The notion of global toleration and its contentious role for Rawls's 'Law of Peoples'

Index of Contents

1 Introduction

2 Rawls’s Law of Peoples

3 Justifying the Toleration of Decent Non-liberal Peoples
3.1 Rawls’s Justification of Toleration - A Valid Analogy?
3.2 Rawls’s Justification of Toleration - A Stringent Analogy?

4 Conclusions

5 Bibliography

1 Introduction

Liberal toleration plays an important role in Rawls’s ‘Law of Peoples’. As in the domestic part of his theory of justice, the right kind of tolerance, for Rawls, is one of the main requirements for stability. Thus, many of the striking alterations that Rawls undertook when he applied his theory to the international arena seem to go back to his concern for this important liberal idea.

Since Rawls’s first sketch of his international relations theory, numerous critics have disapproved of his peculiar notion of liberal toleration and its consequences for his theory. One strand of criticism holds that, even if one acknowledges the Rawlsian justification of tolerance, many of the conclusions he draws in connection with it cannot be maintained. Another strand of criticism sees Rawls’s whole concept of justification as deeply flawed because of too many disanalogies to his own domestic theory.

In this paper, I want to show that a great deal of this criticism is legitimate. In order to do this, I will first give a brief overview of Rawls’s ‘Law of Peoples’ and its most important differences to his domestic theory of justice. Afterwards, I will reconstruct Rawls’s justification for the toleration of certain non-liberal peoples. Finally, I hope to show that this justification is highly problematic and a weakness that deeply influences the construction of Rawls’s whole international theory.

2 Rawls’s Law of Peoples

Rawls’s aim in ‘The Law of Peoples’ (LP) is to extend the conception of justice as fairness, elaborated in ‘A Theory of Justice’ (TJ) and ‘Political Liberalism’ (PL), in order to cover relations between societies (LP, p. 9). This problem becomes pressing as many issues of justice remain to be resolved after the principles of domestic justice have been decided on. Most importantly: How should a domestically just society interact with other societies? Here, Rawls’s concern for liberal tolerance becomes apparent for the first time. His main goal is to develop liberal principles of global justice that are also acceptable from a “decent non-liberal point of view” (LP, p. 10). The best way to achieve this, according to Rawls, is to run a second session of the original position (the first one being the domestic one described in TJ and PL). This second session includes a major change to the first one: The parties in this international original position no longer represent persons but peoples. How does Rawls justify this change?^[1]

Persons are no longer the relevant “moral (actors)”, Rawls explains, as their claims to justice have already been taken into account in the domestic original position (LP, p. 10). As Kuper (p. 641) works out, “[t]his is the methodological heart of LP: Rawls works upward and ‘outward’ from sufficiently just societies (peoples) to a just Society of Peoples”. As a consequence, Rawls’s procedure models conditions for arriving at terms of cooperation that are “fair to peoples and not to individual persons” (LP, p. 17, n. 9). A second important reason for choosing peoples and not persons as representatives in the international original position, again, is Rawls’s concern for tolerance. A so-called ‘cosmopolitan’ procedure that would construct a global original position of all individuals of the world, according to Rawls “simply assumes that only a liberal democratic society can be acceptable” (LP, p. 82-83). It would go beyond the scope of this paper to evaluate this statement here^[2]. Therefore, I take it as a given part of Rawls’s reasoning. We can also omit a detailed exploration of the exact meaning of Rawls’s term “peoples”. For our purposes, it suffices to assume with Moellendorf that in LP “peoples are in fact states” (Moellendorf, p. 135)^[3].

More important for us is a focus on the second main difference between the domestic and the international original position: not all states are represented in this second original position and the represented peoples are divided into two groups^[4]. Rawls grants representation selectively, only to peoples who are well-ordered by having either a liberal or a ‘decent’ institutional order (pp. 4, 63)^[5]. This, in fact, means that the international original position is restricted by a precondition of entry, as Naticchia (pp. 359-363) points out. Although these parties in the original position are subject to a veil of ignorance that excludes knowledge of their size of territory, population, military strength, natural resources, and economic development, some specific knowledge is left unveiled: the parties know whether they are representing a liberal or a decent hierarchical people (LP, pp. 32-33). This fact represents a second major change to the domestic original position where any specific knowledge is excluded.

What distinguishes these two groups of peoples in the international original position? To count as liberal, a state has to fulfil three criteria: (1) basic rights and liberties of the kind familiar from a constitutional regime; (2) a priority to these rights, liberties and opportunities over the claims of the general good and perfectionist values; (3) access for all citizens to the requisite primary goods to enable them to make intelligent and effective use of their freedoms (LP, p. 14). The category of decent peoples is broader and encompasses all societies that satisfy the following two conditions (of which the second one is three-fold): (1) no aggressive aims in foreign policy and respect to the independence of other societies; (2) a “common good conception of justice” which takes each person’s interests into account in public decisions (though not necessarily on an equal basis) and secures basic human rights for all; all persons are treated as subjects of legal rights and duties; and judges and other officials accept and apply the common good conception of justice in carrying out their public responsibilities (LP, pp. 64-67)^[6]. Rawls adds that all these societies are “associationist” in form which means that individuals hold their rights not as individuals but as members of different groups, each of which is represented in the legal system by a body in a decent “consultation hierarchy” (LP, p. 64). In spite of these defining aspects, one can see that Rawls’s descriptions of liberal and non-liberal peoples stays (probably intentionally) vague and encompasses a vast range of possible state forms^[7].

Finally, Rawls believes that after applying these preconditions to the international original position, the representatives of both groups will come to agree on eight common liberal principles for the Society of Peoples^[8]. For the purpose of this paper, however, we can dispense with the actual content of these principles as they will not be relevant for our analysis^[9].

3 Justifying the Toleration of Decent Non-liberal Peoples

Rawls’s notion of global liberal toleration relies on an analogy between reasonable comprehensive doctrines in a liberal state and decent hierarchical states in the Society of Peoples (LP, pp. 59-60). Thus, a liberal people, for the sake of global stability, has to tolerate decent hierarchical (non-liberal) peoples, like a liberal state that has to tolerate reasonable^[10] non-liberal doctrines among its citizens. To understand this analogy, we should first briefly review the idea of toleration in PL.

To maintain legitimate stability in a liberal-democratic society with deep and irreconcilable moral, religious, and philosophical diversity, Rawls tells us in PL, liberalism has to be restricted to the political realm. The liberal ideas of autonomy and equality are, in this view, applicable only to individuals as citizens, concerning only their public rights and duties. Other, non-political associations like the home, the church, or cultural associations do not have to follow these ideas in their internal organization. The state has to accept these possibly non-liberal comprehensive (i.e. non-political) doctrines as long as they tolerate the liberal-democratic basic structure with its toleration of all reasonable comprehensive doctrines. Reasonable doctrines are those that are tolerant of different comprehensive doctrines and accept the state as being neutral towards all these comprehensive doctrines. Unreasonable doctrines are those that are intolerant of different comprehensive doctrines or violate the public political rights of citizens (e.g., the right to exit associations). Only with such a political liberalism can we reach a stable overlapping consensus, i.e. a consensus between all reasonable citizens.

3.1 Rawls’s Justification of Toleration - A Valid Analogy?

With these remarks in mind, we can now evaluate Rawls’s analogy. My assessment will proceed in two steps. First, I will work out arguments against Rawls’s stipulation that reasonable comprehensive doctrines and decent hierarchical states really can be seen as equivalents. In a second step, then, I will try to show that, even if one accepts the validity of Rawls’s analogy, Rawls himself does not follow it in a stringent way. If only one of these two steps succeeds, Rawls’s account of liberal toleration is in trouble.^[11]

Let us then consider some arguments against the alleged analogy between reasonable comprehensive doctrines in a liberal state and decent hierarchical states in the Society of Peoples. There are at least six important problems with this analogy. First, what is permitted in the domestic stage are moral, religious, or philosophical differences. Not permitted are different political doctrines regarding the basic structure of society. These doctrines would be denounced as unreasonable views. Otherwise, political liberalism would undermine itself. “Liberal tolerance expresses ethical neutrality by remaining impartial between particular moral conceptions of the good; for this very reason, liberalism must reject any political neutrality, that is, neutrality in respect for justifications for coercion” (Kuper, p. 649, emphasis in original). But in LP, Rawls explicitly advocates tolerating regimes with non-liberal political institutions. This disanalogy is further shown by the fact that “nonliberal politics, unreasonable in the domestic context, becomes reasonable in the international context” (Tan, p. 283).

[...]

^[1] In this overview, I concentrate on the aspects of Rawls’s theory that are relevant for this paper, omitting, as any summary must, a good deal of his original reasoning. This also presupposes a certain knowledge of Rawls’s theory of justice elaborated in ‘A Theory of Justice’, ‘Political Liberalism’ and ‘Justice as Fairness: A Restatement’. For a brief overview of the basic ideas of Rawls’s political liberalism, see Tan, pp. 276-279.

^[2] We will, however, touch some cosmopolitan issues in the context of our arguments about liberal toleration. For good examples of a cosmopolitan criticism of Rawls’s theory see Pogge (1994), Caney, Kuper, Beitz or Buchanan.

^[3] For similar evaluations, see, for example, Buchanan, pp. 698-699, Caney, pp. 99-104, Kuper, pp. 641-645, Tan, p. 276

^[4] For our analysis, it suffices to know that Rawls excludes certain peoples from the international original position. Thus, we do without a more detailed description of the excluded groups and concentrate on the included ones.

^[5] Note that this notion of „well-ordered“ is not synonymous with the well-ordered society defined in PL.

^[6] As one can see, liberal peoples can thus also be regarded as being ‘decent’. To clearly distinguish non-liberal peoples, I will therefore refer to them as ‘decent hierarchical’ or ‘decent non-liberal’ in the following sections.

^[7] I will come back to problems related to this vagueness later.

^[8] To avoid confusion: If the two groups of people come to these principles in two separated sessions of the original position, as many critics maintain and as Rawls somehow suggests but never definitely clarifies, is also not relevant for our analysis here.

^[9] The interested reader, however, can find them in LP, p. 37.

^[10] Reasonable here means reasonable in the sense of PL, i.e. doctrines that accept the liberal basic structure of the society.

^[11] As one will remark, some of the articles cited in this and the next section are written before the publication of Rawls’s ‘The Law of Peoples’ (1999). Those articles refer to an article of Rawls that was based on a lecture for Amnesty International and was published in 1993 in ‘John Rawls: Collected Papers’. Though Rawls considerably extended and modified his theory in his final book, the criticism cited here can be regarded as valid for both his article and his book.