Remarks on John Rawls' Views Concerning the Toleration of Non-liberal Peoples
by Liberal Peoples as Expressed in HisLaw of Peoples
A Talk for the Department of Philosophy of Jilin University
John Rawls' book,The Law of Peoples, published in 1999 (LOP), contains the working-out of ideas indicated in his 1971magnum opus,A Theory of Justice(TOJ). There, Rawls had indicated how the conception of justice that he calledjustice as fairnessmight be extended to international law, or more precisely, to "the purpose of judging the aims and limits of just war". Justice as fairness pertains in the original instance to the principles of political (or social and political) interaction among citizens of a liberal civil society—a society under political governance—imagining that society to be closed and self-contained, and thereby bracketing out considerations having to do with its relations with other societies, whether liberal or non-liberal. Rawls there introduces an innovative methodology for assessing the justice of the principles of political interaction within such a society: the methodology that he callsconstructivism, that is meant to arrive at a determination of just principles by considering those that would be decided upon by fair representatives of the citizens of the society placed in an appropriateoriginal position—and thus behind a so-calledveil of ignorance—there to reach decisions as rational agents committed to behaving as such. I will assume here that my audience is familiar with that methodology and with Rawls' argument and conclusions inA Theory of Justice.
Rawls' project inThe Law of Peoplesis to extend his constructivist methodology to an assessment of the justice of the principles of political interaction that might apply among different peoples within a Society or Community of peoples. I will just note here that in speaking ofpeoples, what Rawls has in mind is what is more usually calledstates. He introduces this peculiar—and to my mind awkward—terminology to emphasize that states, as he intends to speak of them, are not to be automatically conceived as havingsovereign powersas traditionally defined in Europe and the West, deriving from the accord reached at the Peace of Westphalia in 1648. This is not to say that states, as Rawls would speak of them, lack sovereignty, only that sovereignty must be redefined. This was already well explained in Rawls' 1993 article, also entitled "The Law of Peoples" (lop), where he declares that:
We must reformulate the powers of sovereignty in light of a reasonable law of peoples and get rid of the right to war and the right to internal autonomy which have been part of the (positive) international law for the two and a half centuries following the Thirty Years' War, as part of the classical states system. (lop, 535; page references to this article as reprinted inJohn Rawls: Collected Papers, 1999)
Incidentally, in what follows I shall often refer to Rawls' 1999 book as "the book" and to his 1993 article as "the article".
We must here keep in mind that in the exercise carried out inA Theory of Justice, Rawls supposes that the imaginary liberal society within which a determination of just political principles is sought may bepluralistic, rather than monolithic. This means that there may coexist within that society a diversity of "comprehensive religious, philosophical and moral doctrines" (lop, 530), or "comprehensive conceptions of the good" (LOP, 34) that citizens in a liberal society must respect "provided they are pursued in accordance with a reasonable conception of justice", as he words it in the article. (lop, 530) In the book he speaks of the various comprehensive doctrines themselves as being reasonable. (LOP, 31) That these doctrines must be respected characterizes thetoleranceinherent to liberal society. Tolerance has its limits of course; the comprehensive doctrines that require to be respected are the "reasonable" doctrines. Now Rawls supposes that there can be a "political conception of justice" that could be freely endorsed by all citizens in such a society, despite its pluralism of reasonable comprehensive doctrines. In that case that political conception would lie within the intersection of an overlapping consensus and would arguably derive, not from these various comprehensive doctrines but from "the various fundamental ideas drawn from the public political culture" of the society. (LOP, 31-2) For this reason, Rawls thinks that the veil of ignorance may screen out the comprehensive doctrines for the rational representatives who are to choose just principles of political association within the original position appropriate for such a society.
In the book, Rawls' first step is to extend this exercise to the determination of just principles of political association for a Society of Liberal Societies or Community of States, i.e. to a Law of Peoples. This requires specifying an original position appropriate to the case. As in the first original position (that developed inA Theory of Justice), the representatives are rational agents guided by "appropriate reasons". Inappropriate reasons are screened out by a veil of ignorance. The representatives know that they represent liberal societies and know whatever that entails; but of course they are kept from knowing which liberal society they represent, as well as the size, resources and other special characteristics of their own society (LOP, pp. 32-3); and, as before, they are denied knowledge of any "comprehensive conceptions of the good" drawn from their own society since, Rawls claims, a liberal society "does not,as a liberal society, have a comprehensive conception of the good". (LOP, 34) What they do take with them, deriving from their own liberal society, is a "reasonable conception of political justice" that shapes their choice, in the second original position, of principles of just association among liberal peoples, i.e. the principles that they choose as the Law of Peoples. (LOP, 32-3). Their liberal conceptions of justice, incidentally, yield up their peoples' fundamental interests to which they refer as the basis for their selection of principles for the Law of Peoples. (LOP, 33).
This background brings me to my topic for today: some remarks on Rawls' views concerning the toleration of non-liberal peoples by liberal peoples. Unsurprisingly, these views reflect Rawls' earlier ideas. Rawls earlier considered the sort of toleration that is appropriate within a liberal, pluralistic society. In the Law of Peoples, he views Communities of Peoples as pluralistic political associations and attempts to transpose his earlier considerations on tolerance to a wider, and very different, political context.
In §7 of Rawls'Law of Peoples, which is the first section of what he calls the "Second Part of Ideal Theory" Rawls discusses the "Toleration of Nonliberal Peoples"; that is, the limits of tolerance that a liberal people can have for a non-liberal people. As he explains in the first paragraph of §7, this tolerance includes not only refraining from "exercising political sanctions—military, economic or diplomatic" but also recognizing these non-liberal societies "as equal participating members in good standing of the Society of Peoples, with certain rights and obligations, including the duty of civility (compare §6) requiring that they offer other peoples public reasons appropriate to the Society of Peoples for their actions."
As those familiar with the book will know, Rawls classifies those peoples that liberal peoples can, and ought to, tolerate as "decent". In the article, he did not use the very tendentious term "decent" but rather referred to these non-liberal peoples, a bit less tendentiously, as "well-ordered". (Note: liberal peoples would, of course, be decent and well-ordered by Rawls' standards; but, with few exceptions, he confusingly uses these terms to refer to decent, or well-ordered, non-liberal peoples.)
The way in which Rawls imagines that the decent people are non-liberal is that, unlike liberal peoples, their "ideas of justice are part of a comprehensive religious or philosophical doctrine" or "conception of the good" and therefore do not "specify a political conception of justice" in Rawls' sense. (LOP, 64) This might, of course, also apply to a non-liberal people that is not decent; such peoples will not be considered in the present discussion.
Despite their ideas of justice being a constituent of a comprehensive doctrine, a non-liberal people may nevertheless be such as to (a) recognize and respect human rights, (b) allow their members "the right to be consulted or a substantial political role in making decisions", and (c) "allow a right of dissent" whereby "government and judicial officials are required to give a respectful reply, one that addresses the merits of the question according to the rule of law as interpreted by the judiciary" (LOP, 61) Moreover, these characteristics may derive from its comprehensive doctrine and may thus be intrinsic to the society, even if that doctrine does not extend to the liberal conception according to which all members of society are "citizens first and have equal basic rights as equal citizens". (LOP, 66) A decent people is one within which these practices inhere, even if it is non-liberal.
Now Rawls maintains that liberal peoples should grant respect to decent, non-liberal peoples in view of these inherent practices. In §§7.2-7.3 of the book, Rawls cites these practices in speaking against critics who maintain that, since non-liberal peoples "fail to treat persons who possess all the powers of reason, intellect and moral feeing as truly free and equal" they are never to be tolerated by liberal peoples and are "always subject to some form of sanction—political, economic or even military, depending on the case". On these grounds, Rawls thus takes a stand against the idea that "the guiding principle of liberal foreign policy is gradually to shape all not yet liberal societies in a liberal direction" (LOP, 60). But he nevertheless thinks that liberal peoples should encourage non-liberal, but decent, peoples to reform themselves ("in their own way") into liberal societies. (LOP, 61)
This may sound very positive with respect to the critics that Rawls is responding to, but on what basis should liberal peoples take the position that non-liberal peoples should, and should be encouraged to, reform themselves in this way? More specifically, what justification might there be for such a policy from the standpoint of a Law of Peoples? And what does this say about tolerance, as Rawls would have us understand it?
And with the Law of Peoples in mind, it behooves us to ask, with even greater urgency, whether Rawls' implication here that if a people failed to accord to their own citizens the rights described in (b) or (c) above—that is, failed to grant its citizens a substantial political role in making decisions or failed to allow a right of dissent—then that people must lose the respect of liberal peoples and—to take this further—would transcend the limits of tolerance, as Rawls describes it in §7.1 of the book? Recall here that tolerance includes refraining from "exercising political sanctions—military, economic or diplomatic" and recognizing other peoples as equal participating members in good standing of the Society of Peoples, with certain rights and obligations" within that Community.
When I speak of reflecting upon Rawls' position in these matters from the standpoint of a Law of Peoples, I have in mind the Principles of the Law of Peoples that Rawls enumerates both in the book and, slightly differently, in the article. The principles listed in the book are:
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 to 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 restrictions on 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.
I enumerate these here not because I want to talk about them specially but because I cannot see that a society would need to honor either (b) or (c) in order to subscribe to all of these principles—even number 8, which has proven controversial) on the basis of its guiding comprehensive conception that of which its conception of justice is a part.
I imagine a society somewhat along the lines of that described in Plato's Republic (which was not, I hasten to add, offered by Plato a design for the reform of society). To keep it simple, imagine that society is divided up in the manor of ancient Chinese society (at least according to lore) into rulers, officials, farmers, merchants and artisans, with little or no mobility between classes, following family lines. Each performs its function for society, each is suitably sustained in practice (perhaps without any great distinctions of wealth), and each learns its craft through instruction from the masters of that craft. No farmer would expect the rulers or officials to consult him or afford him a "substantial political role in making decisions" any more than a ruler or official would be expected to consult with farmers about how to rule or officiate. The farmer's craft—the domain within which his opinions would carry weight—would be that of farmins, not ruling. Dissent might be conceived by all as an attempt to break the harmony of society on the basis of selfish self-interest or sociopathy, and universally condemned. We may suppose that the controlling ethic of the society, which might be accepted by the society as a comprehensive philosophical or "religious" doctrine, stressing the importance—indeed the moral necessity—of performing conscientiously the role into which one was born; and it might also stress the moral importance for all of honesty and respectfulness in one's dealings with others and might even stress a duty of care for those in trouble or need; think roughly of Confucianism. Citizens might share the conviction that outsiders who did not accept its comprehensive doctrine and had no role to play within it would have no business to reside within its territory, and so in that way, it might not be internallly "tolerant", in the sense that a European or American might have in mind. But it might very well not prostyletize its controlling ethic and be perfectly content to coexist peacefully with other peoples of an entirely different stamp, so long as they did not threaten its own, harmonious, existence. It might thus be externally tolerant and effectively committed to reciprocity (although it might describe this differently than Rawls.) Its native understanding of justice would not be Rawlsian justice as fairness, but Platonic or Chinese justice as harmony. This would be a part of its comprehensive conception of the good.
Still, I see no reason to suppose that justice as harmony might not fit together with justice as fairness in an overlapping consensus that would sustain a Law of Peoples consisting of the principles that Rawls enumerates, including, certainly, a commitment to basic human rights.
I find no reason why such a peoples should be considered anything other than "decent", despite its citizens having, in general, no "substantial political role in making decisions" or its rejection of political dissent. And, speaking just for myself, I find no reason to think that it would be in any way morally inferior to any so-called "liberal" society, although to be sure it would not be found a congenial place by someone antecedently committed to life in a liberal community; and I see no basis in anything that Rawls has written to accept his own particular preferences.
Further, I see no reason to suppose that a society such as I have imagined (and which has often been imagined before!) might not exist in reality and flourish, provided that others would leave it in peace, and no reason to reject it—or even to question its qualifications—as a member in good standing of a Society of Peoples.
And most of all, I would find it outrageous—morally and politically outrageous—for anyone to take the view that such a society transcends the limits of tolerance framed by liberal societies, so that—despite its benign attitudes concerning intercourse with other peoples and its respect for human rights—it would merit "exercising political sanctions—military, economic or diplomatic" or be denied a position as an equal participating member "in good standing of the Society of Peoples, with certain rights and obligations, including the duty of civility requiring that they offer other peoples public reasons appropriate to the Society of Peoples for their actions."
The society I have imagined could, I think, confirm its vision of just principles of internal social and political interaction by means of Rawls' constructivist methodology, although there would be some awkwardness in applying that methodology. But I think that there would be no problem at all for fair representatives of such a peoples, together with fair representatives of other Rawlsian well-ordered peoples, all considering and applying only appropriate reasons in something like the original position that Rawls imagines for decent peoples, to choose the eight principles for just political intercourse that Rawls believes would be chosen in common by liberal and decent peoples (as he describes them).