Do essential human rights play a central role in Rawls’ theory of a “Law of People?”

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“Justice is the first virtue of social institutions, as truth is of systems of thought.”

– John Rawls, A Theory of Justice –

 

Rawls first principle of justice was “A Theory of Justice” in 1971, account a domestic theory of justice. A few decades after, he wrote another theory of justice, for the international level called the ‘Law of People’ – elucidate the fact that liberal society needs to tolerate other societies that are not liberal. In the LoP, the main focus is the ‘people’ and not ‘state’ – the reason is because Rawls believed that people have common sympathy and tolerations, while state does not necessarily have. This ‘common sympathy and tolerations’ is what underlines his theory. Rawls distinguish in between the liberal societies and non-liberal societies, and within the non-liberal societies, he dissociated the ‘decent hierarchical societies’ and ‘outlaw state’ societies (Freeman, 2003: 45).

According to Rawls (1999), ‘outlaw state’ are those who undermined the international law and has completely neglected human rights. While, decent hierarchical people are those who do not adjust liberal ideology – meaning that there is no certain freedom, like freedom of speech – however to some extent the governments have provided fundamental rights (Rawls, 1999: 65). This ‘decent hierarchical society’ is described as the ‘realistic utopia’ that Rawls captured with the fictitious state he created, Kazanistan. Human rights play a central role in Rawls theory of a “Law of People”. However, there are a different definition of what is called the ‘essential human rights’ for Rawls and others liberal opponents. The main focus of the LoP is the differentiation that Rawls made in between the decent hierarchical societies and the outlaw state societies – that later on will lead into the definition of what is ‘essential human rights.’

 

Law of People and Basic Human Rights

Kazanistan is a state that Rawls created to describe the ‘decent society.’ In this state, Islam is the main religion (Rawls, 1999: 75). The Islamic people hold the political power, and the other religions cannot hold the upper position of the governmental authority (Rawls, 1999: 75). However, other religions have the freedom to express their beliefs and get the same amount of protection from the government. The government also allowed the non-Muslims societies to join the armed forces and serves in the higher ranks of commands (Rawls, 1999: 76). The government does not impose power and do a very well job to protect all its citizens, both the Muslims and non-Muslims. According to Rawls, the situation in Kazanistan is decent – to the point that they provided fundamental rights. This is where the line is drawn. On his book the LoP argued that there is list of human rights that should be seen as universal rights, these rights are fundamental and have a substantial impact on the societies – does not matter whether it gets support from the people or not (Rawls, 1999: 80). This political ideology is a basic necessity and binding to all peoples and societies (Rawls, 1999: 80).

Therefore, Rawls has stated the importance of human rights in the LoP. However to what extent these human rights are important in the LoP is debatable. Rawls mentioned that a ‘decent hierarchical societies’ are those who provide basic human rights and respects the decency of its members (Rawls, 1999: 81). As he stated that his ‘essential rights’ is the rights that are provided in the DHS – it contributes the fact that these are the basic rights that play a role in the LoP. It could be seen how Rawls account of what is called the ‘essential human rights’ is slightly different with the others liberal proponents. All kinds of fundamental rights (for instance the Universal Declaration of Human Rights) are crucial in the liberal community, however, in decent societies, there are only some of those. But even though the hierarchical society does not fulfill all the fundamental rights that are crucial for the liberal societies, the decent peoples do not violate human rights.

Rawls explicate four essential rights; rights to life, liberty, property and formal equality (Lehining, 2009: 177). The ‘rights to life’ according to Rawls is the rights of subsistence and security (Rawls, 1999: 65). In many respects, Rawls ‘rights to life’ is not full freedom of life, meaning that people are not obtained to live flourishing life. As long as the people have the rights to life a proper standard of living, it is acceptable. The different definition of ‘essential rights’ in between Rawls and other liberal proponents is what caused disagreements between both sides. One argued that Rawls is too tolerate towards the non-liberal societies and others argued that the definition of ‘essential rights’ for Rawls need to be evaluated.

 

Criticism of the Law of People

The very famous criticism of the Law of People came from the Cosmopolitan. As cosmopolitan believed that all people belong to a single community, they do not tolerant Rawls principle of the LoP. Cosmopolitan has three main keys, individualism, universality and generality (Pogge, 2008: 175). Meaning that the general concern is persons, it applied equally and is a global force (Pogge, 2008: 175). Each of the cosmopolitan main keys, is the opposite of the Law of People principle. For instance, individualism stated that the main actor is person, while in the LoP is the people; universality argued that all of the principles need to be applied equally to everyone, without seeing the individual cultures or backgrounds; and within the generality, this ‘conception’ needs to be applied globally even if force is needed.

Cosmopolitan demand that a liberal state is not allowed to tolerates another doctrine (either religion, political ideology or moral values) that is not liberal (Dogan, 2004: 145). Meanwhile, LoP argued that people are different and not everyone could implement only a single doctrine or ideology. Thus, people could not just force others to believe in what other called ‘common ideology.’ The main reason why cosmopolitan disagree with LoP is because of their commitment towards the liberal worlds and the implementation of it as a global ideology (Pogge, 2008: 175). Hence, cosmopolitan do not accept the toleration principles of LoP. For instance, the implementation of UDHR has to be universal. Each member of the United Nations has to obey the law – in this case, is the human rights law. However from the 30 articles written in the UDHR, Rawls believed that not every state (particularly the non-liberal state) has to follow all the articles written in the UDHR.

Furthermore, there is no straight forwards statement from Rawls on who or which institutions have to tolerate non-liberal views and what sort of action is restricted (Caney, 2003: 275). The non-Rawlsian argued that Rawls has only demonstrated the principles without giving a direct example or how to solve the issues. Leaving the uncertainty for people to decide who is the liberal, the ‘decent hierarchical society’ and who is the outlaw state. This could lead to misunderstanding on the practice of his theory, which could lean into a bigger issue. Moreover, it has been said that LoP is one-sided, to the extent that the liberal has to tolerate others (which in this case is ‘decent hierarchical sicety’), while the non-liberal society does not tolerate the liberal (Dogan, 2004: 149). Cosmopolitan like Beitz and Pogge aimed to justify the inequality that was created beyond human control, such as the fact that one person was born in an affluent and abundant state while other born in an impoverished and barren state (Wenar, 2007: 97). It is a matter of ‘brute luck’ whether a specific individual was born in wealth or developing countries. Therefore, many liberals fight for the equality that was caused by this, because it is beyond human control.

The second argument, feminists argued that women often do not have access to many things including political process or freedom of speech (Nussbaum, 2004: 148). Thus, fighting for gender equality is as crucial as fighting for universality. Feminist would not accept the toleration of gender inequality that Rawls stated. According to the Universal Declaration of Human Rights (1948) Article 16, Men and Women are equal under the law and entitled to form a family, and the marriage shall only be entered with free and full consent from both parties (United Nations, 2015). According to Rawls, as he has stated before that the fundamental rights are the right to life, liberty, property and formal equality. Feminist argued that Rawls lacks of serious respect towards equality especially towards those who are obligated by religions or cultures. For instance, in Rawls definition on what is human rights and what things that he includes as essential human rights – omits many features that are beneficial to women on his LoP principles (Nussbaum, 2004: 163). In many respects, Rawls has given too much toleration to the non-liberal societies, by not preventing them treating people unequally.

 

Defending Law of People

The first statement to defend the LoP will encounter the cosmopolitan critique. There are two distinctions in the cosmopolitan approach; moral cosmopolitanism and legal cosmopolitanism. According to moral cosmopolitan, each individual has certain moral values, within this, people, in general, have to respect each other values, in order to construct international order (Pogge, 2008: 175). Even within the cosmopolitan itself, there is a point on how people are required to ‘respect’ each other values. Thus, the cosmopolitan criticism towards Rawls for giving toleration to the non-liberal world is vague. If one of the cosmopolitan approaches itself argued that we need to perpetuate some ‘respect,’ the point they make against the LoP is inarticulate.

Furthermore, on the second approach, the legal cosmopolitan argued that having a universal political ideology that supports all kind of rights is essential (Pogge, 2008: 175). Legal cosmopolitan has a stronger argument of cosmopolitan rather than the moral cosmopolitan. However, there are still flaws that could be criticized. There is inconsistency in the cosmopolitan theory itself. Cosmopolitan argued that each state needs to be universal under one principle, in this case, liberal. Meanwhile, cosmopolitan also argued that they do not necessarily support the action of humanitarian intervention. The underline question on this confusion is – how could possibly the liberal world apply their political ideology to the rest of the world that have different cultures and views – without forces, which will eventually lead into intervention.

It has been said that cosmopolitan is too interventionist (Tan, 2007: 91). Even though cosmopolitan argued that intervention is not necessarily the best strategy to protect the rights (Tan, 2007: 91). Hence, as it was stated earlier, although cosmopolitan does not necessarily indicate they support intervention – their aim of having a global justice under one principle in a world that is diverse – only could be achieved by interference others, in order to make them obey the principle. In addition, with their third elements of ‘generality’ stated that when force is needed, it could be justified. It reflected the idea of intervention within cosmopolitan.

Moreover, the second argument within the feminist, some broader issues need to be seen in the wider scope. As Nussbaum (2004) argued that women have faced many kinds of inequalities, in many respects, there is no absolute solutions to solve this issues. Since in this case the issue is about ‘equality’ – the word itself is still problematic. Besides, Rawls has never stated that he does not fight for women rights, in fact, he makes a clear statement that fundamental human rights need to be applied to all men and women. LoP does not state that in decent societies women do not have the rights to live a good standard of living – what needs to (possibly) taken off is some second-level of rights such as the rights to be in a political area or rights to have equal opportunity (in some area) with men.

Unfortunately, Nussbaum (2004) cannot accept the ‘toleration’ of women rights and determine to fulfill the absolute rights of women. Virtually the statement is genuine, but only if, the world is situated differently with how it is, and how it has always been. Is it worth it to fight for the absolute rights of some community, with sacrificing others community, that even in the worst case, could lead to death. For instance, if one would want to interference, or giving sanctions to a state because of their differentiate ideology that does not respect women rights as much as the liberal does – would it be right to justify the humanitarian intervention that will possibly kill several numbers of peoples. The question remains unanswered, and different views will have different arguments. Thus, according to Rawls, this could not be justified. If the situation of the state is a reflection of the ‘outlaw state,’ this could still be considered, but if it is a ‘decent-society,’ victimize the innocent citizens would not be valuable.

Furthermore, there are broader issues to this case. Could the rest of the world trust the liberal society that mainly in the Western world. Not to say that the Western cannot be trusted, but the history has painted it that way. Fear of de-colonisation and realism doctrine (that state wants to pursue power) is one of the reasons why liberal has not been accepted. Anything that came by forces would not solve the issues. The historical example has shown how trying to expand ideology – either by purpose or unconsciously – is related to expanding the power of a state. For instance, the venture of Union of Soviet Socialist Republics (USSR) to spread communism and the United States of America (USA) to expand democracy has become one of the leading issues that established Cold War. Because of the containment policy (the USA attempt to stop the spread of communism) has caused Vietnam War and Korean War, that the effect of it still appear until now, which is the separation of North Korea and South Korea. Even worst, it has established the ‘outlaw state’ society, which is North Korea, which does not provide any basic or essential rights to the citizens. In the end, Rawls himself argued that the implications of these have come across our moral convictions (Scheffler, 2003: 426). Meaning that, if in the end, forcing others either by sanctions or armed forces is justified in the name of ‘liberal,’ it does not show the moral value of liberal itself.

 

Conclusion

Human rights play an essential role in Rawls conception of the international justice, the Law of People (Hinsch and Stepanians, 2007: 117). As it was written in the sixth entry of his ‘basic charter of the LoP,’ required people to honor human rights (Rawls, 1999: 37) – It has stated that human rights are important. The debate in between what is ‘essential human rights’ to Rawls, is slightly or even more, different with other liberal proponents. According to Rawls, the basic rights that need to be provided by a state are rights to life, liberty, property, and formal equality. While many others liberal proponents disagree with it. For instance, the cosmopolitan could not agree with the ‘essential rights’ that Rawls stated arguing that it needs ‘more rights’ and Feminist that believes Rawls is ‘too tolerance.’ Nevertheless, it is not to say that Rawls himself is not liberal. He agrees to justify common actions of diplomatic and economic sanctions or even military interventions to the state that do not provide ‘essential rights’ which he describes as the ‘outlaw state.’ But again, as it was discussed, is it worth it to sacrifice innocent citizens life in the name of liberal and justifying some rights that according to Rawls is still tolerable. Seeing how the world is and how it has always been, Rawls has portrayed the ‘realistic utopia’ where the liberal and decent society could tolerate and live the most peaceful life people could possibly achieve.

 

References

Caney, S. (2003), Cosmopolitanism and the Law of Peoples, In: Kukathas, C John Rawls: Volume 4, Oxford; New York: Routledge, p263-292.

Dogan, A. (2004), The Law of Peoples and the Cosmopolitan Critique, Reason Papers, 27, 131-148.

Freeman, S. (2003), Introduction: John Rawls – An Overview, In: Freeman, S The Cambridge Companion to Rawls, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p1 – 61.

Hinsch, W; Stepanians, M. (2007), Human Rights as Moral Claim Rights, In: Martin, R; Reidy, D Rawls’s Law of Peoples: A Realistic Utopia?, 2nd ed, Malden; Oxford; Victoria: Blackwell Publishing, p.117-133.

Lehning, P. (2009), John Rawls: An Introduction, Cambridge; New York; Melbourne; Madrid; Cape Town; Singapore; Sao Paulo; Delhi: Cambridge University Press.

Nussbaum, M. (2004), Women and Theories of Global Justice: Our Need for New Paradigms, In: Chatterjee, D The Ethics of Assistance: Morality and the Distant Needy, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p147 – 176.

Pogge, T. (2008), World Poverty and Human Rights, 2nd ed, Cambridge; Malden: Polity Press.

Rawls, J. (1999), The Law of Peoples: With “The Idea of Public Reason Revisited”, United States of America: Harvard University Press.

Scheffler, S. (2003), Rawls and Utilitarianism, In: Freeman, S The Cambridge Companion to Rawls, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p426 – 459.

Tan, K. (2007), The Problem of Decent Peoples, In: Martin, R; Reidy, D Rawls’s Law of Peoples: A Realistic Utopia?, 2nd ed, Malden; Oxford; Victoria: Blackwell Publishing, p76 – 94

United Nations. (2015). Universal Declaration of Human Rights. [Online]. Available at <http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf> [Accessed 12 November 2017].

Wenar, L. (2007), Why Rawls is Not a Cosmopolitan Egalitarian, In: Martin, R; Reidy, D Rawls’s Law of Peoples: A Realistic Utopia?, 2nd ed, Malden; Oxford; Victoria: Blackwell Publishing, p95-113.

 

Bibliography

Caney, S. (2003), Cosmopolitanism and the Law of Peoples, In: Kukathas, C John Rawls: Volume 4, Oxford; New York: Routledge, p263-292.

Dogan, A. (2004), The Law of Peoples and the Cosmopolitan Critique, Reason Papers, 27, 131-148.

Freeman, S. (2003), Introduction: John Rawls – An Overview, In: Freeman, S The Cambridge Companion to Rawls, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p1 – 61.

Garcia, F. (2001), Review of the Law of Peoples, Houston Journal of International Law, 23, 659-677.

Hinsch, W; Stepanians, M. (2007), Human Rights as Moral Claim Rights, In: Martin, R; Reidy, D Rawls’s Law of Peoples: A Realistic Utopia?, 2nd ed, Malden; Oxford; Victoria: Blackwell Publishing, p117-133.

Jones, C. (1999), Global Justice: Defending Cosmopolitanism, Oxford; New York: Oxford University Press.

Lehning, P. (2009), John Rawls: An Introduction, Cambridge; New York; Melbourne; Madrid; Cape Town; Singapore; Sao Paulo; Delhi: Cambridge University Press.

Nagel, T. (2003), Rawls and Liberalism, In: Freeman, S The Cambridge Companion to Rawls, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p62 – 85.

Nussbaum, M. (2003), Rawls and Feminism, In: Freeman, S The Cambridge Companion to Rawls, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p488 – 520.

Nussbaum, M. (2004), Women and Theories of Global Justice: Our Need for New Paradigms, In: Chatterjee, D The Ethics of Assistance: Morality and the Distant Needy, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p147 – 176.

Orend, B. (2002), Human Rights: Concept and Context, Ontarion; Orchard Park; Ormskirk; Rozelle: Broadview Press.

Pogge, T. (2008), World Poverty and Human Rights, 2nd ed, Cambridge; Malden: Polity Press.

Rawls, J. (1999), The Law of Peoples: With “The Idea of Public Reason Revisited”, United States of America: Harvard University Press.

Scheffler, S. (2003), Rawls and Utilitarianism, In: Freeman, S The Cambridge Companion to Rawls, Cambridge; New York; Melbourne; Madrid; Cape Town: Cambridge University Press, p426 – 459.

Stanford Encyclopedia of Philosophy. (2017), John Rawls [Online], Available at <https://plato.stanford.edu/entries/rawls/#RecReaUto> [Accessed 24 October 2017]

Tan, K. (2006), The Problem of Decent Peoples, In: Martin, R; Reidy, D Rawls’s Law of Peoples: A Realistic Utopia?. Malden; Oxford; Victoria: Blackwell Publishing, p76 – 94

United Nations. (2015), Universal Declaration of Human Rights, [Online], Available at <http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf> [Accessed 12 November 2017]

Wenar, L. (2007), Why Rawls is Not a Cosmopolitan Egalitarian, In: Martin, R; Reidy, D Rawls’s Law of Peoples: A Realistic Utopia?, 2nd ed, Malden; Oxford; Victoria: Blackwell Publishing, p95-113.

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“There is no reason to suppose ahead of time that the principles satisfactory for the basic structure hold for all cases.”

– John Rawls, A Theory of Justice –

Author: Valentina Laura

A dreamer & a lover.

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