter of the law of peoples is to be ‘tested’ by non-liberal but reasonable peoples in a second international original position. For Rawls it is the test of the proposed law, and its liberal, political nature, that we reasonably suppose that non-liberal peoples are equally happy to endorse. These types of peoples may take a number of different forms, but from Rawls’ point of view the aspects that they hold in common is that they, like liberal peoples, have a moral nature, are peaceable, act on the basis of reciprocity - and whilst they may not be democratic in structure and may indeed be theocracies in practice, they are characterised by a political order that allows for political interests and beliefs to be represented, whilst upholding the rights of minorities and a right to exit.

Rawls’ taxonomy is extended further to those members of international society that are then on the periphery of the Society of Peoples and are not a party to either the first or second international original position. The first are the benevolent absolutisms, where rights are largely respected in keeping with the law of peoples but where members do not have the mechanisms to express political interests or dissent; the second are outlaw states, which as the choice of term suggests, act on the basis of aggression and self-interest and have no respect for the law (and a subcategory of which are those who act with impunity with respect to the violation of their citizens’ human rights); the final category are burdened societies, which are peaceable societies that for historical reasons or due to some or other disaster are unable to fulfil the basic human rights of their citizens and maintain worthwhile lives for all. It is this category that will be of particular interest to us.

Rights and Redistribution

This is to provide the reader with the general contours of Rawls’ thinking, in particular with regard to his ideal theory. What is notable about Rawls’ LP in contrast to his earlier works in particular is the focus given to non-ideal theory. This is where a particular interest lies in this chapter, because issues of human rights, and more specifically development, sit squarely within the domain of nonideal theory. This type of theory responds to the challenge of the world as it is and foregoes the assumption of ideal theory: that subjects act in accordance with the law. Rather than setting out ideal principles to be aspired to, non-ideal theory concentrates on how it is we can move from our present condition to one which accords with the ideal. In the context of The Law of Peoples, in particular, this means we deal with how a partial, fractured, often violent, hugely unequal international society can move from its present condition where many of the ‘great evils’ prevail to a worldwide, peaceful international society governed by right. Such a challenge must reflect in the main on how the Society of Peoples can bring in those on the margins to become full, contributing members who are able to act on the basis of reciprocity and in accordance with the law.

The issues of ideal and non-ideal theory clearly intersect in different ways, but perhaps the most obvious and central one in international politics and LP is that of human rights. Rights operate both as a co-operative ideal, embodied in thelaw, which regulate the behaviour of the members of the Society of Peoples, and as a demand of non-ideal theory that those not in the Society of Peoples must accord with in order to secure membership. Of particular interest in this context is the approach that Rawls takes towards the justification for human rights, which is in contrast to other approaches, and as such has emerged as part of the wider debate around the basis for such rights. As noted, this is perhaps the most explicit example of how LP has taken debates in new directions.

Broadly speaking mainstream approaches to human rights have taken the view that they issue from human nature in some way or another. That is to say that rights are an expression of the fundamental status of individuals and the needs that they require and that they are in this sense pre-political. Another way of expressing this idea is that these rights inhere in us simply due to the fact that we are human and that they are inviolable because to violate them would be to deny something fundamental about our nature. They are separate from, therefore, any political or legal order and any legal-political order that expresses them are in effect embodying or instantiating pre-existing normative ideals and beliefs about what it is to be human.

Rawls takes a different approach that is broadly termed ‘constructivist’ and is connected to his social contract approach. From his perspective rights are not - in the first instance at least - expressions of pre-existing values or assumptions. Part of the reason why Rawls might be regarded as sceptical about this is because of his tendency to steer away from metaphysical assumptions in his political theory and to regard principles as being freestanding and not relying on any particular thick conception of the good or what it is to be human (although, of course, he would not deny that this is how people would make sense of them in terms of their own conceptions of the good). Rather, what Rawls is aiming for is a contractual approach whereby human rights are understood as the expression of a political agreement between reciprocal parties within the same political structure.

Rather than the human rights embodied in the law of peoples therefore expressing metaphysical assumptions about human nature, they are taken to be the product of political compromise around what rights all of the involved parties take to be basic and fundamental. They do not issue in a top-down manner from pre-existing ideals; rather they issue from a bottom-up process of debate around what rights lie within the bounds of toleration of all peoples, given the principles that issue from their own unique public political culture. Whilst this political, constructivist understanding of rights might be seen to avoid some of the more convoluted and intractable discussions about what is a truly human right and what is not, it has courted controversy in putting forward a body of rights that is at best, it is argued, an anaemic version of the UDHR, and at worse representative of a complete dereliction of duty to those in regimes where basic rights are denied.

In trying to construct human rights law as part of the wider law of peoples, defined as it is by the restrictions of beliefs emanating from liberal and non-liberal peoples alike, it is inevitable that such a compromise will push the boundaries of toleration for both. However, one must acknowledge that Rawls’ approach might

The Law of Peoples 75 seem to be in greater accord with the realities of the politics of right and provide a more realistic and practical theoretical justification for how it is we might defend human rights. They will be regarded as the expression of a co-operative of individual peoples and not just an ideal set out by an overarching international body based rather more on philosophical reflection than political negotiation.

Connected to the idea of human rights as a normative benchmark for the Society of Peoples, there are two clear priorities suggested in Rawls’ writing on non-ideal theory, namely the problems of violence and poverty. With respect to violence, the particular issues that Rawls wishes to address are how the Society of Peoples deals with outlaw states and the threat of war and, as a secondary issue, how the violence of such states against their own citizens should be dealt with. A little has been written on Rawls’ approach to the doctrine of just war, which does not, in my view, do justice to the original approach that he takes - and indeed this is another aspect of the work that could take the legal discussion in a new direction. This impacts also indirectly on issues analogous to social justice, specifically with respect to the problem of humanitarian intervention, and when if ever such intervention is justified based on the egregious violation of basic rights.

The novelty of Rawls’ approach lies in his negotiation of this issue within the Kantian framework. Kant famously rejects just war as a doctrine for sorry comforters, which is likely to increase the occurrence of war by allowing states a self-issuing right to declare war (rather than it being a lawful decision taken within the context of an international federation) - allowing the justification and misuse of its principles in order to declare war. Rawls’ position lies somewhere between Kant’s view and that of proponents of just war such as Walzer in the Hegelian tradition, which tends to see these laws as a method for restricting the use of war and the violation of rights. Rawls’ via media is embodied in the idea that the right to self-defence and the just war doctrine reflect transitional principles of justice. That is to say, in a global context where there are outlaw states that threaten members of the Society of Peoples with war, there is a right to self-defence. However, in the spirit of Kant, we are in Rawls’ view moving towards a worldwide peaceful federation, and once we establish this federation the laws of just war will become defunct. In the meantime, all war, and any intervention, must be carried out according to the regulative ideal of establishing a just peace. Such an approach means that humanitarian intervention, rather than being based on a straightforward appeal to the idea of a just war, must be justified instead in terms of the likelihood it will contribute towards securing a lasting peace. This is a far higher ‘bar’ for intervention.

With respect to the problem of poverty, Rawls provides us with another principle of what we can call transitional justice as part of the charter of Law of Peoples. This is the duty of assistance, which caused more controversy and occasioned an even more caustic response from cosmopolitans than his views on human rights. The duty holds that, where societies are afflicted by historical or recent conditions that prevent them from being able to provide worthwhile lives for their citizens, the Society of Peoples must come to their assistance. For what appears to be a reasonably straightforward commitment to attribute to a realistic utopia of peaceablestates, this duty has occasioned a great deal of debate. One immediate issue for critics is the question of whether it can be recognised as a duty of justice (that is, a duty that is enforceable) or whether it is a humanitarian duty (and therefore one of choice and charity).

So the argument goes, given that burdened societies are posited outside this society and therefore are not party to the original contract, a duty of justice cannot hold. There are a couple of responses that complicate this assumption; firstly it is a duty that might equally hold to member peoples when they are afflicted by short-term disaster (such as when the US was offered aid in the wake of Hurricane Katrina), and so in this respect it is not clear it should be regarded as a humanitarian duty. Moreover, it is not clear that an agent must be part of the contracting party in order to be subject to a duty of justice. The easy argument can be made that they are afforded such a duty on the basis of their potentiality as well-ordered peoples that will be future members of the Society of Peoples. Such arguments are not irrelevant, of course, to the manner in which assistance is understood as part of the fabric of contemporary international society - where on the whole we can claim that such assistance is often couched in terms of a humanitarian or charitable duty.

More controversial than this status, however, is the manner in which it is seen to be a principle that foregoes any meaningful, long-lasting transfer of resources that might be sufficient in order to attend to poverty on a long-term basis and create a more equal international society. In this context, Rawls is explicit in rejecting any formulation of his own distributive principle that he outlines in TJ, namely the famous difference principle that demands that any inequalities are so ordered that they favour the least well off. In other words, we can only justify inequality if it results in the worst-off being better off comparatively - a principle which in practice would lead to a tendency to significant substantive equality. It is the fact he does not transpose this principle to the global plane that leads others to regard him as putting forward libertarian rule-making - rules that do not seek the wider structural reforms of his domestic theory in order to create more material and comparative equality.

There are both negative and positive arguments to be made in response, all of which contribute to important discussions about the nature of development, its promotion, and the way this impacts the law and practice of international relations. The most obvious response from Rawls is that he regards the claims for a global distributive principle to be grounded in an unrealistic understanding of the nature of international society. In a nutshell, whilst cosmopolitans might argue for a heavily integrated socio-economic system, Rawls still views international society to be a far looser structure of peoples connected by a background structure that cannot be compared to that of a liberal democratic state. As such, arguments about the global economic product in its entirety being a result of a co-operative venture for mutual advantage do not hold water. We cannot justify the sort of distributive policies recommended by the difference principle that extend beyond taxation to the distribution of primary goods that are generated on a societal, not international level.

Connected to this point is the fact that cosmopolitans would take the view that any discussion of the distribution of rights and resources should begin with the individual as the relevant moral agent. This would automatically seem to require more far-reaching distributive measures if we are taking the comparative situation of individuals regardless of state borders to be the relevant starting position. For Rawls, as we know, he rejects this idea and thus looks to peoples or states first. In this regard, the relative autonomy and obvious differences between states become an important consideration. Unlike individuals within the nationstate, peoples are self-sufficient and could potentially be autarkic to the degree that they could survive without interaction with others. Individuals, however, are utterly dependent on others within their family and their wider community for the basics of human life. In this sense, in assuming that our natural state is one that presupposes co-operation, we are immediately tied into relationships and structures - the circumstances of justice - that help us to secure worthwhile lives. All of our collective activity can be subjected to the argument that we are part of a co-operative venture where sharing and distributing resources is fundamental. In international society, however, even though historically we must acknowledge a strong element of interaction, the argument would be that it is not fundamental to the development of and continuation of peoples. Far-reaching claims of justice in terms of resources cannot therefore be made on each other where their collective genesis is less clear (although we will come back to the questions this raises with respect to the historical realities of the dependence of the West on exploitation of the rest of the world in building its wealth).

The third negative argument against the cosmopolitan critique is that, as Rawls successfully points out, the idea of ‘throwing funds’ at the problem of poverty is misconstrued. That is to say, even if we could make an argument for a distributive principle between states (that cosmopolitans make in trying to prove that even on Rawls’ ‘statist’ terms such an argument still holds), Rawls points out that financial resources are no guarantee of success and that ensuring societies are able to ensure worthwhile lives for their citizens is a far more complex matter than simply receiving financial help - whilst it is important to note that with respect to the wider aspects of the distributive effects of a global economic structure that Rawls is sensitive to the fact they require regulation as part of The Law of Peoples (even though it does feature as a principle in the charter). In this way, and with his assumptions about the nature of international society, Rawls arguably holds to his philosophical method of reflective equilibrium in attempting to ensure ideas and principles that reflect our considered judgements and the realities of the empirical situation. He certainly constructs a normative position that is attuned to the nuances and complexities of development.

There are also positive arguments in response to the cosmopolitan critique. The first of these is that whilst they may paint a picture of Rawls as providing very little of substance in his articulation of a duty of assistance, there is reason to interpret it as a very substantial idea. Whilst Rawls does not sanction ongoing redistribution in order to level out inequalities on the global plane, he does posit a very clear target for the duty', which is that assistance must be provided up to the point where the burdened society makes the transition to a well-ordered society, guaranteeing worthwhile lives for their citizens. Whilst this will of course presuppose a certain level of wealth (aligned to the duty of just savings that guarantees a society bequeaths to its next generation the same level of resources that it has benefitted from), Rawls makes the point that material wealth is not itself a measure of well-orderedness nor relevant, beyond the fact that any society has enough to satisfy the rights of its citizens. Some societies, he suggests, may well conclude that wealth is not a priority and will be satisfied with a less materially rich form of living.

As well as having this clear cut-off point, it is also fair to argue that Rawls’ arguments were sensitive to the realities of development, and in particular the idea that rather than development being connected to economic expansion, that it is connected closely with institution-building. In fact, Rawls’ duty is prescient in this sense as it foreshadows the development of the received wisdom during this time, where the emphasis began to be placed increasingly on the importance of state-building. It is these underlying structures that not only guarantee basic rights and good governance but provide a solid basis for the use of money accrued through natural resources and economic activity. And whilst one can discern how the duty of assistance is aligned in this sense to the experiences of the development industry, I would argue that the purview of the principle extends further. That is to say, where there is a tendency for academics to identify the silver bullet or the one over-riding factor that will address a particular problem or other, Rawls is willing to acknowledge that resources (such as money), capacity (namely institutions), and the context (namely the global economic structure) are all important and need to be aligned in order to provide the best opportunity for successful development.

What the duty also sanctions - which makes it a particularly challenging principle - is the idea that this development does not need to happen along democratic lines. That is to say, whereas the perceived wisdom in the state-building literature is that we must work towards a democratic state in order to secure the development that we should aspire to, Rawls actually advises that it must happen in accordance with the public political culture of the society in question. This of course is connected to his wider toleration of non-liberal political orders, and it also relates to some wider, key questions that are implicated in this way in which Rawls envisages the relationship between peoples and donors and ‘clients’.

That is to say, what is exposed by Rawls’ treatment of development and development assistance is that it is a thoroughly moral problem, which not only tests the practice of sovereignty in the international context but on a more basic level hits upon issues of a power dynamic between different parties. One of Rawls’ three main guidelines with respect to the duty of assistance is that it should not be carried out in a paternalistic fashion, and rather it should accord with the ideal of equality that burdened societies will be able to lay claim to in future. And so, much as their potentiality can defend the idea of a duty of justice towards them, so too can it ground the right to being treated in the spirit of reciprocity. This point, clearly, issues the need to respect any burdened society’s wish to develop

The Law of Peoples 79 in accordance with decent, rather than democratic, political structures, but it also raises practical issues around how such assistance is to be negotiated.

Rawls himself does not go into any detail, but one presumes that these ethical injunctions set out a requirement for the client, rather than the donor, to lead this discussion, which flies in the face of the historical tendency for aid to be granted on the basis of conditionality prescribed by the West. This is very much in tension with the assumption of Western donors in favour of democratic reforms. Ultimately this suggests a view whereby liberal democracies are not regarded as the only legitimate political order and that, for example, more collectivist tendencies of certain societies are to be given their place within a Society of Peoples. Whether this normative view can be upheld in practice may be regarded as questionable, however, given the power dynamic at work and also the explicit inequality exhibited in the categorisation of burdened societies.

These issues, whilst demonstrating elements of great interest and import in Rawls’ approach, also draw attention to those aspects that demand a more thoroughgoing critique. The glaring omission in Rawls’ work, and one which is difficult to excuse given the significance of history' in his account (for example, he uses the democratic peace theory’ to underpin the hope for moving towards a peaceable Society of Peoples), is an acknowledgement of the role of the European imperial order in shaping today’s international society and its structural impact in terms global inequality and the type of insecurity that compromises human rights. Rawls acknowledges that the genesis of the modern state system is rooted in violence but is sanguine about the hopes of reforming that system for the better. In this respect Rawls’ international theory' is perhaps even more open to the critique developed by Charles Mills of his domestic theory of justice in failing to acknowledge the ideological aspects of his ideal theory.

Such an ahistorical perspective will struggle to acknowledge the deep-rooted nature of economic inequality created through Empire and more generally' will give no recognition of the cultural and societal norms that it has been built upon and the structural racism that continues to shape contemporary' society. As much as Rawls is therefore sensitive to the inequalities of the global system, as much as he is arguably more sensitive than cosmopolitans to the need for respecting the ‘other’, and as much as he argues strongly for the need to act on the basis of reciprocity, both his ideal and especially' non-ideal theory’ are weakened considerably by' the lack of recognition given to how these power relations, that we are seeking to reform, are built on deep-seated beliefs and practices that require, one would argue, more than formal equality being built into international law. For example, if one looks at some of the basic features of the international legal order, be it the ICC, the Bretton Woods institutions, the UN Security Council, and trade agreements, it is easy to recognise the structural inequalities exist. On this basis it would, one might suppose, encourage us to view the law of peoples as one that needs to be more interventionist in terms of putting forward basic principles and measures that enforce positive action so that these inequalities are addressed.

Rawls might want to respond with the point that he is at pains to argue he is proposing a liberal law of peoples from his perspective or his place inthe world, and that as such rather than supposing that he is presenting some type of ideologically driven view of international politics, he could suggest that the law of peoples from a non-European perspective might indeed look a little different in terms of the issues given precedence and the emphasis put on different aspects. He might suggest for example that the basic principles are capacious enough to work in some of these ideas and that, indeed, he would welcome such a contribution. This may be so, but this in turn raises the question around the nature of the debate itself and who is constructing the discourse of global justice; this then calls attention to the rather narrow nature of the debate amongst political philosophers and poses basic questions around how it is we ensure that the academic, scholarly debate is one that gives pride of place to different voices that can articulate these critical views and ensure that, for example, the idea of a law of peoples is cashed out from the perspective of the Global South.

What would, for example, an activist or scholar from what we presume would, to be an analogue of burdened society, have to say about the idea that they are on the margins of international society, and would they happily begin from this starting assumption? One might suppose that a likely scenario would be that such a person would think in the first place that they exist within a political structure artificially created by a white, foreign power that has been imposed on their society in such a way that has quite probably created historical animosities and political insecurity. It is true that national liberation has often occurred on the basis of a newly forged patriotism, but in most cases the colonial legacy will have remained problematic in terms of both internal and external relations. Rather than beginning with the acceptance of the idea that they are in a society that has the potential to become a full well-ordered member of international society, they might question instead whether such a society, based on the idea of the Westphalian nation-state is the correct place to begin, and whilst not necessarily endorsing an individualist, cosmopolitan view point, they might ask whether those existing structures are so thoroughly embedded in power relations that a just order will not be possible until their power is disaggregated and their structures radically reformed. It might also be noted that such an activist or thinker might find allies within the white, post-imperial world, where representatives of native groups, historically alienated or dominated by those who have captured the state, might profess the same attitude towards what Rawls views can be ‘well-ordered’ peoples. A radically disaggregated world order where a law of peoples is not applied in the first instance to peoples-as-nation-states, but peoples constituted in other ways, could look very different.

Legacy

The Law of Peoples stands as a leading work in international politics in the first instance because of its author. As the third major work of the leading anglophone political philosopher of the 20th century, it will stand the test of time simply because it is part of Rawls’ oeuvre. However, this chapter has sought to show

The Law of Peoples 81 how, regardless of the initial critical response, the book merits being considered a leading work in the contemporary debate on its own terms. Perhaps counterintuitively, the attempt to rubbish the book is itself evidence of its importance and influence, as cosmopolitan thinkers in particular rushed to paint Rawls as misinterpreting his own liberal egalitarianism on the global plane - so as to position their own work as the proper expression of this dominant philosophical perspective in the context of the debate around global justice. The sympathetic views of other respondents in addition to the subsequent revisionism demonstrate the significance and legitimacy of Rawls’ arguments in particular as an expression of a liberal communitarian perspective on world politics. I have built the arguments further, giving attention to the particular facets of Rawls’ approach that have influenced the debate around social justice in its international instantiation or that are ripe for further development. The place of Rawls’ constructivism within the context of the human rights discourse is already assured, whilst his realistic utopianism and the concepts of ideal and non-ideal theory structure current debates in perhaps unacknowledged ways. Certainly, the work as a whole provides an important liberal alternative to the sometimes utopian and more aggressive leanings of cosmopolitan views, whilst his direct critique of realist perspectives is an important reminder that ideas of social justice on the global level still face a significant mainstream challenge that must be addressed. Most specifically I have built the argument in this chapter that Rawls’ approach to non-ideal theory, in particular his views on development, are a contribution of note that raise significant ongoing questions about the relationship between the global north and south. However, as well as pointing the way to a more nuanced discussion of the ethical aspects of this relationship, I have argued that as a jumping-off point for such a debate, the blind spots in LP are ripe to be criticised and discussed and that they suggest advances in the debate around social justice on a global plane. A thoroughgoing engagement with the historical developments that structure the current realities of global inequalities must be recognised, and part of this involves a genuine expansion of the debate to include new voices, who can speak from the perspective that will view Rawls’ sanguine opinion of nation states - as encapsulated in his ideal of the well-ordered people - to be problematic, and that an international legal order that is truly just will have to recognise other collectivities and polities in order to undermine the preponderance of power held by some of those states.

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