On Rawls, Development and Global Justice: The Freedom of Peoples (International Political Theory)

On Rawls, Development and Global Justice

International Political Theory series Series Editor: Gary Browning, Professor of Politics, Department of International Relations, Politics and Sociology, Oxford Brookes University, UK The Palgrave International Political Theory Series provides students and scholars with cutting-edge scholarship that explores the ways in which we theorise the international. Political theory has by tradition implicitly accepted the bounds of the state, and this series of intellectually rigorous and innovative monographs and edited volumes takes the discipline forward, reflecting both the burgeoning of IR as a discipline and the concurrent internationalization of traditional political theory issues and concepts. Offering a wide-ranging examination of how international politics is to be interpreted, the titles in the series thus bridge the IR–political theory divide. The aim of the series is to explore international issues in analytic, historical and radical ways that complement and extend common forms of conceiving international relations such as realism, liberalism and constructivism. Titles in the series include: Keith Breen and Shane O’Neill (editors) AFTER THE NATION Critical Reflections on Nationalism and Post-Nationalism Michaela Neacsu HANS J. MORGENTHAU’S THEORY OF INTERNATIONAL RELATIONS Disenchantment and Re-Enchantment Raia Prokhovnik and Gabriella Slomp (editors) INTERNATIONAL POLITICAL THEORY AFTER HOBBES Analysis, Interpretation and Orientation Huw Lloyd Williams ON RAWLS, DEVELOPMENT AND GLOBAL JUSTICE The Freedom of Peoples

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On Rawls, Development and Global Justice The Freedom of Peoples Huw Lloyd Williams Lecturer, Department of International Politics, Aberystwyth University, UK

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To my family

Câr dy gymydog ond cadw dy glawdd. Love thy neighbour – but maintain your hedge. Welsh Proverb

Contents Preface

x

Acknowledgements

xi

Abbreviations

xiii

Introduction

1

Rawls’ Law of Peoples The argument Aims Structure

1 2 4 5

Part I

7

1

9

2

3

The Cosmopolitan Critique Rawls’ ‘Libertarian turn’ A flawed Law of Peoples? Peoples, not persons The rejection of global redistribution Rereading Rawls

10 14 17 21 28

Elucidating the ‘Libertarian’ Law of Peoples

34

Four reasons why Fraternity Reciprocity Rawls’ political constructivism The principle of redress The social minimum and its international analogue Conclusion

36 37 39 42 44 52 56

A Duty with No Obligations?

58

Burdened societies Self-determination Political autonomy A principle of transition A mixed reception Conclusion

59 60 62 64 67 74

vii

viii

Contents

Part II

77

4

79

5

6

Considering the Capability Perspective The justification of the duty The duty of assistance as a pillar of international justice The duty to burdened societies The extent of the duty Rawls’ positive liberty? Sen’s idea of justice Sen’s critique of transcendental institutionalism The capability critique Rawlsian capabilities? Conclusion

81 84 85 89 89 91 93 94 98 103

Conceptualizing State Capability: The Freedom of Peoples

106

Elaborating the international minimum Beyond negative and positive From two concepts to a triadic relation Rawls’ conception of freedom Burdened societies’ obstacles to freedom Conclusion

107 110 112 115 120 125

Actualizing State Capability

127

Rawls’ explanatory nationalism Sen and Landes on development The colonial legacy for political culture A robust and rounded duty State builders System analysis Conclusion

128 130 136 140 140 149 153

Part III

159

7

8

A Duty in Equilibrium?

161

The foundations of a realistic utopia Destabilizing assistance? Intolerant advice? Conclusion

162 168 175 178

Creeping Cosmopolitanism?

179

Converging with the cosmopolitans Normative difference Difference and toleration A response to Sen Toleration vs assistance Conclusion

180 185 190 194 198 200

Contents ix

9

Conclusions

202

Notes

213

Bibliography

226

Index

233

Preface Fairness is an idea not only at the heart of John Rawls’ theory of justice. It seems to have infused his scholarship in general. Percy Lehning, in the preface to his recent introduction to Rawls’ work (2009), recalls how Rawls’ approach to teaching the ideas of others was to present them in their strongest form – and to remain true to what a writer said, rather than presenting what he believed they should have said. I have, as far as possible, pursued my study of The Law of Peoples in the same vein. As with Lehning’s work, the following book is a result of approaching Rawls’ political theory with a Rawlsian spirit, presenting his ideas in what I take to be their strongest form. Whether the conclusions are entirely Rawlsian in nature is for the reader to decide. HLW

x

Acknowledgements This book is largely based on research at the Department of International Politics, Aberystwyth. I have been lucky enough to pursue my own preoccupations over an extended period of time, and in doing so I hope to have produced work that will be of interest to others. If I have succeeded in this regard, a great deal of thanks must go in particular to Toni Erskine and Ian Clark. It has been my great fortune to have worked with them both. I am heavily indebted to them, and – I don’t think Ian would begrudge me for saying this – most especially to Toni for her tireless support. It would be remiss of me not to thank many others at the Department at Aberystwyth for providing an atmosphere so conducive to research. I would especially like to thank Susanna Karlsson for her help, and also Carl Death, not least for sharing my passion for coffee and cake. Others who have made the experience enjoyable and helped in different ways include Gerry Hughes, Richard Jackson, Simona Rentea and Will Bain. Thanks also – or perhaps it would be more apt to say sorry – to Paul, Elaine, Glesni, Donia, Vicky and Nicola. Lastly, I would especially like to mention Milja Kurki, and Chris Brown of the LSE, who have gone beyond the call of duty, not only in the enlightening comments and criticisms they have provided, but also in their subsequent support and encouragement. Given the assistance I have received from many quarters, I am in no doubt that if I have failed in engaging the reader, or have failed to rectify mistakes, the fault is all mine. There are a number of others I would like to mention for their good will and support. A heartfelt thanks to Alan Owen - it turns out you were right all along! The ESF made available the funding to pursue this project, and afforded the opportunity to simultaneously indulge in some part-time political journalism. As the then Editor of Barn Magazine, I have Simon Brooks to thank as the man who made it possible. Others who were crucial to the process, to whom I owe a great debt, are Dylan Phillips and Robert Rhys. Diolch o galon. There are others who have been influential. A special thanks to Catherine Audard at the LSE for introducing me to Rawls and the communitarians, supervising my dissertation, and being kind enough to offer some thoughts on my work when I turned up on her doorstep years later. At York, I would like to thank Susan Mendus for her inspiration, Tim Stanton for his time and patience, and Derek Edyvane for his advice. My time there was pivotal to this project. More recently, I was lucky enough to present papers based on some central arguments in this work, in various conferences. My thanks to Peter Jones for his invitation to the annual political theory workshops in Manchester Metropolitan University, to the Association for Social and Legal xi

xii

Acknowledgements

Philosophy for their excellent conference on global justice at Nottingham University, and to Patrick Hayden and colleagues at St Andrews for organizing the stimulating ‘Thinking (With)out Borders’ conference. I must also thank the two anonymous readers for Palgrave Macmillan who provided some very helpful feedback on the original typescript, likewise the three anonymous referees who commented on a draft article for Political Studies that contained some of the arguments presented here. I am also extremely grateful to four academics in the US who were so generous in giving up their time. David Reidy and Richard Aquila were the epitome of American hospitality in welcoming me to Tennessee University, and David’s help was both encouraging and entertaining. Kok-Chor Tan proved to be even more obliging and agreeable than I had been led to believe, while I must thank Robert Jackson, both for the coffee and for reminding me that Rawls’ world view is not everyone’s cup of tea. Last of all, my greatest thanks go to those who have provided the most basic forms of support, and make me feel the most privileged of persons: my wife, Rhiannon, my brothers, Ceri and Wyn, and, of course, my parents.

Abbreviations Throughout this book, selected works by John Rawls are abbreviated in the following manner: LP

The Law of Peoples (Cambridge, MA, London: Harvard University Press, 1999)

TJ

A Theory of Justice [1971] (Revised Edition, Oxford, New York: Oxford University Press, 1999)

PL

Political Liberalism [1993] (Expanded Edition, New York: Columbia University Press, 2005)

CP

The Collected Papers, ed. Samuel Freeman (Cambridge, MA, London: Harvard University Press, 1999)

JF

Justice as Fairness (Cambridge, MA, London: The Belknap Press of Harvard University Press, 2001)

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Introduction

At its most basic level, this book can be read as a discussion of what should be done, and what can be done, about global poverty. It is written on the premise that there exists a world that our own deeds and actions help to shape, and that we should endeavour to think about how they might do so in a more equitable and just fashion. In addressing this problem, I look to a text that was published on the eve of the millennium, by one of the twentieth century’s most well-renowned academics. John Rawls, the political philosopher, published his mature work on international justice, The Law of Peoples (LP), in 1999. Its pages detail a vision of a tempered, realistic utopia, motivated by the idea that ‘the great evils of human history’ (LP: 6–7) can be overcome through human endeavour. Many interconnected problems are addressed by Rawls, but it is through the lens of global poverty that I approach his international theory. My aspirations for my own work is that it does justice to the potential of LP, while suggesting how it might be elaborated, in order to present a persuasive approach for alleviating one of the greatest concerns of our time.

Rawls’ Law of Peoples For those inclined towards more idealistic and utopian visions of the international realm, thinkers such as Peter Singer (1972), Charles Beitz (1999) and Thomas Pogge (2008) have all provided perspectives that serve as a normative grounding for such beliefs. Given Rawls’ stature, and the influence of his work, it is inevitable that LP has risen to prominence in discussions on ‘international’ and ‘global justice’.1 Broadly recognized as renewing the field of political philosophy in the Anglo-American academy, Rawls became the dominant voice with the publication of A Theory of Justice (TJ) in 1971. Although he provides a brief sketch of his position on international justice in this original text, it was over a quarter of century later that he presented his definitive work on the subject. LP has provoked much discussion, not 1

2 On Rawls, Development and Global Justice

least because, in transposing his perspective from the domestic to the international, it seems that Rawls sacrifices the more radical liberal egalitarian agenda of his original domestic theory of justice. It has even been suggested that, as progressive as his domestic ideas are, his international thought is so entrenched in the status quo that it has little if any relevance for those who wish to see a reformed global order. In this work I refute this perspective. As the departure point, I take a view that defends Rawls’ Law of Peoples, and build on a growing literature to provide a more balanced account of his ideas, which behoves those of us with idealistic leanings to take his international thought seriously. The view taken is that he has something valuable and original to say about the problems of the international realm, and that it is a worthwhile endeavour to interpret and elaborate upon the fundamentals he proposes. Therefore, I aim at an account of Rawls’ work that is more than simply a response to the original criticism that he has reneged on his egalitarian commitments. I look to elaborate and provide a lengthy interpretation of his notion of ‘the duty of assistance’. This principle of international justice is aimed at improving the conditions of what he terms ‘burdened societies’: those political communities for whom endemic poverty is likely to be a reality. As with other aspects of his international thought, the debate has moved beyond the straightforward dismissal of this principle, and given that some have argued for its far-reaching potential, the ground is prepared for a detailed discussion. I aim to show that rather than being an ineffectual antidote to ‘libertarian rule-making’ (Pogge 2001: 250), the duty of assistance can be constructed as a robust principle, which is the foundation for a sophisticated and normatively powerful approach to the problems of the distant needy.2

The argument The task of demonstrating that Rawls’ Law of Peoples provides a worthy response to the problem of global poverty brings together several interconnected themes. I break down the argument into three main parts. The first will cast a critical eye both on the text itself and its critics; it will be argued that Rawls’ perspective is consistent with his domestic ideas, and the accusation that he has made a libertarian turn3 is unfounded. The second, constructive part, will attempt to elaborate the duty of assistance in a manner that presents it as a robust and far-reaching principle. The final part will be evaluative, reflecting on how the progressive ideas that this duty espouses sit with the general aims of his international theory, and to what extent his Law of Peoples represents a coherent vision. The initial argument responds to some of Rawls most influential critics – the majority of whom can be categorized as liberal cosmopolitans. These theorists, represented by figures such as Beitz and Pogge, believe ‘the referent object of justice is humanity taken as a whole … and it is by no

Introduction

3

means to be taken for granted that their interests are best served by the normative principles that underlie interstate relations’ (Brown 2006: 621). Some claim that the duty of assistance is inconsistent with Rawls’ more radical domestic principles, and that he is therefore guilty of adopting conflicting philosophical positions. In order to demonstrate that this duty is consistent with his earlier work, it will be necessary to turn back to some of his central ideas in TJ – especially his concept of equality and his version of egalitarianism. However, in arguing that the duty of assistance is a suitable response, given Rawls’ theoretical perspective, I acknowledge the lack of a persuasive development of this principle. This leaves us with certain questions regarding its specific form and content. The more ambitious aspect of the work, therefore, is my effort to build up a robust vision of the duty of assistance. Given the brevity of LP, it is inevitable that any attempt at understanding its implications involves a certain amount of elaboration, but I endeavour to do so here in a spirit that is consistent with Rawls’ own approach. I aim to demonstrate that the duty of assistance can meet the ‘cosmopolitan challenge’, by providing progressive answers to the problems of global poverty from more conservative premises than thinkers such as Beitz. I substantiate the claim that the duty of assistance is a progressive and robust principle of international justice in Part II of the book. This requires elaboration on two key aspects: its justification, and most significantly, the extent of its measures. To demonstrate that a coherent justification for the duty can be offered, and that it lays the foundation for extensive and farreaching remedial measures, I employ the capability perspective as developed initially by Amartya Sen, and later Martha Nussbaum. I utilize their ideas on individuals to inform our understanding of the duty of assistance. The basic premise for this move is that the perspectives of both thinkers provide illumination in regard to Rawls’ domestic approach, and may therefore provide some critical insight into his international theory. I illustrate how Nussbaum’s critique of Rawls’ social contract perspective informs the terms of the duty’s justification. Sen’s critique, and the accompanying capability approach, clarifies the egalitarian aspect of Rawls’ domestic perspective. Applied to the international realm, it helps to clarify the extent of the duty and expound its aims in more detail. I argue that, in essence, the duty of assistance is aimed at building the capability of burdened societies. It holds that there is a normative duty to ensure that these societies build up a minimal capability, which should qualify them for membership of the ‘Society of Peoples’ (Rawls’ idealized version of International Society, based on mutual respect and equality between well-ordered members). This ‘sufficientist’ approach is not so radical as to demand a comparable distribution of capabilities between peoples,4 but it is nevertheless a farreaching proposal. Indeed, it will be argued that elaborating the duty of assistance – with the aid of Sen’s capability perspective – buttresses Rawls’

4 On Rawls, Development and Global Justice

approach against some more recent criticisms of LP. These are presented by Sen himself, in the context of a broader analysis of Rawlsian political theory, which will be given due consideration alongside the cosmopolitan critique. With Sen’s insights on capability in hand, I elaborate the duty of assistance by developing a conceptual groundwork based on Gerald MacCallum’s concept of freedom. Here I follow in the footsteps of Robert Jackson, and his application of Isaiah Berlin’s two concepts of liberty to states. I argue that employing MacCallum’s single concept to burdened societies provides us with a straightforward and lucid way to think about the duty of assistance: as a commitment to surmounting the obstacles to building state capability, or realizing ‘the freedom of peoples’. I believe that this normative perspective on assistance offers insight into the issues of international justice and the idea of state capability. Presenting the duty of assistance as a robust, capability-building principle brings into sharp relief questions surrounding Rawls’ perspective and the project of state-building, and development in general: What should be its target? In whose name is it being pursued? On what basis is it justified? How should it be administered? And so forth. These are dialogues to which I believe Rawls’ work can contribute. Some of these questions will have particular resonance in the third part of the book, where I consider a robust duty of assistance in the broader context of Rawls’ Law of Peoples. A wider view of his work is taken in order to assess how such a far-reaching principle, demanding the freedom of peoples, might cohere with his other ideas and principles. The demands of the duty of assistance, fully realized, are so far-reaching that there may be tensions with the more liberal, laissez-faire attitude he seems to espouse. The key problem to emerge is whether or not the assistance advocated by this duty is consistent with the normative case Rawls makes for the toleration of ‘nonliberal’ societies. He places great emphasis on the idea that a just international society is a tolerant one, which does not pursue aggressive liberalization, and that liberal peoples’ foreign policy should not be paternalistic. With the development of the duty of assistance, we are in a position both to ask whether it coheres with Rawls’ other values, and whether in a broader sense it is just and viable to pursue the freedom of peoples.

Aims We can sum up, therefore, the hopes and aspirations of this work. The intention is not to provide an exhaustive appreciation of LP, but to concentrate on the aspect that is analogous to (but not the same as) distributive justice in the domestic context. In so doing, I subscribe to the view that Rawls has something worthwhile to tell us about international justice and the problem of global poverty. I investigate the extent to which we can develop his concept of the duty of assistance, defending the claim that his work on the international remains consistent (if not entirely analogous) with his

Introduction

5

domestic theory, and that he remains a progressive and egalitarian thinker. The duty of assistance meets the cosmopolitan challenge and generates farreaching principles that can rival their theories. A response to Sen’s recent critique is also prescient – given the role his work is likely to play in future debates in the fields of political theory and global justice. In broad terms, he claims that Rawlsian theorizing is prone to over-abstraction and incompatible with thinking about justice on an international scale. My own contribution is to suggest that if we take LP seriously and realize its potential, and consider it as an essential part of Rawls’ oeuvre, then some of Sen’s key claims are a little premature. In the international context, at least, Rawls’ perspective enjoins us to make practical and incremental improvements towards making the world a less unjust place. In terms of its contribution beyond Rawlsian scholarship, the aims are a little broader. I believe that presenting Rawls’ duty of assistance as a principle advocating capability-building not only provides the opportunity to build up a clearer, more concise vision of how the principle can be conceptualized and put into practice. Once we view state-building as a prescriptive project of realizing the freedom of peoples, it forces us to ask questions of Rawls’ perspective, and of those thinkers more specifically concerned with the subject. I argue that one advantage such a normative perspective has is that it affords a broad appreciation of what is entailed in building up state capability, as it obliges us to consider as many obstacles to freedom as possible. Whereas those who are engaged in explanatory theory will, by design, give precedence to the particular phenomenon they study, I suggest a normative viewpoint grounded in Rawls’ philosophy emphasizes multi-causal explanations and can maintain all levels of analysis in view. Employing such a value-laden term as ‘the freedom of peoples’ also forces us to reflect on the beliefs and practices that assistance espouses. Can we really talk of promoting the freedom of burdened societies or weak states without falling foul of the paternalism and ethnocentricity that Rawls warns us against? In his domestic theory, Rawls is broadly regarded as trying to reconcile claims of liberty and equality with his difference principle. I present his duty of assistance as an effort to reconcile arguments about the causal significance of domestic and systemic influences on state-building, and an attempt to steer a course between development and paternalism.

Structure The book is presented in three parts. The first is critical, assessing the cosmopolitan critique of LP and the response of others, in particular with regard to the issue of redistribution. In Chapter 1 a brief exegesis of the relevant parts of the text is provided, and the cosmopolitan criticisms are considered. Chapter 2 looks at some defences of Rawls’ position and his original understanding of equality in TJ, in order to draw out the ideas at work

6 On Rawls, Development and Global Justice

in LP, and to demonstrate the broad consistencies between the two texts. The argument presented is that a far-reaching distributive principle in his international theory, emulating the principle he advocates in the domestic context, would be inappropriate given his theoretical perspective. Chapter 3 is dedicated to evaluating the principle he does propose in order to address global poverty. This principle is the duty of assistance, and I will highlight the manner in which it is ambiguous in several respects. I will conclude that despite its potential, there are serious questions to answer in regard to its justification, and the extent of the measures it advocates. Part II will be dedicated to addressing these ambiguities, by employing the capability approach. In Chapter 4, both Nussbaum and Sen’s critiques of Rawls will be introduced. I will use Nussbaum’s ideas to address the question of how we might justify the duty of assistance, before setting out Sen’s latest criticisms of Rawls’ political theory. Sen’s capability approach will then be analysed to help us explain Rawls’ domestic ideas in more precise detail, setting up its application with regard to Rawls’ international perspective. The aim here will be to draw out the extent of the measures implied by the duty of assistance. In Chapter 5, I embark upon this conceptual development of the duty, applying Gerald MacCallum’s concept of freedom. I suggest that we can characterize the duty as addressing the obstacles burdened societies face in attaining their freedom. My claim in Chapter 6 is that this conceptual framework, which proposes that we can identify innumerable obstacles to be addressed by the duty of assistance, can be buttressed by an empirical literature that suggests there are multiple policies that could be adopted under the duty of assistance, in order to ameliorate the situation of burdened societies. I will claim that an explicitly normative capability perspective can help us keep these different types of measures in view. The final part of the book is evaluative, and assesses whether such a robust duty of assistance is compatible with Rawls’ broader Law of Peoples, to what degree it meets the cosmopolitan challenge, and how it offers a response to Sen’s critique. In Chapter 7, which provides a broader exegesis of the Law of Peoples, I argue that such a progressive duty of assistance is entirely consistent and necessary for the achievement of the long-term goal of a realistic utopia. To reject any of the proposed measures would be to reject Rawls’ aspirations. In Chapter 8, I present the view that, in practice, Rawls’ own approach might come much closer to a cosmopolitan vision than we might suppose. In view of the exposition of the duty of assistance and the broader evaluation of LP, I will then be in a position to respond forcefully to Sen’s critique. The most significant doubt raised is whether the duty of assistance is too radical and invasive to sit side by side with the values of toleration and autonomy that are so central to Rawls’ perspective. Chapter 9 will provide the conclusion, where I attempt to address this question and to draw together the themes of the work.

Part I

This first of three parts to the book can be broadly described as critical. The aim is to provide an introduction to the central questions and debates surrounding LP, and the issue of international distributive justice. I also prepare the basis for the second, constructive part of the work. My argument leads to the conclusion that Rawls has a logical and potentially insightful approach to issues of global poverty and redistribution, which is consistent with his broader philosophical thought. This claim builds on a strand of literature that has bolstered the reputation of LP and argues that the book provides us with ideas worthy of extensive discussion. This line of thought responds to claims that Rawls has compromised his egalitarian and progressive ethic by uncritically accepting the status quo. Cosmopolitan thinkers believe that Rawls offers little for the global poor, and claim his eschewal of global redistribution reflects this. I will analyse the idea that the nature of Rawls’ egalitarianism rightly precludes a global analogue to the difference principle. Central to this argument is the acknowledgement of the cleavage between ideal and non-ideal theory in LP. For Rawls, ideal theorizing assumes that agents can and will comply with principles of justice, while non-ideal theory deals with those agents that can or will not. In opposition to some cosmopolitan claims presented in Chapter 1, in Chapter 2 I will argue that advocating such a distributive principle for his international ideal theory would be inconsistent from Rawls’ perspective. Several arguments deployed by Rawls’ sympathizers will be presented, with the fundamental conclusion that if we consider properly the subjects of his ideal theory – the well-ordered peoples of a realistic utopia – then on Rawls’ terms a distributive principle (or indeed any form of redistribution) does not pertain. A more thorough consideration of Rawls’ egalitarianism will, furthermore, lead to an understanding of the measures he does advocate to address the global poor, as part of his international non-ideal theory. These are captured in a duty of assistance, which demands that the members of the Society of Peoples help burdened societies. They are unable to comply with the Law

8 On Rawls, Development and Global Justice

of Peoples, and suffer political, historical or economic burdens that prevent them from establishing functioning institutions and becoming wellordered. An analysis of the exact motivation and aims of this principle will open Chapter 3. Again the distinction between ideal theory and non-ideal theory is crucial, as where issues of assistance do not pertain in the utopian Society of Peoples, the need for such measures to address burdened societies that fall outside this community are recognized and appreciated by Rawls. However, non-ideal theory is a less familiar domain for Rawls, despite taking a far greater share of attention in LP than in TJ. This is reflected in the lack of depth and analysis in Rawls’ presentation of the duty of assistance, a deficiency that goes some way in explaining why he has been so roundly criticized in leaving many questions unanswered. The conclusion that Rawls’ analysis is insufficient will lay the basis for the second, constructive part of the book, where I substantiate the duty of assistance. In short, Chapter 1 introduces the Law of Peoples and considers the cosmopolitan critique; Chapter 2 argues for Rawls’ elision of an international distributive principle; Chapter 3 analyses his approach to global poverty, identifying the shortcomings of the duty of assistance.

1 The Cosmopolitan Critique

There are two main aims to this chapter. The first is to provide an introduction to LP’s central ideas and the academic debate surrounding the book. I will focus in particular on the reception of LP among liberal cosmopolitans, thinkers who have articulated ambitious and inspiring ideas about global justice and equality – some of whom were themselves inspired by Rawls. Their own interpretation and development of Rawls’ work in the international sphere provides an important context for understanding their critical response. The second aim is to lay the foundation for a reply to the cosmopolitans, and some of Rawls’ other critics. In particular, I elucidate the aspect of Rawls’ international theory, which is broadly analogous to the distribution of material resources in the domestic realm. This chapter launches the argument – to be pursued further in the second chapter – that Rawls’ international application of his conception of justice (‘justice as fairness’ (TJ: 10)) is broadly compatible with his approach in the domestic context. This claim regarding the consistency of Rawls’ work is hardly a foregone conclusion; as will be implied in discussing the reception of LP, it has, to a large degree, been the perceived academic wisdom that Rawls went somewhat awry in his international thought. Cosmopolitan thinkers, who represent the dominant voice in discussions of global justice, criticize Rawls for his decision to sideline questions of redistribution, in addition to his tolerance of non-liberal societies. There is no explicit discussion of fair equality of opportunity between states in his work, while there is an outright refutation of the proposal for an international distributive principle. The cosmopolitan critique can appear convincing: the reader may be persuaded that Rawls is guilty of reneging on his earlier philosophy and presenting an inconsistent development of his domestic theory in the international context. I have set out the chapter in five sections, the first of which provides a brief outline of some of the key components of LP. The second recounts the immediate reception of the book among those cosmopolitan thinkers who were disappointed by some of its central ideas (a response that has 9

10 On Rawls, Development and Global Justice

contributed to the perception that Rawls’ ideas on international politics represent a somewhat disappointing footnote to his collected works). Explaining this response will require some background on the cosmopolitan position and the development of this school of thought, especially in regard to three central thinkers who were influenced directly by Rawls – Brian Barry, Charles Beitz and Thomas Pogge. In the last three sections I look in some more detail at the specific arguments employed by these and other cosmopolitans in their critique of LP: the claims that Rawls tolerates excessive non-liberal practices and foregoes the egalitarian aspect of his original work in his international theory. At this juncture, I deal in part with the first argument by justifying Rawls’ broadly pluralist view of international society; the specific claim regarding the toleration of illiberal practices is addressed in greater detail in the concluding chapter. In the fourth section I set out in some detail the key accounts offered by the cosmopolitans in explaining why Rawls elides issues of distributive justice in the international realm. In the final section I commence with a critique of this critique, setting up the defence of his view of global redistribution in Chapter 2.

Rawls’ ‘Libertarian turn’ LP represents a development of Rawls’ social contract theory, from the domestic context to international society. His two basic principles of justice for the domestic realm are presented as the logical outcome of a negotiation in the ‘original position’. This construct is a thought experiment that models fair and reasonable conditions for the initial deliberation of principles of justice, suitable for liberal democratic societies. Rather than being presented as individuals coming together in a ‘state of nature’, the rational, selfinterested, reasonable individuals in the original position are located behind a veil of ignorance. They are representatives of the free and equal citizens who make up their society. Behind this veil they are denied knowledge of their talents, attributes, beliefs and position within society, which expresses the idea that they are impartial in agreeing on principles of justice. They are self-interested in the sense that they want an agreement that will best serve their interests, and they are reasonable because they will agree to fair terms with others. Their task is to specify fair terms of co-operation, and the distribution of freedom and other goods via the institutions of a liberal democratic society. In Rawls’ terms, the principles they select will regulate the basic structure of society. In the narrative of TJ, the representatives are presented with various options, with the result that they favour Rawls’ two principles over their competitors. Presented in basic terms, Rawls’ first principle guarantees equal liberties for all, while the second is made up of two parts; the first part guarantees equality of opportunity, while the second ensures that inequalities

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are permitted on the condition that they benefit the worst off. These are principles of ideal theory, meaning there is an assumption that the subjects in question will act in compliance with their injunctions. In this regard, Rawls’ political theory is one that firstly identifies a perfectly just society, rather than getting to grips more directly with the problems of democratic society; this ‘transcendental institutionalism’, as Sen terms it, offers a more abstract approach than thinkers who are concerned with analysing actual social behaviour and realizations (Sen 2009: 7). However, the description of a just society presented by Rawls’ justice as fairness posits normative benchmarks that can shed critical light on our contemporary society. In LP, Rawls’ aim is to extend this liberal conception of justice to international society, ‘by introducing a second original position at the second level, so to speak, in which the representatives of liberal peoples make an agreement with other liberal peoples’ (LP: 10). This time, in the international original position, the parties are subject to a veil of ignorance properly adjusted for the case at hand: they do not know, for example, the size of the territory, or the population, or the relative strength of the people whose fundamental interests they represent … they do not know the extent of their natural resources, or the level of their economic development, or other such information. (LP: 32) Here, the individuals are modelled as representatives of their societies, and their basic task is to agree to terms of co-operation between peoples. Again Rawls uses the representational device of the original position, and the principles that it delivers can be regarded as applicable to an ideal society of compliant agents. Whereas international law, as we know it, is vulnerable to contingency because states cannot be relied upon to act in a compliant and reasonable manner, the Law of Peoples is not (Brown 2002: 12). Well-ordered peoples, which include both liberal and decent societies (LP: 3), are characterized in a similarly moral way to persons. Liberal peoples are regarded as free and equal with their own fundamental interests. They ‘strive to protect their political independence and their free culture with its civil liberties, to guarantee their security, territory, and the well-being of their citizens’ (LP: 34). A people’s self-respect is also regarded as a fundamental interest, which is manifest in the demand for the respect and recognition of their equality by fellow members in the Society of Peoples. This emphasis on the respect for others is an important feature of the ‘moral nature’ of peoples, which Rawls regards as being in contrast to the nature of states, who may allow their self-interest to take priority over respect for others (LP: 29).1 In sum, the principles agreed to by liberal peoples in the first international original position will reflect the idea of equality among peoples.

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The ideas of respect and equality are also important in the extension of the Law of Peoples to non-liberal peoples. Once liberal peoples have agreed upon suitable international principles, Rawls presents a second international original position, where these principles are offered to decent peoples. Although a decent people does not exhibit liberal democratic values in line with Rawls’ notion of domestic justice, and does not necessarily ‘treat its own members reasonably or justly as free and equal citizens’ (LP: 83), Rawls still believes that the ideas of equal respect and reciprocity should extend to such a society. He provides an example of the type of society he has in mind with his notion of ‘decent hierarchical peoples’ (LP: 4); these peoples are characterized by a ‘decent consultation hierarchy’ that allows its members to play a meaningful role in its political life.2 Their political systems may be non-democratic and subscribe to a particular non-liberal conception of the good, but in Rawls’ eyes these peoples deserve respect because they advocate basic human rights, and have institutions that allow their citizens a significant political role and to exercise the right to dissent. Moreover, given that their interests overlap significantly with liberal peoples – with their pacific nature, their respect for human rights and a desire to promote their societal idea of justice – Rawls argues they would accept the principles of the Law of Peoples (LP: 69). Rawls proposes eight principles that he believes would be accepted by both liberal and decent peoples, and they form the ‘basic charter of the Law of Peoples’ (LP: 37): 1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples. 2. Peoples are to observe treaties and undertakings. 3. Peoples are equal and are parties to the agreements that bind them. 4. Peoples are to observe a duty of non-intervention. 5. Peoples have the right of self-defence but no right to instigate war for reasons other than self-defence. 6. Peoples are to honor human rights. 7. Peoples are to observe certain specified restrictions in the conduct of war. 8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. (LP: 37) Whereas different types of principles are considered in the domestic original position, in the international context it is interpretations of these eight principles that are negotiated, rather than a choice of principles. That Rawls makes no effort to explain this change of method does not help in

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defending his case. The suggestion would seem to be that peoples’ desire to protect their equality and independence means that the principles require no discussion: ‘the representatives of well-ordered peoples simply reflect on the advantages of these principles of equality among peoples and see no reason to depart from them or to propose alternatives’ (LP: 41). This is in sharp contrast to the equivalent passage in TJ (Chapter III) where some exhaustive reasoning is deployed in order to justify the choice of Rawls’ principles. There, a series of other principles are presented to the representatives, and the selection of Rawls’ two principles is claimed to be a logical outcome, given the particular attributes of those in the original position.3 No comparable rhetorical device is utilized in the international context. However, we might accept Rawls’ claim that ‘a classical, or average, utilitarian principle would not be accepted by peoples, since no people organized by its government is prepared to count, as a first principle, the benefits for another people as outweighing the hardships imposed on itself’ (LP: 40). The most pressing concern is not so much that other sets of principles are left unconsidered (if such alternatives exist). Rather, of greater immediate significance is Rawls’ presumption that well-ordered peoples would insist on these particular principles, which embody the idea of equality, vis-à-vis each other. Specifically, if equality is the overriding concern, it begs the question as to why a distributive principle is not under discussion. Given that equality is the fundamental idea governing relations in the Society of Peoples, it appears out of place from the perspective of Rawls’ justice as fairness that no consideration is given to principles that might address the question of substantive equality. For example, a principle of equal opportunity might be appropriate in regard to positions within co-operative organizations, or a principle that entails redistribution to the worst off peoples, in a manner analogous to his domestic distributive principle. The presence of his eighth principle, the duty of assistance, suggests that certain measures are required in response to societies that are unable to comply with the Law of Peoples, but this cannot be understood as addressing the problem of inequality between members of the Society of Peoples. Allowing for the fact that such egalitarian principles could be inappropriate in the international context, there might still be the expectation that Rawls would at least consider these ideas at the contract stage and provide a rationale for their omission at this initial point. However, at first glance it seems that a discussion of this nature is omitted, without any sustained reflection. In the next section I examine the cosmopolitan critique, and the conclusion that the lack of an international distributive principle reflects a libertarian turn in Rawls’ thinking, reneging on the commitment to equality so indicative of TJ. I will also highlight how the individualism of Rawls’ domestic approach is regarded by these thinkers as fundamental to his entire philosophical outlook, rendering his toleration of decent societies equally perplexing.

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A flawed Law of Peoples? Cosmopolitan thinkers were quick to judge Rawls on account of his apparent libertarian turn and toleration of illiberal societies. With some notable exceptions,4 the bulk of the initial literature on LP seemed to express disappointment that Rawls failed to see the problem of international justice from a more cosmopolitan perspective. We should keep in mind the fact that he had published his first extended paper on the subject in 1993. This original version of the Law of Peoples exhibited the same toleration of decent societies and was less attuned to problems of international economic justice, itself inviting a number of critical responses.5 When the 1999 monograph was published it may, in some sense, have been construed as an opportunity for Rawls to atone for earlier erroneous admissions. Rawls, it seems, recognized that some of the criticisms of his original paper were well made, given the greater acknowledgement of economic issues in the later version. However, the dissatisfaction that typifies many commentaries on the later LP might in part be accounted for by the fact that his critics had greater expectations in terms of Rawls’ vision for economic justice – and that he had failed to live up to them for a second time. Kok-Chor Tan wrote, not long after, that Rawls’s hesitation to extend his principle of distributive justice to the global context in his earlier writings was largely seen as an oversight that is in principle remediable. It is thus disappointing that in his articulation of a law of peoples, Rawls affirms his rejection of an egalitarian international theory. (Tan 2001: 495) At times, the responses can appear somewhat dismissive, in one case bringing into question the relevance of LP.6 However, this reaction should also be understood in the context of the intimate relationship between Rawls’ political theory and the liberal cosmopolitan perspective espoused by many. In essence, the individualism and egalitarianism advocated by Rawls in his domestic theory are the values that they believe we should broadly aspire to in the global context. The cosmopolitans press two general claims. The first of these is that Rawls is mistaken in the way he constructs his approach to international justice, and that it would be both philosophically coherent and morally preferable to have a global original position with representatives of individuals rather than states. The subsequent principles selected to apply to global institutions would reflect individual rather than state interests. Secondly, they argue that even if we concede international principles of justice are to be framed in terms of state interests, then the parties in the original position would choose more radical principles than those suggested by Rawls,

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including a distributive principle to secure greater material equality between states. Claims of this kind were first put forward by Brian Barry (1973) in his critical examination of TJ, and the limited passages in this original work on the nature of international justice.7 In essence, Rawls presented here the vision of international society he would develop in LP, with a second contract generating what he then called a ‘law of nations’ (TJ: 332). Barry’s first argument is a repudiation of Rawls’ statist approach: if the parties in the original position seek to mitigate various contingences by maximizing the position of the worst off, Barry claims they would also demand that the relative strength of this position should not be compromised by the contingency of being born in a poor country. To insist on disregarding whether the scope of the principles applies to specific existing states is insensitive to the fact that life in some countries affords feeble material prospects compared to others. Given this prospect, it is Barry’s view that the first decision of those behind the veil of ignorance ‘would be to challenge the rules under which Rawls requires them to operate’ (Barry 1973: 129). A more just approach would be for the original position and its principles to apply globally, disregarding national boundaries, so that inequalities between persons are regulated on a global scale. Barry’s second argument stipulates that even if ‘the participants in the original position agree to play by the rules set out in TJ’ (Barry 1973: 132) and accept that the different communities are already defined (entailing an international original position with representatives of nations) then the minimal set of principles Rawls identifies would be rejected. There is no feasible reason, so Barry states, ‘why the representatives of different countries should not, meeting under the conditions specified, agree on some sort of international maximin’ (Barry 1973: 132). As rational actors who are risk averse, there is no reason to suppose they would not demand, among other things, a worldwide redistribution to ensure that inequalities are justified, only to the extent that the worst-off nation’s situation is improved. Charles Beitz, in his seminal work, Political Theory and International Relations (1999 [1979]), proposes a variation on Barry’s second argument: that the representative parties in the international original position would choose a more extensive set of principles. Beitz argues that natural resources provide the wealth to build the institutions required to sustain citizens’ needs. Given the contingent nature of the location of these resources, the parties in the international original position would ‘agree on a resource redistribution principle’ (Beitz 1999: 141). However, Beitz also proposes a principle of global distributive justice, on the grounds that a global original position with representatives of individuals is preferable. He argues the phenomenon of global interdependence represents a form of social co-operation, and extrapolates that it is therefore logical for the original position to be extended globally, with principles that are to apply to this

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worldwide society. As such, a principle of global distributive justice will seek to maximize the position of the worst off persons, regardless of whether these measures are coextensive with national boundaries (Beitz 1999: 148). Beitz (1983: 596) later adjusted his position, recognizing that it is not global co-operation alone that justifies global principles of justice. Rather, he argued that global principles should be grounded in a moral conception of individuals as free and equal, which compels us to think of principles of justice to apply to the institutions that influence their lives. We should begin on the premise that justice applies first and foremost to individuals, and the fact of interdependence and the influence of global institutions on individual lives entails that global principles are appropriate (Beitz 1999: 203). Thomas Pogge (1989) argues that a philosophically coherent extension of Rawls’ perspectives requires a cosmopolitan approach, grounded in the idea of individuals as free and equal. He also recapitulates the other cosmopolitan argument: that states in the international original position would demand more principles than implied in TJ. In particular, they would select a principle requiring a ‘global institutional framework’ to ensure the material goods to protect equal liberties – as a world of great inequality places great strain on maintaining commitments to ‘burdensome treaties’ (Pogge 1989: 244). However, Pogge ultimately concludes that this interpretation is ‘incompatible with Rawlsian commitments’ (Pogge 1989: 247). He argues that Rawls’ perspective entails individual claims trumping those of the state, because of the ‘individualistic conviction that in matters of social justice only persons are to be viewed as ultimate units of (equal) moral concern’ (Pogge 1989: 247). This argument is emphasized a number of times (Pogge 1989: 252, 254, 258). Pogge suggests that once we accept that matters of inequality within other societies are not ones of moral indifference for ourselves, a truly Rawlsian approach should go further than merely a conception of global background justice. There is a claim to be made for ‘a globalized second principle’, which, in a similar vein to the difference principle, would be designed to ensure that the inequalities arising from the contingent distribution of the world’s resources optimize the share of the worst-off individual (Pogge 1989: 251). If we consider how these cosmopolitan thinkers envisaged the potential development of Rawls’ theory, and their assumption that his liberal individualism should be a central plank of his international perspective, it is hardly surprising that the 1999 monograph was viewed as an opportunity to set right the shortcomings of the initial exposition in TJ, and the 1993 version of the Law of Peoples. To those progressive thinkers inspired by Rawls, and others who had come to espouse a cosmopolitan approach to international politics, it was perhaps inevitable that his continued faith in the nominally traditional idea of a Society of States was viewed with some disappointment, and as a rather uncritical acceptance of the international system.

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Peoples, not persons The cosmopolitan response to Rawls’ mature statement of his international theory, as represented in LP, is considered in detail in the next three sections. Their different arguments are divided roughly into two, in keeping with those approaches we have familiarized ourselves with in Barry, Beitz and Pogge’s work. The first kind takes issue with Rawls’ theoretical approach and his rejection of cosmopolitanism. These objections are considered in this section – as well as a possible response. The following section considers the approach that accepts (for the sake of argument) Rawls’ methodology, but claims that he could have provided a more radical alternative – specifically an international distributive principle. I outline some of the many criticisms that focus on the absence of a thorough treatment of global inequality, which try to elucidate Rawls’ rejection of a globalized second principle. In the final section of the chapter these arguments will be evaluated, with the conclusion that not one of the arguments provides a wholly convincing account of the rationale (or lack thereof) in Rawls’ thinking. A prominent theme in illustrating how Rawls has gone awry in LP is the extent to which he advocates the toleration of decent peoples, peoples that sacrifice the rights and freedoms of individuals so fundamental to his domestic theory. The most pointed example of this critique appears in the work of Simon Caney, who takes issue with Rawls’ people-based approach, and the manner in which it invokes the idea of toleration. On his reading, Rawls’ approach ‘allows racial discrimination, the political exclusion of ethnic minorities, the forcible removal of members of some ethnic communities (that is, ethnic cleansing)’ as well as the possibility of tolerating ‘a regime governed by apartheid principles’ (Caney 2002: 102). In terms of the consequences for individual liberty in these societies, Rawls’ claim that he prioritizes the value of toleration is rendered meaningless. Luis Cabrera (2001) presents a similarly forthright argument, claiming that many difficulties in Rawls’ approach can be traced to a flawed analogy between individuals and peoples. Given the apparent propensity of decent peoples in sanctioning the exclusion and even tyranny of individuals, the basis for their claim to non-interference and toleration is a specious one: ‘a decent nonliberal people cannot be said to jointly choose their mode of life in a way that justifies the stringent prescription of toleration as non-interference in the law of peoples’ (Cabrera 2001: 170). Martha Nussbaum takes up a similar theme (2002), railing against Rawls’ decision to prioritize peoples’ rights. She questions why it is, that in his domestic theory it is unacceptable for ethnic groups to oppress their members, while from the perspective of his international theory the same group is given licence to dominate over minorities, if they form a state (Nussbaum 2002: 294). As we will see later, Nussbaum has her own view on an appropriate

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cosmopolitan approach, elaborating her claim that ‘there are no good arguments for making groups, rather than individuals, the basic subjects of a theory of justice, and some very strong arguments why we should insist that the individual is the basic subject’ (Nussbaum 2002: 286). Andrew Kuper (2000) adopts a perspective reminiscent of Barry, Beitz and Pogge, based on the initial premise that Rawls’ ‘thin statist’ approach is an ‘ungrounded assumption’, and that a normative approach grounded in the individual is more liberal, ‘in Rawls’s own terms’ (Kuper 2000: 640). Kuper’s greatest preoccupation is the apparently misconceived idea of toleration put forward by Rawls, specifically its propensity to tolerate inequalities in decent societies. Suggesting how Rawls has misunderstood himself, Kuper points out ‘[i]t is this most basic internal feature – the respect for persons captured by the idea of ethical toleration – that must be the cornerstone of a consistent global liberal regulatory framework’ (Kuper 2000: 652).8 Despite being a forceful criticism, the view that Rawls has somehow misapplied his own ideas to the international context faces a difficulty, in that it does not lend itself to a sustained attempt to understand his method. An engagement with his perspective – that in the international context peoples rather than persons are the primary moral referent – is not the priority. The assumption that individual concerns come first, and that Rawls’ approach should be in keeping with this view, can preclude due consideration of his perspective. If we take a contrasting approach and first evaluate Rawls’ rationale, there is reason enough to suggest that his is a starting point worth taking seriously. To move away from the notion that Rawls misapplies his philosophical approach in LP, we must question the presumption that the transposition of key ideas from the domestic realm should take precedence. In presenting a consistent application of his approach to justice, it is the method rather than the content that is given priority by Rawls. In concentrating on how this method influences his approach to international theory, an apt place to begin is the idea of reflective equilibrium. Rawls believes that a theory of moral philosophy, such as his theory of justice, is in reflective equilibrium when it is most attuned to our considered judgements. At this point it can be regarded as closest to the philosophical ideal. However, this does not simply mean that these considered judgements, which constitute an individual’s sense of justice, are to act as fixed normative benchmarks for the appraisal of a theory. We must make an allowance that such judgements are ‘no doubt subject to certain irregularities and distortions’ (TJ: 42). A theory of justice should therefore speak to these judgements, both by articulating them in a reasoned and systematic manner, but also by allowing us to reflect upon them and adapt them where appropriate. A person may revise their judgements to conform to principles where an exact fit is lacking, and ‘is especially likely to do this if he can find an explanation for the deviations which undermines his confidence in his original

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judgments’ (TJ: 43). Ultimately, the justification of a moral doctrine such as Rawls’ justice as fairness ‘rests upon the entire conception and how it fits in with and organizes our considered judgments in reflective equilibrium’ (TJ: 507). An implication of this justification for a theory of justice is that its principles, through being grounded in a person’s considered judgements, will by extension be located in the culture and environment of the individual. In this sense, one can understand the foundation stones of Rawls’ moral theory as being situated in our shared history and values. In the domestic context these shared values and history are expressed in our public culture (PL: 8). Within this culture, Rawls holds that there are certain issues that we all regard in a certain way – for example, ‘we are confident that religious intolerance and racial discrimination are unjust’ (TJ: 17). The assumptions are labelled by Rawls as ‘provisional fixed points’ (TJ: 18). Where these values offer a starting point, there are other issues of justice such as distribution that require more sophisticated elucidation. The social institutions that control this distribution will establish their legitimacy by being organized in accordance with principles of justice, which in turn are attuned to values present in the public political culture. Applied to the international arena, Rawls’ method yields different principles of justice from those he applies to domestic society. He begins with the presumption that ‘a shared basis of justification exists and can be uncovered by due reflection’, as with the domestic case (LP: 19). In keeping with this approach, a liberal international theory of justice must look to those considered judgements that exist in the realm of international law and politics (as viewed initially by liberal peoples), and must seek to articulate and interrogate them. It is Rawls’ view that, as with the domestic case, the ‘social contract conception of that law, more than any other conception known to us, should tie together, into one coherent view, our considered political convictions and political (moral) judgments’ (LP: 58). As we have seen, in Rawls’ eyes a central tenet of the international equivalent of a public political culture is the assumption that the interests of peoples take precedence over those of the individual. Even though his principles represent a liberal law of peoples, developed from a liberal idea of justice ‘similar to, but more general than … justice as fairness’ (LP: 3), their content is destined to be very different from the cosmopolitan principles of Barry, Beitz and Pogge. As Percy Lehning explains: There is, on the international level, simply no point of convergence that is comparable, or even similar, to the basic ideas of the ‘domestic’ public political culture of liberal democracies, or that prescribes that citizens are to be seen as free and equal, regardless of the arbitrariness of their specific natural endowments, or of their social contingencies. (Lehning 2009: 183)

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Leif Wenar comments in a similar vein that ‘Rawls must draw on the global public political culture … as this is the only source of doctrine that can serve as a focal point for all individuals’ (Wenar 2006: 102). While the equality of peoples or states might be regarded as the core value of this international political culture, it is questionable whether liberal individual rights, freedom and equality are so fundamental. It is for this reason, Wenar claims, that Rawls balks at cosmopolitanism … Peoples, not people, are the main actors in the public political culture of international treaties, conventions, and organizations. There simply is no robust global public political culture which emphasizes that the citizens of different countries ought to relate fairly to one another as free and equal. There is no focal point comparable, that is, to the ideas of free and equal citizenry contained in the public political culture of a liberal democracy. It is peoples, not citizens, that international political institutions regard as free and equal, and so it is these ideas of peoples that Rawls thinks he must use to develop his global political principles. (Wenar 2001: 87) Rawls thus articulates a Law of Peoples that derives from the international equivalent of our domestic public political culture, which gives precedence to the interests of peoples over persons. Reflecting this, he asserts that he takes his eight principles ‘from the history and usages of international law and practice’ (LP: 57).9 It is in this context that we must understand Rawls’ approach to toleration in his international theory. It is his view that the idea of toleration must be adapted to the case in hand, and in the first instance this idea is to be applied to peoples, not individuals. Rawls’ approach, that peoples conceived as decent and peaceful should be tolerated, is predictable when considered with regard to the international (or global) public political culture. A major strand of this tradition is the norm of non-intervention. Moreover, in a Society of Peoples, where reasonable, non-liberal political conceptions of justice are treated with respect and equality, liberal peoples can afford to be more tolerant of these conceptions than they are willing, or able to be, in the confines of their own society. Rawls states: If all societies were required to be liberal, then the idea of political liberalism would fail to express due toleration for other acceptable ways (if such there are, as I assume) of ordering society … providing a nonliberal society’s basic institutions meet certain specified conditions of political right and justice and lead its people to honor a reasonable and just law for the Society of Peoples, a liberal people is to tolerate and accept that society. (LP: 59–60)

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As we will see in the next chapter, the constructivist approach espoused by Rawls is not only crucial for understanding his position on toleration and decent peoples, but can also be regarded as an important reason for his rejection of a global distributive principle. Although his is a more conservative approach than the likes of Barry, who prefers to begin with a cleaner slate, it does not prevent Rawls from proposing some demanding normative principles on the basis of ideas that exist in our international public political culture – his principle on human rights being one example. The progressive nature of his ideas will be debated through the course of the book, and in the final chapter I will return to the question of toleration, to demonstrate how Rawls sanctions extensive measures in support of individual rights. Although he does not discuss Caney’s scenario of ethnic cleansing and apartheid being tolerated in the Society of Peoples, the thrust of my argument will suggest that such political injustices are clearly in breach of the Law of Peoples. In fact, one objective will be to demonstrate that his aims with regard to the distant needy are ultimately comparable to those propounded by some cosmopolitan thinkers. However, arriving at these conclusions in a persuasive manner will require a substantiation of his view on international distributive justice.

The rejection of global redistribution We can therefore accept that even though Rawls does not apply the content of his domestic theory directly to LP, specifically the normative individualism of TJ, there is a valid argument for claiming that he presents the reader with a consistent application of his philosophical approach. The cosmopolitan claims that Rawls is excessively tolerant of non-liberal societies may still require some discussion, but the view that his approach is misconceived in light of his domestic approach seems less convincing. We now move on to those criticisms that are based on an acceptance (for argument’s sake) of his methodological approach. These arguments tend to address the problem of global inequality in Rawls’ theory, and attempt to pinpoint the reasons for his failure to incorporate concerns of global distributive justice. They are of the same order as the earlier cosmopolitan accounts, which attempted to argue that regardless of Rawls’ statism, distributive principles of some description could nevertheless be considered a logical part of his international theory. The tenor of this general critique is that given Rawls’ egalitarianism in the domestic context, it is puzzling that he should relinquish a principle of substantive equality so readily in the international context. I will identify three prominent attempts at accounting for this apparently radical change in Rawls’ perspective from the egalitarianism proposed in his domestic theory: (1) that Rawls’ statist perspective on international justice forecloses the possibility of redistribution; (2) that he elides distributive concerns because they

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are no longer his priority, following the development of his thinking from TJ to Political Liberalism (PL); (3) that he ignores or inexplicably downplays the prominence of the global structure, which, if acknowledged, demands more egalitarian principles from the perspective of the Rawlsian paradigm. I will examine these criticisms one at a time. The first account reasons that, as a direct result of Rawls’ decision to give moral priority to peoples rather than persons, LP has a less egalitarian perspective than TJ. Beitz refers to LP as ‘the most sophisticated interpretation yet produced of a branch of the liberal internationalist tradition that might, for want of a better term, be called social liberalism’ (Beitz 2000: 677), yet despite this a distributive principle cannot be incorporated. This approach, which has also been labelled ‘thin statism’ by Kuper (2000: 640) is defined by a division of labour: ‘domestic societies are responsible for the well-being of their people, while the international community is responsible for maintaining background conditions in which decent domestic societies can flourish’ (Beitz 2000: 677). As we have seen, a theoretical difference in regarding domestic societies as the primary moral agents, with ‘corporate capacity for exercising responsibility,’ can lead to significant differences regarding ‘the reach and requirements of international distributive justice’ (Beitz 2000: 678). From the cosmopolitan perspective, the challenge for those thinkers such as Rawls is to ‘disarm cosmopolitan liberalism of its critical thrust by showing that a view with more conservative premises converges with it at the level of policy’ (Beitz 2000: 678). However, the cosmopolitans claim that LP is found wanting in this regard. According to this first account, the reason can be found in the primacy ascribed to peoples, and the attendant division of labour. Because of this division, the domestic principles of justice are prior to those in the international realm, and therefore the principles of peoples must be given priority. On this account, Rawls leaves to one side questions of distribution, because distributive justice is taken to apply within the state only: ‘[t]he principles of domestic justice are established prior to and independently of the principles of global justice (which are either derivative or compatible) and are given lexical priority’ (Kuper 2000: 641). Any type of redistribution between peoples is therefore ruled out, as it would be an infringement of their autonomy and equal status. As Shaw interprets the argument, ‘Rawls argues that it would be intolerant to demand its incorporation or that of any other redistributive principle into the law of peoples’ (Shaw 2005: 220). Even if we think of Rawls’ principles exclusively as a guide for the foreign policy of liberal peoples (LP: 10, 83), then the exclusion of a global distributive principle might be regarded as crucial, on a liberal society’s own terms. As Beitz explains: The motivation for considering the Law of Peoples from a nonliberal point of view is a reflection of the requirement of reciprocity that Rawls

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believes is intrinsic to liberalism itself: we wish to act on principles which are not only reasonable to us but which we believe it would be reasonable to expect those affected by our actions also to accept (p. 58). Understood this way, Rawls’s conception of a decent, nonliberal society, and the claim that acceptance of the Law of Peoples would be reasonable from its point of view, is part of an argument that the Law of Peoples is justifiable for liberal societies themselves. (Beitz 2000: 675) In other words, a condition for a liberal conception of international justice is that it must be acceptable from a reasonable, non-liberal world view. Just as those persons in the domestic context who do not subscribe to a comprehensive liberal doctrine can endorse Rawls’ principles of justice, it is crucial that those peoples who do not subscribe to a politically liberal doctrine would be able to endorse his international principles of justice. Caney (2001: 127) is another who suggests that Rawls foregoes a global distributive principle on the basis that it is inappropriate to foist liberal values on others, while Tan (2001) cites an extract from the 1993 version of LP that seems to corroborate their claim: There are various kinds of societies in the society of peoples and not all of them can reasonably be expected to accept any particular liberal principle of distributive justice; and even different liberal societies adopt different principles for their domestic institutions. For their part, the hierarchical societies reject all liberal principles of domestic justice. We cannot suppose that they will find such principles acceptable in dealing with other peoples. (Rawls 1993: 75) If Rawls rejects redistribution for this reason, then his logic is unsound. Simply because some peoples may dispute the applicability of distributive principles in their own territory does not lead to the conclusion that they would regard international redistribution as unacceptable. Tan reasons that it is more likely ‘that a society that believes that certain economic and social inequalities among its citizens are justified will still insist, nevertheless, that it is entitled to a fairer share of the world’s resources’ (Tan 2000: 169). International redistribution in Rawls’ Society of Peoples would not have to be premised on an insistence that greater equality should be promoted within societies, simply that there should be greater substantive equality between societies. Allen Buchanan presents two persuasive suggestions for why non-egalitarian societies would be more likely to accept rather than reject a distributive principle. Firstly, their priority as peoples is to be able to pursue and maintain their own particular conception of justice, and the greater amount of socio-economic resources to be secured through

24 On Rawls, Development and Global Justice

redistribution would contribute towards this goal. Secondly, a further priority is to promote a level of equality between peoples that would provide the foundation for their self-respect (Buchanan 2000: 709). In fact, it seems most likely that any objections raised against the prospect of a distributive scheme would come from the direction of the wealthier, liberal societies that would be forced to redistribute some of their wealth. With this in mind, a rejection of any distributive principle might in fact be construed as a compromise with the interests of liberal peoples, rather than those non-liberal societies. Tan suggests that a critical reading of Rawls’s global theory could therefore charge him with infringing his own provision that liberalism ought not to be stable in the wrong way, that is, to be a mere modus vivendi for accommodating existing diversity. It would say that his law of peoples makes concessions to both liberal and non-liberal states. For the former, Rawls abandons his own egalitarian commitments; for the latter, he relaxes the conditions for liberal toleration. (Tan 2000: 170) The implication is that Rawls is more inclined towards pragmatism than principle in the international context; to establish any consensus around the principles of the Law of Peoples, there is a need to empty it of any potentially robust and divisive principles. In the domestic context, Rawls claims that his theory is in reflective equilibrium: it presents principles that speak to our reasonable and considered judgements. It is Tan’s claim that in the international context Rawls presents us with a Law of Peoples that is arrived at through concessions, rather than any aspiration for reasoned or idealistic principles. This takes us onto the second account for the omission. Tan claims that the libertarian turn and the supposed compromise in devising the principles of international justice are in fact more consistent with Rawls’ development as a thinker than might first appear. It is his claim that these tendencies are evident in his work prior to LP and that they have culminated with the elision of an international distributive principle. Tan’s argument demands consideration; it presents an informative account of Rawls’ approach, and provides a sustained attempt at accounting for his rationale in the international context. He cites two key passages from PL (originally published in 1993) regarding the domestic distributive principle – ‘the difference principle’ – in order to demonstrate what he argues is the gradual alteration of Rawls’ perspective from his original ideas in TJ: [W]hile some principle of opportunity is surely … an essential, for example, a principle requiring at least freedom of movement and free choice of occupation, fair equality of opportunity (as I have specified it)

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goes beyond that and is not such an essential. Similarly, though a social minimum providing for the basic needs of all citizens is also an essential, what I have called the ‘difference principle’ is more demanding and is not. (PL: 228–9) This is because, whether the aims of the principles covering social and economic inequalities are realized is far more difficult to ascertain. These matters are nearly always open to wide differences of reasonable opinions; they rest on complicated inferences and intuitive judgments that require us to assess complex social and economic information about topics poorly understood. (PL: 229) On this basis, Tan points out that Rawls is admitting the difference principle is not essential for every liberal society, given that it would be subject to reasonable disagreement and doubts about its applicability. He goes on to make the stronger claim that ‘Rawls thus unabashedly rejects the universal validity of his second principle even for liberal societies’ (Tan 2000: 172). This argument would seem to be corroborated by the formulation of domestic justice that Rawls presents in LP. In his description of a reasonable, liberal conception of justice, he clearly omits the difference principle. According to Rawls, such a conception of justice would exhibit the following three characteristic principles: the first enumerates basic rights and liberties of the kind familiar from a constitutional regime; the second assigns these rights, liberties, and opportunities a special priority, especially with respect to the claims of the general good and perfectionism values; and the third assures for all citizens the requisite primary goods to enable them to make intelligent and effective use of their freedoms. (LP: 14) In the attendant footnote, Rawls clarifies the fact that his own notion of justice as fairness, with its difference principle, is the most egalitarian of the family of reasonable liberalism. It is therefore to be considered one of many possible just arrangements for a liberal society. Tan is of the opinion that Rawls has relaxed his standards, and that it has occurred as a result of a shift in Rawls’ thinking. The main difference between Rawls’ perspective in TJ and PL is thought to be the development of justice as fairness as a purely political, freestanding morality, rather than a comprehensive liberalism. In effect, Rawls makes an explicit effort in PL to demonstrate how justice as fairness does not encompass an

26 On Rawls, Development and Global Justice

all-embracing, liberal conception of the good that is to dictate the values of every individual in society. Rather, it is a political conception of justice, which individuals with many different kinds of reasonable comprehensive doctrines should be able to endorse. It is Tan’s belief that in making this distinction clear, and setting out the manner in which disparate individuals can endorse his principles of justice, Rawls discovers that he is left without ‘the basis upon which to justify the Rawlsian second principle, or any principle explicating and specifying the general idea of equal opportunity for that matter’ (Tan 2000: 173). The justification of a distributive principle on a purely political basis, and the claim that it is amenable to an overlapping consensus between individuals with numerous conceptions of the good, is highly problematic. The reasonable disagreement that is likely to exist on the issue of redistribution advances the idea of a family of reasonable liberal conceptions, where different variations of the distribution of socioeconomic goods are accepted. Tan’s argument seems to be that once this explicitly political perspective is transposed to the international realm, the pragmatic tendencies of political liberalism override the ideal perspective of justice as fairness. The need to establish a consensus forecloses the possibility of an international distributive principle, because it would be subject to too much reasonable disagreement. Finally, the prevailing account for the elision of an international distributive principle begins with the claim that, from a Rawlsian perspective, such a principle should be listed on the charter of the Law of Peoples due to the far-reaching influence of the global structure on the prospects of individuals and peoples. Rawls believes that a domestic distributive principle is required on the basis that the basic structure of society has an extensive influence on the life chances of individuals. For this reason he argues it should be regulated in a manner that allows everyone to have a fair opportunity to pursue their conception of the good. Analogously, so the argument goes, the structure of international society needs to be regulated to ensure that peoples and their citizens can properly pursue their interests. Given the straightforward logic of this argument, the lack of attention that Rawls pays to regulating the international structure is perhaps best explained by the notion that he has simply made a misjudgement. Curiously, Rawls has neglected the significance of interdependence in an increasingly globalized world.10 This third account is evidently dependent upon the assumption that we exist in an international society where there is an established global structure, which clearly has a tangible influence on the fortunes of peoples and individuals. Buchanan, who provides the definitive version of this argument against Rawls, believes this to be self-evident: ‘There is a global basic structure,’ he concludes, which ‘in part determines the prospects not only of individuals but of groups, including peoples in Rawls’s sense’ (Buchanan 2000: 705). As he points out, should we need confirmation of this fact, we

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need look no further than international trade agreements and institutions such as the International Monetary Fund. This global structure is perceived to determine the relative positions of agents within it, in the same vein as the domestic structure. The distributions of goods and positions that occur, and their regulation, will have a widespread effect on the opportunities afforded to those within it. Given that an individual’s life chances are dictated to a great extent by the accident of birth, justifying the regulation of this global structure, as we have seen, is logical from a cosmopolitan point of view. However, there is no reason to suppose that, as the relevant moral agents, peoples would not have an interest in principles regulating the structure within which they are located. It appears logical that in the international original position, the representatives of peoples would want to negotiate the relevant principles for this structure. They would no doubt hope to mitigate harmful inequalities that might prevent them from securing their interests, either through regulation, redistribution, or a combination of both. Buchanan reasons that [i]f there is a global basic structure – a set of economic and political institutions that has profound and enduring effects on the distribution of burdens and benefits among peoples and individuals around the world – then surely it is a subject of justice and a very important one. (Buchanan 2000: 705) What is important to note here is that the criticism is on Rawls’ own terms: a distributive principle is not advocated in this case for the benefit of individuals. Those behind the veil of ignorance are representatives of peoples, and as such they have specific interests, including protecting their right to implement their conception of the good. They would be seeking to promote their interests and therefore, as Buchanan argues, they would be concerned to choose principles that would ensure fundamental equality for their societies vis-à-vis other societies. And this means choosing principles for a global basic structure that would at least rule out those inequalities among peoples that are incompatible with preserving the social bases of self-respect for all peoples. (Buchanan 2000: 708) Moreover, Buchanan argues that representatives would also want to negotiate a form of global equal opportunity, and discuss fair terms of democratic negotiation. Firstly, they would demand ‘fair access to desirable positions and roles in the most important international economic institutions and in global corporations’ (Buchanan 2000: 712). It is also likely that they would draw up a principle of ‘democratic participation in the most important global governance institutions … disproportionately controlled by persons

28 On Rawls, Development and Global Justice

representing the interests of the richest and most powerful states’ (Buchanan 2000: 712). Buchanan also points out that the demands he outlines would be endorsed by peoples without egalitarian social structures. Such societies would clearly be enthusiastic about claiming representation, even if the prospective candidates for such positions in their own society were selected on an elitist basis. In attempting to rationalize Rawls’ omission of an international distributive principle, the cosmopolitans are at their most critical. The absence of an analogue for the second principle of his domestic theory is at best regarded as an oversight. Given also Rawls’ toleration of the non-liberal practices of decent peoples, LP is viewed from the cosmopolitan perspective as a somewhat unsatisfactory example of a progressive, liberal approach to international justice, especially when regarded in light of the radicalism of TJ.

Rereading Rawls The aim of this final section will be to respond to the latter three accounts put forward by the cosmopolitans, and begin a critique of their critique from the perspective of Rawls’ theoretical approach. The first account put forward points to a clear contradiction in the work of Rawls. In one context, he seems to be claiming that it is inappropriate to impose a distributive principle on non-egalitarian peoples, because it infringes upon their domestic conception of justice. However, the fact that they are non-egalitarian does not appear to foreclose the possibility of constructing the international original position. In this case, Rawls claims that they are happy to consider a position where all the parties are regarded as equal, even though their own guiding principles are not those of equality. It seems inconsistent that in the case of the original position, the domestic principles of a people do not influence their perspective on international society, while in the case of redistribution domestic principles do have some influence. In defence of Rawls, it seems that he recognized this contradiction. The passage quoted by Tan, defining Rawls’ position, was present in the original, shorter article. By the time of the more extensive version in 1999, the offending passage has been removed, while Rawls goes into great depth as to why the non-egalitarian principles of some peoples would not be offended by equality on an international level: [S]ome may object that treating the representatives of peoples equally when equality does not hold within their domestic societies is inconsistent, or unfair. The intuitive force of equality holds, it might be said, only between individuals, and treating societies equally depends on their treating their members equally. I don’t agree. Instead, equality holds between reasonable or decent, and rational, individuals or collectives of various kinds when the relation of equality between them is

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appropriate for the case at hand. An example: in certain matters, churches may be treated equally and are to be consulted as equals on policy questions – the Catholic and the Congregational churches, for instance … Further examples can easily be imagined. (LP: 69) This is not a categorical endorsement of the idea that the priority of domestic principles does not preclude an international distributive principle. However, it is far removed from the denial issued in his earlier paper that peoples organized internally in an inequitable fashion would reject egalitarian principles. The previous quote should also be taken in conjunction with a later section titled ‘Distributive Justice among Peoples’ (LP: 115–19), which discusses at length Rawls’ rationale for rejecting a distributive principle, such as proposed by Beitz and Pogge. At no point does he mention the earlier argument that it would infringe upon the domestic principles of non-egalitarian peoples. Allied together, these two sections would suggest that Rawls has reneged on his earlier argument, which he no longer considers viable. Wenar’s interpretation bears out this conclusion, noting that the rejection of an international distributive principle cannot be on grounds of toleration for non-liberal societies, as Rawls considers such a principle inappropriate, even with respect to a Society of Peoples made up entirely of liberal peoples: Rawls does not reject cosmopolitan egalitarianism because he worries about foisting international egalitarianism on the deeply inegalitarian cultures of the world – for he claims that he would abjure global egalitarianism even amongst peoples all of which accepted justice as fairness. (Wenar 2001: 86) The omission of the explicit rejection of redistribution in the 1993 version of LP has some bearing on how we evaluate the second account. To recap, Tan cites certain passages from PL, which he believes illustrate how Rawls has become so focused on establishing a consensus that he is willing to sacrifice the central importance of redistribution. This he proposes as the background to Rawls’ omission of an international distributive principle, arguing that he is not willing to countenance redistribution, as its demands jeopardize the hope of consensus. However, if Rawls no longer holds that omitting a distributive principle is a matter of toleration towards non-egalitarian regimes, then it seems less clear he has repositioned himself to the extent that Tan initially suggested. If it is a possibility that non-egalitarian regimes would agree to redistribution and regulation, then it is less immediately obvious that a distributive principle would have to be sacrificed in the pursuit of an overlapping consensus. It would seem fair to assert that redistribution has not been sidelined as a necessary ideal of justice for Rawls, by the time of his writing LP.

30 On Rawls, Development and Global Justice

At the beginning of PL, Rawls denies outright that ‘working out the ideas of political liberalism meant giving up the egalitarian conception of Theory’ (PL: 7 n6). The main idea of political liberalism is not the proposal of an alternative set of principles to TJ, but rather establishing the legitimacy of those principles, and how they might be grounded in an overlapping consensus. In essence, PL can be regarded as a discussion about establishing the stability of justice as fairness in a democratic society, where competing conceptions of the good co-exist. In theorizing this aspect, Rawls is addressing a very different problem to deducing first principles, and in a limited sense he broaches some of the difficulties of non-ideal theory: how we get to where we want to be. What Rawls proposes in PL is therefore not only the theoretical task of ‘transforming justice as fairness into a political conception of justice’ (PL: xli) to take account of reasonable pluralism. He also presents a discussion of how this conception might be subject to consensus. In so doing, he acknowledges that reasonable agreement might be found on a number of different politically liberal conceptions of justice, and not only justice as fairness. Given this scenario, and the recognition that any development towards the perfectly just institutions of justice as fairness will be incremental, a broader criterion for what is a reasonable political conception is required. For Rawls, any such conception will yield ‘reasonable answers’ (PL: 227) to the question of constitutional essentials and questions of basic justice. These include the structure and processes of government and the basic rights and liberties of individuals, and ‘there is the greatest urgency for citizens to reach practical agreement in judgment about the constitutional essentials’ (PL: 227). Given this context, we must understand the remarks quoted by Tan regarding the expendability of the difference principle in a particular way: the concessions presented by Rawls may be necessary in his view in order to establish the constitutional essentials of a liberal democracy. It is in this context of the greatest urgency and establishing minimal criteria for a liberal political conception of justice that he argues that fair equality of opportunity and the difference principle are expendable (PL: 229). These ideas relate to questions of basic justice and are inevitably subject to a wider scope for reasonable disagreement. However, this is not to say that the difference principle is expendable in achieving a wholly just society, simply that ‘political discussions of the reasons for and against fair opportunity and the difference principle’ are not integral to the foundation of a constitution (PL: 229 n10). The basic freedoms are prior in some sense to issues of distributive justice, as well as being far easier to deal with empirically. However, when Rawls discusses the ‘ideal form for the basic structure’ (PL: 282) he defends the difference principle as ‘the appropriate criterion to govern social and economic inequalities’. He is not giving up on his egalitarian ideals, but being pragmatic in acknowledging the disagreement they may entail, the difficulties of their

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establishment, and indicating that there may be incremental steps towards achieving this goal. Redistribution as part of the Law of Peoples, therefore, should not be ruled out on the basis of Rawls’ philosophical approach established in PL. He has not shelved the egalitarian ideals of justice as fairness in this work. Moreover, one passage in LP would seem to suggest that establishing the domestic constitutional essential of a social minimum will inevitably require some degree of redistribution. This minimum guarantees sufficient resources for agents to make intelligent use of their freedoms. Without certain institutions, this goal may be compromised, and included within those necessary institutions are: (a) A certain fair equality of opportunity … (b) A decent distribution of income and wealth. (LP: 50) From the perspective of political liberalism and the variety of liberal political conceptions it represents, redistribution of some form is therefore necessary as a minimum, even if it does not adhere to the ideal of the difference principle. If this is the case, then we cannot account for the abrogation of distributive duties in LP by claiming that it is the outcome of a shift in Rawls’ thinking. Moreover, if Rawls were being consistent with his political liberalism, we might expect some level of distribution to ensure that peoples attain a certain substantive level of autonomy, as individuals are guaranteed by the social minimum. Could it be the case, therefore, that the elision of a global distributive principle represents an oversight on Rawls’ behalf? The most common reason given by his critics in trying to account for his approach is that he is short-sighted in seemingly maintaining the Westphalian perspective of largely autonomous political communities, which informed his view of international justice in TJ. Rather than a peripheral look at an imagined law of nations, LP represents an entirely different project and a far more grounded and historically situated engagement with international politics. Rawls emphasizes his desire to envisage a realistic utopia that begins on the premise that political philosophy should reconcile us ‘to our political and social condition’ (LP: 11). Yet despite his acknowledgement of the current order, and his attempts to conceive principles that will lead to improvements, he appears to ignore the possibility of global measures to address the obvious inequalities we witness daily. The explanation could be that Rawls has somehow overlooked the way in which the global structure works to perpetuate these inequalities, and so obfuscated the responsibility that lies with developed states in addressing these difficulties. However, a second glance at the text reveals that the cosmopolitans may have been somewhat hasty in their assertion that Rawls ignores the

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existence of the global structure, or the role it can play in influencing the global economy. His awareness of its far-reaching influence on peoples is evident in (albeit infrequent) allusions to aspects of this structure. He refers to ‘co-operative institutions among peoples, such as the United Nations’ (LP: 35). He recognizes ‘that there will be many different kinds of organizations subject to the judgment of the Law of Peoples and charged with regulating co-operation among them and meeting certain recognized duties’ (LP: 36). He advocates trade ‘regulated by a fair background framework’ (LP: 42), and the need for a central bank and confederation of peoples. He believes that ‘the basic structure of the Society of Peoples’ can be corrected in the name of justice (LP: 115). It would be reasonable to conclude that rather than neglect the role of global institutions and co-operation, he gives less attention to specifying their effects than the cosmopolitans. Both Pogge and Caney recognize that Rawls addresses these key issues; however, in the context of their critical analysis of LP, they are inclined to read Rawls’ passing remarks as betraying a lack of genuine engagement with global poverty and inequality – rather than regarding his ideas as being ripe for development. To their mind, Rawls has failed to provide the basis for a well-grounded response to these problems. Pogge acknowledges, ‘Rawls recognizes that the international economy poses a … problem … [he] seems to see the gap when he writes that any “unjustified distributive effects” of co-operative organizations need to be corrected. But then he allows no such correction’ (Pogge 2001: 251). Caney employs a similar line of argument, claiming that a ‘severe limitation in Rawls’s treatment is its generality and lack of specificity’. He continues, ‘Rawls is unforthcoming … both as to what principles are appropriate and how one can derive these principles’ (Caney 2002: 119). Moreover, Rawls fails to discuss what constitutes fair standards of trade, and provides no criteria for judging how distributive effects may be considered unjustified. It is this failure that to Caney’s mind ‘represents a serious omission and undermines the relevance of his theory to the current world order’ (Caney 2002: 119). A different approach might seek to build on Rawls’ ideas in a more conciliatory manner, addressing whether or not his omission of a global distributive principle is indicative of his normative perspective, rather than a retraction of his egalitarianism. Undertaking this task is not easy, for which Rawls must shoulder a good deal of the blame. He ‘says virtually nothing about how the parties come to endorse the law of peoples he proposes to them’ (Pogge 2000: 252), and consequently he offers no immediately obvious reasons from the parties’ perspective as to why a distributive principle is not in the charter. As with other aspects of his international thought, ‘one would like some account of these reasons, and, in particular, of why they should be decisive in the international but not in the domestic case’ (Pogge 2001: 249).

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Attempts at interpreting his work by more sympathetic critics have led to a different set of explanations. From the survey conducted in this chapter, it is a reasonable suggestion that cosmopolitan accounts of Rawls’ omissions are not without their difficulties. There is reason to suggest that a further examination of his rationale is required, with regard to his position on international redistribution. This will be the subject of Chapter 2, where I present the case that in the context of Rawls’ international ideal theory, a distributive principle would indeed be inappropriate on his terms. This will take us to Chapter 3, where I assess his less satisfactory non-ideal theory and, specifically, his proposed duty of assistance.

2 Elucidating the ‘Libertarian’ Law of Peoples

There are two separate aspects to Rawls’ philosophical approach to international justice. LP presents his ideal and non-ideal theory. In theories of the former type, such as his first work, TJ, all agents are ‘presumed to act justly’ (TJ: 8). In the international context, analogously, we can take as a basic characteristic of well-ordered peoples, ‘that they wish to live in a world in which all peoples accept and follow the (ideal of the) Law of Peoples’ (LP: 89). Some of the peoples within this society may well be very poor, but none have such unjust institutions that they are unable to comply with the charter of the Law of Peoples. As it is assumed that the principles set out will be complied with, Rawls is able to present his ideal: his realistic utopia. In explicating the omission of a distributive principle, within his Society of Peoples, the role of compliance must be acknowledged in the context for discussion. The idea that all its members are compliant, are their own masters and provide for their citizens sufficiently is an important departure point for this chapter.1 In more recent attempts at defending Rawls’ ideal theory against the cosmopolitan criticisms, two philosophers are preeminent, namely Samuel Freeman and David Reidy. They attempt a sympathetic interpretation of LP and try to account for Rawls’ reasoning, identifying what they believe to be the logical reasons for both his minimal account of human rights – and more importantly for our purposes – the elision of the difference principle in the international context. What is fundamental to their defence of Rawls is a detailed reading of the text, acknowledging that although there is no direct analogue to the difference principle in LP, Rawls does in fact acknowledge the need for certain egalitarian regulations for the world economy, and the institutions of the Society of Peoples. On a second reading of the text, it might be argued that Rawls’ critics initially downplayed his clear advocacy of the regulation of international trade and co-operation within the Society of Peoples. Having suggested that the eight principles he offers as the charter of the Law of Peoples are ‘admittedly, incomplete’ (LP: 37), he states that there ‘will also be principles for forming and regulating federations (associations) of peoples, and standards of 34

Elucidating the ‘Libertarian’ Law of Peoples 35

fairness for trade and other cooperative institutions’ (LP: 38). Reidy’s assessment of this ‘principle of free and fair trade between well-ordered peoples’ is that it represents a ‘richer and more demanding requirement of a just global economy than it first appears’ (Reidy 2007: 201). He continues: Rawls clearly states that well-ordered peoples are to refrain from monopolizing markets, forming cartels, acting as oligopolies or otherwise frustrating free and fair international or global trade and economic relations. Indeed, he claims that they are obligated to preserve the general background conditions necessary to free and fair trade and economic relations. These conditions are first that trade be between well-ordered peoples, and second that it be mutually advantageous. (Reidy 2007: 201) This demand for mutually beneficial free and fair trade, embodied in a supplementary principle to the charter, is in Reidy’s interpretation not simply a voluntary agreement. Both this principle and the duty of assistance are in fact ‘requirements of justice delivered through philosophical analysis and argument’ (Reidy 2007: 196). Measures promoting free and fair trade amount to a first principle of international justice. This is in contrast to the ‘many additional commitments binding on the ... international community’ (Reidy 2007: 196), which Rawls allows space for in maintaining that peoples may voluntarily consent to such commitments. Where the content and binding force of these additional commitments are historically contingent and depend upon the nature of international politics and voluntary consent, the content and normative force of a principle of free trade ‘can be set out on its own, apart from politics’ (Reidy 2007: 197).2 Given that Rawls is building up an ideal theory for his realistic utopia, it should come as no surprise that he suggests a principle to regulate economic interactions between well-ordered peoples. However, although Rawls clearly leaves room for extensive measures in his principle of fair trade, and for further voluntary agreements, it is his explicit rejection of a distributive principle (which includes the reallocation of resources) that most attracts the displeasure of cosmopolitans. Aside from the fact that his principles are to regulate relations between peoples (rather than addressing individuals directly), it is this fact that Rawls dismisses wealth and resource transfers that distinguishes him most clearly from the cosmopolitans. As Reidy is correct to point out, Rawls does advocate many measures that amount to the regulation of the global structure, which the cosmopolitans are so keen to see. However, regulating trade is not the same as distributing its sources or its products. With this reading of LP in mind, my aims in this chapter are twofold. The first is to propose a sympathetic account of why Rawls limits his ideal theory by rejecting an international distributive principle. We need to explain Rawls’ claim that sustaining peoples’ basic equality does not require

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redistribution. The second is to engage with the idea that emerges from Rawls’ rejection of global redistribution, namely his view that justice should not promote substantive equality as a good in itself. The argument in the following chapter will be set out in five sections. In the first four I consider different reasons that emerge in the literature for rejecting either an international difference principle or international distributive principle. I buttress these reasons with reference to Rawls’ justification of the domestic difference principle, in order to both elucidate his rationale and highlight the consistency in his approach. These references to Rawls’ system of democratic equality should illustrate the degree to which he offers only a limited egalitarianism, to which his international approach has remained faithful. Whereas these four reasons are largely built on inductive reasoning, rather than Rawls’ explicit arguments, I complete the chapter by looking at his stated rejection of equality as an intrinsic good in LP. This rejection of the idea that a theory of justice should pursue substantive equality for its own good, is crucial both to his domestic and international approaches. Together with the foregoing arguments this should clarify why international redistribution is rejected in his ideal theory, in my eyes demonstrating why the cosmopolitan critique is problematic. However, discussing Rawls’ view on equality will also expound the boundaries of his ideal theory, by identifying the basic equality of peoples that he does advocate. The international minimum that signifies this baseline of equality serves two important purposes (among others): it identifies the demands of compliance for the members of the Society of Peoples, while at the same time representing the objective, by reference to which the problems of non-ideal theory are dealt with (LP: 90). In other words, the international minimum sets a target for the duty of assistance. It is this duty that is rightly a contested element of Rawls’ approach to international distribution, and is the subject of Chapter 3.

Four reasons why In the literature that is more sympathetic to Rawls, I have identified four prominent accounts as to why Rawls rejects either an international difference principle or an alternative, less stringent, international distributive principle. Again, I do not claim to provide an exhaustive overview, but simply set out and provide some order to those accounts that appear as the most pertinent and significant. They run as follows: 1) The robust reciprocity captured by the difference principle does not exist in the international context, and therefore does not demand expression through an international analogue; 2) The fraternity captured by the difference principle does not exist in the international context, and therefore does not demand expression through an international analogue;

Elucidating the ‘Libertarian’ Law of Peoples 37

3) Rawls’ political constructivism means that questions of distributive justice are rejected as inappropriate in the international context; 4) The principle of redress does not need to be taken into account in the international context in the same way as in the domestic context: to do so and demand the redistribution of wealth between peoples is to promote more substantive equality that would contradict the values of Rawls’ system of democratic equality – it would instead represent a brand of luck egalitarianism inconsistent with Rawls’ system of democratic equality. I will run through the four arguments in turn, claiming that they represent reasonable grounds for discounting an international difference principle analogous to the domestic equivalent, or any other form of distributive principle. It has to be accepted that a difference principle would be an inappropriate instrument at the international level given the justification Rawls provides for it in the domestic context. It will also be argued that the general demands of distributive justice are too complex and demanding to be met by international society, so that even a less sophisticated principle would be rejected as a possibility. However, this would not explain entirely why Rawls appears to reject the less demanding idea of redistributing wealth and resources, in order to secure more substantive equality between peoples. One might still argue a weaker principle appropriate to the international realm could be agreed on in the original position, which would advocate the redistribution of income and resources in order to increase the prosperity of those worse-off members of the Society of Peoples. The principle of fair trade would appear to be a weaker regulative principle appropriate to the international realm, so why not advocate a straightforward principle of wealth redistribution, which does not present the same problems as a more sophisticated distributive principle? If the Society of Peoples aims at a stable, peaceful, mutually beneficial co-operative, where peoples are independent and politically autonomous, then it might make sense to ensure that the poorer members are assisted in maintaining their status; it is in the interest of all members to ensure that societies do not become burdened through poverty. Given the appeal of the less demanding idea of straightforward redistribution of wealth, I will argue that the fourth account has the greatest explanatory force. This account elucidates why the transfer of wealth and resources is regarded as going beyond the scope of justice. In this way, I claim that the need for the other accounts of the rejection of the difference principle may be diminished. Where the main, distributive aspect of the difference principle is rejected at such a basic level, the other arguments lose some of their critical purchase. Fraternity Arguments 1, 2 and 4, for the rebuttal of an international difference principle, fall neatly around one of Rawls’ first accounts of the difference

38 On Rawls, Development and Global Justice

principle, Distributive Justice: Some Addenda (CP: 154–75). In this early article he takes up ‘the various reasons for preferring it’ (CP: 155) to other principles of distributive justice. In short, he argues that the difference principle meets a reasonable requirement of reciprocity, gives a reasonable interpretation of the concept of fraternity, and takes account of the principle of redress. The general claim is that none of these reasons pertain in the international context. If these factors are what makes the difference principle an attractive prospect in the domestic context and brings justice as fairness into reflective equilibrium, they are not reasons that can be used in support of an international distributive principle. In Rawls’ view, the concept of fraternity carries importance as one of the three core ideas of democratic theory – together with the more prominent notions of liberty and equality. It is thought to be less specifically a political concept, not in itself defining any of the democratic rights but conveying instead the attitudes of mind without which the values expressed by these rights would be lost sight of. Or closely related to this, fraternity is held to represent a certain equality of social esteem ... as well as a sense of civic friendship and solidarity, but so far it expresses no definite requirement. (CP: 166) Part of the appeal of the difference principle, and a reason for advocating it over other principles of justice, is that it expresses this idea of fraternity; it ‘corresponds to a natural meaning of fraternity: namely, to the idea of not wanting to have greater advantages unless this is for the benefit of others who are less well off’ (CP: 167). Freeman expresses the idea in the following terms: One way to understand the difference principle is as an institutional expression of the value of fraternity; for it requires that no one gain at others’ expense, that departures from equality of income and wealth as well as powers and positions of office must benefit everyone, and that citizens enjoy greater advantages only if they are to the benefit of others who are less well off. (Freeman 2007b: 198) The question for us is whether the same notion of fraternity is applicable at the international level. If a reason for advocating the difference principle at the domestic level is because it expresses the third core idea of democratic theory, does it also contribute to the argument for a difference principle in the Law of Peoples? David Miller is one author who argues that Rawls does not regard the idea of fraternity as applicable on the global level, and suggests this may be the reason that an international difference principle would be

Elucidating the ‘Libertarian’ Law of Peoples 39

inappropriate. Intuitively it would seem to be somewhat unrealistic to suppose that the natural idea of fraternity – of not wanting to benefit unless it is to others’ advantage – might exist at international level and require expression. As Rawls himself states the idea ‘is sometimes thought to involve ties of sentiment and feeling which it is unrealistic to expect between the members of society’ (CP: 167), in which case it would seem even more unrealistic to expect between peoples. Miller notes that Rawls’ hope for the international realm is that over time it can come to embody mutually advantageous co-operation, and eventually what he calls mutual caring. But this is qualitatively different from the kind of solidarity that Rawls envisages as being essential to the working of a just society. (Miller 2006: 198)3 It is not entirely clear that this mutual caring would be as far removed from domestic fraternity as Miller suggests, given that Rawls predicts that it would eventually entail a ‘mutual concern for each other’s way of life and culture’, so that people ‘become willing to make sacrifices for each other’ (LP: 113). This does not appear to be too dissimilar to the idea expressed by fraternity that inequalities should (1) be to everyone’s benefit and (2) at no one’s expense. However, as much as we might speculate about the level of solidarity possible in a future Society of Peoples, it seems a fair assumption to make that to begin with, peoples will not feel that increases in their own wealth and power should have to be to the benefit of others. It may be the case that in a Society of Peoples, which advocates equal respect and values political autonomy, the second, weaker demand might hold: that such increases should not at least be at the direct expense of others.4 This, however, would not represent a full expression of the idea of fraternity. We can conclude that from a Rawlsian perspective, there is no reason to advocate an international difference principle, given that the idea of mutual caring is not as demanding as that of domestic fraternity. Reciprocity It is Freeman who dismisses the possibility of an international difference principle on the grounds that democratic reciprocity would be absent. He claims this would be the case even in a more integrated future Society of Peoples, where some complex distributive measures might exist (Freeman 2007: 321). This is a contentious claim, if we consider Rawls’ assertion in LP that reciprocity applies in the international context: It is … part of a people’s being reasonable and rational that they are ready to offer to other peoples fair terms of political and social co-operation. These fair terms are those that a people sincerely believes other equal peoples might accept also; and should they do so, a people will honor the terms it has proposed even in those cases where that people might

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profit by violating them. Thus, the criterion of reciprocity applies to the Law of Peoples in the same way it does to the principles of justice for a constitutional regime. (LP: 35) Is Freeman’s claim therefore contradicted by Rawls’ assertion that the criterion of reciprocity applies to the Law of Peoples? We can assume this, only if the idea of reciprocity has the same content in the domestic and the international context. We can make the case that the reciprocity that applies in the international context is one that is less demanding than the particular democratic reciprocity to which Freeman refers, and which the difference principle expresses. Therefore, even if reciprocity holds at an international level, it is not necessarily a level of reciprocity that requires an international difference principle to express it. Democratic reciprocity is a particularly robust reciprocity that is required between citizens in a fully just society. It is represented in each individual being able to agree to fair terms of social co-operation and recognizing that the structure of such a society represents their own interests – and that those who are better off must be also able to justify their advantages to others. The difference principle satisfies these demands because it constitutes a principle of mutual benefit, for, when it is met, each representative man can accept the basic structure as designed to advance his interest. The social order can be justified to everyone, and in particular to those who are least favored…it is excluded that any worse off than another should be asked to accept less so that the more advantaged can have more. (CP: 169) It is crucial here to understand that central to the concept of reciprocity in general is the idea that it is constituted by fair terms, which are offered to everyone and can be justified by one agent to another. In this sense reciprocity applies in the same way to the international and domestic context for Rawls. However, this allows for the fact that reciprocity might be constituted by different sets of fair terms in these different contexts. The claim is, therefore, that the fair terms that individuals are willing to accept and justify to each other will be different to those fair terms of co-operation that peoples can agree on. Fair terms ‘are the norms that members of the cooperating group rely upon and use to guide their conduct and regulate the distribution of benefits and burdens among themselves’ (Freeman 2007: 266), and it stands to reason that these fair terms will have a different content in the international context. Why does democratic reciprocity not exist in the international context? What makes the terms of reciprocity different? In the domestic context, as Rawls states, the difficulty is justifying to the better off how their advantages

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must be gained in a way that is beneficial to the worst off, especially if the better off will end up with less than they could. Rawls’ answer is, that it is clear that everyone’s well-being depends upon a scheme of social co-operation without which no one could have a satisfactory life … The difference principle, then, seems to be a fair basis on which those better endowed, or more fortunate in their social circumstances, could expect the willing co-operation of others when some workable scheme is a necessary condition of everyone’s welfare. (CP: 170) Although on an international level peoples will co-operate, what is significant about democratic reciprocity is that it is justified on the assumption that without social co-operation no one could lead a satisfactory life. In Rawls’ view, this same claim cannot be made about peoples. In the domestic context Rawls assumes that there is a condition of moderate scarcity, so that the abundance of resources is not infinite. This condition brings people together into a co-operative venture for mutual advantage, whereby they can pursue their interest in a manner that would not be possible if they were all to embark on their own individual projects. However, Rawls does not hold the same assumptions about peoples. Although international cooperation may bring with it many benefits, peoples are not brought together by a condition of moderate scarcity, as they are, in principle, presumed to be able to pursue their interests alone. Not all of their gains can be attributed to the result of co-operation with other peoples, which naturally suggests that the claims of reciprocity between peoples will not be as extensive. Reidy expresses this idea that peoples are less mutually dependent than persons: The agents representing liberal democratic peoples in an international original position know that the parties they represent need not cooperate economically with one another to secure or preserve their fundamental interests. Unlike individual persons who must cooperate economically at the domestic level to secure their fundamental interests, well-ordered peoples may secure their fundamental interests apart from any international economic co-operation. They are, in this sense, self-sufficient or independent, able to generate internally or from within the material conditions necessary to meet their fundamental interest in securing and preserving a well-ordered and just domestic order. (Reidy 2007: 211) This idea is also captured by Stephane Chauvier’s notion of nakedness (Chauvier 2001: 94), a state of dependency that agents suffer when they cannot alone secure their endowments. In regard to Rawls’ theory, we can argue that individuals in domestic society are necessarily naked, because due to

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the scarcity of resources, they are dependent on social co-operation, without which they would exist in a Hobbesian state of nature. As such, the issue of a distributive principle pertains and the need for the difference principle arises. However, ‘it cannot be said that a state, alone and apart from other states, must be comparably deprived or vulnerable … states need not be naked with respect to any community of states’ (Chauvier 2001: 95). To conclude, the important point is that democratic reciprocity cannot exist at an international level because peoples are not dependent on each other in the same way as individuals. For this reason peoples are not in the same position as individuals; they do not have to justify inequalities in order to secure fair terms of co-operation. If their advantages have been secured without the same level of social co-operation, then there is less compulsion to justify inequalities to each other. Fair terms of co-operation in the international realm have to manifest a certain reciprocity, but this will be a less robust type, which does not include a difference principle. It might, as Freeman says, demand some distributive measures in the long term, to maintain autonomy and equal respect. However, this would not be an international analogue of the difference principle, because it is not based on this assumption of democratic reciprocity. Rawls’ political constructivism The previous two sections have focused on accounts of why Rawls does not offer an international difference principle, analogous to the principle presented in his domestic theory. In sum, neither the robust reciprocity nor the fraternity captured by the difference principle exist in the international context, and therefore do not demand expression through an international difference principle. However, the case might still be made for a less demanding international distributive principle that does not seek to capture these qualities, but nevertheless offers some far-reaching measures. Based on the arguments of Freeman, this section offers an account of how the applicability of such a principle can be denied from the perspective of Rawls’ approach. The basic claim is that Rawls’ method, and its attendant understanding of the empirical world, effectively discounts the possibility of international distributive justice. According to Freeman, Rawls presents a political constructivism grounded upon the view that ‘our considered convictions of justice arise within the practices and institutions we live with, and are attuned to the structure and demands of those institutions’ (Freeman 2007: 272). If we do not have any profound reason to call into question the institutions themselves, then the idea of justice is to set out principles for their regulation. From the perspective of Rawls’ political constructivism – accepting as it does the institutions and practices within which we presently exist – the first institutions for which we need to set out our principles of justice are those of the basic structure of society. This is not only because of its ‘profound effects on individuals’ aims, characters, and future prospects’ (Freeman 2007: 270), but also because

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without these principles, we have nothing upon which to build our other concepts of justice. The ‘terms of social co-operation must be worked out first, independently of the principles of justice of other institutions, whereas the principles of global and local associational justice presuppose the principles of justice for the basic structure’ (Freeman 2007: 270). Our primary convictions of justice, about freedom and equality, arise within this basic structure, and so in the same way that international co-operation and international institutions are supervenient upon the social co-operation and institutions of domestic societies, our convictions about international justice are supervenient upon our domestic notion of justice. We cannot ‘decide the duties that different peoples owe to one another as peoples, and how they are to act toward one another as peoples in their political relations, before the principles of domestic justice are decided’ (Freeman 2007: 270). This methodological ordering of the subjects of justice, this claim about the supervenience of international justice upon domestic justice, is given its empirical foundation in the different nature of the social co-operation that exists between individuals and peoples. The nature of international co-operation renders it appropriate to arrive at the principles of domestic justice first (although it does not foreclose the possibility that international distributive justice may be relevant). In crude terms, the social co-operation which exists on the domestic level is manifested by more complex and integrated institutions than the international level, and which crucially reside under one authority. ‘Rawls does not need to deny a “global basic structure” in some sense, but clearly he would contend that it is very different from the basic structure of society’ (Freeman 2007: 268). The domestic structure thus demands and facilitates more extensive principles and measures, whereas the structure of international society does not provide the conditions for applying an international distributive principle. According to Freeman, the basic structure of society – as Rawls views it – comprises an economic system, regulated by legal norms, which are in turn issued by a political constitution. These are the basic institutions that are the foundation for the particular form of social co-operation that exists in the domestic context. As such the demands on the difference principle, as a complex distributive principle, are vast: it is a political principle in the sense that it is to guide legislators in defining and regulating the uses of property, setting commercial policies, specifying schemes of taxation, specifying the terms of and regulating securities and negotiable instruments, defining conditions for copyrights, patents, royalties, and other forms of intellectual property, and establishing the other indefinitely many laws and regulations that structure an economy. (Freeman 2007: 288)

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International society and its economic system lack the requisite legal framework to regulate the activities that occur within it, and at the most basic level lack a sovereign body to institute a principle of this kind: ‘the primary practical problem with the cosmopolitan suggestion that the difference principle should be globally applied is that, in the absence of a worldstate, there is no political agent with authority to apply it on a global level’ (Freeman 2007: 288). This rejection applies not only to the cosmopolitan idea of a global difference principle applying to each individual, but also to the idea of an international difference principle applying to peoples. According to Freeman, the lack of robust and integrated international institutions means that social co-operation does not exist in the same way as it does in the domestic context – ‘trade alone or causal influences of consumption patterns on other peoples do not amount to social co-operation’ (Freeman 2007: 307). If distributive justice is to be socially and politically established in the image of Rawls’ domestic theory, then the lack of social and political co-operation in international society precludes its possibility. This does not mean justice is irrelevant in international society – there are still institutions and practices between peoples that it is the role of justice to regulate through principles, trade being one of those. ‘Just because Rawls does not provide a principle of global distributive justice does not mean that unmitigated laissez-faire is the general rule of economic interaction within the Society of Peoples’ (Freeman 2007: 262). Freeman points out that ‘Rawls takes for granted that non-exploitative principles of fair trade would be agreed to among such peoples’ (Freeman 2007: 310). Rather, the intention is to regulate economic relations to support the members of the Society of Peoples in their independence and autonomy (Freeman 2007: 289) – not to ensure that inequalities are to be regulated to the benefit of the worst off. Freeman does allow for the possibility that there is conceptual space within the Law of Peoples for the ‘international institutions that regulate global business practices to insure fair business and labour practices and guard against exploitation’ (Freeman 2007: 321).5 However, it is clear that the necessary conditions – of a global political authority and legal system replicating (or possibly replacing) the domestic structure – do not pertain for an international distributive principle, and thus any discussion of such a principle would be a non-starter from the perspective of Rawls’ political constructivism.6 The principle of redress Although there are convincing arguments from the perspective of Rawls’ conception of international society as to why a difference or distributive principle is not applicable to his Law of Peoples, a case must be made for his rejection of the less complex demand often suggested by cosmopolitans: that redistribution in the form of straightforward wealth transfers

Elucidating the ‘Libertarian’ Law of Peoples 45

should occur between the wealthier and poorer nations. In order to offer a coherent account of this rejection, we need to return to Rawls’ original account of the difference principle alluded to in the first section of this chapter. As well as the ideas of reciprocity and fraternity, ‘the difference principle gives some weight to the considerations singled out by the principle of redress’ (CP: 165). This principle holds that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for … The idea is to redress the bias of contingencies in the direction of equality. (CP: 165) Drawing on the account of peoples outlined in the section on reciprocity, the argument will be that given the ontology of peoples, the principle of redress and the idea that inequalities must be compensated do not apply in the international context. Whereas in the domestic context, Rawls considers that contingencies are one basis for advocating the difference principle and the redistribution of wealth it implies, ‘undeserved’ inequalities – subject to redress – do not pertain in the international context. As a preliminary to this argument, however, it is worth looking back in a little more detail at Rawls’ original theory, in order to evaluate how the principle of redress plays a key part in the construction of his domestic principles. The central role it plays not only gives an important insight into why these principles are different from their international equivalent, but also suggests why cosmopolitans expected Rawls to advocate an international principle that promotes the substantive equality of peoples. Individuals in the domestic context are assumed by Rawls to exist in a condition of moderate scarcity – their condition of nakedness brings them into a co-operative venture for mutual advantage. There are different interest groups who are ‘not indifferent as to how the greater benefits produced by their collaboration are distributed’ (TJ: 4). Consequently, ‘[a] set of principles is required for choosing among the various social arrangements which determine this division of advantages’ (TJ: 4). Despite the idea of moderate scarcity, it is assumed that their basic needs will be successfully met through cooperation. In this sense it represents an exercise in ideal theory: Rawls does not enter here into discussion about a society that is not well-ordered and lacks the institutions to meet individuals’ basic needs, or about noncompliant individuals who require special consideration. For Rawls, justice is administered through the basic structure of society (TJ: 6) as it defines various positions that can provide opportunities or present obstacles for individuals. As we have seen, Rawls arrives at the

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principles he believes are just, and should order the structure of society, through his version of the social contract: The guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement. They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. (TJ: 10) Rawls constructs this position as he believes it models an initial situation of equality and fairness. Everyone is in the same position, as none of the parties have access to information about their talents, their beliefs or their position in society; ‘no one is able to design principles to favor his particular condition’ (TJ: 11). We may ask, however, in what sense it is fair that decisions on a society’s structure should be negotiated, when the different representatives are unable to protect and advance their own interests. Rawls’ perspective is based to a large degree on the idea that the benefits we reap from our endowments, social circumstances and even our character, are in some sense contingent on good fortune: ‘[S]ince inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for’ (TJ: 86). Furthermore, ‘the superior character that enables us to make the effort to cultivate our abilities … depends in good part upon fortunate family and social circumstances in early life for which we can claim no credit’ (TJ: 89).7 Given the emphasis that Rawls places upon mitigating natural contingencies, we might expect his aim to be the construction of an egalitarian theory, with the principle of redress being the underlying rationale, where equality is considered a good in itself and the broad aim is to level the playing field. This would entail a process whereby society would ‘try to even out handicaps as if all were expected to compete on a fair basis in the same race’ (TJ: 86). From such a perspective, substantive equality would be the aim, where there would be little variation in terms of wealth, prosperity and success. However, the principles of justice that Rawls finally presents are considerably different from a simple principle of redress. The egalitarianism encapsulated in the two principles of justice is not simply the notion of having everyone enjoy similar levels of wealth and welfare. To state the principles in full: i) Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. ii) Social and economic inequalities are to be arranged so that they are both: a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

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b) attached to offices and positions open to all under conditions of fair equality of opportunity. (TJ: 266)8 The rationale for the principles of equal basic liberties and equal opportunity is largely self-explanatory, as no one knows where in the basic structure they will be; to guarantee their chances they would want a structure that provides similar rights and opportunities for all. However, the choice of the difference principle is less clear given that it is motivated, at least in part, by the principle of redress. If our intuition is to compensate for contingencies, we might want all inequalities to be evened out. As Rawls argues that we cannot even be certain that we deserve the character that dictates our decisions, we might expect such a principle. Even if he were to forego this idea, we might expect a version of luck egalitarianism, whereby all inequalities are to be equalized, save for those that arise from free and responsible decisions.9 Whereas the logical conclusion of a principle of redress – compensating certain individuals for their expensive tastes – seems intuitively problematic, the idea that persons are compensated for those traits that are the result of luck holds a certain attraction. Rawls’ rationale, however, is that if inequalities can improve everyone’s position, relative to a hypothetical starting position where everyone is equal, then those types of inequalities would be accepted in the original position: Imagine, then, a hypothetical initial arrangement in which all the social primary goods are equally distributed: everyone has similar rights and duties, and income and wealth are evenly shared. This state of affairs provides a benchmark for judging improvements. If certain inequalities of wealth and differences in authority would make everyone better off than in this hypothetical starting situation, then they accord with the general conception. (TJ: 54–5) Rawls’ belief is that rational individuals would prefer a position where others have more, so far as they themselves are better off. If those who have won in the natural lottery can use their advantage to the benefit of others as well as their own, there is no rational reason to object to, or level out, these advantages. The difference principle represents, in effect, an agreement to regard the distribution of natural talents as in some respects a common asset and to share in the greater social and economic benefits made possible by the complementarities of this distribution...the basic structure can

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be arranged so that these contingencies work for the good of the least fortunate. (TJ: 87) Rawls’ argument is that ‘the difference principle gives some weight to the considerations singled out by the principle of redress’ but that it is balanced with other principles, most notably ‘the principle to improve the average standard of life’ (TJ: 86). It allows for the possibility that the aggregate goods might increase considerably, while at the same time ensuring that any such increase would result in a greater amount for the worst off. Their share will also improve with the expansion in wealth and well-being. This brings us to the central point I wish to emphasize in this brief exegesis from TJ. Given a certain reading emphasizing the importance of redress, it would not be entirely unreasonable to interpret Rawls’ theory of justice primarily as a modified egalitarianism, rather than being an explicitly liberal theory. We could take the underlying principle as being that of redress: that as no one person deserves their advantage more than another, every effort should be made to place people on an equal playing field. It gives credence, I believe, to Freeman’s claim that the cosmopolitan criticism of the elision of the difference principle arises to some extent because Rawls’ domestic theory is regarded as a version of luck egalitarianism. He says that ‘assertions of a global distribution principle appear to be based in a kind of egalitarianism that Rawls simply rejects. This is the kind of egalitarianism which says that equality (of resources, or of welfare, or perhaps of capabilities) is good for its own sake’ (Freeman 2007: 309).10 Given some of Rawls’ statements it would seem that equality might be considered as a good in itself. However, inequalities are only to be regulated by the injunction that they improve the expectations of the worst off. What matters most for Rawls is not that persons should be equal in a substantive sense, but that they all have the bases for self-respect and the capability to exercise their two moral powers – their sense of justice and their conception and pursuit of the good. Whereas inequalities in themselves are not viewed as unjust, the most important idea is that they are organized so that these two moral powers and self-respect are not compromised. We are all endowed with different abilities, and as a liberal, Rawls does not wish to interfere with individuals’ use of these abilities. However, in recognizing the force of the principle of redress, he argues that these abilities should be used to everyone’s benefit. This is how Rawls reconciles the twin demands of liberty and equality. He should be understood first and foremost as a liberal who is willing to accommodate equality, insofar as it does not compromise liberty (Weale 1980: 13) – not as an egalitarian that accommodates certain claims of liberty. In more succinct terms, we might consider Rawls an egalitarian liberal, not a liberal egalitarian.

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The extent to which Rawls genuinely reconciles liberty and equality, and to which the principle of redress is acknowledged by the difference principle, is contested. The question of whether he allows for enough substantive equality to ensure the worst off have a genuine opportunity to pursue their conception of the good, and to live a truly worthwhile life, is not one we can resolve here.11 The main idea that we need to acknowledge is that substantive equality between individuals is not an aim of Rawls’ theory, and that consideration for the principle of redress results only in the mitigation of contingencies, to the extent that inequalities are to the benefit of all. Why should this notion of redress not be considered in regard to peoples? Why does the Law of Peoples not require a difference principle, or the reallocation of wealth and resources it entails, in order to ensure that inequalities benefit everyone, and are organized to promote the basic interests of peoples? Initially, it would seem intuitively correct that the natural endowments of societies – their natural resources – are no more deserved than the natural talents and abilities of individuals. For this reason Beitz’s proposal for the international redistribution of resources (Beitz 1999: 136–43) would seem to be the natural progression from a Rawlsian perspective. However, Rawls gives short shrift to this idea on the basis that ‘the crucial element in how a country fares is its political culture – its members’ political and civic virtues – and not the level of its resources’, for which reason ‘the arbitrariness of the distribution of natural resources causes no difficulty’ (LP: 117). Societies that are well-ordered are in Rawls’ view essentially in control of their economic development, regardless of their natural resources. In support of this claim he states that ‘historical examples seem to indicate that resource-poor countries may do very well (e.g., Japan), while resource-rich countries may have serious difficulties (e.g., Argentina)’ (LP: 108). Rawls’ conception of peoples is therefore very different from his conception of persons. Natural endowments, in his view, affect peoples’ chances in a far less pervasive manner.12 Moreover, the facet of being nominally self-sufficient, outlined in the previous section, means that the structure of international society can be regarded as having less profound effects upon peoples’ fortunes. Miller sums it up in the following way: Rawls has a very different picture of international society from the picture of domestic society that he assumes in developing his theory of social justice. In the domestic case, individuals’ life chances are largely determined by a basic structure of institutions over which they as individuals have no control. For that reason the basic structure must be regulated by principles of justice that allow citizens to live together on terms that all can accept – principles that involve, for example, compensating for the economic effects of inequality in natural talent. In the international case, by contrast, peoples are regarded for the most part as relatively autonomous,

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in the sense of being able to determine, through their cultural values and the institutions that embody these, how materially wealthy they will become, so here distributive principles are out of place, and inter-societal transfers are required only in the case of ‘burdened’ societies, insofar as such transfers can help these societies to become well-ordered. (Miller 2006: 194) On this basis, it would seem that inequalities of wealth that occur between well-ordered peoples are largely the responsibility of the peoples themselves, and so poorer members cannot blame the arbitrariness of their natural endowment or their place within the basic structure. As such, those poorer peoples cannot make the claim that they do not merit their position, nor that the wealthier societies do not merit their advantage – as such inequalities need not be compensated for, as they are not the direct result of contingencies. ‘In LoP but not in TJ, people are being held responsible for having a larger or smaller share of primary goods, especially income and wealth’ (Miller 2006: 197). For this reason, if members of the Society of Peoples were asked to redistribute wealth and income among themselves to lessen the inequality gap, under the auspices of some international ‘transfers’ principle, this would go beyond the scope of Rawls’ notion of justice. Prior to any redistribution, peoples (however poor) within the Society of Peoples are capable of being well-ordered and autonomous in pursuing their interests, therefore no material gains from other members are required to buttress their own standing as corporate moral agents. Such gains would simply be utilized in order to increase their substantive equality. As this section has been at pains to point out, seeking an equality of outcome does not represent Rawls’ brand of egalitarianism; it is instead a thoroughgoing equality of opportunity which he promotes, and, in the international society where all societies are regarded as having the necessary means, it is beyond the scope of justice to regulate inequalities generated through free and responsible choice. The transfer of wealth between well-ordered societies in the Society of Peoples is therefore regarded as unjust. Rawls gives two well-rehearsed arguments to illustrate his point. The first is of two societies at a similar level of development, where one chooses to industrialize and the other chooses a more leisurely way of life. As a result, the first society becomes twice as wealthy within a few decades. In Rawls’ eyes, demanding that the first society transfers some of its gains to the other society ‘seems unacceptable’ (LP: 117). The same applies to two societies, where one achieves increased wealth through greater equality for women and the consequent reduction in its population growth. Again, Rawls claims that taxing the first society to subsidize the second seems unacceptable, given that ‘both societies are liberal or decent, and their peoples free and responsible, and able to make their own decisions’ (LP: 118).

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Here, therefore, we arrive at the reason why Rawls dismisses the possibility of the redistribution of wealth in the Society of Peoples. The possibility of an international ‘transfers’ principle is precluded from this perspective because the taxation of wealthier peoples to subsidize the poor is unjust. Given the relatively strong agency of peoples compared to persons, their relative autonomy from the basic structure, and the less pervasive influence of natural resources, the responsibility of peoples is not mitigated in the same way as that of individuals in the domestic context. Transferring their wealth therefore amounts to an unjust penalization.13 This dismissal of wealth transfers to the less prosperous peoples is significant, not simply as a supplementary reason for discounting an international difference principle. One may point out the unsuitability of such a complex and extensive principle, but still claim that there is a place for the reallocation of wealth in the international context. The first two arguments may have been logical reasons for discounting a complex international difference principle. Moreover, in Freeman’s understanding of the idea of a distributive principle, we may discount the possibility of a less demanding, more general international distributive principle: the integrated institutional base required to underwrite distributive measures is not prevalent enough to apply ‘to all existing income and wealth’, within the international, ‘ongoing system of production, exchange, and consumption’ (Freeman 2007: 263).14 However, even if a less complex distributive principle is rejected, one might still argue for the reallocation of wealth. It happens in our contemporary world, and there is no reason to suppose that it could not in the Society of Peoples. It would not require the political, legal or social aspects that a distributive principle might demand, nor would it apply to all the wealth within the economic system. Neither would it require a particular feeling of fraternity between peoples. It would arguably be in the self-interest of wealthier peoples to ensure the poorer peoples are given greater economic security, to ensure the stability of the Society of Peoples. The same reasoning might overcome the objection that the Society of Peoples lacks the requisite reciprocity. However, eliding the influence of the principle of redress precludes such transfers, so that any international distributive measure is therefore effectively discounted, even the most minimal of egalitarian measures. Significantly, we may also argue that this type of allocative measure is the one that cosmopolitans most commonly propose. Lack of space precludes a lengthy discussion of this point, but by way of example it might be claimed that Pogge’s proposed Global Resources Tax (1994, 2008: 202–20) is by no means a complex international distributive principle, but rather a more straightforward measure advocating the reallocation of a certain amount of wealth. As stated by Freeman, ‘what is usually envisioned by proponents of a global difference principle is a reallocation of wealth from wealthier to poorer societies, periodically and in lump sum payment’ (Freeman 2007: 315). Of the four arguments presented, therefore, we may claim the

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fourth to be the most significant in directly addressing the critique of the cosmopolitans. Finally, in regard to the justification for Rawls’ elision of the difference principle in the global context, it may be claimed that the fourth account forestalls the other three. If the most straightforward aspect of the difference principle (or any distributive principle) of transferring wealth is discounted, then it would seem that the other three accounts lose their explanatory power. Once we establish that wealth cannot be transferred on account of the reduced relevance of redress, then arguing why the more complex difference principle may not be transposed to the international context, although undoubtedly interesting, becomes less pertinent. We might still argue for the global reallocation of wealth without demanding a difference principle, but we could not argue for an international difference principle without the reallocation of wealth. The claim for any (re)distributive principle (however undemanding one’s definition) falls, as it were, at the first hurdle.

The social minimum and its international analogue Given the understanding of Rawls’ democratic equality presented in the previous section, as a system that does not advocate substantive equality, it begs the question to what extent it exhibits any particular egalitarian elements. Were the cosmopolitans simply mistaken in expecting any type of international egalitarianism from Rawls? Certainly, transposed to the international context, where peoples are regarded as more robust, we are left with a perspective that advocates a rather formal equality captured largely in the legal framework – it indeed appears to be a less egalitarian approach. Aside from the difference principle, we might ask what other aspects of Rawls’ domestic approach provide the egalitarian aspect of his liberalism, and whether he advocates any amount of substantive equality. I will complete this chapter, therefore, by looking at his stated rejection of equality as an intrinsic good in LP. Understanding this rejection is crucial in clarifying the substantive elements to his theory. In identifying a specific element – the social minimum – we can assess exactly what type of substantive equality we might expect from his international perspective on justice, consistent with his domestic approach. I will argue that this social minimum effectively represents a guarantee of a basic equality for individuals, which Rawls provides an analogue for in the international context: an international minimum that provides the target for the duty of assistance. Rawls states clearly in LP that from his perspective ‘inequalities are not always unjust, and that when they are, it is because of their unjust effects’ (LP: 113). Inequality, therefore, is to be avoided where it has unjust consequences, of which he identifies three examples in the domestic context. Firstly, injustice may occur where excessive inequalities are ‘wider than the

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criterion of reciprocity allows, so that the least advantaged … [do not] have sufficient all-purpose means to make intelligent and effective use of their freedoms and to lead reasonable and worthwhile lives’ (LP: 114). Second, another unjust consequence is that an excessive gap can ‘often lead to some citizens being stigmatized and treated as inferiors’, which is unjust in the sense that it may wound their self-respect (LP: 114). Third, inequality may precipitate injustice when it ‘concerns the important role of fairness in the political processes’ (LP: 114). Clearly, in order to address these concerns, Rawls’ democratic equality must advocate more than the purely formal equality characterized by the basic liberties, which serve simply ‘as a framework of legally protected paths and opportunities’ (PL: 325). In the case of extensive inequality, which might deny some the opportunity for leading a worthwhile life and attaining the social minimum, Rawls invokes the idea of reciprocity. It stands to reason that a society where substantive inequalities mean that some would fall below this minimum cannot be justified to all – thereby forfeiting the idea of reciprocity. This social minimum is perhaps the single most important egalitarian aspect of Rawls’ theory: a baseline of equality under which individuals are not permitted to fall. It is captured by Rawls in the idea of ‘measures assuring to all citizens adequate all-purpose means to make effective use of their basic liberties and opportunities’ (CP: 440). This is to be guaranteed by government in times of unemployment (CP: 141) and ‘should be set at the level which, taking wages into account, maximizes the expectations of the lowest income class’ (CP: 145). Rawls believes this idea of a social minimum is integral to any idea of justice belonging to the family of reasonable liberalisms.15 It is less clear exactly what Rawls has in mind in terms of the second scenario outlined above, whereby inequalities might lead to ‘conventions that establish ranks to be recognized socially by expression of deference’ (LP: 114), and that might therefore injure the self-respect of those not recognized. Presumably this is not a reference to the idea that great wealth can unjustly increase the worth of one’s liberties, as we have already established that inequalities in wealth and income are defensible – providing they are to the benefit of the worst off, and that they do not prevent individuals from attaining the social minimum. Rather there seems to be a separate idea at work here, that wealth and stature may injure self-respect not in an indirect way through threatening one’s ability to live a worthwhile life, but rather in the direct sense of making one feel inferior. Rawls does not elaborate on what extent of material inequality might create such inequalities of rank, and so we are somewhat in the dark about the extent of redistribution required. We can only speculate that ‘the tendency of equality’ (TJ: §17), which he believes the two parts of his second principle encourage, will ensure that such ‘rankings’ will not take hold in society.

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The third case in which inequality may lead to injustice refers to the need to ensure fairness in the political institutions of a society. This is addressed in part by Rawls’ attempt ‘to meet the objection that the basic liberties are merely formal’ (PL: 328), which is embodied in the guarantee of fair value of political liberties that forms part of the social minimum. This guarantee is of particular importance in the political context, as ‘those with relatively greater means can combine together and exclude those who have less’ (PL: 328). What this guarantee means is that the worth of the political liberties to all citizens, whatever their social or economic position, must be approximately equal, or at least sufficiently equal, in the sense that everyone has a fair opportunity to hold public office and to influence the outcome of political decisions. (PL: 327) We can also argue that fairness, in regard to political opportunities, is addressed more generally by the principle of fair equality of opportunity. It ensures not just that offices and opportunities are open to all, but that policies aimed at education and eliminating discrimination act to ensure similar chances for those of similar talents and willingness. Here are three cases, therefore, where Rawls advocates policies for upholding a certain level of substantive equality in the name of justice. If the difference principle does not transpose to the international context, is there at least a case for addressing analogous cases to these, and mitigating such examples of substantive inequality? Rawls outlines three analogous reasons why inequalities could be potentially damaging for international justice: 1) Where it precludes a working liberal or decent government (which can make effective use of its power); 2) Where a people feel inferior to another because of its greater riches; 3) Where standards of fairness are not met, for example, in political cooperatives, or trading directives that lead to unjustified distributive effects. (LP: 114–15) Taking these cases in reverse order, Rawls’ response to the challenge that international institutions should be regulated by standards of fairness, calls our attention to the scope of what Reidy has described as his principle of fair trade, and the broad analogy that Rawls draws between it and the difference principle. Rawls refers us back to §4.5 (LP), where the general tenor of his remarks seems to suggest that inequalities within these institutions should be arranged for mutual benefit, and it is acceptable to have ‘various functional inequalities once the baseline of equality is firmly established’ (LP: 43). He recognizes what he describes as ‘fair background conditions,’

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(LP: 42 n52) which are to his mind analogous to the domestic background structure, and need regulation over time to ensure that ‘market transactions remain fair’ (LP: 42 n52). This will be part of a ‘free competitive-market trading scheme … to everyone’s mutual advantage’ (LP: 42–3). He reasons that, given the veil of ignorance, these institutions will be organized in this way, and in the spirit of the difference principle: ‘depending on their size, some will make larger contributions to the cooperative bank than others … and will pay larger dues in the organization of the Confederation of Peoples’ (LP: 43). All of the above measures suggest that although the difference principle does not hold in the international context, and that the same background structure does not exist, Rawls is still of the opinion that international organizations and institutions will be organized in the spirit of his domestic theory, given the original position and the assumption of basic equality between peoples. Institutions will be designed for mutual benefit, and inequalities are acceptable to the extent that the ‘wealthier economies will not attempt to monopolize the market, or to conspire to form a cartel, or to act as an oligopoly’ (LP: 43). Without the difference principle, however, and the general lack of distributive authority in the international realm, it is perhaps predictable that there will be greater inequality between rich and poor peoples, relative to individuals in domestic society. However, Rawls argues that the second concern, that the greater riches of some will affect the self-respect of poorer peoples, should not in fact trouble us. As outlined in the previous section, it is not resources or wealth that is tantamount in ensuring that a society attains its political autonomy – and thus its self-respect as a people. This self-respect is, according to Rawls, achieved through the just or decent institutions of a society that maintain it in a well-ordered condition. Being well-ordered can be achieved without great wealth, and in fact, the level of wealth in a society is largely down to the significance and importance it is given by its population. Any feelings of shame in comparison to other peoples are unjustified, given that their autonomy is secure in their institutions and they have attained their status within the Society of Peoples; no relative deprivation in terms of wealth can threaten their self-respect. This brings us to the first case in which inequality might be unjust, on an international scale. This is a situation where inequalities of wealth might preclude the foundation of just or decent institutions. However, once again in this case, if we consider the logic of Rawls’ arguments, the wellorderedness of a society is not premised on any particular level of wealth. Therefore, inequality of wealth and resources between peoples should have little or no effect on whether or not they are well-ordered, and share the basic equality of membership in the Society of Peoples. ‘Rawls sets the global social minimum by reference to the fixed target of well-orderedness’ (Reidy 2007: 228), and where this baseline of equality is achieved, there is

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no reason to narrow the gap between the substantive equality of peoples. They are in the position to pursue their interests and respond to the needs of their citizens. Crucially, for those societies which are unable to achieve this basic level of capability, Rawls does claim there is a duty for all members of the Society of Peoples to assist these burdened societies in attaining what I shall term ‘the international minimum’ (similar to Reidy’s label of ‘the global social minimum’).16 In the case of such peoples, an injustice is committed when they are not provided with assistance. However, given Rawls’ claims about the value of resources, and his emphasis instead on human resources and political culture in building institutions, it is no foregone conclusion that such assistance should come in the form of redistribution. Having considered Rawls’ thoughts in addressing inequalities, we can draw the following conclusions. Inequality requires more regulation on the domestic front, because individuals require resources to attain the social minimum and to maintain their self-respect, while political opportunities and fair equality of opportunity will not be realized without some far-reaching measures. In the international context, some comparably complex measures would seem to be required to ensure that standards of fairness are met in institutions, and that inequalities do not prevent the Society of Peoples from being mutually beneficial. However, well-ordered peoples are far more robust and do not rely on material resources, so inequalities in abundance are less harmful, while the bases for self-respect lie in peoples’ institutions and not their wealth. What comes to light, however, is that although the international egalitarian measures are less far-reaching, Rawls does in fact identify an analogue to the social minimum. In the domestic context this minimum is guaranteed as part of a just society. In the international context, Rawls posits an equivalent baseline of justice. Although it cannot be guaranteed in the same way, Rawls includes a duty of assistance, committing its members to raising burdened societies above this minimum.

Conclusion The argument in this chapter can be summed up in two steps. Firstly, Rawls’ advocates give alternative accounts of why an international difference principle is inappropriate from a Rawlsian perspective. I have argued that the most important of these is that the principle of redress does not apply to the international context. The redistribution advocated by the cosmopolitans would favour equality over liberty in a manner contrary to Rawls’ approach. In the Society of Peoples’ realm of ideal theory, there is no need to mitigate natural and social contingencies: the principle of redress loses its significance, thus placing less emphasis on the need to regulate inequalities. Second, I argued that the logic of this argument is buttressed by considering Rawls’ comments on the significance of inequality. Whereas in

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the domestic context, substantive inequalities in terms of socio-economic resources can be a substantial threat to the self-respect and meaningful freedom of individuals, in the international context peoples are less fragile, by virtue of their institutional capacity. Given the central importance of institutions, the international equivalent of the all-important social minimum is therefore conceived not in terms of a level of wealth and resources, but rather in terms of a standard of well-orderedness. This provides both the baseline of Rawls’ international ideal theory, and the target for his non-ideal theory. Contrary to the cosmopolitans’ critique, I believe that Rawls justifiably rejects an international analogue for the difference principle; he provides guidelines of fairness for the background conditions of international society in the spirit of his second principle; he also advocates an analogous baseline for justice, which those societies that are not well-ordered are to be assisted in attaining. It is to this non-ideal theory that we now turn our attention.

3 A Duty with No Obligations?

The previous chapter dealt with the ideal theory of the Law of Peoples. It concluded that in a society of well-ordered peoples, which are politically autonomous, independent, and in control of their development, both a distributive principle and wealth transfers would be inappropriate from a Rawlsian perspective on justice. Principles regulating trade and co-operative organizations are germane, but any further measures would be indefensible. This, however, leaves open many questions in regard to non-ideal theory, and those societies that are outside the Society of Peoples and are not considered well-ordered. Whereas Rawls concerns himself less with non-ideal theory than with ideal theory in the domestic context, it takes up the entirety of the third part of his international treatise.1 In his view such non-ideal theory presupposes an ideal theory as it requires an objective ‘by reference to which its queries can be answered’ (LP: 90). The objective in terms of the Society of Peoples is a realistic utopia where all peoples comply with its principles. The societies that are unable to follow this ideal, and are of particular relevance to our discussion, are burdened societies. These are the societies that lack the just or decent institutions required to meet the basic needs of their citizens, and where poverty, disease and death are endemic. They fall below the international minimum for the Society of Peoples: the standard of wellorderedness. What does Rawls have to tell us in his non-ideal theory about the long-term goal of their integration into the Society of Peoples, and the fate of their poverty-stricken populations? If his critics are to be believed, very little; in fact, much of the frustration with his theory seems to arise from the impression that Rawls offers scant encouragement in terms of explicit measures to aid the starving millions. In the domestic context, as we have seen, Rawls guarantees a social minimum. However, the duty of assistance that he advocates is most notable for its lack of far-reaching reforms. From the cosmopolitan perspective, the lack of an international distributive principle is compounded by a toothless measure to protect against what we have previously seen described as ‘libertarian rulemaking’ (Pogge 2001: 250). 58

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In this chapter I will attend to the most prevalent criticisms of the duty, beginning with an exposition of the principle, its aims and its measures. I will characterize the duty as a capability-building principle, which attempts to encourage the construction of just and decent state institutions within failing societies. The following section outlines the main points of controversy that have arisen in the reception of this idea. It seems difficult to deny the claims of Rawls’ critics that he has little to offer for those of a more progressive disposition. Because of the emphasis he places on the importance of political culture in building up state capability, he seems to preclude any radical measures on the part of the Society of Peoples, instead placing the responsibility solely on burdened societies to reform their institutions. At the end of the chapter I will claim that the outstanding questions in regard to the duty are its justification and the extent of the measures that it advocates. These are the questions that I will take up in the second part of the book. This will be the starting point for the constructive part of the work, transposing the capability perspective in order to present a more robust duty of assistance.

Burdened societies The duty of assistance that Rawls describes obliges the members of his Society of Peoples to aid burdened societies in becoming well-ordered. We should first be as clear as possible about what Rawls means when he presents the term ‘burdened society’. What exactly distinguishes a well-ordered society from one which is burdened, and how much of a chasm is there between the two? Whereas in the first two parts of LP Rawls deals in ideal theory and discusses well-ordered peoples, in the third he moves on to what can be done with those hard cases that do not comply. Rawls deals with the first kind of non-ideal theory in his discussion of how (relatively) well-ordered societies can ‘bring outlaw states into the Society of well-ordered Peoples’ (LP: 105). Burdened societies represent the ‘second kind of non-ideal theory, societies burdened by unfavourable conditions’ (LP: 106). In the case of these societies, ‘they are not expansive or aggressive’ like outlaw states, but ‘lack the political and cultural traditions, the human capital and know-how, and, often, the material and technological resources needed to be well-ordered’ (LP: 106). The manner in which Rawls presents his notion of a burdened society makes it easiest to define in negative terms, by elaborating on what it lacks, as opposed to concentrating on any constitutive features. A burdened society is defined in contrast with well-ordered societies, and lacks this distinct property of ‘well-orderedness’. As the following quote demonstrates, being well-ordered is coextensive with being liberal or decent: ‘A society with few natural resources and little wealth can be well-ordered if its political traditions … are such as to sustain a liberal or decent society’ (LP: 106).

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Is it possible to provide a succinct definition of the properties of decent and liberal, in order to gauge what burdened societies lack? We can equate well-orderedness with the facet of having just or decent institutions. This is implicit when Rawls draws on the ‘similarity between the duty of assistance in the Law of Peoples and the duty of just savings in the domestic case. In each instance, the aim is to realize and preserve just (or decent) institutions’ (LP: 107). If the role of the duty of assistance is to promote well-ordered societies, and its aim is to realize just institutions, then clearly such institutions are constitutive of those well-ordered societies. If we regard just institutions as the definitive facet of well-ordered societies, then their role and importance needs to be elaborated in a little more detail. Their significance is perhaps best captured in Rawls’ discussion of the purpose of the just savings principle in the domestic context. He claims its aim is ‘to establish (reasonably) just institutions for a free constitutional democratic society (or any well-ordered society) and to secure a social world that makes possible a worthwhile life for all its citizens’ (LP: 107). Just institutions are therefore the political, social, legal and economic entities that provide the structure for liberal or decent societies, and their central importance derives from their capability for providing citizens with a worthwhile existence. From these remarks, we may regard the property of well-orderedness to be a peoples’ capability to allow their citizens to live meaningful lives, built on state and societal institutions that can therefore be considered just or decent. This, in turn, is what burdened societies lack.

Self-determination An integral question tied to the notion of being well-ordered is that of self-determination. It is not immediately clear whether Rawls regards being well-ordered as a necessary condition for self-determination, or vice versa, and whether or not self-determination constitutes a subject of justice in his view. Cosmopolitans such as Beitz believe there is no inherent significance in territorial boundaries and that political sovereignty can be put to one side in pursuit of social justice for individuals. Given the above reading, we could conclude that Rawls’ perspective is similar, with the point of a just global social order being that societies with just institutions may flourish, guaranteeing their citizens meaningful lives. Whether societies are fully self-determined and possess political autonomy might be a moot point from this perspective, so long as just institutions flourish and provide for individuals. This would seem to imply that his theory could collapse into a particular brand of cosmopolitanism, with the individual as the ultimate moral referent, and the society they belong to bearing only instrumental significance. Clearly, we cannot take this to be Rawls’ position, given his explicit rejection of this approach in the section ‘Contrast with the Cosmopolitan

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view’ (LP: 119). As the final line of section 16.3 asserts: ‘What is important to the Law of Peoples is the justice and stability for the right reasons of liberal and decent societies, living as members of a Society of well-ordered Peoples.’ Moreover, his first principle states that the self-determination of these societies is integral to a just Law of Peoples: ‘Peoples are free and independent, and their freedom and independence are to be respected by other peoples’ (LP: 37). There is no reference to the individual here as the primary moral referent. There is a telling passage where Rawls suggests the intrinsic importance of a self-determined, bounded society, while also emphasizing the primary attachment that individuals have to their society. This is in contrast to a cosmopolitan perspective that would most likely baulk at the suggestion of national cultures having intrinsic worth, and might argue that one’s attachment to a people is only one of many equally significant ties we share (Pogge 2008: 301 n283). Leaving aside the deep question of whether some forms of culture and ways of life are good in themselves, as I believe they are, it is surely a good for individuals and associations to be attached to their particular culture and to take part in its common public and civic life. In this way belonging to a particular political society, and being at home in its civic and social world, gains expression and fulfilment. This is no small thing. It argues for preserving significant room for the idea of a people’s selfdetermination and for some kind of loose or confederative form of a Society of Peoples, provided the divisive hostilities of different cultures can be tamed, as it seems they can be, by a society of well-ordered regimes. A proper patriotism is an attachment to one’s people and country. (LP: 111–12) The further significance of self-determination arises from Rawls’ contrasting approach to the cosmopolitans. A central value of his political liberalism is toleration, and where the self-determination of peoples is not respected, this principle is lost. He points out that in taking the cosmopolitan approach one ‘would straightaway ground human rights in a political (moral) conception of liberal cosmopolitan justice’ (LP: 82). To take this approach, whereby all persons ‘are to have the equal liberal rights of citizens in a constitutional democracy’ (LP: 82) would be to take a morally comprehensive approach to international justice that dismisses any type of society which may take a different approach to its internal organization. As a consequence, from this perspective ‘nonliberal societies are always properly subject to some form of sanctions’ (LP: 82), and the foreign policy of liberal peoples would be to try and shape other societies to their ideal. This comprehensive liberalism would be in direct contrast to the neutral, political liberalism that Rawls constructs in his book of the same name.

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There, all reasonable comprehensive doctrines in the domestic sphere are to be regarded equally. It is this toleration of difference that Rawls is anxious to pursue on an international scale; if peoples can be tolerated and do not constitute a threat, it is better to respect their independence than to propose sanctions and run into the possibility of ‘error, miscalculation, and also arrogance’ (LP: 83). A latent presence in this approach (to be discussed later) is Rawls’ desire to see a peaceful world. Global politics is better grounded in political liberalism than comprehensive doctrines because ‘the former must prevail if a stable peace is to be maintained among pluralistic societies’ (LP: 84). It is clear, therefore, that Rawls wants to argue that justice on an international scale is administered to societies, not individuals, and that the selfdetermination of peoples is an important value. However, at least part of his argument for an international society with self-determined peoples is that the individual benefits from this relationship. And so we have a complex relationship between the concepts of individual, peoples and international society. Rawls maintains that peoples constitute the ultimate moral referent in terms of international justice; yet for these peoples to become a member of the Society of Peoples and to be a beneficiary of such a system of justice, they must conform to the international minimum, which represents a prescribed notion of a decent society, and is measured in terms of the benefits enjoyed by the individual. Rawls himself ultimately puts the duty of assistance in terms of the individuals who suffer: ‘it seeks to raise the world’s poor until they are either free and equal citizens of reasonably liberal society or members of a decent hierarchical society. This is its target’ (LP: 119). Whether or not we are to label this as a cosmopolitan or statist approach is not the issue at hand. This is a deeper lying issue regarding Rawls’ approach and one which we will come back to in the final part of the monograph. Nevertheless, understanding the significance of self-determination enables us to grasp some of the nuances of Rawls’ approach, and elucidates his claim that a people’s self-determination should ultimately be guaranteed by international justice.

Political autonomy What exactly constitutes this self-determination is a little more complex. Certainly it includes the standard notion of non-intervention, but for Rawls to assert that peoples are free and independent does not really tell us much. In the previous quote he seems to be referring to a notion of selfdetermination that lies in the traditional idea of sovereignty; it tells us that he thinks a people should have control over its own institutions and that paternalism should be avoided, but does not tell us explicitly to what extent an international order should ensure that such self-determination is underscored by substantive political autonomy. Here I take political autonomy

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to mean a positive capability for defining one’s own development, which presumably varies between self-determined peoples. If we look at Rawls’ argument for just institutions, however, it would seem to suggest that he perceives such a capability to be constitutive of his notion of well-orderedness. It is implicit in his argument that a well-ordered society is more than simply a self-determined people, but is able to maintain just institutions to ensure its citizens have a meaningful existence. For a society to guarantee a range of political goods and provide its members with worthwhile lives suggests a far-reaching capability. The suggestion is that the more well-ordered a society is, the more capability it has to fulfil its responsibilities to its citizens, and the more it can define its own development. The assertion that Rawls is claiming that well-orderedness equates to a level of substantive political autonomy is also buttressed by the third guideline for carrying out the duty of assistance: ‘its aim is to help burdened societies to be able to manage their own affairs reasonably and rationally and eventually to become members of the Society of well-ordered Peoples’ (LP: 111). This underlines the idea that just institutions equate to a capability to order one’s own affairs. More specifically, Rawls claims that once the duty of assistance is fulfilled, ‘then each people adjusts the significance and importance of the wealth of its own society for itself. If it is not satisfied, it can continue to increase savings, or … borrow’ (LP: 114). For him to make the case that a well-ordered society has the capability to manage its own economic development indicates that when he speaks of the freedom, independence and self-determination of a people, he does not mean it in a purely formal sense. In the same passage he equates the intelligent and effective use of freedoms by individuals with the actions of a government that is well-ordered. This analogy is maintained in the final elaboration of his view: Both the duty of real saving and the duty of assistance are defined by a target beyond which they no longer hold. They assure the essentials of political autonomy: the political autonomy of free and equal citizens in the domestic case, the political autonomy of free and equal liberal and decent peoples in the Society of Peoples. (LP: 118) It is clear that Rawls is advocating a form of self-determination that includes a substantive level of political autonomy. A well-ordered society is not only one with institutions capable of providing for its citizens, but also the substantive power to decide upon and control its own development. The political autonomy – or state capability – of a people, in this view, depends upon the strength of its institutions. It is the building up of these institutions, and consequently, the state capability of peoples, which the duty of assistance aims at. I shall now turn to this principle.

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A principle of transition Having unpacked Rawls’ concepts of burdened and well-ordered societies, the next task is to understand how he envisages the transition between the two. We have already noted that Rawls equates a people’s stature with its institutions, and that these institutions are in his view a manifestation of their political culture. This notion of having a suitable ‘culture’ requires some elaboration in order to understand how peoples can be assisted to go from being burdened to well-ordered. Firstly it is clear that Rawls dismisses the idea that the conditions of a well-ordered society are dictated by its wealth or resources. In fact this belief is reiterated three times. He first states: ‘A society with few natural resources and little wealth can be well-ordered’ (LP: 106); secondly: ‘Great wealth is not necessary to establish just (or decent) institutions’ (LP: 107); and finally: ‘[T]here is no society anywhere in the world … with resources so scarce that it could not, were it reasonably and rationally organized and governed, become well-ordered’ (LP: 108). Rawls instead links progress towards well-orderedness with Amartya Sen’s research on famine (1981, 1989) by suggesting that democratic societies are better equipped to deal with the demands of governance – maintaining the sustenance of its population being one of the most important priorities. To say that a society is democratic, however, is not to tell us everything about a political culture and why it may help in the institutional progress of a society. The particular aspect of democratic societies that Rawls identifies in a ‘political culture’, which is instrumental to promoting just institutions, is the emphasis on individual rights. He states that ‘an emphasis on human rights may work to change ineffective regimes’ (LP: 109). This, he argues, is evident in Sen’s research. It demonstrates that those countries, which have suffered food shortages that have not developed into famines, had at the time ‘a decent government that cared for the well-being of all its people and had in place a reasonable scheme of backup entitlements provided through public institutions’ (LP: 109). What liberal and decent societies have, as Rawls defines them, is a concern for human rights that means they would not allow a famine to occur. To buttress his claim about the importance of human rights, Rawls continues with reference to the issue of the population level in burdened societies, and how it can reach a sustainable point through defending the status of women. In view of Sen’s study on the comparative birth rates of Kerala and China (1994), Rawls claims that to control population numbers, the ‘simplest, most effective, most acceptable policy is to establish the elements of equal justice for women’ (LP: 110). To maintain a society that can manage its means effectively, overpopulation is to be avoided not through authoritarian measures but by the protection of women’s rights. Rawls believes that these rights can be protected not only in liberal societies but decent ones too:

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‘[A]ll kinds of well-ordered societies affirm human rights and have at least the features of a decent consultation hierarchy or its analogue’ (LP: 110).2 Although Rawls does not go into any great detail, his central argument is that for a burdened society to make the transition to a well-ordered society, it needs to adhere to the ideals of basic human rights: ‘The elements of basic justice have proven themselves essential for sound social policy’ (LP: 110). The more individual rights are respected and the more accountable a government is, the more well-ordered a society will become. Based on this argument, the duty of assistance is in essence the duty to help societies to become more decent and democratic, and more capable of meeting their citizens’ needs. If this is the broad nature of the duty, what particular obligations are to be met by the members of the Society of Peoples? If we consider what Rawls has to say about the insignificance of resources, and the relative importance he seems to give to changing the political culture of burdened societies, it is no surprise that he rejects the idea ‘that the only way, or the best way, to carry out this duty of assistance is by following a principle of distributive justice to regulate economic and social inequalities among societies’ (LP: 106). Rawls’ understanding of the foundation of well-ordered societies relates to the type of assistance he advocates and demands of the Society of Peoples. Given the priority that Rawls ascribes to institutions, it is logical that the duty of assistance should be an institution-building duty. To concentrate on a duty of this nature is a prescient approach; it dovetails with the current ubiquitous argument that institutions trump other explanatory factors, such as natural resources and integration in the global economy, in explaining the relative economic growth of states (Rodrik 2003). In adopting this institution-based, state-building approach, Matthias Risse for one believes Rawls formulates a stringent duty (shaming the status quo) in a philosophically sound manner that has a genuine chance of persuading policy-makers, while integrating normative argumentation and empirical claims in a way that does justice to both in a domain in which claims about facts and claims about values are intricately intertwined. (Risse 2005: 117) I reserve judgement for the moment on how stringent a duty he presents, but it may certainly be argued that the duty is more grounded in the current policy orthodoxy than straightforward fiscal redistribution. Francis Fukuyama confidently states that ‘the importance of state strength is now taken for granted within the development policy community, whose mantra since at least 1997 has been the dictum that “institutions matter”’ (Fukuyama 2004: 28). What is clear from an initial perusal of the text is that this institutionbuilding approach allows Rawls to explicitly question the response of wealth transfers and development aid advocated by the cosmopolitans. Moreover,

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rather than being a response to a new orthodoxy in development circles, this emphasis on institutions and the importance of political culture can be regarded as an integral part of his political theory.3 In this sense Rawls might be given some credit for a philosophical approach that displays a cogent insight into the foundations for the development of a society. It must be reiterated, however, that Rawls’ priority is not the customary concern of economic development and the promotion of wealth – the duty of assistance does not aim for increased prosperity, and therefore recommend institutional reform as a means to this end. The aim rather is a level of state capability that guarantees individual rights and political autonomy. The focus therefore is not on what type of institutions will increase economic growth, but how those institutions can be forged in the first place. This is a priority which is sometimes overlooked by those who discuss and critique Rawls’ approach. The end goal with regard to the duty of assistance is a society with decent and capable institutions (although an increase in prosperity may, of course, be a means to this end). Unfortunately, it seems Rawls has very little to suggest in terms of how burdened societies might be assisted: ‘there is no recipe, certainly no easy recipe, for well-ordered peoples to help a burdened society to change its political and social culture’ (LP: 108). In fact, there is only one explicit suggestion for the type of assistance that might be offered, and this is extremely limited: To repeat, there is no easy recipe for helping a burdened society to change its political culture. Throwing funds at it is usually undesirable, and the use of force is ruled out by the Law of Peoples. But certain kinds of advice may be helpful, and burdened societies would do well to pay particular attention to the fundamental interests of women. (LP: 110) ‘Advice’ does not seem to amount to much at all, and the scope of measures that Rawls might advocate is limited by the integral importance he places upon self-determination and autonomy: ‘self-determination, duly constrained by appropriate conditions, is an important good for people, and … the foreign policy of liberal peoples should recognize that good … societies should have the opportunity to decide their future for themselves’ (LP: 85). The ultimate importance Rawls attaches to peoples’ self-determination and their right to dictate their own development pertains for burdened societies when discussing the duty of assistance (LP: 111). The primacy of self-determination precludes a more aggressive cosmopolitan approach that might demand paternalistic practices of incentivizing, influencing and intervening in the name of individual rights. We are left with some serious questions regarding whether or not the duty of assistance demands anything of the Society of Peoples, other than a few words of wisdom.

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A mixed reception Unsurprisingly, given the apparent ambiguities and paucity of the duty of assistance, and the gap between its stated target and recommended measures, it has been greeted with some scepticism. According to Brian Shaw, the cosmopolitans, as well as being sceptical about the rebuttal of a distributive principle, are unconvinced that the duty of assistance can ‘remedy the considerable disadvantages burdened societies suffer under fundamentally unjust international structures’ (Shaw 2005: 220).4 In general, the most forceful objection seems to be that Rawls is wrong to take what appears to be a mono-causal approach to the problems of burdened societies. It is not the institutional approach that the duty embodies that seems to be the main focus of the unease (perhaps because his critics do not even regard it as such an approach). Rather, the problem lies in the apparent assumption that the political culture of these societies is solely responsible for their weak institutions, to the exclusion of the influence of the background structure or the lack of wealth. What is required are far-reaching measures, which include the reform of the international structure to the benefit of burdened societies, and the financial support to attain just institutions. At least part of the scepticism may arise from the misconceived idea that in Rawls’ eyes, the duty of assistance is to somehow act as the sole measure in place of a distributive principle. From the cosmopolitan point of view, it seems that Rawls is advocating the status quo (Tan 2001: 496), and that burdened societies are to be assisted into a global order that mirrors that of our day: ‘Securing merely a fixed minimum, Rawls’ duty of assistance does not protect poor societies against skewed (and deteriorating) international terms of co-operation exacted from them through the greater (and increasing) bargaining power of the affluent’ (Pogge 2001: 251). This of course overlooks the extent to which Rawls views his Society of Peoples as embodying values of fair trade, reciprocity and equality between peoples, ensured not by a distributive principle in the typical sense, but by a principle of fair trade and the setting up of co-operative organizations on fair terms. Chris Brown observes that [g]iven that Rawls’s account of a just society is essentially social democratic, it might be expected that in a world where the law of peoples pertained, international economic regimes would reflect this orientation, looking in general rather more like the kind of world envisaged in 1980 in the Brandt Report than the current world of the Washington Consensus. In such a social-democratic world, there is every chance that the external obstacles to economic development would be removed, or at least would be of much less significance than they currently are, and in those circumstances internal political culture might well take on the importance Rawls attributes to it. (Brown 2002: 15)

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Thus a duty of assistance that appears to place an overwhelming emphasis on political culture might not be considered quite as toothless when it is not regarded as a substitute for a distributive principle, but simply as a means for burdened societies to enter an already just Society of Peoples. Brown makes another important point, which I believe suggests one reason for the paucity of detail in regard to the duty of assistance. He comments, Rawls is right to believe that ideal theory, telling us where we ought to want to be, has an important role. But there is also an important role for non-ideal theory, that is for theory that tells us how to get on in the world as it is … It is interesting that when he comes to non-ideal theory, Rawls is much less specific than when he deals with ideal theory. (Brown 2002: 20–1) The thought I wish to emphasize from this passage is that Rawls has less to say to us about non-ideal theory than about ideal theory. If we consider that TJ is a work of ideal theory, and that PL features only the more notional discussion of non-ideal circumstances (establishing the constitutional essentials, for example), then perhaps it should come as no surprise that Rawls provides less detail than we might hope, in what is largely unfamiliar territory. As we shall see, he is reluctant even to discuss the realization of the social minimum in the domestic context, so the fact that he has little to tell us about intervention and assistance, and how to get on in the world, is perhaps indicative of his particular approach to political philosophy.5 The fact that Rawls does not tell us as much about non-ideal theory – in this case, the duty of assistance – is something that is acknowledged by his greatest advocates. Reidy comments that, ‘the duty of justice entails several pretty obvious corollaries, though Rawls says too little in this regard’ (Reidy 2007: 200). Freeman affirms this also, but simultaneously suggests that the paucity of detail may allow for potentially far-reaching measures. Rawls ‘seems to leave it open for further determination that the duty of assistance might impose rather exacting demands upon members of the Society of Peoples to assist burdened societies’ (Freeman 2007: 280). Rex Martin, who is sympathetic to Rawls’ approach, but critical of some of his ‘poor’ arguments on global redistribution, is convinced that ‘the Rawlsian duties of aid to burdened societies are, in fact, robust’ (Martin 2006: 237) and suggests that those who endorse Rawls’ ideas might defend a ‘suitably expanded form of the duty of assistance’ (Martin 2006: 238). This is an attitude affirmed by Andrew Hurrell, who claims, what is notable about The Law of Peoples is not its limits, but rather just how far Rawls has moved since his earlier 1993 Amnesty Lecture (Rawls 1993b). If we were to take his injunctions of assistance seriously, this could be interpreted as requiring high levels of redistribution and

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significant elements of reform. It would certainly require measures that are way ahead of what we currently see or are likely to see. (Hurrell 2001: 48) In a sense, the role of the second part of this work will be to take these injunctions seriously, and to investigate the kind of measures they might deliver. The ambiguity of Rawls’ position is illustrated by the fact that Beitz, one of his more strident critics, claims in one of his more recent papers that Rawls actually ‘affirms that well-off societies have duties to assist other societies to escape the burdens that oppress them and he believes that under some circumstances these duties might require international transfers of wealth’ (Beitz 2005: 20). Reidy (2007: 230), Cabrera (2001: 166) and Freeman also suggest (2007: 312) that Rawls envisages wealth transfers as part of this duty, but it is far from clear cut. David Miller suggests the contrary opinion, stating that ‘Rawls attributes their difficulties chiefly to cultural and political factors, and argues that the main aim of the duty of assistance should be to help engineer change in these dimensions rather than to send material assistance in the form of foreign aid’ (Miller 2006: 198). Moreover, in terms of the fair trade principle and other regulative aspects of the international economic system, it is difficult to surmise whether Rawls believes that a just Society of Peoples would be a benign enough environment to encourage burdened societies to attain just institutions, or whether additional measures are required as part of the duty of assistance. Grasping the full extent of this principle and filling in some of the conceptual space left by Rawls in his non-ideal theory is the main focus of the remainder of this book. Before bringing this chapter to a close, there are two further ambiguities, in addition to the extent of this duty, which require some elucidation. The first of these regards the specific threshold for burdened societies. There is some discussion in regard to the exact extent to which a people must meet the needs of its citizens in order to be regarded as well-ordered. There is some ambiguity in what Rawls regards to be the threshold for decency (assuming this to be the minimal level for well-orderedness). Although advocating the duty of assistance and the international minimum, John Tasoulias has questioned the extent of their demands. His basic claim is that the human rights that must be fulfilled in order to meet this threshold are minimal. Decency in his opinion is exempt from the idea that individuals should be guaranteed certain social and economic entitlements. His view is that Rawls’ threshold is too low in demanding what he regards as merely rights to subsistence and the most minimal of well-being, and that an adequate well-being would be more appropriate: ‘it is the difference between freedom from poverty that threatens one’s continued existence and the fulfilment of one’s basic needs and freedom from poverty that severely threatens one’s ability to have a good life’ (Tasoulias 2005: 16). His argument is based on Rawls’ exemption of Article 25 of the Universal

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Declaration of Human Rights: the right to a standard of living adequate for health and well-being. Tasoulias is generally well-disposed towards the duty of assistance, but is concerned about the low threshold of decency it demands, as it makes it a trickier choice in his view ‘between a global egalitarianism that seriously compromises self determination and a duty of assistance that can be fully discharged by helping burdened societies become decent societies that need not secure any welfare rights beyond subsistence’ (Tasoulias 2005: 19). Tasoulias seems to believe that the problem arises from Rawls’ application of a dual role to this threshold, both as a threshold for decency and for intervention. In giving it this dual role, it seems that Rawls has placed the international minimum at an unnecessarily low level, as there is no prominent reason why it should equate to a trigger for intervention. By way of example he argues that ‘the cut-off point for the duty of assistance to families, if we can so describe it, is normally held to be well above the point at which things cease being bad enough to warrant state intervention’ (Tasoulias 2005: 21). His argument contradicts my earlier claim that the duty of assistance aims at the same idea as the just savings principle of providing worthwhile lives for citizens. This would seem to be a more ambitious threshold than the one that Tasoulias describes. There may indeed be a case for arguing that the just savings principle is relevant to Rawls’ theory of domestic justice, and underpins the social minimum he claims is necessary for any liberal society, but that it does not necessarily hold for a decent society. Could it be, therefore, that there is some slippage between the duty of assistance and the duty of just savings, and that the target of assistance is in fact only a minimal level of well-being, as Tasoulias suggests? Freeman for one would seem to disagree. He argues that, the ‘target’ of the duty of assistance is the capacity of a people to be economically independent so that they may at least meet all citizens’ basic needs, and become bona fide members of the Society of Peoples… Here it is important to note that by ‘basic needs’, Rawls is not just talking about subsistence needs that are protected by human rights. (Freeman 2007: 264) In support of this claim he quotes Rawls’ assertion that the idea of assuring basic needs includes a guarantee that individuals are in the position to ‘take advantage of the rights, liberties, and opportunities of their society. These needs include economic means as well as institutional rights and freedoms’ (LP: 38 n47). The disagreement may in some sense relate to a different understanding of the notion of subsistence. Clearly Tasoulias regards the term as signifying little more than the ability to stay alive, whereas Rawls’ understanding is far more generous. In a later footnote, Rawls argues that subsistence includes

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‘minimum economic security’, because the ‘rational exercise of all liberties, of whatever kind, as well as the intelligent use of property, always implies having general all-purpose economic means’ (LP: 65 n1). This offers far more than Tasoulias’ suggestion that subsistence level is a state of being whereby one’s existence is secured. Moreover, I would argue that he is incorrect to claim that Rawls goes so far as to conflate the threshold for intervention and assistance. Rawls does not offer any extended analysis of the case for humanitarian intervention, but does suggest that violations of human rights must be ‘egregious’ (LP: 95, n6) for such action to be considered. Assistance, on the other hand, is required where the worthwhile lives of individuals are threatened – not only their bare existence. Reidy suggests some more specific content for this notion of a worthwhile life. He claims that ‘Rawls clearly intended and characterized the ideal of well-orderedness as marking the minimum social and material conditions necessary to underwrite, to secure and preserve, the moral status of personhood’ (Reidy 2007: 223). This moral status we can take to mean the individual capabilities to conceive of justice and to conceive and pursue their own ends: universal capabilities relevant to all – allowing for the fact that persons’ notion of justice and their personal ends will be considerably different, especially if they belong to a decent rather than liberal society. Given the radical differences between societies, and the possibility that these capabilities will be realized in very different ways, one might question the extent to which an international minimum can be successfully identified. Reidy’s suggestion is that we view this threshold as being context dependent. We should read Rawls’ pledge to ‘the right to life’ (LP: 65) as a commitment ‘to a human right to an economic and social minimum relative to the domestic order to which one belongs, a minimum … beyond what typically comes to mind when one thinks of mere subsistence’ (Reidy 2005: 389–90). To sum up, Tasoulias’ argument is helpful in the present context as it demonstrates that the international minimum identifies a level of individual well-being that is less substantive than what we might expect from the social minimum of a liberal society. The demands on the duty of assistance, in this regard, would therefore seem to be less than those of the duty of just savings in TJ. However, it also serves the purpose of clarifying in more detail what is entailed by the international minimum. In articulating the aims of the duty of assistance, we see that Rawls intends it to be an ambitious principle that promotes the moral and material well-being of those in burdened societies. The final ambiguity relates to the status and justification of the duty of assistance. As Beitz notes, answering the question of why we should accept the duty is not easy. Rawls is less than forthcoming in his rationale for presenting it as a principle that those in the original position will unhesitatingly accept (Beitz 2000: 689–90). Beitz’s best guess is that the force of the duty arises from what is effectively the self-interest of liberal

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and decent peoples, in wishing to secure an ever-increasing stable Society of Peoples. Cabrera (2001: 176) and Shaw (2005: 225) suggest that this ‘counsel of prudence’ is one possible account of the duty, in which case, it is no moral duty at all. Shaw’s other possible account is that Rawls does in fact attempt to derive it from the narrow political values in the public reason of the Society of Peoples, but that he attempts it only obliquely, by arguing that political liberalism’s criterion of reciprocity obliges liberal states to help burdened peoples meet their basic needs so they can negotiate the terms of their association. For if burdened societies deliberate with basic needs unmet, their willingness to embrace terms of co-operation offered by liberal peoples might easily be dismissed as desperate and ultimately coerced acts. Thus to secure for the law of peoples the legitimacy of a voluntary agreement, liberal peoples need to honor the duty of assistance that makes free consent possible. (Shaw 2005: 225) Shaw claims that this is problematic, because once burdened societies are capable of free consent, they will demand greater assistance within a just society of peoples, beyond that which is stipulated by the duty. A more basic problem with this account, however, is that burdened societies are outside the Society of Peoples, and thus are not party to the initial negotiation. Given that their representatives are not in the international original position, they are not actually offered any terms of co-operation. The Society of Peoples does not need to secure voluntary agreement from burdened societies. In this sense they would seem to be at the mercy of well-ordered societies, with the source of the duty being unclear. If an argument for the duty of assistance cannot be generated from the idea of reciprocity, there might be other reasons for justifying it as the eighth principle; there is nothing that Rawls says to suggest it is anything other than a first principle of the Society of Peoples, with an equal status to the other seven. As Reidy states, together with the principle of free and fair trade, it belongs to the ‘first principles of global or international justice, binding on all peoples regardless of their consent or voluntary undertaking’ (Reidy 2007: 196). One source of the duty might be that well-ordered peoples would want some form of insurance. In the case of severe hardship or some natural disaster, they would be keen for their fellow members to be duty bound to assist them and to ensure their reinstatement, should they be reduced to the status of a burdened society. Reidy frames this possibility in the following terms: [I]t is also operative, even if only passively so, under ideal conditions, in a world populated by only non-aggressive and well-ordered peoples. Natural and other sorts of unforeseen and perhaps unforeseeable disasters

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will always present well-ordered peoples, even those that plan and save effectively, with some risk of losing through no fault of their own the material or other conditions necessary to their own well-orderedness. (Reidy 2007: 198) However, there seems to be a qualitative difference between such a duty of mutual assurance between well-ordered peoples, and a duty of assistance to peoples who have historically never been well-ordered, have never been in the position to demand equal respect, and have never developed a full corporate moral identity. Wilfred Hinsch (2001: 66) reasons that the duty is best thought of, in concert with the other principles, as something akin to a natural duty. The natural duties are considered by Rawls to hold between individuals, regardless of their nationality or affinity, and they also apply prior to the existence of any social and political institutions. If we accept Freeman’s earlier arguments against a distributive principle, on account of the lack of suitable international political and social institutions, then this idea of the duty of assistance as a natural duty is certainly attractive. However, there would seem to be a problem, as such duties traditionally hold between individuals only. The suggestion of Hinsch is that given the ontology of Rawls’ peoples as corporate moral agents, we might consider them as individual agents to whom such a natural duty might apply. As well as anthropomorphizing peoples to a great degree, another problem with this account would seem to be that although the Society of Peoples lacks extensive and integrated institutions, the principles of the Law of Peoples are still to apply to its formative institutions: treaties, co-operative organizations, and so forth. They are not, in this sense, strictly prior to the existence of political institutions. The final account of Rawls’ justification that is prevalent in the literature relates to the concept of responsibility. As we saw earlier, Miller argues that Rawls rejects international redistribution on account of the fact that responsibility is not mitigated in this context: well-ordered peoples are more responsible for their development than persons, and so it is not a requirement of justice that measures redress their inequality. However, the case of burdened societies is a bit more complex, because ‘although in one sense members of burdened societies are responsible for their condition, Rawls thinks that they are unlikely to bootstrap themselves out of that condition, and so responsibility is mitigated by the duty of assistance’ (Miller 2006: 198). Hence, the Society of Peoples is obliged to help burdened societies on account of their inability to help themselves. Given their position outside the Society of Peoples, the duty cannot be grounded in reciprocity or mutual caring, while the principle of redress is only to have any influence if inequalities result from contingencies, which Miller suggests are not applicable in this case. However, the argument that there is a duty to assist because burdened societies cannot help themselves is problematic in terms

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of presenting it as a duty of justice. It would appear that such an argument rests on a prior duty existing, such as a natural duty, which behoves the Society of Peoples to act, in spite of the irresponsibility of burdened societies.6 In this regard, a suggestion presented by Reidy, which appeals to the idea of responsibility, hints at a more robust duty. It implies that the duty of assistance arises from the idea that burdened societies’ problems have in fact resulted from historical contingencies, which it is the duty of international justice to mitigate. Because of our lack of historical knowledge and the great difficulties of sorting out historical causation, we have good reason to suppose that the burdens carried by today’s burdened societies are not the result of only self-inflicted wounds for which they ought to be held politically responsible. (Reidy 2007: 198) The implication here is that burdened societies, unlike well-ordered societies, are not in a position to be regarded as historically free and independent, and their predicament is not their singular responsibility. Given the case for mitigated responsibility on the grounds of historical contingencies, the principle of redress applies up to the point at which peoples can take responsibility for themselves. ‘Well-ordered peoples are obligated as a matter of justice to take affirmative steps to aid those burdened societies unable (through no fault of their own) to constitute and sustain themselves as wellordered peoples’ (Reidy 2007: 195). This argument again has an attractive logic, but my claim in the next chapter will be that Rawls’ philosophical position is such that the question of responsibility is not definitive in justifying this duty. It may well be that in regard to certain burdened societies it is possible to locate some responsibility for their predicament in the actions of other peoples. However, in an analogous fashion to the guarantee of a social minimum, the duty of assistance stands regardless as a principle of justice.

Conclusion In attempting to draw out what Rawls has to tell us about non-ideal theory, the duty of assistance, and how burdened societies can become well-ordered, we are left with more questions than answers. In terms of the basic concepts, it appears clear enough what Rawls envisages. Burdened societies – which do not have just institutions, cannot answer to the demands of their citizens, and cannot achieve political autonomy – oblige well-ordered societies to assist them, not financially, but primarily through guidance. However, as I hope to have demonstrated in working through the most detailed passages

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of his work, these concepts are somewhat under-developed, and demand a certain degree of inductive reasoning and imagination in developing our understanding. Given the economy of Rawls’ descriptions, there is some room for ambiguity in drawing conclusions about his work. The brief survey of some of the secondary literature tells us that there is considerable scope for disagreement. What is initially clear, and has not necessarily been noted by all his critics, is that Rawls adopts a specifically institution-based approach with his duty of assistance. It is, however, highly questionable whether Rawls advocates wealth transfers as part of this duty, or any further compensatory measures in terms of trade and co-operative institutions. Moreover, the question of how the duty is justified seems even more intractable. In concluding, however, I would like to propose the following. Rawls believes that to realize a just international society, burdened societies must be assisted in becoming decent or liberal. This will ensure that they can be free and equal members of the Society of Peoples, and that the needs of their citizens are met. Furthermore, these societies must possess a degree of political autonomy and must be self-determined as political entities. Rawls thinks they must have at least a partial capability to determine their own path of development, in order to decide on their own terms how industrialized they might wish to become, what values should underpin their society, or how wealthy and prosperous they wish to be. This ‘target of assistance’ represents a considerable challenge, and in the following chapters I suggest that in envisaging this aim, Rawls has proposed a more progressive principle than his critics allow. He suggests that advice is the means to this target, and intimates some other aspects of the Society of Peoples that he would regard as conducive to international justice. However, the burden of reform seems to lie very heavily on the already burdened societies. Due to his limited discussion and narrow perspective, he does not present a convincing vision of ‘how to get on in the world’, to paraphrase Brown’s notion of non-ideal theory. His vision for a just international society may well be a realistic utopia, but there appears to be a need for a dose of realism in his vision for how this might be achieved. In order to envisage how we might manage this target of assistance, I will suggest that we need to apply a capability perspective to his approach, in order to conceptualize how societies might become well-ordered and self-determined. In sum, the first part of the monograph has presented the critical background, examining the aspect of Rawls’ international theory that is broadly analogous to the distributive questions of his domestic theory. The questions of ideal and non-ideal theory were considered in turn. Firstly, I presented the case that the cosmopolitan critique of LP, and specifically their argument for an international difference principle, is problematic. Rawls has good reason to omit such a principle in the international context. Those who have interpreted his work in a more sympathetic manner

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buttress this argument, providing several reasons as to why an international distributive principle is inappropriate from the perspective of his ideal theory. I claimed that the most basic of these reasons is that international transfers represent a brand of egalitarianism that goes beyond Rawls’ perspective of democratic equality, compromising the autonomy of peoples in pursuit of equality. The domestic theory of Rawls was utilized in order to buttress the argument, demonstrating that he advocates little in the way of substantive equality. The substantive egalitarian plank in his approach is the injunction that there is a social minimum that applies to all individuals; they are all entitled to enough primary goods to make meaningful use of their freedoms. The next stage was to consider Rawls’ perspective on non-ideal theory. Here I claimed that in discussing burdened societies, Rawls sets a baseline of justice in the international realm that is analogous to the social minimum in the domestic context. However, whereas Rawls provides some justification for eliding the difference principle, his approach to the questions of nonideal theory is less detailed and less convincing. He advocates a duty of assistance to aid burdened societies in attaining the international minimum and becoming members of the Society of Peoples. I highlighted several difficulties that are left unresolved in regard to this principle, which calls into question the extent to which it embodies a helpful approach to the problem of global poverty. These shortcomings, as well as being a function of what is in essence a brief sketch of issues of international justice, I also attributed to Rawls’ greater preoccupation with ideal theory, and his less forthcoming treatment of problems of non-ideal theory. The aim of the next, constructive part of this work is to try and provide a sympathetic interpretation of the duty of assistance, elaborating on its content and potential through both a conceptual and empirical development of its main ideas. Although the duty seems to provide more questions than answers, I claim that it lays the basis not only for a realistic and considered approach to the problem of global poverty – it also throws critical light on the state-building process itself. In order to elucidate and to elaborate upon Rawls’ account, I suggest the key move of transposing the capability approach to his Society of Peoples, providing us with the conceptual tools to develop this aspect of his non-ideal theory. Rather than an extension of the Law of Peoples, this elaboration will be proposed as an internal development of the Rawlsian perspective.

Part II

The overarching aim of this second part is to provide a compelling interpretation of the duty of assistance. I have suggested that Rawls lacks the conceptual resources in his domestic approach to transpose to the international realm and tackle the question of burdened societies - in a manner that may have convinced some of his cosmopolitan critics. In his last extensive work, Amartya Sen also criticizes Rawls’ Law of Peoples, and his political theorizing more generally, for its lack of engagement with the ‘real world’ – arguments that will be presented here. A response to this critique, and the challenge of constructing a robust duty of assistance, will entail the utilization of Sen’s earlier work on capabilities, in order to develop a framework capable of dealing in greater detail with the development of burdened societies. In its earlier incarnation, the capability approach was presented as a development of Rawls’ justice as fairness, the main thrust of Sen’s approach being that justice should be measured in terms of freedoms and not goods. The result is a perspective that identifies a greater extent of remedial measures – one that I will look to apply to Rawls’ duty of assistance. Before addressing the extent of the duty, however, I will begin with a discussion of Martha Nussbaum’s capability approach, which will shed light on the other outstanding question: the duty’s justification. The application of the capability perspective to the international context will be undertaken in Chapter 5, beginning with Robert Jackson. He conceptualizes state capability in terms of positive sovereignty, based upon Isaiah Berlin’s concept of positive liberty. Taking this as a starting point, I argue for the development of state capability in terms of the alternative concept of liberty proposed by Gerald MacCallum. In essence, promoting the capability of peoples can be regarded as a process of eradicating their obstacles to freedom. I argue that this idea provides a flexible and lucid conceptual framework upon which we can build the empirical argument for an extensive duty of assistance. It has the effect of broadening what Sen terms the informational base, providing the justification for identifying more factors that should be addressed by the duty of assistance.

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The role of Chapter 6 is to identify possible obstacles to the freedom of burdened societies, in order to furnish the conceptual approach developed in the previous chapter. I acknowledge that Rawls appears to have a very limited informational base in the international realm, apparently identifying political culture as the overwhelming constraint on people’s freedom. However, this does not preclude our looking further afield. Considering a sample of state and institution-building literature suggests that the process is more complex and implies more measures than the duty of assistance first appears to advocate. One important aspect is the recognition of a colonial legacy, and its intimate relationship with the institutional frailties of weak states – buttressing the idea that the duty of assistance might be justified as a principle of rectificatory justice. The more significant claim I present is that this normative capability perspective embodies a conceptual approach that can keep in view the different explanatory models, which contribute to our understanding of state failure. It maintains a broad informational base that serves as a justification for a vast swathe of remedial measures. In summary, therefore, Chapter 4 sets out the capability critique of Rawls’ perspective, addresses the justification of the duty, and sets up the discussion of its extent. Chapter 5 proceeds with the application of the capability perspective to the international context, providing the framework for an extensive duty. Chapter 6 builds on this framework by furnishing it with the appropriate empirical information.

4 Considering the Capability Perspective

This chapter will be divided into two stages, the first addressing the ambiguity regarding the justification of the duty of assistance. The second stage will take the first step in addressing the ambiguity regarding the extent of the duty. Engaging with these issues will also afford an opportunity to consider some broader criticisms of Rawls’ political theory. I look initially to a discussion of the capability perspective developed by Nussbaum. Sen originally developed the capability perspective as an extension of Rawls’ contractarian position, presenting a different index for the measurement of distributive justice. Nussbaum takes the idea of capability and develops it as the core of an alternative political theory. Nussbaum’s perspective involves deep criticisms of Rawls’ central assumptions, and in so doing provides us with some interesting questions regarding the status of non-compliant agents in his theory, which throw light on our discussion of burdened societies and the duty of assistance owed to them. Nussbaum argues that non-compliant agents are not fully integrated into the contractarian approach, meaning that any duties to these agents will not carry the same weight as those to compliant agents. This idea raises questions about the status of burdened societies, and whether or not the duty of assistance can be regarded as a principle of equal weight to the others in the charter of the Law of Peoples. We are therefore compelled to address the justification of the duty. I will put forward two key claims in response to Nussbaum, defending the status of the duty of assistance as a first principle of Rawls’ international theory: firstly, that the duty is a fundamental pillar in the architecture of justice as fairness applied to the international realm, given the absence of a difference principle; second, that despite burdened societies being excluded from the original position, the duty to assist them is not one of charity but a duty generated out of moral necessity. In search of ideas for setting out the extent of the duty and the measures it advocates, I will evaluate Rawls’ domestic approach to non-ideal theory. This move will be based on the premise that the international minimum the duty sets as a target is the analytical equivalent of the social minimum 79

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espoused by Rawls in his domestic approach. The aspiration, therefore, is that analysing the manner in which Rawls cashes out the social minimum will provide the conceptual tools to analyse the international minimum. However, Rawls initially tells us relatively little about how a social minimum might be conceptualized in the domestic context, and so we need to look elsewhere for some ideas about how the substantive freedom of peoples can be theorized and pursued. To this end, I will present an exposition of Sen’s capability critique of justice as fairness. Prior to this, however, I will give some attention to Sen’s recent book, The Idea of Justice (2009), which in a similar fashion to Nussbaum’s work questions Rawls’ approach at a deeper level. Whereas Sen’s original critique was presented as an improvement of justice as fairness, his latest contribution represents a considerable challenge to Rawls’ political theory, and therefore merits due consideration. Moreover, it will be my argument that the robust version of the duty of assistance set out in this work offers the basis for a response to both the cosmopolitan critique, and Sen’s latest challenge. I therefore set out some key tenets of The Idea of Justice and its primary arguments, with the intention of reconsidering them in the final chapter, in light of my treatment of the duty of assistance. To rehearse these conclusions, the thrust of my argument will be that deploying Sen’s original capability critique in recapitulating the duty of assistance has the effect of deflecting some of his main criticisms in Sen’s most recent work. This original capability critique of Rawls’ perspective focused on the measurement of justice in terms of primary goods, rather than the substantive freedoms accrued from these goods. Sen suggested in its place a perspective with a direct focus on substantive freedom, going beyond Rawls’ account and providing us with a means for conceptualizing the social minimum, thus potentially shedding light on the international minimum. As noted before, this minimum denotes a substantive level of freedom in advocating political autonomy for peoples, and in order to give a more convincing account of the duty of assistance, we need a perspective that concentrates on this particular aspect. This, I claim, is what the capability approach offers us. In the final analysis, Rawls can be read as accepting that the capability approach has a role to play in accounting for how a social minimum might be realized – in the case of individuals who suffer temporary difficulties. This assertion sets up my key claim that it may also help in our treatment of burdened societies. I argue that where Sen’s approach encouraged Rawls to provide a more detailed account of how non-compliant individuals are to be dealt with in the domestic context, so a capability-inspired perspective in the international context can help us provide a detailed account of how noncompliant peoples (burdened societies) are to be assisted in the international context. It is an important point that the development of the duty of assistance is one that should be considered consistent with Rawls’ approach.

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To recap, there are two stages in this chapter. In the first stage I argue that Nussbaum’s insight from the capability perspective demands a more adequate justification of the duty of assistance. I look at the duty’s importance as a central pillar of Rawls’ international theory, and then present two possibilities as to how it can be construed as a duty of justice to burdened societies. The second stage sets up our evaluation of the extent of the duty. I identify the limits of Rawls’ approach regarding the social minimum, before presenting Sen’s two critiques of justice as fairness and his conceptualization of capability, or ‘positive’ freedom. I then argue that although Rawls rejects Sen’s capability approach as a whole, he does incorporate elements of this capability perspective to buttress his development of the social minimum. This partial adoption of the capability perspective for non-compliant agents provides us with the potential conceptual means for developing the duty of assistance – in a manner that should provide some answers to not only the criticisms of cosmopolitans, but also the more recent critique from Sen. We will therefore be equipped to fully address the extent of the principle in the following chapters.

The justification of the duty The capability perspective employed by Nussbaum questions Rawls’ idea of justice as fairness at a fundamental level. She deploys it not only to suggest that Rawls should replace primary goods as the measure of justice, but also to argue that his approach is flawed in a more basic respect. The main thrust of her critique is that Rawls’ social contract approach marginalizes noncompliant agents. To her mind, Rawls’ justice as fairness cannot regard such agents as equal subjects. The result in the case of burdened societies is that the duty of assistance is not one of justice, but rather a duty of charity. Nussbaum’s focus is on the problems that Rawls himself identifies as challenges to his own conception of justice. She views her project as beginning where Rawls’ perspective reaches its limits, not only in terms of individuals with disabilities, and ‘what is owed to animals and the rest of nature’ (PL: 21), but also with regard to his account of international justice. Her basic claim is that Rawls’ approach has the effect of treating non-compliant agents in a manner that is at odds with the idea of basic justice. Rawls’ assumption that parties to the social contract are roughly equal in power and ability, and that they co-operate in pursuit of mutual advantage, affects his treatment of those with disabilities, because they are excluded from the initial agreement. Because his account of why parties prefer co-operating stresses the mutual benefit afforded, those who are not roughly equal and cannot contribute do not qualify for the original position.1 If the principles of justice are conceived on this basis, then Nussbaum believes that ‘Rawls cannot explain why the ones below the ‘line’ are owed justice rather than charity, without fundamentally modifying this aspect of his theory’ (Nussbaum 2006: 118).

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Although Nussbaum’s approach raises many valid questions regarding justice as fairness, we must focus on what it tells us about the question in hand. What insight does it offer us in regard to the problem of burdened societies? Nussbaum suggests that we might view their position in a similar way to persons who suffer impairments. Indeed, there seems to be an obvious analogy in regard to the status of burdened societies. In the same manner in which impaired individuals are excluded from the original position, so burdened societies are excluded from the international original position of free, equal and well-ordered peoples. Nussbaum argues that nations that are very unequal in power to the dominant nations, especially those whose developmental stage is pre-industrial or partly so, will have to be left out of the initial contracting group. Their needs will have to be dealt with later, after basic principles that profoundly affect the lives of their people are already chosen and fixed, and these needs will be addressed out of charity, not as a part of basic justice. (The situation of poorer nations in this sense resembles that of persons with impairments in the first stage of the social contract). (Nussbaum 2006: 19) In her view, therefore, the duty of assistance would appear to be a humanitarian duty, rather than a duty of justice, given that burdened societies are not party to the initial position and are unable to represent their own interests.2 This assertion provides food for thought regarding the justification of the duty of assistance, and contradicts the argument that the duty is one of justice. First, however, it is necessary to point out the manner in which the analogy between the domestic and international holds. Rawls openly acknowledges that his approach has limits and cannot account for many types of non-compliant agents, such as the permanently handicapped ( JF: 176 n59). However, the type of non-compliant agent Rawls is able to accommodate and does not consider as a challenge to his general theoretical approach is the case of those who have temporarily fallen ‘below the line’. These are persons who are freely able to develop their basic capabilities, and who, with the provision of health care, will be back on their feet and contributing a net gain to society ( JF: 171–5). They are in effect potentially fully compliant agents who require temporary aid, and once they have cured their ills are able to support themselves indefinitely. It is with these cases that the analogy with burdened societies is most sensibly drawn. No society, at least on Rawls’ account, lacks the potential to become reasonable and rational. In their human resources and institutions, they have the potential capability to provide for their citizens and to manage their own affairs. In this sense they are potentially equal, with the capability to identify

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and promote common interests and a common sense of justice for their society. Those individuals who have temporary difficulties therefore offer the best analogy with burdened societies. Such societies have the potential to become fully functioning, normally co-operating members of the society, but due to historically contingent factors they are unable to fulfil this role. On this view, we might regard the duty of assistance in a similar way to Rawls’ incorporation of health care in the domestic context – a principle of mutual assurance. As Reidy points out (2007: 198), representatives of peoples agree to such a principle that protects them against unforeseen and disastrous events. However, there seems to be a qualitative difference between a duty of mutual assurance among well-ordered peoples and a duty of assistance to peoples who have historically never been well-ordered, nor been in the position to demand equal respect, and have not developed a full corporate moral identity. This, after all, seems to be the assumption about burdened societies who are denied a place in the international original position. This is also where the analogy breaks down with those individuals who claim health care, as they can be regarded as fully functioning individuals who fall below the line only temporarily, and whose interests are directly represented in the original position. The analogy only goes so far, therefore, and we cannot make the case that the duty of assistance has an analogical status to that of the provision of health care as one of the primary goods. In actual fact, burdened societies seem to represent a distinct category of non-ideal agents. As with those suffering permanent disabilities and excluded from the domestic original position, they have never held the position of rough equality within the Society of Peoples that might qualify them for the international original position. Yet in the same way as individuals who suffer temporary illness or misfortune, they have the potential to attain the requisite status. A tension exists here, and it is not initially obvious how it might be eased. Burdened societies are not represented in the international original position, yet their interests are in fact represented in the duty of assistance as one of the first principles of international justice – and not at a later stage. On the one hand, they would seem to represent what Nussbaum regards as subjects of charity, given their omission from the original position, yet their fate is not postponed to a later stage nor addressed by a different procedure. A principle addressing their needs holds equal status with those applicable to well-ordered societies. Rawls clearly states that the duty of assistance is one of the first principles of a just international order. This is the fact of the matter. The domestic model, however, suggests that the interests of those who are not represented in the original position are to be postponed. The puzzle therefore is why a duty addressing agents outside the original position takes pride of place with those principles applied to its members.

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The duty of assistance as a pillar of international justice The first argument to make in regard to the status of the duty of assistance is that it has a fundamental role in demarcating the boundaries of Rawls’ international theory. The international minimum that it is the duty of the Society of Peoples to aspire towards represents a fundamental marker for his theory – a baseline for justice. Given its central importance, the obvious question is why this minimum is explicitly represented by a first principle in the international theory, when its domestic analogue, the social minimum, is not. The straightforward answer is that in the domestic context this minimum is implied by the difference principle itself. In a fully just society, the minimum is in fact the level at which the worst off maximally benefit from the inequalities of that society: ‘Once the difference principle is accepted … it follows that the minimum should be set at the level which, taking wages into account, maximizes the expectations of the lowest income class’ (CP: 145). For this reason, there is no need for the social minimum to be represented by a separate principle at the stage of the original position. Where the difference principle is not presupposed, as in the case of the family of reasonable liberalisms, then it is necessary for Rawls to stipulate another principle in its place: ‘the third [principle] assures for all citizens the requisite primary goods to enable them to make intelligent and effective use of their freedoms’ (LP: 14). As the difference principle is not deployed to maximize the expectations of the worst off, another principle is required at least to ensure this baseline for individuals. The central importance of this social minimum, which we can regard as safeguarding the minimal substantive freedoms of individuals (but not maximizing them in the same way as the difference principle), is demonstrated in the fact that it is one of the constitutional essentials that Rawls stipulates in PL. In this sense it has a priority over the difference principle, which given its greater demands and attendant controversy, and also the need for more empirical information, is actually postponed until the legislative stage (Freeman 2007b: 208). This priority of a minimum, over the aggregation of the difference principle, is reflected in the international realm. The duty of assistance that advocates the international minimum is in the initial charter of eight principles, whereas the principles for trade and co-operative institutions, which might involve similar controversy and demands as the difference principle, are suggested as supplementary. They are clearly not the most pressing concern for Rawls, and for this reason it might be suggested that the eight principles he outlines in the charter can be considered the international equivalent of the domestic constitutional essentials. There may be other principles that could be enacted at the equivalent of the legislative stage in the international context, but for the Society of Peoples to function it would seem that the initial eight principles are necessary. The other central reason to defend the idea of the duty of assistance as a first principle of international justice and a central pillar of his theory relates

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to Rawls’ assertion about the similarity ‘between the duty of assistance in the Law of Peoples and the duty of just savings in the domestic case’ (LP: 107). Again, as with the social minimum, the duty of just savings is not specified in the domestic original position, but it is understood as ‘a qualification of the difference principle’ (Freeman 2007b: 473). From the perspective of the original position, it is not rational for parties (being ignorant of which generation they belong to) to sanction a distributive principle that may compromise the opportunity for one generation to enjoy a similar standard of living to that of the previous generation. Rawls expresses the idea by suggesting it is required ‘to make possible the conditions needed to establish and to preserve a just basic structure over time’ ( JF: 159). It applies between generations, whereas the difference principle applies within generations. In a similar fashion to the social minimum, given that the difference principle has no place in the Law of Peoples, the duty of just savings requires expression through another principle. The basic idea of the duty of just savings is that enough resources be provided to secure just institutions, at which point real saving may fall to zero ‘and existing stock only needs to be maintained, or replaced, and non-renewable resources carefully husbanded for future use as appropriate’ (LP: 107). The equivalent on an international level would be for the Society of Peoples to work towards the same aim of realizing just or decent institutions in burdened societies, and that appropriate assistance is provided until this cut off point is attained. Once a society attains the requisite just or decent institutions, no further assistance is required. In a sense, the duty of just savings guarantees the conditions for individuals to attain the social minimum. In the international context, the duty of assistance guarantees the conditions for peoples to attain the international minimum. These two ideas demonstrate the integral role that the duty of assistance plays in the structure of the Society of Peoples, and show that it rightly takes its place as one of the first principles of the Law of Peoples. If we keep in mind that the central aim of Rawls is the application of justice as fairness to the international context, then the duty of assistance can be understood as expressing some of its key ideas, in the absence of the difference principle. In the domestic context the difference principle not only expresses the idea that inequalities should be to the worst off’s advantage, but includes the notion of a social minimum to which all compliant agents are entitled and the duty of just savings that maintains the institutions charged with executing this minimum. Although the idea of distributive justice does not pertain in the Society of Peoples, in my opinion Rawls has maintained these two key elements of a baseline for justice, and a duty to underwrite it. The duty to burdened societies Although the preceding argument defends the case for the duty of assistance as a principle of justice, its status in regard to burdened societies remains a problem. In the case of temporarily affected peoples, it would seem clear

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that it is a duty of justice between well-ordered peoples, in the same way as maintaining the social minimum is a duty between compliant individuals – it seems to operate in a similar way to health care in the domestic context. After stating his international principles, Rawls asserts that ‘certain provisions will be included for mutual assistance among peoples in times of famine and drought and, insofar as it is possible, provisions for ensuring that in all reasonable liberal (and decent) societies people’s basic needs are met’ (LP: 38). This is one application of the duty of assistance that is unproblematic, because it applies as a duty of justice to the parties of the original position. However, its application in regard to historically burdened societies outside the original position is less obvious. If they are not party to the original position, and have no claim as moral equals, does this mean it cannot be viewed as a duty of justice in this context? Rawls gives no reason to suggest that the duty is one of charity when it applies to these societies – but neither does he make the case that it is a duty of justice. Given his omission, and the lack of a direct analogy in the domestic context, we can only employ inductive reasoning in explaining how the duty retains its status, if indeed it can. One justification might be that the claims of burdened societies are claims of justice, on account of their potential as future members of the Society of Peoples. This idea in some way eases the tension between the status of the duty, and the position of burdened societies outside the contract. From this perspective, although these societies do not have the institutions of well-ordered societies to underpin a corporate moral identity, nor their reasonableness or rationality, they do have the basic materials to develop the requisite capabilities. This, it might be argued, is sufficient to ground their claims as claims of justice. They are worthy of respect and equal treatment, and are able to make demands of the Society of Peoples because of their basic facets. Certainly, this interpretation can be deemed consistent with Rawls’ position in the domestic context, where it is the potential for moral personality that grounds claims of equal justice: One should observe that moral personality is here defined as a potentiality that is ordinarily realized in due course. It is this potentiality which brings the claims of justice into play … We see, then, that the capacity for moral personality is a sufficient condition for being entitled to equal justice. Nothing beyond the essential minimum is required. (TJ: 442) At the risk of incurring the wrath of some, we can draw a further analogy here that is helpful in understanding the status of burdened societies. Their treatment might be broadly regarded – at a strictly analytical level – in the same light as that of children in the domestic context, in the sense that they have claims as society’s future citizens ( JF: 165), which are ‘inalienable and

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protect them wherever they are’ ( JF: 166). On Rawls’ account, children are to receive ‘the full protection of the principles of justice’ (TJ: 445–6), and their claims are inalienable because of their capacity for moral personality. The fact that children would be unable to take part in the initial agreement would rest on the contingency of their age, rather like those ‘below the line’ being excluded on the basis of the contingency of ill-health. Rawls believes that it is only ‘reasonable to say that those who could take part in the initial agreement, were it not for fortuitous circumstances, are assured equal justice’ (TJ: 446). However, the analogy only holds to a certain degree, as burdened societies are regarded not only as bearers of a right to assistance, but also as befitting of equal treatment. This is captured, in practice, by Rawls’ third guideline for carrying out the duty of assistance, which states that those providing assistance should not do so paternalistically, but in a manner that is consistent with the aim of ‘freedom and equality for the formerly burdened society’ (LP: 111). Therefore, although they are not regarded as equals, in the sense that they are disqualified from the original position, they are nevertheless worthy of being treated in a manner consistent with the ideas of equality and reciprocity. This suggests that although they are not part of the contract, Rawls is unwilling to advocate the idea that they sacrifice their claim to equal treatment and can be dictated to by other societies.3 The idea of ‘potentiality as sufficient’ (TJ: 446) might be one way of accounting for how we get out of this bind of excluding burdened societies on the one hand, yet respecting their claims as claims of justice on the other. Another possible way in which we can overcome this apparent contradiction is to question the initial distinction I made between the duty of assistance as a duty to historically burdened societies, and its role in providing mutual assurance for the members of the Society of Peoples. Are we correct to assume these two to be different applications? Certainly in his initial statement Rawls does not seem to differentiate. To recap: Certain provisions will be included for mutual assistance among peoples in times of famine and drought and, insofar as it is possible, provisions for ensuring that in all reasonable liberal (and decent) societies people’s basic needs are met. These provisions will specify duties of assistance (see §15) in certain situations, and they will vary in stringency with the severity of the case. (LP: 38) One might conclude there is no categorical distinction to be made and that the duties of assistance (those which are specified in §15) are those which apply to the more severe cases of reasonable but historically burdened societies. At the other end of the spectrum are those societies that are temporarily afflicted due to natural disasters, who make less onerous

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demands through those ‘provisions’. On this reading, the duties detailed in §15 are one aspect of the more general duty specified in the eighth principle. On such an account, all those burdened societies outside the original position would include not just the historically burdened, but also those recovering from burdens that are the result of far more short-term factors. Given the fact that the veil of ignorance allows more information through in the international context, there is every reason to suppose that those within the original position would recognize that burdened societies of all types exist – and that their exclusion has resulted from varying degrees of contingent factors. In terms of historically burdened societies, there might be a temptation to deny that the duty represents a claim of justice, as there might be some attempt to pin responsibility for their condition on those societies themselves. Certainly Rawls’ belief in the importance of political culture would seem to buttress such a view. However, attributing responsibility for the problems of historically burdened societies is hugely complex, and the fact that there is one duty for all burdened societies suggests that Rawls thinks it more reasonable to mitigate responsibility for all. This is consistent with the analogous social minimum, a duty of justice that applies to all temporarily afflicted individuals, regardless of their responsibility for their own misfortune.4 From this perspective, the duty of assistance is one that applies to all burdened societies in the same way. Those affected in the short term are no different to historically burdened societies; the duty disregards whether brute bad luck or bad option luck (caused by taking the incorrect decisions) precipitated their current problems. Individuals with temporary health problems are regarded as exempt from the original position given their reduced capability, but their interests are nevertheless represented there by rational choosers, who know they might befall the same fate and so are concerned to include the provision of health care in the social minimum. In the same way, burdened societies are regarded as exempt from the international original position given their reduced capability, but their interests are nevertheless served by representatives of other peoples who know they might befall the same fate, and are concerned to include provisions for mutual assistance. The fact that burdened societies are not party to the original agreement does not seem to me to be good grounds on which to deny that a duty of justice applies to them. In line with Rawls’ point in regard to the exclusion of children, and also those ‘who have lost their realized capacity temporarily through misfortune, accident, or mental stress’ (TJ: 446), I would argue that it also unreasonable to exclude both temporarily and historically burdened societies from being treated to equal justice. Envisage, for example, that suitable international principles of justice are considered at one particular moment in time, through employing the device of the original position.

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Some societies will be exempt given that they are suffering certain burdens at the time. If one of the represented peoples were later to become burdened, does this mean that they can demand assistance as a matter of justice, while those not ‘at the table’, at the time, cannot? It is my belief that from Rawls’ perspective no such distinction can be made and that it is a duty of justice for all.5 To conclude, these two accounts represent an attempt to provide a coherent justification for the duty of assistance. They seek to overcome the apparent contradiction that burdened societies are not party to the original position, yet are subject to a duty that appears to be more than simply a duty of charity. The first account argues that in keeping with Rawls conception of domestic agents, potentiality is sufficient for demanding equal justice. The second holds that it would be unjust to deny claims of justice to those burdened societies outside the original position, and not to those peoples in the contract stage that may later become burdened societies. Because justice as fairness disregards the distinction between bad option luck and brute bad luck, there is no reason to distinguish between the claims of societies that become temporarily burdened or those that are historically burdened, even if they are in part responsible for their difficulties. Both are entitled to equal justice as possible future members of the Society of Peoples, who could take part in the initial agreement were it not for historical contingencies.

The extent of the duty The first stage was to look in some detail at the justification of the duty of assistance. Nussbaum’s capability perspective highlights the specific tension that provides the difficulty in attempting to present it as a strong duty, rather than simply a duty of charity. A sustained attempt was made to defend the view that its representation as a first principle of international justice is justified. This next section begins the process of analysing the extent of the duty of assistance. This time I employ Sen’s capability perspective, and his critique of primary goods as a measure of justice. To recap on the basic claim: where Sen’s approach has led to a more detailed account from Rawls, on how non-compliant cases are to be assisted in attaining the social minimum, so a capability-inspired perspective in the international context can help us provide a detailed account of how burdened societies are to be assisted in attaining the international minimum. Rawls’ positive liberty? Discussing the different approaches offered by Rawls and Sen, with regard to the measurement of justice, can be explicated to some degree in reference to the traditional distinction made between positive and negative concepts of liberty, expounded most famously by Isaiah Berlin (1958). Following Norman Daniels (2003: 257, 259), the basic contention articulated in this

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section is that Rawls places a greater emphasis than Sen on the negative aspect of freedom, concentrating more on the freedom of individuals from coercion. As Daniels asserts, Sen’s original capability critique claims that Rawls is misplaced in his focus. In essence, Rawls fails to provide a convincing egalitarian theory, because he does not focus on the correct measure for equality, ‘namely equality in our capability to do or be what we want, or our “positive freedom”’ (Daniels 2003: 256–7). I argue that the lack of emphasis placed on positive freedom, the freedom that agents have to do certain things, represents a weak spot for Rawls in regard to the social minimum. This minimum represents a specific level of positive freedom which Rawls does not engage with on a sustained theoretical basis.6 This is a specific manifestation of the general claim raised in the previous chapter that Rawls does not pay as much attention to the problems of non-ideal theory. In what sense, therefore, does Rawls’ emphasis lie on negative freedom, rather than a level of positive freedom represented by this minimum? If we consider again the basic liberties guaranteed by Rawls’ first principle, we can regard them as largely negative liberties or freedoms from: freedom of assembly and speech, freedom of conscience, freedom from oppression, assault and seizure, and the right to hold personal property. These liberties are predominantly negative because they outline what individuals should be allowed to do. Rawls, however, is also concerned with the use made of the freedoms enshrined in his first principle, as testified by his discussion of why they are not merely formal (PL: 324–31). He is at pains to argue that his notion of primary goods does not represent what we might regard as an entirely negative concept of freedom, which concentrates solely on creating a legal framework of choice and opportunities. This concern is partly mitigated by the fact that justice as fairness addresses a society where the basic needs of people are already met, so the concern that basic opportunities offered by the first principles are entirely formal is misplaced. Furthermore, for people to partake politically in a meaningful way, they must have a certain capacity to do so. Lastly, the potential for debilitating inequalities requires some mitigation through the social minimum. However, Rawls does not attempt to explicate at what point liberties cease to provide the requisite opportunities for the individual, and the social minimum is violated. In regard to the social minimum – conceived as the baseline for the difference principle in TJ – he prefers to leave the question open to interpretation: ‘Naturally, where this limit lies is a matter of political judgment guided by theory, good sense, and plain hunch, at least within a wide range. On this sort of question the theory of justice has nothing specific to say’ (TJ: 246). As we will see, one has to look in some detail at his later volumes to find anything much more specific about the realization of the social minimum.7 In terms of Berlin’s concepts of liberty, we might say that Rawls ensures equal negative liberty for all, while acknowledging the central role of positive liberty. However, this type of liberty is not to be the same for all,

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as this would entail a complete levelling of the playing field and the imposition of a strict outcome egalitarianism. The aim of the social minimum is to ensure a baseline of positive liberty so that agents’ rights still have value, and this is where Rawls’ approach reaches its limits. Despite giving weight to the importance of at least a minimal positive freedom, he seems to leave many questions open in terms of how this positive liberty can be conceptualized and regulated. When we examine Sen’s concept, we will see that his focus falls squarely on positive freedom, concentrating on what persons are able to do. Rawls, as we have seen, does not engage directly with the actual substantive freedoms individuals accrue from their socio-economic resources. However, this issue of substantive freedom cannot be postponed indefinitely, because in setting a social minimum, Rawls identifies a level of substantive freedom that justice demands. In this sense, justice as fairness seems to slide from a more opportunities-based approach to a capability perspective: as a baseline for justice, the social minimum, rather than advocating a certain level of primary goods, arguably represents a substantive level of freedom. This setting of a social minimum is where Rawls’ approach reaches its limits. One can respect Rawls’ view that he has ‘nothing to say’. What is required in setting this minimum is political judgement, and its realization requires certain empirical information available only at the legislative stage. However, we might also suggest that some theoretical guidance would be appropriate for such a crucial question. I propose that Sen’s approach is better equipped to deal with this central issue of how a social minimum of meaningful freedom can be conceptualized. Sen’s idea of justice Before we begin with the examination of Sen’s capability critique, and the manner in which it builds upon Rawls’ justice as fairness, we should consider this move against the backdrop of Sen’s most recent work. In a similar fashion to Nussbaum’s Frontiers of Justice, Sen’s The Idea of Justice (2009) represents his own definitive work on the notion of justice. The book is important, not least because it represents the latest attempt to move beyond the Rawlsian paradigm by a scholar of considerable standing. It is significant also because it represents another challenge to LP. The general thrust of my response is that through utilizing Sen’s capability approach in elaborating the duty of assistance, we can elucidate how Rawls’ political theory – and LP in particular – stands up well in light of this new scrutiny. Sen’s commentary on LP is located within his own comprehensive approach to political theory, which is framed in one respect as a response to Rawls’ work. Sen takes issue with the social contract tradition and theoretical approach that Rawls espouses, which he labels transcendental institutionalism. Sen believes this approach represents one of two ‘basic, and divergent, lines of reasoning about justice’ (Sen 2009: 5) that emerged during the

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European Enlightenment. The first, of which Rawls is the latest exponent, is to be found in a canon of thought including Hobbes, Locke, Rousseau and Kant. It has two key features: ‘First, it concentrates its attention on what it identifies as perfect justice, rather than on relative comparisons of justice and injustice … [and] finding some criteria for an alternative being “less unjust” than another’. The second feature is that in concentrating on ‘getting the institutions right’, certain ‘behavioural assumptions are made that help the working of the chosen institutions’; this approach directs focus away from ‘the actual societies that would ultimately emerge’ (Sen 2009: 5–6). Sen contrasts this approach with the other line of enlightenment reasoning, which comprises ‘a variety of comparative approaches that were concerned with social realizations’ (Sen 2009: 7). In this tradition he identifies thinkers such as Wollstonecraft, Marx and Mill. What connects this somewhat unlikely group is ‘that they were all involved in comparisons of societies that already existed or could feasibly emerge, rather than confining their analyses to transcendental searches for a perfectly just society’ (Sen 2009: 7). Sen espouses this ‘realization-focused comparison’ over a search for perfectly just institutions (Sen 2009: 8) – a preference, in essence, for the concrete over the abstract. He envisages a comparative approach that places an explicit focus on working towards a less unjust world – without positing any final view of ideal institutions or a realistic utopia. The cornerstone of his approach is the notion of capabilities, which originated, as we will see, in an earlier critique of Rawls. It is Sen’s claim that if our approach to justice is focused on social realizations, then its ultimate measure should not be the goods at the individual’s disposal, but the actual freedoms they accrue through these goods. If we measure justice simply in terms of resources, we risk leaving some without the necessary capabilities to live a meaningful life. Even though he distances himself from Rawls, Sen admits to being strongly influenced by his ideas. If Rawls’ inspiration is clear in the measure of justice that Sen proposes, it is equally obvious in his treatment of public reasoning. Sen is anxious to ensure that his view espouses the impartiality that is fundamental to Rawls and to distributive justice in general. However, in place of the Rawlsian original position, Sen espouses the use of Adam Smith’s ‘impartial spectator’. This spectator is a hypothetical individual that represents Smith’s concern with, the need to invoke a wide variety of viewpoints and outlooks based on diverse experiences from far and near, rather than remaining contented with encounters – actual or counterfactual – with others living in the same cultural and social milieu … Smith’s insistence that we must inter alia view our sentiments from ‘a certain distance from us’ is motivated by the object of scrutinizing not only the influence of vested interest, but also the impact of entrenched tradition and custom. (Sen 2009: 45)

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Although in part inspired by Rawlsian impartiality, there is a specific reason for Sen’s recommendation of the impartial spectator. It reflects the importance he ascribes to ‘the possible sustainability of plural and competing reasons for justice, all of which have claims to impartiality’ (Sen 2009: 12). In Sen’s view, the original position attempts to lock us into one particular view of justice and ‘a unique impartial resolution of the perfectly just society’ (Sen 2009: 12). This goes against the grain of the comparative approach he espouses, and his critique of the transcendental institutionalism. Sen is of the view that principles of justice ‘need not be a unique set’ (Sen 2009: 45). However, he does not wish to dispense with objectivity or reasoned argument, and employing the impartial spectator is a means to ensuring that any such principles will undergo proper scrutiny. In spite of his avowed pluralism, however, there are elements of Sen’s approach that appear to imply a universalist outlook. For Sen, the individual is the primary moral referent when discussing justice. In general terms, his is a human rights approach, where rights are regarded as grounding claims to the requisite freedoms. Sen also presents an unapologetic espousal of democratic values and takes on with great vigour the accusation that certain cultures are somehow congenitally anti-democratic (Sen 2009: 327–35), arguing persuasively that this is not necessarily so. His commitment to the idea of ‘government as discussion’ (Sen 2009: 3) (a phrase he borrows from Walter Bagehot and J. S. Mill) is testimony to the fact that although he is in favour of plural reasoning with regard to justice, his approach is not so capacious as to embrace non-democratic institutions and practices. Sen’s critique of transcendental institutionalism This brief excursion into some of Sen’s central ideas, although inadequate as a representation of his approach to justice as a whole, provides sufficient background for elaborating the critique that he presents of Rawls’ political theory. Sen cannot be said to provide detailed criticisms of Rawls’ international theory to compare with the cosmopolitan literature we have considered. There are only the occasional fleeting mentions of LP in The Idea of Justice, but they are enough to capture the insignificance of the work in Sen’s estimation. He characterizes it as an ‘emaciated’ supplement to his ‘national pursuit of the demands of “justice as fairness”’ (Sen 2009: 26). He claims that the principles apply only to ‘matters of civility and humanity – what can be seen as very limited features of justice’ (Sen 2009: 26). In fact, Sen is loath to describe them as principles of justice and prefers to label them as ‘general principles of humanitarian behaviour’. It is quite possible that in claiming Rawls ‘reduces many of the most relevant issues of justice into empty … rhetoric’, Sen has in mind the duty of assistance. It seems that in this context, rather than presenting an unattainable ideal, Rawls’ theorizing has swung too far in the other direction by providing those who agitate in the name of global justice not with the chimera of a perfectly just

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international order, but an uninspiring ‘minimal humanitarianism’ (Sen 2009: 26). We have already established that the duty of assistance, as with the other principles of the charter of the law of peoples, can be construed as a strong duty of justice, while the argument in the following chapters will present this duty as anything but ‘emaciated’. Moreover, the elucidation of the duty of assistance in the following chapters can be read as a response to some of Sen’s general criticisms of Rawls’ approach. One of the concluding assertions in the final chapter will be the claim that, had he given greater consideration to later works such as LP in his reflections on Rawls’ oeuvre, Sen may have found that many of his core criticisms lose their force. His criticisms of Rawls’ theorizing on justice are numerous, but some of the main arguments are presented in schematic fashion in the following three points: 1) Rawls’ transcendental institutionalism ignores the actual behaviour of agents, thereby circumventing crucial questions such as how compliance with his principles might be achieved, and how these principles will be realized in different societies with different behaviours. Questions about how things are going ‘on the ground’, and how they might be improved, are thus overlooked. 2) Rawls’ transcendental institutionalism does not provide a method for dealing with comparative assessments, which are so crucial in judging which policies and acts might be considered as improvements in trying to establish a less unjust world. 3) The device of the original position gravitates away from the idea of global justice, preventing any consideration of the effects of particular principles and policies on other polities and precluding the exposure of a polity’s ideas and policies to external scrutiny. In sum, Sen’s key complaints about Rawls’ political theorizing is that it is too out of touch with the real world, provides minimal guidance for the pursuit of incremental improvements, and veers towards parochialism. These complaints will be recapitulated and evaluated more fully in the final chapter, in light of my account of the duty of assistance and LP in the forthcoming chapters. Rawls’ response to Sen’s capability critique is indicative of how his approach can deflect these more serious allegations. The capability critique Sen’s original critique of justice as fairness illustrated the limits of Rawls’ theory and proposed his capability perspective as an appropriate extension. My aim is to use this perspective to extend Rawls’ international theory. This capability critique is specifically concerned with the idea of meaningful freedom, and the relation between resources and the freedoms

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that individuals accrue from these goods. Sen’s perspective looks to ground itself explicitly in positive freedom, and deals specifically with the issue of whether intelligent and effective use can be made of a network of paths and opportunities. I suggest that given Rawls has committed himself to the idea that substantive freedom is of crucial importance, he would have to accept that Sen’s approach offers an extension of his perspective that is crucial to its realization. Whereas Rawls has ‘nothing specific to say’ on the issue of how a limit on the social minimum can be arrived at, Sen provides us with the tools for conceptualizing a substantive level of freedom, and so provides us with the means for addressing this problem. As we will see, because his theory foregrounds positive freedom it encourages us to consider what people actually can do, rather than the unsubstantiated opportunities afforded by resources. In effect, Sen provides a more systematic account of the substantive freedom at stake. The original critique of justice as fairness appears in his paper ‘Equality of What?’ (Sen 1980). The basic problem in his view is that Rawls disregards interpersonal variation in his distribution of the primary goods. The effect of this is that individuals end up with huge discrepancies in terms of their actual positive freedom, because they have a different aptitude for transforming goods into capabilities. Sen concludes, that if people were basically very similar, then an index of primary goods might be quite a good way of judging advantage … what is involved is not merely ignoring a few hard cases, but overlooking very widespread and real differences. Judging advantage purely in terms of primary goods leads to a partially blind morality. (Sen 1980: 216) Gerald Cohen puts the idea another way: ‘differently constructed and situated people require different amounts of primary goods to satisfy the same needs’ (Cohen 1993: 16). For Sen, we can identify the limits of Rawls’ theory in the fact that it is ‘informationally short’ (Sen 1980: 217). This term indicates that justice as fairness fails to consider enough (or the correct) factors when addressing the issue of justice – specifically, it does not put enough emphasis on the use to which the agent can put his goods. In this regard, justice as fairness might be viewed as occupying the opposite end of the spectrum to utility. Rawls considers happiness or desire-fulfilment (utility) to be irrelevant to the question of judging advantage.8 Sen is equally opposed to a utilitarian approach that can deny that a disabled individual suffers a welfare deficiency, on the basis that ‘he has a jolly disposition’ (Sen 1980: 217). Because utilitarianism has its focus on mental reaction, an individual may be deprived goods because he has such low aspirations. This can seem intuitively incorrect, but how can improving the disabled person’s lot be justified, ‘despite there being no

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total utility argument (because he is so contented), and despite there being no primary goods deprivation (because he has the goods that others have?)’ (Sen 1980: 218). The reason that we do not have an adequate response to this question, in Sen’s view, is the result of an insufficient or incorrect informational scope. He claims that in Rawls’ original theory, this scope encompasses resources. Sen believes instead that the primary focus of distributive justice should be substantive freedom. It is the distribution of freedoms enjoyed by the individual, rather than resources, which should provide the measure of justice. In the case of the disabled person, they may receive similar resources to the next person when they represent the measure of justice, but he will receive more if the primary focus of justice is the freedom he accrues. It is for this reason that what Sen calls the ‘informational base’ is so definitive of the manner in which we regard justice: The ‘real’ bite of a theory of justice can, to a great extent, be understood from its informational base: what information is – or is not – taken to be directly relevant. (Sen 1999: 57) Justice as fairness is therefore labelled ‘informationally short’ because its focus seems to be directed specifically at resources, and not the different factors that are constitutive of the freedom, or capability, which the individual possesses. This fundamental disagreement with Rawls is that ‘the broadening of the informational focus from incomes to primary goods is not … adequate to deal with all the relevant variations in the relationship between income and resources, on the one hand, and well-being and freedom, on the other’ (Sen 1999: 72). Although Rawls regards resources as rather more than simply wealth, and includes basic liberties and socio-economic resources as part of the package of primary goods, this is insufficient in Sen’s esteem. Instead, we must look to a theory that focuses upon other information, where the informational base is broader.9 It is important to clarify exactly how Rawls’ theory can be labelled ‘informationally short’. With his focus on resources, Rawls takes interpersonal differences out of the equation, factoring out the influence that individual capacities (talents, abilities, strength of character and so forth) have on the ability of persons to make use of their liberties and resources. Although all individuals are guaranteed a certain worth of liberty (i.e. a certain amount of socio-economic resources (TJ: 179)), the fact that some have far greater capacities than others means that they will be able to exercise many more substantive freedoms.10 If we are concerned with the level of substantive freedom between individuals, then it is inescapable that we must take into consideration not only the resources of individuals, but also their capacity to convert them into substantive freedoms: ‘account would have to be

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taken … of the relevant personal characteristics that govern the conversion of primary goods into the person’s ability to promote her ends’ (Sen 1999: 74). In fact, if substantive freedom is to be our focus, both in terms of persons’ social minimum and peoples’ international minimum, then we must look further than the resources and capacities of agents and acknowledge other contributory factors – background conditions. This is the third aspect that comes into view when we consider our informational base. This is aptly illustrated by Onora O’Neill’s view of states. O’Neill turns to Sen’s concept of capability as she regards it as being ‘helpful in discussing the powers of states’ (O’Neill 2001: 197). She draws attention to the sense in which capabilities are situated and contingent – their realization being contingent on context: [I]t is the specific capabilities of agents and agencies in specific situations, rather than their abstract capacities or their aggregate power, that are relevant to determining which obligations of justice they can hold and discharge – and which they will be unable to discharge. (O’Neill 2001: 197, my italics) The key point being made here is that for an agent to possess certain capabilities, it is not merely the case that they must have the requisite resources and the capacity. O’Neill is arguing that the informational base needs to be extended further, as agents’ capabilities depend upon the context within which they find themselves.11 This aspect of distributive justice does not pass Rawls by. In fact, it is clear from his second principle that he recognizes the effects of the background structure on individual life chances. Both his principle of equal opportunity and the difference principle work to ensure a social structure where opportunities and essential education are open to all. However, in taking individual variation out of the equation, Rawls discounts an important constitutive aspect in accounting for substantive freedoms, and therefore seems to forgo the means for conceptualizing the social minimum. Whereas Sen might be seen to employ a trinity of elements in accounting for capability – resources, capacity and context – Rawls’ decision to discount the capacity of individuals and constrict his informational base means that justice as fairness does not have the same conceptual reach. In a sense, one might wish to draw a line here between Sen’s capability approach and Rawls’ perspective, and simply say that they have different ideas about distributive justice. Rawls believes we should concentrate on the primary goods available to individuals, while Sen thinks our focus should fall on the capabilities they have. However, there is a point at which the two approaches overlap, and that is Rawls’ idea of a social minimum. To repeat, it is my claim that this baseline of justice represents a substantive level of freedom; in Sen’s terms we might say that it is the equivalent of a particular

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capability set. In terms of maintaining a just society, Rawls believes this minimum has to be respected, but has ‘nothing specific to say’ on the matter. There may therefore be a case for utilizing Sen’s capability perspective in order to conceptualize the social minimum, as it deals explicitly with the task of theorizing substantive freedom. In the case of those who are not considered ‘normally functioning’ in the eyes of distributive justice, or are suffering temporary problems, then some way of conceptualizing this minimum and how it might be achieved for individual cases may be especially necessary. These are the individuals at risk of falling below the line, and thus require detailed consideration in order to maintain Rawls’ minimum. Rawls himself suggested in PL that there are ‘problems on which justice as fairness may fail’ (PL: 21). Among these are ‘permanent disabilities or mental disorders so severe as to prevent people from being cooperating members of society in the usual sense’ (PL: 20). However, Rawls believes that justice as fairness can extend to temporary cases, thus implying that ensuring individuals meet a social minimum can be dealt with from his perspective. It will be argued that this is only possible through utilizing a capability approach, albeit to a limited degree. Having identified the limits of Rawls’ approach regarding the social minimum, the task now is to demonstrate how he can only address the problem of non-compliant agents and the social minimum through broadening the informational base. Essentially, in the limited context of elaborating his non-ideal theory, and conceptualizing his position with regard to temporarily afflicted non-compliant agents, Rawls takes on a capability perspective. Rawlsian capabilities We might contend that the reason Rawls ‘has nothing specific to say’ about what should serve as a social minimum for justice is that he cannot have anything to say. Because he takes his primary goods to be the relevant ‘space’ for justice, it means the informational scope of his theory cannot extend to conceptualize the use of those resources. Rawls seems to place himself in a bind. His claim is that the point at which agents attain a meaningful autonomy should indicate the level of the social minimum. However, to locate this level and to guarantee it requires the informational scope and conceptual tools that go beyond the limits of his theory. He has presented us with a theory of justice, but he cannot tell us with conviction where the limits of justice and injustice lie. This next section looks at the manner in which Rawls eventually concedes that Sen provides some insight, by acknowledging the utility of a capability perspective in locating these limits. Sen’s critique of Rawls’ idea of primary goods is one that the latter took seriously enough to respond to on more than one occasion. An initial objection on Rawls’ behalf was that the capability approach represented a comprehensive account of the good (Rawls 1988: 259). Sen responded in kind, arguing that capability ‘need not presuppose … “a particular comprehensive

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doctrine”’ (Sen 1992: 83).12 Despite his initial objections, it seems that Rawls eventually came around to the idea that the capability account has its uses. However, rather than acknowledging that the capability approach exposes a flaw, Rawls argues that his theory of justice is capable of coping with the problem thrown up by Sen. He claims that justice as fairness is more flexible than Sen allows, and is capable of taking into account interpersonal variations at a later stage, once the issue of the constitutional essentials and basic ideas of justice have been settled. This response surfaces in PL where he dedicates some time to discussing Sen, arguing that these all-important variations can be taken into account at the legislative stage, where the necessary empirical information is available to inform more specific policies and actions (PL: 185). Significantly, Rawls does not argue that these types of considerations are relevant to all compliant individuals in the context of his ideal theory, as he has always been of the opinion that as a general approach to distributive justice, the capability approach is unrealistic. Rawls favours his own index of primary goods as it is ‘openly observable and makes possible the required comparisons between citizens … without appealing to such unworkable ideas as … Sen’s basic capabilities for various functionings’ (LP: 13). In Rawls’ view, the idea of trying to aggregate the distribution of capabilities between all normally functioning individuals in a liberal society ‘calls for more information than political society can conceivably acquire and sensibly apply’ (LP: 13 n3). As such, the manner in which Rawls acknowledges the utility of the capability approach does not amount to a collapsing of Rawls’ theory into the capability perspective. He still maintains that he is correct in his decision to limit his informational base with regard to ideal theory, so that the individual variations in the capacities of compliant individuals are discounted.13 Rawls’ most detailed engagement with Sen’s work comes later, in his discussion of non-ideal cases in the domestic context in Justice as Fairness: A Restatement ( JF ). In this context, rather than concentrating on his rejection of Sen’s perspective, Rawls engages with the criticisms that he feels merit sustained treatment. He refutes the initial claim that primary goods are not the suitable measure of justice in ideal theory, and even suggests that given certain background assumptions regarding the similar needs of citizens ‘Sen might accept the use of primary goods’ ( JF: 170). More pointedly, he disputes the claim that he abstracts from what he calls ‘basic capabilities’ ( JF: 169) and fails to respond adequately to the challenge this concept provides. He claims that consideration of basic capabilities is central to his theory and that he conceives them as ‘the capabilities of citizens as free and equal persons in virtue of their two moral powers’ ( JF: 169). His principles of justice are framed with these basic capabilities in mind, as they allow individuals to engage in social co-operation. Persons who possess the basic capabilities are those defined as compliant individuals; in being able to engage in social co-operation, they comply

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with the demands of ideal theory. These basic capabilities are described as firstly, ‘the capacity for a sense of justice: it is the capacity to understand, to apply, and to act from … the principles of political justice that specify the fair terms of social co-operation’; and second, ‘a capacity for a conception of the good: it is the capacity to have, to revise, and rationally to pursue a conception of the good’ ( JF: 18–19). The principles of justice are therefore to provide the ‘essential conditions for the adequate development and full exercise of those powers’ ( JF: 169). The basic liberties and rights provide the requisite social frameworks, while [i]ncome and wealth are general all-purpose means required to achieve a wide range of (permissible) ends, whatever they may be, and in particular, the end of realizing the two moral powers and advancing the ends of the (complete) conceptions of the good that citizens affirm or adopt. ( JF: 169) Primary goods, therefore, are drawn up on the premise that they should allow each individual to ‘maintain their status as free and equal and to be normal, fully cooperating members of society’ ( JF: 170). They protect and promote individuals’ basic capabilities. This amounts to the idea that the social minimum guarantees each compliant individual has a basic capability set, which allows them to exercise their capacity for justice and their capacity for a conception of the good. In understanding what Rawls’ means by these basic capabilities, we have a more substantial idea of what the social minimum embodies, with the idea of ensuring the meaningful use of freedom. However, if Rawls is attempting to absorb the capability critique in his approach, as he acknowledges, the burden still remains of showing how his index of primary goods can deal with the central thrust of Sen’s critique: that without accounting for individual capacity (talents, character traits etc.) for transforming goods into capabilities, no sufficient conception of justice can be arrived at. The issue of variations in individuals’ native endowments is not an issue for justice as fairness for individuals within the normal range. Variations within this range should not threaten anyone’s ability to exercise their two moral powers. The attainment of the social minimum for compliant individuals is guaranteed, and so their level of individual capacity need not be considered. It is where these native endowments are compromised that we move to the more fundamental challenge to Rawls’ theory. These non-compliant cases fall within the range of non-ideal theory, the area that I have already claimed is not scrutinized to the same degree by Rawls. He first puts aside those cases of individuals who will never be in a position to be fully co-operating members of the society, in order to deal with the difficult cases in the ‘normal range’.14 For Rawls, the main distinguishing factor is between those who are permanently affected in

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some way, and other, non-compliant agents of non-ideal theory, who have the capacity for being fully co-operating members of society, but suffer an accident or ill-health that jeopardizes their attempts to exercise their two moral powers. These are citizens who fall ‘below the minimum essential capacities’ ( JF: 171). Rawls explains that the expectation of primary goods of such non-compliant individuals will be the same ex ante, in assuming enough to maintain their two moral powers. However, what they are left with ex post may be different, depending on the particular circumstances of their incapacity. Here Rawls recognizes that individual variations result in different capability sets being accrued by different persons, some of which will fall below the social minimum of exercising the two moral powers, due to their temporary incapacity. It is the role of justice to ensure that their expectations ex post match those that they have ex ante (as far as possible), through an adjustment of their circumstances. This is the crucial point, where we can see how Rawls’ theory explicitly takes on the capability perspective. Here is the acknowledgement that his social minimum represents a substantive level of freedom. Moreover, this minimum level, he recognizes, may well be unattainable for some, due to interpersonal variation. This is recognition of the fact that variations in individual capacity play a key role in the realization of his theoretical perspective. In regard to ideal theory, such variations do not concern him, whereas in the case of non-ideal theory, individual capacity forces itself into the equation. Once the particular demands of temporarily afflicted individuals are factored in, then the further adjustment of both their resources and their context, in pursuit of the social minimum, becomes a possibility. The informational base is broadened. Although Rawls gives this issue more emphasis in his later work, he stands by the claim made in TJ (§31) that these matters are to be dealt with at the legislative stage: as an application of the social minimum when the relevant information becomes available. Once this happens, and the requirements are known, then provisions can be made to the extent that they do not ‘lower the expectation of the least advantaged’ ( JF: 173). In effect, Rawls is inserting within the baseline of the social minimum a guaranteed level of health care provision. Whereas in his original exposition, it is clear that redistribution of resources can occur in terms of taxation and providing financial safety nets for the worst off, here health care explicitly comes under the umbrella of the social minimum as a societal resource, which is to be distributed to maintain the requisite amounts of individuals’ substantive liberty. As he emphasizes: provision for medical care, as with primary goods generally, is to meet the needs and requirements of citizens as free and equal. Such care falls under the general means necessary to underwrite fair equality of opportunity and our capacity to take advantage of our basic rights and liberties,

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and thus to be normal and fully cooperating members of society over a complete life. ( JF: 174)15 Although Rawls presents this move merely as the logical extension of his principles in their application to a concrete issue, to my mind it represents a significant departure in acknowledging the capacity of individuals as a factor in constructing a theory of justice. As Nussbaum states, ‘he makes a major concession to the sort of criticism that Sen has raised and that I have developed’ (Nussbaum 2006: 143). Put another way, ‘Rawls appears to grant to Sen that once we consider such cases [temporary impairments], it makes sense to measure relative well-being by capabilities, not just by income and wealth’ (Nussbaum 2006: 124). This extension of Rawls’ theory into the same ‘space’ as the capabilities approach is in fact argued for by Daniels (2003: 256–63). Rather than couching this extension in terms of embracing capabilities, Daniels emphasizes that the provision of health care amounts to the guarantee of a ‘normal opportunity range’ (Daniels 2003: 257). The opportunity to revise and pursue life plans, in his view, represents one of the primary social goods that the Rawlsian contractors have an interest in preserving, and health care is thus a ‘limited contribution to the protection of fair equality of opportunity’ (Daniels 2003: 257). To his mind, the extension of the idea of opportunity to include health care brings Rawls and Sen far closer, accommodating ‘the central examples that Sen (and others) have used to suggest that the target of justice operates in a different space (capabilities, not resources) from the primary social goods’ (Daniels 2003: 258). He asserts that this is also the view Sen himself holds (Daniels 2003: n53) and that with this extension Rawls is much more clearly concerned with the capabilities (or positive freedom) of citizens that emerge from meeting their needs, thus entering the same ‘space’ as Sen’s account. Similarly, Sen’s discussion of capabilities … is most plausibly focused on those capabilities citizens must have to achieve democratic equality. (Daniels 2003: 259) In terms of my own argument, I consider it to be an acknowledgement that Rawls’ theory of justice must deploy, in essential moments, a capability perspective. It must not only consider questions of context in regard to society’s basic structure, and individual resources, but also individual capacity. The three elements of capabilities that I have identified – resources, capacity and context – are to be seen clearly in Rawls’ assumptions in setting out the boundaries of his own theory. At the point of conceptualizing and

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managing the social minimum, his informational base is broadened in the domestic context to emulate the perspective of Sen. Having accounted in more detail for Rawls’ approach in the domestic realm, the next step is to demonstrate how this can help us in our assessment of his international theory. The initial idea, with which we set out, was that a capability approach would help us understand the limits of Rawls’ own theory, and thereby provide the foundation for a more substantive approach to equality on an international level. Now that we are clear that Rawls adopts a capability-type perspective to underwrite his non-ideal theory, we may argue that Rawls’ own assumptions in the domestic context can lay the ground for a more substantive approach in the international sphere. If in pursuit of the social minimum, Rawls seems to broaden his informational base, could it be the case that an application of the capability perspective to the international minimum might broaden the informational scope in regard to burdened societies? Nussbaum draws an analogy between the subjects of Rawls’ domestic and international theories of justice: There is a striking parallel between the situation of poorer nations and the situation of people with disabilities … because they are not ‘rough equals’ of the contracting parties in power and capacity. For that reason a contract for mutual advantage cannot include them as equal participants. They are a drag on the whole system, and different principles will have to be chosen to deal with them. (Nussbaum 2006: 250) This suggests in principle that there are similarities between the two cases that might justify treating them in a similar way, on an analytical level. I will certainly make this assumption in the next chapter, where I attempt to conceptualize the transition of a capability perspective to burdened societies and further address the question of the extent of the duty of assistance.

Conclusion The overarching aim of this chapter has been to lay a more solid foundation for Rawls’ duty of assistance. This has meant addressing the two fundamental ambiguities identified at the end of the previous chapter: that of the duty’s justification and its extent. I have viewed these questions through the capability perspective developed by Sen and Nussbaum. The latter’s philosophical development of the perspective has created a notable critique of Rawls’ social contract approach, and provides insight into his treatment of our subject: non-compliant agents. In demonstrating how their status is problematic, in being excluded from the original

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position, Nussbaum suggests that duties to these agents are of questionable status. In her view, where these agents are excluded from the original contract, any duties relating to them are of necessity duties of charity, not justice. I demonstrated that the position of burdened societies is complex in their exclusion from the contract, and that they are subjects of what Rawls clearly intends to be a duty of justice, not charity. In attempting to justify it as a duty of justice, I argued that we should first consider the crucial status of the duty of assistance as a key pillar in the architecture of Rawls’ account of international justice. In playing the same role as the domestic social minimum and duty of just savings, it is necessarily one of the first principles of international justice. I have further suggested two accounts of burdened societies’ status in order to overcome the contradiction and ground the duty of assistance as a strong duty. Firstly, their potential demands equal treatment in spite of their initial exclusion; second, distinguishing between those burdened societies with mitigated responsibility and those without (i.e. those with claims of justice and those with claims of charity) is futile, and Rawls’ domestic approach suggests that all non-compliant agents have claims of justice to assistance – regardless of their moral culpability. To this end, I hope to have presented persuasive arguments regarding the justification of the duty of assistance. Whereas Nussbaum’s critique of Rawls informs the justification of his duty of assistance, Sen’s capability perspective provides us with the resources for an elaboration of its extent. In this regard, it addresses the ambiguity of the extent of the measures advocated by Rawls. It was claimed that justice as fairness does not give suitable attention to the concept of positive freedom, and stops short of conceptualizing how the social minimum is to be arrived at in the domestic context. This lack of information is mirrored by the lack of detail provided about the duty of assistance, and the extent of the measures it advocates in aspiring towards its target for burdened societies. Before considering how Sen’s original capability critique expands Rawls’ perspective for measuring justice, I considered briefly his more recent project that takes on Rawls’ oeuvre as a whole. These broader criticisms of Rawls’ political theory will be considered in the penultimate chapter, in light of the ideas presented in the remainder of this work. Sen’s initial critique, however, focused explicitly on the problem of substantive freedom, captured in Rawls’ social minimum. By broadening the informational scope to include capacity, as well as context and resources, he provides the conceptual framework necessary to elaborate how a measure of substantive freedom is to be attained. However, rather than suggesting this capability approach as an extension of Rawls’ justice as fairness, I argued that this conceptualization of substantive freedom is actually later adopted by Rawls, in a limited sense, as he sets out the manner in which noncompliant agents are guaranteed the social minimum. As such, in applying this capability perspective to the international minimum, in order to grasp

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its full extent, I will present in the next two chapters what I regard as an elucidation, rather than an extension, of the duty of assistance. Having argued for its justification as a strong duty, I now aim to persuade the reader that the measures implicit in this principle embody major reforms. Moreover, the following chapters should also provide the reader with a strong indication of how I intend to respond to Sen’s more recent criticisms, in the final part of the book.

5 Conceptualizing State Capability: The Freedom of Peoples

The previous chapter provided the groundwork for the next step in the argument, by demonstrating how Sen’s capability approach offers a perspective for developing Rawls’ international, non-ideal theory. Sen’s critique led Rawls to restate his domestic approach, by explicitly broadening his informational base to consider interpersonal variation, in setting out the idea of a social minimum. This, in turn, laid the basis for more extensive remedial measures (the guarantee of health care) in relation to non-compliant individuals. Here, the hypothesis is that we can re-conceive Rawls’ duty of assistance in a manner consistent with his domestic theory. I will attempt to do so through employing the same basic perspective as the capability approach, broadening the informational base of his international, non-ideal theory. I begin by stating the problems faced in transposing the capability perspective. In addition to the difficulty of elucidating the international minimum, a further question is the coherence of utilizing ideas of capability and freedom in the context of burdened societies. To this end, I turn to Robert Jackson’s influential work on ‘quasi-states’ (1990), which offers an instructive conceptualization of capability at state level. Jackson builds his idea of state sovereignty on the two concepts of liberty famously presented by Isaiah Berlin (1958). State capability is therefore equated with positive sovereignty, which derives its meaning from the notion of positive freedom – the freedom that agents have to do or become something. I argue that conceptualizing capability in this way is an interesting heuristic device, which can help us think about burdened societies’ situation in similar terms. However, I go on to claim that it does not move us forward in terms of developing a robust elaboration of the duty of assistance. It is with the development of a solid conceptual framework in mind that I analyse Gerald MacCallum’s concept of liberty in the second section. Making this move is justified by the analytical clarity that it provides, but the choice is relevant in other ways. It is a move consistent with Rawls’ outlook, given his advocacy of MacCallum’s concept of liberty over that 106

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of Berlin’s. My aspiration for this chapter is a conceptual framework with which we can broaden the informational scope for Rawls’ international non-ideal theory, in a lucid and straightforward manner. I will endeavour to demonstrate how we can carefully conceptualize the international minimum with the aid of MacCallum’s concept of liberty. It provides an effective way of framing the problem by elucidating Rawls’ incorporation of the capability perspective: in effect, Rawls broadens his informational scope by acknowledging more obstacles to individuals’ freedom. By emulating this move in the international context, we can identify a broader cross-section of obstacles to burdened societies’ freedom, and provide the normative basis for addressing them through numerous remedial measures. Having constructed this conceptual groundwork, my aim in the next chapter will to be further grasp the actual extent of the duty of assistance, by furnishing the framework with some empirical detail.

Elaborating the international minimum To recap the hypothesis: the fact that Rawls has a restricted explanation of how burdened societies attain the international minimum is not so much an oversight, as an indication of the limits of his perspective. We have seen that in his domestic theory, the notion of the social minimum was initially under-theorized, and the capability perspective drew attention to the importance of individual variations and the need to conceptualize the baseline for justice in more detail. Similarly, my claim in regard to the international minimum and the duty of assistance is that it tests the limits of Rawls’ perspective in the less familiar territory of non-ideal theory, and if we apply the capability perspective to his international theory, it may help us in a similar manner. The aim is to conceptualize the international minimum in more detail, thereby providing us with the scope for a more robust duty of assistance, where the extent of its measures is clear. Rawls’ treatment of temporarily affected individuals signals a brief excursion into non-ideal theory in the domestic context. In the international context, the ubiquity of non-compliant, burdened societies requires that any credible attempt to theorize international justice must recognize the centrality of non-ideal theory. Rawls thus spends a comparatively significant amount of time setting out his duty of assistance, but as we recognized in the earlier exposition, it is found wanting. The emphasis is placed upon the assistance of burdened societies primarily through ‘advice’ in reforming their political culture. The extent to which he recognizes the need for other measures and reforms to aid their development, as acknowledged, is a matter of some debate. The aim therefore is to clarify and elaborate his position by presenting a reliable conceptual approach consistent with his domestic perspective.

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In the case of non-compliant individuals and their realization of the social minimum, Rawls’ principles of justice entail that measures with regard to the background structure and the distribution of resources will be employed, as a matter of course. Those affected by temporary afflictions, in addition to receiving the required health care, will gain the necessary societal and economic resources to attain their meaningful freedom. However, in the international context, the situation is less clear cut: transfers of wealth are precluded in the Society of Peoples, while the principle of free and fair trade and the organization of international institutions embody far less invasive regulatory measures than Rawls’ domestic second principle. As a result, there is little to suggest how the global structure and resources might be employed to the benefit of burdened societies, if at all. The implication is that with regard to burdened societies and their pursuit of the international minimum, the informational base is limited. Although Rawls espouses a level of political autonomy, or meaningful freedom for these societies, the factors that he believes contribute to this goal are unclear. In the domestic context, Rawls acknowledges that conceptualizing the social minimum in the case of non-compliant agents requires extending the informational base; in conceptualizing how a certain level of freedom is to be attained, the resources, context and the capacity of an individual must be considered. In the case of burdened societies, it is unclear which factors come under the purview of justice in conceptualizing how their own basic level of capability – the international minimum – is to be attained. In his limited exposition of the duty of assistance, Rawls at first glance gives sole priority to political culture, and the need to assist internal institutional reform. Other factors such as finance seem to be overlooked or deemed unnecessary. One possible approach would be to advocate an extension of the informational base through a focus on the three categories of resources, capacity and context – as outlined in the previous chapter. However, in the case of burdened societies, there is every reason to suggest that the type of factors that are likely to prevent an increase in capability will not sit easily within such a framework. Corruption can be taken as a primary example. It could be characterized in several different ways: it might be regarded as a problem of resources, because a lack of financial reward for civil servants and politicians encourages conditions where bribery can flourish; it could be construed as a shortcoming in capacity, whereby the culture of a society has become ridden within such practices; or it could be presented as a problem of context, where actors in the global domain influence and harm a society with their corrupt practices. Or more likely, it will be caused through an interaction of these factors. In the domestic case, the problem of non-compliant individuals with temporary difficulties is dealt with as an extension of Rawls’ ideal theory framework, through adding health care to the provision of other goods and resources distributed in line with his conception of justice. In the

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international context, it seems probable that burdened societies must be dealt with in a more comprehensive, systematic manner if the international minimum is to be a realistic target. Rawls’ international ideal theory does not have in place far-reaching remedial measures such as an international distributive principle. Guaranteeing the level of capability signified by the international minimum therefore requires a significant extension of the informational base in his non-ideal theory to underpin a robust duty of assistance. Conceptualizing the international minimum as a certain level of substantive freedom, or capability, raises the further question of the coherence of applying these concepts to burdened societies.1 As noted in Chapter 3, Rawls in effect demands that peoples maintain the necessary capability to secure meaningful lives for their citizens and to control their own development. How these capabilities are built up and how they actually function are vastly complex questions, which warn us against making any straightforward assumptions about the similarities between individual and state capabilities; clearly, they differ fundamentally. However, these differences do not, I believe, preclude us from utilizing key conceptual insights of the capability perspective with regard to Rawls’ international minimum. The focus here is on establishing the normative scope of his approach to international justice and the extent of the remedial measures that can be considered consistent with his duty of assistance. The goal is to emulate the normative perspective he applies to the basic capabilities of non-compliant individuals and guarantees their social minimum. Whereas in the domestic case he uses this focus on capabilities to include health care as one of the remedial measures of justice, we can use the focus on burdened societies’ level of capability to identify the possible scope of the duty of assistance. With regard to conceptualizing the capability at the international level, we can take our lead from Robert Jackson, who is one of many thinkers to employ the concept of state capability. In his study of quasi-states, he compares them with what we might conventionally regard as a state. One of his central ideas is that quasi-states lack the requisite level of capability that we normally associate with fully functioning states. ‘Quasi-states’ is a label that represents those states that have emerged from decolonization to enjoy the same juridical status as the nations of the developed world, while lacking comparable capability. Despite being recognized as sovereign states, Jackson describes them as embodying a strictly formal, negative sovereignty, rather than the traditional positive sovereignty enjoyed by developed states. These concepts of negative and positive sovereignty are derived by Jackson from the two different types of liberty that are thought to inhere in persons, but which he also considers typical of states. They simply denote rights of non-intervention (freedom from) and capabilities to act or deter (freedom to) … To be free from the interventions of others is not at all the same as being in a position to deter such interventions or

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to engage in them. These two types of liberty are categorically different. Not only that: in international relations historically both freedoms tend to be possessed by most states. However, they have become separated as a result of decolonization: quasi-states possess negative sovereignty by definition but usually rather limited positive freedom. (Jackson 1990: 11) Sovereignty therefore is interchangeable with liberty in Jackson’s view; sovereignty’s negative and positive forms are used to distinguish the liberty a state possesses from other states and the liberty they possess to take actions against (or with) others. Positive sovereignty ‘presupposes capabilities which enable governments to be their own masters [and is] a substantive rather than a formal condition’ (Jackson 1990: 29). Quasi-states, however, possess only negative sovereignty, enjoying the same expectation of nonintervention, while not having the same capabilities to take positive actions and govern their own affairs.2 Despite some superficial similarities between Jackson’s concept of quasistates and Rawls’ category of burdened societies, to draw a direct analogy between the two would be to invite unnecessary criticism. However, we can identify the potential for a conceptual development of Rawls’ theory in Jackson’s ideas. The particular difficulty identified in Rawls’ international theory is that he presents an incomplete and unsatisfactory account of how his duty of assistance is to be realized. Addressing this difficulty by applying a capability perspective, and thereby attempting to substantiate the measures of this duty, may be put in terms of accounting for the positive freedom of societies. In keeping with Daniels’ account of Rawls’ domestic theory, the idea here would be to place greater emphasis on positive rather than negative liberty. Jackson’s approach, with its use of the concept of freedom, provides a springboard for substantiating the conceptual account of the duty of assistance.

Beyond negative and positive Despite the convenience of framing the transposition of a capability approach in terms of positive freedom, and despite the fact that it is useful to describe it with concepts familiar to the political theory lexicon, its utility in regard to the present exercise may be limited. The concern is whether or not the two concepts of liberty as depicted by Berlin can generate a coherent conceptual framework for developing the duty of assistance. Does it actually do any work for us, to claim that conceptualizing capabilities in Rawls’ international nonideal theory is a case of an increasing emphasis on states’ positive freedom? In terms of the current task of understanding capability, we need to consider the amount of analytical insight these concepts offer. Jackson derives them initially from Berlin’s largely ideological concepts, which the latter

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employed to elucidate more general points about the nature of contrasting liberal and communist societies.3 Although the concepts have been employed analytically – in trying to separate out freedoms to and freedoms from – their descriptive nature can limit their use in evaluating freedom. This problem has been highlighted by Rawls himself. In his initial discussion of his concept of ‘the worth of liberty’, Rawls rejects Berlin’s two concepts in favour of the single concept of freedom formulated by MacCallum (1967). As I understand his comments, it seems that Rawls does not regard the discussion between positive and negative freedom to be one that can be particularly helpful in answering substantive questions about liberty. He regards the distinction to be a matter of defining liberty, rather than telling us anything specific about how liberty works or how it can be reduced to its constituent parts. As a result, it is not as useful for a refined discussion and for providing answers to deal with the distribution of freedom. It cannot, for example, help Rawls in demonstrating how liberties can be balanced against each other: In discussing the application of the first principle of justice I shall try to bypass the dispute about the meaning of liberty that has so often troubled this topic. The controversy between the proponents of negative and positive liberty as to how freedom should be defined is one I shall leave aside. I believe that for the most part this debate is not concerned with definitions at all, but rather with the relative values of the several liberties when they come into conflict. Thus one might want to maintain, as Constant did, that the so-called liberty of the moderns is of greater value than the liberty of the ancients. While both sorts of freedom are deeply rooted in human aspirations, freedom of thought and liberty of conscience, freedom of the person and the civil liberties, ought not to be sacrificed to political liberty, to the freedom to participate equally in political affairs. This question is clearly one of substantive political philosophy, and a theory of right and justice is required to answer it. Questions of definition can have at best but an ancillary role. (TJ: 176–7) The two concepts of liberty do not offer him any purchase in attempting to frame his opinion about the relative values of different liberties. The limits of their descriptive nature are obvious in trying to separate out positive and negative freedoms. This problem was illustrated in Chapter 4, by the point that the agent’s apparent negative liberty enshrined in Rawls’ first principle for individual agents is parasitic on persons and peoples having ‘basic capabilities’ – or a degree of positive liberty. It was argued that the negative freedom captured by legal rights only makes sense if agents possess a degree of positive liberty that allows them to exercise these rights. In terms of the

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Law of Peoples, most of the principles delineating the legal rights of peoples assume a basic capability to take advantage of them. The concept of liberty that Rawls espouses, developed by MacCallum, makes the explicit argument that positive and negative liberty are two sides of the same coin or different aspects of the same concept. MacCallum argues that those who insist upon the dichotomy between negative and positive are guilty of failing to regard liberty as a single concept that exists in the form of a triadic relation: Evidence of such failure, or alternatively, invitation to it is found in the simple but conventional characterization of the difference between the two kinds of freedom as the difference between ‘freedom from’ and ‘freedom to’ – a characterization suggesting that freedom could be either of two dyadic relations. This characterization, however, cannot distinguish two genuinely different kinds of freedom; it can serve only to emphasize one or the other of two features of every case of the freedom of agents. Consequently, anyone who argues that freedom from is the ‘only’ freedom, or that freedom to is the ‘truest’ freedom, or that one is ‘more important than’ the other, cannot be taken as having said anything both straightforward and sensible about two distinct kinds of freedom. He can, at most, be said to be attending to, or emphasizing the importance of only one part of what is always present in any case of freedom. (MacCallum 1967: 318) Given these apparent tensions and ambiguities present in the concepts of negative and positive liberty, couching the transposition of a capability approach to burdened societies in terms of focusing on positive freedom would appear to have its limitations. It may well be a familiar term in the lexicon of political theory, but it is in origin a descriptive rather than analytical concept.4 Although Daniels and Jackson have applied them in a more analytical sense – specifying freedoms from and freedoms to – it seems that their descriptive nature limits the extent of their utility in attempting to conceptualize capability. However, Jackson’s idea of positive sovereignty has brought us to MacCallum’s critique and his concept of liberty. In the following section I analyse his argument more closely, and evaluate whether or not his concept of freedom can provide an insightful and stable basis for conceptualizing the application of a capability perspective to the duty of assistance.

From two concepts to a triadic relation To recap, it has been argued that Rawls does not explicitly carry over the assumptions introduced in his discussion of domestic, non-ideal theory to the international equivalent. Whereas in the discussion of non-compliant

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individuals, he adopts a capability perspective in order to theorize the notion of a social minimum, such a perspective is not explicitly employed in regard to burdened societies and their attainment of the international minimum. This chapter is concerned with the theoretical aspect of making this move to the international, and how this capability perspective might be set out in terms of peoples. I have argued that in the most fundamental sense, we can regard the move in terms of broadening the informational scope, or explicitly acknowledging a broader range of factors that affect an agent’s capability. In the domestic context this move involves consideration of agent capacity, together with their resources and context. I have argued, however, that this idea of the trinity of elements does not provide us with a particularly lucid framework within which to consider peoples. Noting Jackson’s approach, I have argued that we might conceive of building capabilities as promoting a greater emphasis on positive freedom. However, given the complexities alluded to, and the descriptive nature of this concept, it makes sense to go beyond this conceptual move, at least for the purposes of this book. The idea therefore is to set out the conceptual framework for an international capability perspective in terms of MacCallum’s concept of freedom. This move is partly premised on the fact there is a key connection between the nature of a theory of justice and the conception of freedom it employs (at least when we are talking about liberal political theories, where freedom is either instrumentally or constitutively important). The first step will be to set out in detail MacCallum’s concept of liberty. The second will be to analyse Rawls’ conceptions of liberty and distributive justice from the perspective of MacCallum’s concept of liberty.5 The basic claim is that in broadening his informational scope with the capability perspective, Rawls explicitly identifies more obstacles to freedom, which in turn justifies a broader scope of measures. The third step will then seek to present Rawls’ international minimum in terms of MacCallum’s concept of liberty. Given the comparison in the domestic context, the expectation would be that in applying an international capability perspective, framed in terms of MacCallum’s concept of liberty, we identify broader constraints on the freedom of peoples, entailing extensive measures for the duty of assistance. Developing the specific content of this broader framework will entail making the case that there is an empirical basis for adopting a capability perspective. In other words, it may be conceptually viable to extend the informational scope of Rawls’ approach to burdened societies – by arguing that we can identify more obstacles to their freedom – but there is equally a requirement to show that there is a descriptive element to cohere with the normative element. For this reason, once we have framed Rawls’ approach and his duty of assistance in terms of MacCallum’s concept of freedom, we will examine the empirical grounds on which Rawls conceives his principles of international justice. Are there powerful and robust empirical arguments for claiming that creating a capability perspective for Rawls’ Society of

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Peoples is a necessary and coherent move? It is this task which is taken up in the last chapter of Part II. To return to the task in hand, we look now to the alternative to the negative and positive concepts of liberty offered by MacCallum. As stated above, this is Rawls’ preferred understanding of freedom, and it is described by Ian Carter as ‘the now canonical analysis of Gerald MacCallum’ (Carter 2006: 15). The claim in the previous section was that the ideas of positive and negative liberty do not capture the way in which freedom functions. There may be two understandings of freedom that Berlin identifies, and possibly countless more, but the manner in which freedom operates can be presented in a single concept: Whenever the freedom of some agent or agents is in question, it is always freedom from some constraint or restriction on, interference with, or barrier to doing, not doing, becoming, or not becoming something. Such freedom is thus always of something (an agent or agents), from something, to do, not do, become, or not become something; it is a triadic relation. Taking the format ‘x is (is not) free from y to do (not do, become, not become) z,’ x ranges over agents, y ranges over such ‘preventing conditions’ as constraints, restrictions, interferences, and barriers, and z ranges over actions or conditions of character or circumstance. (MacCallum 1967: 314) Following this elaboration of the nature of freedom, MacCallum presents some common ‘idioms’ that he suggests might bring into question the idea that freedom can be accounted for by this triadic relation. These idioms are those where one of x, y or z may be unaccounted for. Cases where x, the agent, is not mentioned include ‘free society’ or ‘free beer’. In the case of the expression ‘free beer’, it ‘is ordinarily thought intelligible because it is thought to refer to beer that people are free from the ordinary restrictions of the market place to drink without paying for it’ (MacCallum 1967: 316). An example of where y, the constraint, is not mentioned, is the saying ‘freedom to choose’. Here, however, it would clearly be the case that the particular restrictions would be implied by the context. It may appear that freedom is a dyadic relation, such as ‘Smith is free to leave the country’, where there is merely an agent and an action. However, this is merely another form of the statement that ‘Smith is free from legal restrictions on travel to leave the country’ (MacCallum 1967: 316). It is MacCallum’s argument that in recognizing freedom as a triadic relation, we can overcome the analytical limits created by positive and negative concepts, providing a more coherent framework for answering questions relating to freedom: ‘one is provided with a means of making sense out of interminable and poorly defined controversies concerning, for example, when a person really is free, why freedom is important, and

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on what its importance depends’ (MacCallum 1967: 319). Different types of answers for these questions can all be couched in terms of this triadic relation, with the differences ‘rooted in differing views on the ranges of the term variables’ (MacCallum 1967: 319), such as what might count as an obstacle or interference. In MacCallum’s view, identifying these differences in the accounts of different writers, and consideration of their justifications, have been prevented by the distinction of positive and negative freedom. Identifying the differences in the variables has been overshadowed by asking what concept is being used, and whether or not this is appropriate. However, the differences between the two concepts can be accounted for by the triadic concept of freedom. In presenting an account of these two concepts in terms of freedom as a triadic relation, MacCallum identifies what he regards as the most obvious characterizations of two different ‘camps’, which espouse negative and positive liberty respectively. Firstly, those in the negative camp tend to believe that only the presence of something can render an agent unfree, while those on the positive side believe that the absence of something should also be considered. Secondly, the negative camp tends to regard an agent as free where ‘nothing due to arrangements made by other persons’ restricts them (MacCallum 1967: 321), while the positive camp has a more catholic view of what can be considered legitimate constraints on freedom. Lastly, whereas the former generally identifies the ‘agent’ as a natural rather than artificial person, the latter can have a different point of view, recognizing collectives such as political communities as agents (MacCallum 1967: 324). MacCallum suggests the difficulty of being able to place thinkers comfortably within these two camps, and claims doing so can distort nuanced views of freedom. He cites John Locke as one who appears to champion views on both sides of the dichotomy (MacCallum 1967: 322 n9). Furthermore, MacCallum claims that this triadic relation allows for a greater understanding of ideas on freedom than simply trying to lump them together in one camp or the other: ‘We have gone far enough to see that the kinds of issues arising in determination of the ranges are sufficiently diverse to make such simple correlations unlikely … There is too rich a stock of ways in which accounts of freedom diverge’ (MacCallum 1967: 327). We should focus instead on how and why thinkers ‘identify differently what can serve as agent, preventing conditions, and action or state of character vis-à-vis issues of freedom’ (MacCallum 1967: 327).

Rawls’ conception of freedom This section will heed MacCallum’s advice and attempt to look at Rawls’ theory from the perspective of the concept of freedom as a triadic relation. Before investigating the idea that MacCallum’s concept of freedom can be applied to peoples, and provide us with a parsimonious transposition of the capability perspective, it is first necessary to turn back to Rawls’ theory

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of domestic justice. The central aim is to draw out how Rawls’ conception of liberty develops in response to Sen and in relation to his non-ideal theory. The argument will be that this conceptual development provides an insightful basis for transposing this capability perspective to Rawls’ international theory. The application of MacCallum’s concept of freedom to Rawls’ theory is revealing. The first point to make is that Rawls’ theory of distributive justice is what Carter terms freedom-based. Carter states, that to be a freedom-based liberal is to endorse a freedom-based theory of distributive justice, which is to say, a theory of justice that assumes freedom to be one of the goods to be distributed in accordance with that theory among the people to whom that theory applies. (Carter 2006: 68) That freedom is one of the goods to be distributed from the perspective of Rawls’ theory is clear. The only complexity is whether or not the distribution of socio-economic resources is considered to be a contribution to the distribution of freedom, or instead a distribution of another, separate good. We will return to this question presently in discussing the idea of the worth of liberty. The prescient point with which to begin is that justice as fairness, as a freedom-based theory, will be significantly defined by the conception of freedom employed. What is the nature of the relation between this conception and the theory itself? As we saw from our previous discussion, MacCallum argues that we can think of the contrast between positive and negative liberty in terms of the triadic relation of freedom he puts forward. He claims that the archetypal theorist that holds to a supposed ‘negative’ definition would tend to believe, for example, that the agent is always an individual person, while obstacles to freedom come only in the form of barriers intentionally imposed by others, and that the absence of something cannot constitute such an obstacle. Once we decide whether or not groups as well as individuals are to be regarded as proper agents of freedom, we see that conceptions of freedom will be differentiated in the main by the constraints that a theorist regards to be genuine obstacles to freedom. The number of obstacles identified will indicate to what degree a thinker veers towards a conception of liberty that would conventionally reside in the positive camp. More importantly, the range they identify will also tend to indicate the extent of constraints they believe the state should intervene with, in order to promote individual freedom. Those with broader conceptions of freedom that identify more obstacles will tend towards the more socialist accounts of government. Money provides a relevant illustration: socialists, in contrast to libertarians, would tend to regard a lack of money as an obstacle to freedom, thus justifying invasive taxation as a

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means to the distribution of freedom.6 As Carter states, the debate over what should be taken as legitimate obstacles to freedom, is of great importance … for ideological reasons, affecting as it does questions like that of whether or how far a government interested in the maximization or fair distribution of freedom should pursue certain welfarist policies. (Carter 2006: 222) The clear implication here is that the extent of the obstacles to freedom identified will have a direct relation to the extent of the measures a government might pursue. In crude terms, the more constraints that are deemed to be relevant, the greater scope there is for intervention to mitigate obstacles to freedom.7 The central question, therefore, is what this analysis reveals about Rawls’ conception of liberty and non-ideal theory. It seems fair to say that Rawls’ original conception of liberty represents somewhat of a mixed bag. He states ‘associations as well as natural persons may be free or not free, and constraints may range from duties and prohibitions defined by law to the coercive influences arising from public opinion and social pressure’ (TJ: 177). Here, therefore, there are elements of the more positive notion of liberty as characterized by MacCallum: agents can be collectives, and constraints include social phenomena that are not necessarily consciously imposed by others. Given his avowed egalitarianism, we would expect Rawls’ understanding of freedom to espouse a broader notion of obstacles. However, he later says the ‘inability to take advantage of one’s rights and opportunities as a result of poverty and ignorance, and a lack of means generally, is sometimes counted among the constraints definitive of liberty. I shall not, however, say this’ (TJ: 179). Here Rawls restricts his conception of liberty and sides with the ‘negative camp’ by refusing to regard the absence of wealth and knowledge as constraints. Where ignorance and poverty are not regarded as obstacles, we can make no claim on the grounds of liberty for assistance in increasing our means. This is perhaps more surprising, given Rawls’ alleged position on the ideological spectrum. However, his conception of liberty is inconsistent with the actual measures that he advocates. Despite not being recognized as obstacles to freedom, problems of ignorance and poverty are to be directly addressed by government with the idea of ‘fair equality of opportunity in education’ (PL: 184) and the difference principle. Given that we expect a conception of liberty to generate a justification for government intervention in regard to certain policies, there is an inconsistency in this regard. This inconsistency, however, is a direct result of the distinction that Rawls draws between the worth of liberty and liberty proper. Rawls regards the worth of liberty – the extent to which an individual can make use of the basic liberties – to be

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different from liberty proper. This worth of liberty is represented by the socio-economic resources individuals receive. Although Rawls does not regard lack of means such as wealth as a constraint on liberty, he does believe that the variable worth of liberty that individuals possess as a result should be regulated in accordance with the difference principle. Certainly in regard to MacCallum’s concept of liberty, Rawls’ own conception of liberty seems to be logically problematic. Rawls’ first principle unambiguously identifies certain possible constraints on individual action that are central to his conception of freedom: this first principle commits the state to lifting certain obstacles through constructing a framework of opportunities for the individual that underwrites certain actions (and forbids others that might compromise individual freedom). However, if we take freedom to be constituted by certain possible actions, it is unclear how the provision of certain socio-economic goods is not regarded as lifting obstacles to freedom. After all, in guaranteeing fair equality of opportunity and a social minimum through the redistribution of resources, it would seem Rawls is doing nothing more than lifting certain constraints on action. He may claim that he does not regard poverty and ignorance as obstacles to freedom, yet the policies espoused would suggest the opposite. Carter poses the problem in the following manner: Now many philosophers have taken issue with Rawls’s distinction between liberty and the worth of liberty, holding as they do that if I lack the means to do x – most especially if you forcibly withhold from me the means to doing x – then I lack the freedom to do x … In this case, what Rawls calls ‘the worth of liberty’ is exactly what many would call ‘liberty’, while what Rawls calls ‘basic liberties’ is what might be more felicitously termed ‘formal rights’ or, in Rawls’s own words, ‘constitutional safeguards’ (where one’s possession of the formal right to do x – ‘x’ usually being an act-type – does not imply one’s possession of the concrete, or what is often called the ‘substantive’, freedom to perform any tokens of x, and is therefore only a necessary and not sufficient condition of liberty). (Carter 2006: 82) This criticism suggests that rather than considering formal rights and socioeconomic means as being categorically different, we can think of them as constituting different ways in which certain obstacles to freedom are lifted, allowing actions to be achieved. In order to possess the substantive freedom of, for example, assembling in public, not only do we need the formal right of assembly, we also require the requisite socio-economic means to ensure that we can partake properly, which might entail a means of transport to the event, or, at a more basic level, a full stomach. This interdependence of more formal and substantive properties, relating to our ability to pursue certain

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actions, is fully recognized by Rawls in his assertion that his first principle takes for granted that the basic needs of individuals are met, and also in his guarantee of a social minimum. It seems an unnecessary complication, therefore, to separate out the two and claim that one relates to liberty and the other to the ‘worth of liberty’. The first principle and the social minimum both work to alleviate certain constraints on possible actions, that is, freedom. Poverty and ignorance might therefore be rightly thought of as obstacles in terms of Rawls’ theory, but as is evident with his second principle, there can be different ways of addressing these constraints. He does not, for example, choose to ensure that all individuals have the same level of wealth, and are subject to the same level of constraints. However, in setting out his social minimum, Rawls does set out a substantive level of freedom below which no compliant individuals, or those temporarily afflicted, can be allowed to fall. In so doing, he curtails the extent to which government should seek to mitigate constraints and promote equality of freedom, through identifying a baseline above which inequalities are justifiable. My claim here is that poverty is regarded as an obstacle to freedom in Rawls’ particular conception, and that everyone is due a certain amount of wealth to enable them to secure a minimum meaningful freedom. However, from the perspective of justice as fairness, some may have a greater extent of possible action, or more simply, greater freedom, given their greater wealth and resources. On the other hand, as well as limiting state intervention, in seeking to provide a baseline for his theory of justice, Rawls commits himself to the idea that all individuals have a right to a minimal level of freedom. Logically, therefore, all those constraints that prevent individuals from attaining this minimum must be addressed as obstacles to freedom. In regard to compliant individuals with the capacity to attain the social minimum, one entity that Rawls does not regard as a genuine obstacle to freedom is the capacity of individuals. He recognizes that it may be that the ability of some individuals to take certain actions is greatly inhibited compared to others, due to their lesser capacities, but this is not regarded as an obstacle to their freedom; it instead renders them unable to do certain things. In upholding the social minimum, however, we have seen that certain individuals experience temporary incapacity, which means they are unable to stay above the line. From this perspective, their incapacity must be regarded as an obstacle to freedom, rather than simply affecting their ability. A more libertarian thinker might not provide such a guarantee and would not place such strictures upon their theory of justice; for example, they might regard only intentionally imposed constraints as obstacles to freedom and as such place far less obligations on government. In providing a social minimum, however, Rawls actually posits a level of freedom that must be guaranteed. Thus, in the case of the social minimum, it is not only the legal framework, the basic structure of society, and the economic product of a

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society that must be addressed, but presumably any other constraints that might prevent individuals from attaining this minimum. Rawls recognizes that in terms of ensuring that temporarily afflicted individuals are ‘above the line’, their individual capacities have to be included in the equation. In effect their incapacity becomes for him an obstacle to freedom and therefore must be addressed. As previously noted, the origin of such constraints do not have an influence on whether or not they are to be addressed (Daniels 2003: 255). Whether an individual ends up with diminished capacities due to a car accident or a drug overdose does not impact on his justice claim. Rawls does not impose any constraint-types such as ‘humanly imposed obstacles’, ‘obstacles for which humans are causally responsible’, or ‘intentionally imposed obstacles’ (Carter 2006: 222), which might narrow his conception of freedom in terms of this baseline of justice. In conclusion, in guaranteeing a social minimum, Rawls in effect posits a conception of freedom that is especially broad, as it is not limited in terms of the possible obstacles to freedom. The process of incorporating the capability perspective – of broadening his informational scope – can be characterized as Rawls broadening his conception of freedom. By identifying the temporary capacity deficit of individuals as an obstacle to freedom, he lays the groundwork for justifying further state action in upholding the social minimum. The final step of this chapter is to see how this process, and the ideas it entails, can be applied to Rawls’ international non-ideal theory.

Burdened societies’ obstacles to freedom With this final section, the intention is to evaluate how the insight from MacCallum’s concept of freedom can help us with the conceptual development of Rawls’ duty of assistance. The idea expressed in Chapter 3 was that this duty acts as a guarantee on behalf of the Society of Peoples, to assist burdened societies in their attempts to become well-ordered and build the requisite state capability. This level of state capability, it was claimed, is the target of the duty: what we have termed the international minimum. This chapter has been built on the assumption that we can make a broad analogy between this international minimum and the idea of the social minimum, which Rawls posits in the domestic context. This assumption is defended on the grounds that these minimums represent a certain level of capability with regard to both individuals and peoples. In the case of individuals this is the capability to exercise their two moral capacities of (1) holding a conception of justice and (2) revising and pursuing their chosen ends. These ideas of developing a conception of justice and pursuing chosen ends are also constitutive of a people’s basic level of capability, with another basic stipulation being the fulfilment of the basic needs of their population. It has been suggested that in a similar fashion to the social minimum, Rawls’

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international minimum is under-developed, leaving many ambiguities in regard to the duty of assistance. These ambiguities can be addressed, I claim, by evaluating the manner in which Rawls addresses the problem on a domestic level by using a capability-type perspective, in dealing with those individuals who suffer temporary impairment. However, I have argued that transposing this move and developing a capability-inspired perspective on the question of an international minimum merits some conceptual development. Stating that we need to broaden our informational base in a similar fashion, or that we need to pay attention to the positive freedom of burdened societies, does not provide an adequate framework for detailing how the duty of assistance can be developed. In this chapter I have argued that Jackson presents an insightful move in equating capability with positive freedom, but that his concept does not provide us with enough analytical purchase. This, however, is not the case with MacCallum’s concept of freedom, which allows us to appreciate in more detail the differences between the approaches of different political theorists. The particular difference we are interested in here is that between the early Rawls and his more developed ideas in his final work. The claim is that the move to a more capability-focused perspective with regard to non-compliant agents acknowledges more explicitly the nature of the social minimum, and, most importantly, the broad conception of freedom and possible constraints it entails. The conceptual development is that we essentially broaden our informational base by recognizing a greater number of obstacles to freedom. As argued, the conception of freedom employed can be central to the ideological stance that a theorist will take. Broadly speaking, the more obstacles recognized, the greater the justificatory scope for employing remedial measures. In the domestic context, Rawls discusses his idea of the social minimum as a constitutional essential, thus committing his theory to the guarantee of this level of meaningful freedom for individuals. Clearly there are certain obstacles to this freedom that he addresses from the beginning. His principles mitigate the most important of these, providing a network of paths and opportunities, guaranteeing equal worth of political liberties and a substantive equality of opportunity, and also employing the necessary redistribution to guarantee the basic needs of individuals. In terms of the minimal level of freedom he thinks that it is just to guarantee, these measures apply to the obstacles to freedom that it is necessary and justifiable for the state to address. In addressing the social minimum in more detail in JF, he goes on to consider the problem that certain non-compliant individuals lack what I have termed the requisite ‘capacity’ to achieve the minimum and stay ‘above the line’. In this sense ill-health or handicaps are considered as other obstacles to the minimal freedom guaranteed, which therefore justify state intervention and the notion of universal health care.

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The argument in concluding this chapter is that when we consider Rawls’ international minimum, it is helpful and insightful to think of it in terms of a minimal level of freedom that is guaranteed by the Society of Peoples. Construed as a minimal level of freedom, this allows us to apply MacCallum’s concept of freedom to Rawls’ international minimum in an analogous fashion to his domestic approach. It constitutes a minimal level of freedom in the sense that it represents a people’s capability set – a grouping of substantive freedoms, or what Carter describes as an ‘extent of possible actions’ (Carter 2006: 144). With this target of assistance, viewed as a specific set of capabilities or a minimal level of freedom, the elaboration of Rawls’ duty of assistance is conceptualized in a specific way.8 In transposing MacCallum’s concept of freedom to the international, we can conceptualize an international capability perspective in terms of identifying the appropriate obstacles to the freedom of burdened societies. This in turn can be employed as a justificatory basis for elaborating more extensive measures, and realizing the full extent of the duty of assistance. The problem identified initially with Rawls’ ambiguous rendering of the duty of assistance can be captured by the claim that he does not identify clearly enough what exactly he considers to be the obstacles to freedom for burdened societies. To elaborate this argument a little, we can recall what we might term the conservative interpretation of Rawls’ duty of assistance. By this I mean we rehearse the interpretation that claims this duty offers little in terms of explicit measures to assist burdened societies. We might attribute such an interpretation to the cosmopolitans, who are critical of Rawls on the grounds that they view the duty as offering very little of substance to burdened societies. It is not difficult to account for how such an interpretation has gained some ground, because Rawls’ discussion of the duty of assistance emphasizes the need for the internal reform of societies, rather than the reform of the Society of Peoples or other far-reaching measures. As Brown’s argument testifies, however, we must be weary of attributing to Rawls’ realistic utopia the same unjust character as our own international society. There is a tendency not to acknowledge that when Rawls describes the process of assistance by which burdened societies might become wellordered, it is conducted by a Society of Peoples that is already equitable and just. However, even if we do acknowledge this element of the Law of Peoples, and suppose that an approximation of such a realistic utopia can exist, one might still join cosmopolitan thinkers in questioning the duty of assistance, because it explicitly identifies very little in terms of obstacles, and subsequently very little in terms of substantive measures. On a conservative account we might claim that the only obstacle Rawls identifies to attaining the international minimum is the culture of a society. The discussion of burdened societies is seemingly dedicated to developing the idea that

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becoming well-ordered and creating just or decent institutions is reducible to negotiating this one, albeit amorphous, ‘obstacle’. Rawls does attempt to provide a rationale for this focus, employing Sen’s ideas on development and the economic history of David Landes to argue the case that the wealth, stability and well-being of a society is deeply tied to its culture. In so doing Rawls identifies somewhat more specific ideas of what we might consider constraints. He states that the crucial elements that make the difference are the political culture, the political virtues and civic society of the country, its members’ probity and industriousness, their capacity for innovation, and much else. Crucial also is the country’s population policy: it must take care that it does not overburden its lands and economy with a larger population than it can sustain … an emphasis on human rights may work to change ineffective regimes and the conduct of the rulers who have been callous about the well-being of their own people. (LP: 108–9) The particular aspect of political culture that Rawls chooses to emphasize is that of human rights promotion, and most especially the elevation of women’s status. On this account, therefore, it is the burdened society’s traditions, character and culture that are taken to be the primary obstacles, most especially a lack of respect for human rights and the equality of women. This would inevitably seem to curtail the extent of the measures that might be justifiably demanded of the Society of Peoples. Where such an emphasis is laid upon the constraints internal to a society, then there seems to be little we can claim a Society of Peoples should do in the name of burdened societies’ freedom. Money and resources are given little attention as possible obstacles to freedom, while the background structure is not dealt with in regard to burdened societies. Given that the ‘use of force is ruled out by the Law of Peoples’ (LP: 110), any type of humanitarian intervention or attempts at nation building are ruled out, and it seems there is very little that the Society of Peoples can be sanctioned to try. What obligations can there be to societies who must be treated as though they are free and equal, and who are apparently responsible for their own capability through their culture and traditions? It is patently the case that Rawls thinks something is owed to these societies. As he states, ‘one way or the other, the duty of assistance is in no way diminished’ (LP: 108). It seems not so much that the Society of Peoples has no duty, but rather the lack of identifiable obstacles for which it can actually be held responsible, or that it can actually practically address, means that it has few substantive obligations, other than to proffer advice.

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The lack of many identifiable factors constraining the capabilities of peoples is one way to account for the apparent asymmetry between the demanding international minimum that Rawls sets out, and the less than onerous duties which it entails. Another explanation could be that Rawls applies certain constraint-types to burdened societies which he does not apply to non-compliant individuals (such as ‘humanly imposed obstacles’ or ‘intentionally imposed obstacles’), with the result that fewer variables are considered as freedom reducing. However, the idea that an obstacle must be something imposed by humans rather than natural forces is clearly discounted by the fact that Rawls advocates assistance for those societies hit by natural disasters. Droughts or hurricanes are clearly identified as obstacles to freedom that it is the duty of the Society of Peoples to mitigate. Nevertheless, there may be other constraint-types at work. It might be argued that Rawls employs the idea that a constraint must be imposed intentionally to qualify as an obstacle to freedom, or that it must be the moral responsibility of others. From this point of view, it would be difficult to view the lack of resources of a people as an obstacle to freedom, and one might even question whether the trade practices that have produced the international economy are thought of as ‘intentionally’ imposed constraints. This claim is unconvincing, however. The dearth of resources suffered by a society would more likely be construed by Rawls as a construct imposed by natural forces in the same way as a disaster (thus becoming an obstacle to freedom in need of adjustment), while the global background structure is already regarded as an obstacle in the context of his ideal theory. In fact, rather than seeing a reduction in the number of possible obstacles for non-compliant agents in the international context (in comparison to the domestic context), one might expect them to multiply. The international minimum seems to be as equally demanding as the domestic equivalent, in the sense that it advocates a reasonably high ‘line’, including the freedom for peoples to manage their own affairs and to meet the basic needs of their population. Such a target one might expect to work with a particularly broad conception of freedom with attendant extensive measures. The fact that this minimum is guaranteed by the Society of Peoples in the same way as the social minimum suggests that the broadest possible conception of freedom should be employed here, which identifies all possible constraints as obstacles to freedom. In other words, no constraint-types concerning the source of obstacles should be applied; any factor that inhibits a burdened society’s attempts to attain the international minimum should be regarded as an obstacle to be addressed in the name of justice. In stating that the duty is in no way diminished, Rawls suggests that even if the constraints are largely internal to the particular society, this does not undercut the guarantee of the international minimum. The source of obstacles is irrelevant and he does not apply any constraint-types to burdened societies. If all such types are discounted, then the lack of money or

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natural resources should qualify as an obstacle, as should the background structure, whether intentionally imposed or not, and the know-how or technological resources, and so on. There may be many more identifiable constraints, such as corruption. I therefore propose another interpretation for the apparent disconnect between the demanding targets of the duty of assistance and the limited set of measures that Rawls recommends. My belief is that the utilization of a capability perspective set out here demonstrates that his approach is open to the identification of wider factors, and a good deal of the ambiguity regarding the extent of the duty of assistance (indicated in Chapter 3), is because Rawls chooses to concentrate on a specific problem, rather than consider how wide-ranging this duty might be. Despite this most catholic of conceptions of freedom that seems to be at work in the international minimum, Rawls makes little attempt to outline the kind of measures that such a broad conception might induce. To discuss why Rawls may have overlooked some of these measures, and to grasp what they might be, will be the intention of the next chapter.

Conclusion This chapter represents the penultimate step in addressing the ambiguity regarding the extent of the duty of assistance. My aim has been the conceptual development of the duty of assistance, constructing a parsimonious framework that provides the groundwork for the next chapter in elaborating the full extent of the duty. I have built on the premise established in the previous chapter that Rawls’ development of his domestic approach in regard to the social minimum constitutes a partial incorporation of the capability perspective, extending his informational base. The next step in the argument was to use this idea in his international theory of justice, arguing that we can develop his conceptualization of the international minimum, and the duty assistance, in an analogous fashion to his development of the social minimum. By applying the capability perspective on a conceptual level to the Law of Peoples, I have been able to set out in more detailed terms the potential extent of this duty. Transposing the capability perspective in an insightful and straightforward manner has not proved easy, however. Given that state capability (or capacity) is a common concept in the empirical literature, it would seem like a neat progression to apply a normative capability approach from the domestic context to the international. Nevertheless, broadening the informational scope in terms of the international minimum has proved complex. The trinity of resources, capacity and context – identified with regard to individuals – constituted too broad a conceptual approach to capture the idea effectively. Jackson, in conceptualizing state capability in terms of positive sovereignty, introduces an attractive idea that conceives of capability in a familiar and helpful manner. The idea that state capability can be viewed as a peoples’ positive freedom is insightful, especially when we consider how

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it dovetails with Rawls’ approach and highlights that it is this element of positive freedom – as with his domestic theory – that requires elucidation. However, the essentially descriptive nature of the two concepts of liberty, inherited from Berlin, limits their analytical insight. Nevertheless, framing the capability perspective in terms of freedom remains a constructive idea, in the sense that the idea of freedom is central to Rawls’ freedom-based theory of justice. I have argued that the insight provided into his idea of freedom in the domestic context can provide conceptual resources for setting out his international theory. In moving to MacCallum’s concept of freedom as a triadic relation, we find both a simple and penetrating account of freedom and its influence on political theory. In broad terms, MacCallum argues that freedom can be conceived as the absence of obstacles, and that those who advocate a concept of positive liberty tend to identify a broader range of obstacles. The extent of constraints identified by a theorist is crucial, as the greater the obstacles to freedom identified, the greater the normative scope for action. Rawls, in my view, effectively identifies more obstacles to freedom in his later exposition of the social minimum, by broadening his informational base and incorporating the capability perspective. In guaranteeing a social minimum of meaningful freedom, Rawls identifies any constraints on this minimum (including temporary capacity deficiencies due to ill-health) as an obstacle to freedom, regardless of their origin. Applied to the international context, we can understand the international minimum guaranteed by his duty of assistance as a level of capability, or meaningful freedom, for peoples. It is the duty of the Society of Peoples to promote this minimum, and so by analogy we can consider any constraint on this minimum as an obstacle to freedom, and one that should be addressed, if possible. This conceptual development of the duty of assistance I believe is one that remains true to Rawls’ philosophical outlook, and should be considered not as an extension but a realization of the extent of the duty. It may be that Rawls deals explicitly with very little other than the importance of culture as an obstacle to burdened societies’ freedom, but according to the capability perspective that he partially incorporates in his non-ideal theory, any factor that reduces the possibility of these societies attaining the international minimum is to be considered an obstacle to freedom. The next chapter will aim to provide material for this conceptual development of the duty of assistance, by identifying numerous factors that can be considered as obstacles to peoples’ freedom.

6 Actualizing State Capability

In the previous chapter I developed the conceptual basis for applying the capability perspective to burdened societies. The aim was to provide the theoretical groundwork for realizing the international minimum. Developing this capability perspective entailed transposing the broad informational scope of Rawls’ domestic approach to his international non-ideal theory. To this end, I proposed an extensive conception of the obstacles to peoples’ freedom, which rested upon the same broad conception of freedom that Rawls advocates for persons. However, this conceptual framework for the duty of assistance, which identifies any number of possible constraints on burdened societies, is not necessarily supported by the obstacles to development that Rawls identifies. As I pointed out in introducing the duty in Chapter 3, there appears to be a disjuncture between the ambitious, normative aim of upholding the international minimum, and the amount of obstacles that Rawls’ identifies as requiring remedial measures. The narrow extent of constraints and attendant measures that Rawls explicitly specifies calls into question the conceptual development that I have proposed. In this chapter, therefore, I address the descriptive element of Rawls’ position, making the case that an overview of the idea of building state capability can provide ample empirical information for the conceptual framework. The first stage is concerned with questioning the position allegedly adopted by Rawls. Firstly, I will present Pogge’s caricature of his position, namely ‘explanatory nationalism’. This is a characterization based on the allegation that Rawls concentrates solely on internal factors in accounting for the lack of burdened societies’ capabilities. From this perspective, the only significant constraints on freedom are those generated through the indigenous political culture, rendering the responsibilities of the Society of Peoples negligible. I will question Pogge’s claim, arguing that the literature Rawls employs does not provide a convincing basis for characterizing his position in this way. The argument I suggest is that although Rawls explicitly adopts a position opposed to the cosmopolitans, his emphasis on the role of political culture, rather than redistribution, does not automatically consign him to 127

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the category of explanatory nationalism. I will then go on to address the idea of the colonial legacy, which further undercuts the idea of explanatory nationalism, and its central claim that the culture and institutions of burdened societies can alone be assigned causal responsibilities for their difficulties. In this first stage I focus on disputing the coherence of explanatory nationalism – and the claim that Rawls purveys a version of this perspective. In the second stage I am concerned with identifying a greater extent of constraints on burdened societies, in order to provide detail for the conceptual framework. To this end, I turn to some of the recent literature on statebuilding. As previously stated, I believe Rawls’ duty of assistance represents an institution-building principle that coheres with the view that ‘institutions matter’ for developing countries. For this reason, the state-building approach provides the most appropriate grounds for building up a convincing account of his duty of assistance. I aim to provide a foundation for the claim that presenting a mono-causal explanation for state failure is misleading and that the causes – and therefore the means to progress – are manifold. I argue that the importance of resources as a constraint cannot be ignored, even if in other respects the literature chimes with Rawls’ emphasis on culture. Other factors such as civil society will be considered, with further attention being paid to the numerous obstacles to the freedom of peoples in the international economy. It is these factors that tend to be eclipsed in the recent analysis of state-building, but they are arguably the most important to address if the promise of the duty of assistance is to be realized. If the duty demands that all possible obstacles to freedom be addressed to work towards the international minimum, a cursory look at the empirical literature can provide us with a multitude of constraints that can be construed as obstacles. For a truly emancipatory duty of assistance, the vast array of constraints impinging on the freedom of particular peoples must be acknowledged and addressed. Taken as a whole, therefore, this chapter should provide the descriptive element to match the normative argument of the previous chapter, demonstrating that there is every reason for the informational base in the international context to be as broad as, if not broader than, the domestic case. I make the case that pursuing the international minimum identified by Rawls demands a variety of measures to mitigate the obstacles to freedom borne by burdened societies. Part III of the book will attempt to bear out the claim that such measures are consistent with Rawls’ general approach to international justice.

Rawls’ explanatory nationalism Before evaluating the literature employed by Rawls in bringing the influence of political culture to the fore, I will begin with a characterization of

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his approach. Pogge depicts Rawls’ position, in regard to both human rights violations and economic underdevelopment, as ‘explanatory nationalism’ (Pogge 2000: 62 n31). The cornerstone of this perspective is that underdeveloped countries are responsible for their economic order and faulty institutions, and the poverty of their citizens could be ameliorated by institutional reform. In Pogge’s view, there is a tendency to regard this idea unreflectively, as it chimes with our ‘“nationalist” way of looking at the world as a plurality of interacting national systems’ (Pogge 1998: 497).1 This is a perspective that Pogge claims is particularly prevalent among economists, in their accounts of poverty. Although identifying the correct policies for growth and justice is not easy, and economists differ on how it can be achieved, the presumption is that if better domestic policies were pursued, poverty would slowly disappear (Pogge 1998: 497). For Pogge, the economists’ view is one-sided in ignoring the fact that nations exist within an international economic and geopolitical context, which is not only crucial in explaining the breadth and depth of global poverty, but also for explaining the more general occurrence of human rights violations (Pogge 1998: 498). The perspective underplays the importance of global issues, and tends to overlook the manner in which there is an interplay between national and global factors. In Pogge’s view, [e]xplanatory nationalism sends a message that has become deeply entrenched in common sense. It makes us look at poverty and oppression as problems whose root causes and possible solutions are domestic to the foreign countries in which they occur. (Pogge 1998: 498) However, to present Rawls as adopting a narrow explanatory nationalism, and attributing human rights violations exclusively to local factors, appears problematic given his explicit recognition of the significance of the background structure in his ideal theory. Nevertheless, in support of Pogge’s assessment, we must recognize that in Rawls’ presentation of the duty of assistance, he gives precedence to ‘indigenous’ factors in the development of a society’s just institutions – and makes no significant reference to factors beyond culture and practices. In terms of the argument set out in the previous chapter, we are apparently presented with a narrow informational base, identifying minimal obstacles to the freedom of peoples. The type of argument developed by Pogge has potential: broadening the informational base and acknowledging more constraints would, in effect, be an emulation of the move Rawls makes in his partial incorporation of Sen’s capability perspective. However, we should consider the prospect that the capability of peoples is in fact restricted by a narrower scope of constraints. It could be that even the broadest possible conception of freedom in terms of people will

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be narrower than that for persons, simply because there are fewer factors that reduce capability. I will argue here that the literature employed by Rawls might at first suggest this conclusion, given that its perspective maintains that significant constraints on development are to be found within a society’s culture and attendant institutions. However, I will argue that the authors allow for other significant, external constraints, and that the narrow scope of their approach is a result of their focus on economic development. I claim that in deploying the ideas of Sen and Landes, Rawls may be open to the criticism I have previously aimed at his own critics: failing to distinguish properly between the processes of state-building and economic development. Moreover, not only does the literature itself suggest the importance of broadening our informational scope, I also argue that the approach adopted by Rawls himself inevitably leads us to taking a wider perspective. In his desire to contradict the cosmopolitan position and deny the overriding significance of global redistribution, Rawls places the emphasis on political culture, but this is not to suggest that factors prevalent in his ideal theory (i.e. the background structure) should bear no mention in his non-ideal theory. Given these arguments, it is necessary to look further afield to evaluate the descriptive basis for the normative argument in favour of a robust duty of assistance. Sen and Landes on development Rawls bases his argument for the importance of political culture on the work of Sen and Landes. In this section, I will provide a brief overview of their work, leading to my claim that their arguments do not support an explanatory nationalist position on state-building, were that to be Rawls’ position. Given that the central move in this work involves the elaboration of Rawls’ approach through the capability perspective, it is in a sense appropriate that Rawls chooses to turn to Sen’s broader research on development to bolster his own argument on the transition of burdened societies. Sen argues for the use of capabilities as the appropriate measure for development. The main thrust of his argument goes against the perceived wisdom that, because many successful developmental states have been authoritarian, there is a necessary connection between economic growth and the postponement of human rights (Smith 2008: 238).2 Michael Freeman attests that the available evidence for the need to sacrifice rights in the name of development is inconclusive (Freeman 2008: 360), therefore it is a rational step to argue that development should be conceived of in far broader terms than purely the objective of increasing GDP. Sen utilizes his research to build the argument that development can be successful when driven by the aim of increasing individuals’ capabilities. In sum, an expansion of freedom is both the appropriate means and end for development. It emerged in the original exposition of the duty why Rawls might regard Sen’s perspective to be a suitable foil for his own argument for assistance. In

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claiming that burdened societies should strive to provide their citizens with ‘worthwhile lives’, and positing this aspiration as a condition for inclusion within the Society of Peoples, Rawls’ view on the target of assistance echoes the thoughts of Sen. In demanding ‘worthwhile lives’ for individuals, Rawls can be regarded as advocating that burdened societies strive to increase individuals’ basic sets of capabilities. The nub of Rawls’ claim is that the transition of burdened societies requires human rights as an aspiration and as a driving force. Sen’s research on famine is therefore the touchstone for Rawls’ claim, that an ‘emphasis on human rights may work to change ineffective regimes’ (LP: 109). For example, Sen’s research demonstrates that where societies have a respect for individual rights, famines do not occur, so that the basic good of food is unlikely to run out. In effect, if the rights of individuals are paramount, then institutions are more likely to be arranged to achieve the goal of avoiding famine.3 The sense in which famines occur because the victims are in some sense expendable – they lack any voice or advocates and so cannot demand action – is borne out by the fact that no multiparty democracy has ever suffered a famine (Sen 1999: 178).4 On the basis of Sen’s research on famine, Rawls extrapolates that human rights are fundamental in order to provide other basic goods, and to sustain worthwhile lives. Sen appears to corroborate this view, claiming that the facets of democratic government that work to prevent famines will, in general, contribute to what he labels ‘protective security’. The institutions prevalent in a democracy ensure that ‘the occurrence of famines is only one example of the protective reach of democracy. The positive role of political and civil rights applies to the prevention of economic and social disasters in general’ (Sen 1999: 184). That Sen identifies the role of ‘political and civil rights’ as the key constitutive element of promoting protective security echoes Rawls’ emphasis on the importance of respecting human rights.5 Under the broad umbrella of human rights promotion, Rawls also cites Sen to buttress his other substantive argument: that women’s equality is key to the establishment of a well-ordered society. Sen places women’s rights at the heart of his development project, echoing Charles Fourier’s claim that the ‘extension of the rights of Woman is the fundamental principle of all social progress’ (Fourier 1996: 132). Rawls refers specifically to Sen’s research, which suggests that strengthening women’s rights and entitlements can help to decrease the birth rate, both through better education and the greater exercise of freedom (Sen 1999: 199). Rawls considers this a good illustration of the point that emphasizing the equality of women can increase the capability of a society to meet its population’s needs. Sen suggests further reasons why women’s rights can be regarded as invaluable for development (other than the intrinsic value of freedom for women themselves). Other improvements he claims that arise from greater equality are a reduction in violent crime and an increase in business and economic

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initiatives. Moreover, ‘the same applies to many other areas of economic, political and social action, varying from rural credit and economic activities, on the one hand, to political agitation and social debates, on the other’ (Sen 1999: 203). Sen claims that the ‘changing agency of women is one of the major mediators of economic and social change’ (Sen 1999: 202). The significance of Sen’s perspective for Rawls is clear. Sen’s empirical research buttresses the argument that a political culture that emphasizes individual rights should assist the prevention of famine, and can have beneficial effects for societal development in general. However, a notable contrast emerges in Sen’s emphasis on the importance of democracy as a political system, rather than individual rights per se. According to Sen, it is the structures and institutions of the democratic system that provide the safeguards against famine, rather than a singular emphasis on the value of individual rights. The implication that democracy is necessary to sustain worthwhile lives has broader ramifications, both for Rawls’ tolerance of decent societies and his rejection of ethnocentricity – a tension we will put to one side for the moment and seek to address in Part III.6 A more significant issue at present is that Sen’s research on famine does not explicitly offer any direct support for Rawls’ alleged argument: that respect for human rights is the single overriding factor in the reform of burdened societies. It is one thing to claim that respecting human rights is an important factor in the economic development of a society, but this is very different to presenting a convincing argument that it is the key factor in building up the institutions of burdened societies. Sen tells us how institutions – with the protection of individual entitlements as their raison d’etre – can function to protect people’s security, but he tells us little about how these institutions come to be in the first place. The prerequisites of the state are, to some degree, taken for granted in his analysis, and he does not address in detail the strengthening of weak and failed states. Although his work is an assessment of the benefits of a democratic system, the initial construction of the polity is largely a latent theme. There are few references to the burdens, internal or external, which lie heavy upon the state in attempting to create itself in the manner Sen recommends. He does not discuss the international processes through which they might be established, or whether it is appropriate for those outside a society to carry them out. It may be that I am inclined to force the distinction too readily between development and capability-building. However, a qualitative difference has been identified between the aim of establishing just institutions in a society (which are capable of meeting the basic rights of persons and providing ‘worthwhile lives’) and the broader aims of development. It is argued that institutions are prior in some sense and that economic development relies first and foremost on the appropriate institutions being in place (Caplan 2006: 135; Fukuyama 2004: 32–3; Smith 2008: 239; Snodgrass 2004: 262). This seems to be the implication of Robert Gilpin’s words when he pins the

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blame for underdeveloped nations on institutional failure: ‘Political corruption, a parasitic social and bureaucratic structure, and the failure to make appropriate investments in education, agriculture, and other prerequisites for economic development restrain these nations’ (Gilpin 1987: 267). This distinction between the interdependent processes of institutional growth and economic development is also critical to David Waldner’s study of developing states (1999), in which he argues that the success and method of the development pursued is parasitic on the institutional bargaining and arrangements which underpin them. It is an open question, therefore, the extent to which Rawls has chosen an appropriate ally, if his argument is that political culture is the overriding factor in building well-ordered societies, and that the best that others states can do is advise on this process. Certainly political culture is shown to be paramount from Sen’s perspective, because his concept of development is geared towards advocating the democratic institutions of a society. Yet, how these institutions come about in the first place is not the primary focus of Sen’s work. An equally important point in addressing whether Sen’s work implies a perspective of explanatory nationalism is the indication that he would not view culture as the sole factor in the development process. He acknowledges the burdens imposed by the international context in one respect, citing the dynamics of the Cold War as an obstacle to establishing just government. He states that it is only recently that asserting the value of democracy has achieved some political respectability in many countries of sub-Saharan Africa. And in this political milieu, the Cold War in the world did not help at all. The United States and the West were ready to support undemocratic governments if they were sufficiently anticommunist, and the Soviet Union and China would support governments inclined to be on their respective sides no matter how anti-egalitarian they might be in their domestic policies. When opposition parties were banned and newspapers suppressed, there were very few international protests. (Sen 1999: 183) Although the Cold War has long since finished, the point stands that Sen argues that the idea of democracy as a motivational factor in bringing about change can be blunted by other constraints. What these multifarious factors might be, and how they can be addressed is not an issue given as much emphasis by Sen. As such, if it were Rawls’ intention to provide Sen’s research as an illustration of the idea that political culture is the only significant factor in building up just institutions, it is questionable whether Sen buttresses such a position. Does Landes’ The Wealth and Poverty of Nations contribute any further to the possible case for a mono-causal explanation of state failure, and

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the attendant restricted duty of assistance? As its title suggests, this is not a work which is directly concerned with the process of state-building and the establishment of effective institutions. It is a historical examination of how some modern states gained economic ascendancy. His thesis can be summed up by his proclamation in the concluding chapter: ‘If we learn anything from the history of economic development, it is that culture makes all the difference’ (Landes 1998: 516). While emphasizing culture, the fact that it is economic development which concerns Landes, and not institution-building, again suggests it can bear only a partial relevance to Rawls’ ideas on burdened societies. Landes’ concern is with the way that culture has influenced the accumulation of wealth, and not the relation between culture, political institutions and development.7 If we are to accept that Landes’ account has at least some bearing on our understanding of building state institutions, it is worth considering that he would not subscribe to a limited, explanatory nationalist account of the economic predicament of today’s poorer nations. He concludes: On the other hand, culture does not stand alone. Economic analysis cherishes the illusion that one good reason should be enough, but the determinants of complex processes are invariably plural and inter-related. Monocausal explanations will not work. (Landes 1998: 517) We would be wise, therefore, to at least countenance the idea that the development of state institutions cannot be accounted for with one overriding causal factor. There may be other significant constraints aside from the culture of peoples. As Miller comments, ‘Landes’ somewhat unanalytical historical study does not suggest any mono-causal theory’ (Miller 2006: 195). In essence therefore, we can claim that Sen and Landes both point to the importance of culture in the development of states, but that they are engaged in investigating its significance primarily in regard to economic development. Given their emphasis on political culture, we might assume that both would see values and practices as crucial in the process of building just institutions. Nevertheless, neither offers the kind of well-developed position that would serve to defend Rawls’ alleged explanatory nationalism. Given that building institutions is not the central focus of their work, they do not provide an argument for the overwhelming importance of culture in this context, nor are they in the position to provide ample support for disregarding the possible importance of factors, beyond the immediate control of those societies. Moreover, both imply we might be well-served in considering a broader set of constraints which impact upon the freedom of peoples. However, in concluding this section it should be acknowledged that Rawls does not claim that Landes or Sen’s perspectives dovetail neatly with

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his approach. Perhaps the most important point that Rawls wishes to take from their work, and that seems to underpin his own idea of what form assistance should take, is that economic development has been dictated by the practices, norms and traditions of societies, as much as, if not more than, their natural or financial resources. It is not necessarily the case that Rawls wishes to present a mono-causal explanatory model for the failure of institutions. Rather we should keep in mind his specific target in framing his duty of assistance. Rawls is constructing a position in opposition to the cosmopolitan claims of Beitz and others; therefore the focus inevitably falls on challenging the idea that the global redistribution of resources is an appropriate response to the problem of burdened societies. The difficulties entailed by the endowment of plentiful resources, comes to the fore in Landes’ evaluation, first of Imperial Spain, and later in his discussion of the Middle East. He claims that Spain … became (or stayed) poor because it had too much money. The nations that did the work learned and kept good habits, while seeking new ways to do the job faster and better. (Landes 1998: 173) In the same vein, the huge oil windfall has been a ‘monumental misfortune’ for the OPEC countries, with these nations remaining stagnant and underdeveloped. The massive oil surplus ‘has intoxicated rulers, henchmen, and purveyors, who have slept on piles of money’ (Landes 1998: 414). For Landes, most damaging of all is the manner in which this allows the maintenance of regressive gender discrimination, because [t]o deny women is to deprive a country of labor and talent, but – even worse – to undermine the drive to achievement of boys and men. One cannot rear young people in such ways that half of them think themselves superior by biology, without dulling ambition and devaluing accomplishment. (Landes 1998: 413)8 In agreement with both Fourier and Sen, he states, that ‘in general, the best clue to a nation’s growth and development potential is the status and role of women’ (Landes 1998: 413). Not only can plentiful resources stymie development in this regard, but Landes also suggests that the redistribution of wealth offers no failsafe mechanism for improving the lot of developing countries. The presence of resources would not necessarily be deleterious to establishing such institutions, but may exacerbate similar problems in exactly the same way: ‘Foreign aid can help, but like windfall wealth, can also hurt. It can discourage effort and plant a crippling sense of incapacity’ (Landes 1998: 523).9

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It is in view of this aspect of Landes’ work, and the prominence that Sen gives to the political culture of societies, that we should read Rawls’ thoughts on assistance for burdened societies. It is arguable that neither author seeks to consciously promote the idea of explanatory nationalism, while both in fact acknowledge the influence over time of factors other than political culture. Given Rawls’ own emphasis on the international background structure in the presentation of his ideal theory, it would also seem inconsistent to argue that he presents a mono-causal notion of political development. That Rawls is open to the idea of other measures will be addressed in more detail in Part III, in evaluating the consistency of a robust duty with his overarching approach. For the time being, we shall move on to discussing the ramifications of the colonial legacy for Rawls and explanatory nationalism, before addressing some of the literature on state-building, in order to identify the numerous obstacles in need of attention. The colonial legacy for political culture It has been suggested, therefore, that rather than hoping to present us with the overwhelming empirical case for a restricted duty of assistance, Rawls employs the ideas of Sen and Landes to query the notion that straightforward wealth transfers can address problems of global poverty. If it were the case that offering advice is the sum of this duty, the works that he cites fail to offer the type of explicit empirical grounds and persuasive descriptive element that might convince the reader that advice is an adequate solution. However, I have cast doubt on the likelihood that explanatory nationalism represents his perspective. As such, I believe there is a sound case for furnishing the conceptual framework of the previous chapter, by detailing the kind of measures a robust duty of assistance might advocate. Before proceeding, however, in bringing the first stage of the chapter to a close, it is worth paying some attention to an issue that Rawls overlooks, and that by its very nature casts doubt on the idea of explanatory nationalism in regard to institutional development. It is important to consider the past of many of today’s burdened societies, as this undermines a central assumption of explanatory nationalism: that states are responsible for their own underdevelopment. If it is the institutions of states that matter, and the political culture that informs them, the fact that both bear the imprint of colonial rule in most countries in the developing world must carry some significance. If we can regard the current political culture and damaging policies of many burdened societies as an outcome of colonial intervention, then this insight would help to counteract the tendency of explanatory nationalism to apportion responsibility and blame to underdeveloped states. The central idea is that the norms, traditions and practices of post-colonial states have been adversely affected by colonial rule, with the result that their institutions are problematic and incapable of fulfilling their purpose.10 The reforms brought about by colonial powers have created obstacles to the

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establishment of just or decent institutions in the political culture and structure of their former colonies. This possibility carries with it ramifications for Rawls’ theory, not only in the sense that it places responsibility on the former colonial powers, but specifically because it is the political culture of a society which Rawls identifies as the most significant factor for the prospects of burdened societies. It ‘is now widely accepted’ (Randall 2008: 37) that the culture and institutions of the territories that fell under colonial rule were fundamentally transformed. Despite the numerous differences between post-colonial states, it is also asserted that they share enough common history and problems to be spoken of in some degree of generality (Leftwich 2008: 222; Dirks 2004). James Mayall considers the influence of imperialism as fundamental to our understanding of state capability ‘because, at the most general level, the concept of the state itself was a colonial export’ (Mayall 2005: 37). The very existence of quasi-states results from the carving up of one part of the world by another. He points out that [t]he concept of the state was grafted onto a wide variety of pre-existing forms of government and social organization … where the graft did not take, or produced unforeseen mutation, the post-colonial state failed to provide the most basic public goods of law, order and minimal welfare. In extreme cases it collapsed altogether. (Mayall 2005: 37) According to Mayall, the most destructive influences of colonial rule were: the political map drawn by the colonial powers ‘which paid scant attention to cultural, historical or ethnic criteria’ (Mayall 2005: 41); the ‘underinvestment in human capital during the colonial period’ (Mayall 2005: 45) resulting in the unattained hopes of developmental nationalism that exacerbated social problems; and a politics of anti-colonial nationalism that replaced colonial rule, with the emphasis ‘placed on state capture rather than on the social basis of legitimacy in the post-colonial state’ (Mayall 2005: 39). Presumably, we might claim that these problems could have been overcome with the development of a more constructive political culture. Minority claims might have been accounted for, the basis for economic development could have been secured, and the legitimacy of the state would have increased. However, rather than foster the type of political culture that might have been conducive to such developments, the colonial powers had a negative effect ‘on different kinds of pre-colonial social structures and state formations’ (Mayall 2005: 37). This argument about the transformation of culture and institutions under colonial rule has been examined at length by Joel Migdal (1988). His general diagnosis of post-colonial states is that despite success in penetrating societies

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with a ‘formidable presence’, they display ‘surprising weaknesses in effecting goal-oriented social changes’ – in other words, they have little social control (Midgal 1988: 9). The origins of this lack of social control, which lays the foundation for building up capabilities, are identified in colonial rule.11 In broad terms, Migdal locates the origins of the lack of social control in the expansion of the world market, and deliberate attempts by European governments to undermine existing forms of this control. This disruption of social organization was followed by its reorganization through colonial rule, which was not reconstituted uniformly: an ‘important reason for the varying capabilities among contemporary Third World states is the differences among them in which groups and individuals created new strategies in the atmosphere of rapid change’ (Migdal 1988: 98). However, there were some common patterns to the way in which colonial rule asserted itself on these rapidly changing societies. Reforms in terms of the rural economy tended to result ‘in the concentration of wealth in the hands of a small minority; poor rural people came under the control of this small group of powerful landlords’ (Migdal 1988: 100). It was also the case that colonial officials tended to have an extensive influence on the types of influential figures who came to the fore, the colonizers’ actions greatly affecting ‘which indigenous figures were able to reconstitute social control in the wake of the catastrophic changes wrought by the spreading world market’ (Migdal 1988: 103). The outcome was that the wrong people were often given preferential access to resources: for the most part local indigenous leaders with the potential for social control over a limited area of society, and not those that might have had the long-term hope of creating the type of centralized, national institutions capable of forming an eventual state. Migdal argues the case of British rule in Sierra Leone illustrates how this kind of scenario was exacerbated by a method of ruling through a ‘fragmented, weblike society with numerous poles of power’ (Migdal 1988: 127), where military resources and support from the outside meant consolidating social control was unnecessary. In Sierra Leone this policy resulted in the chiefs using their resources to reconfigure social control, to the extent that the British were unable to ‘loosen these strongmen’s grips’ (Migdal 1988: 124). The result was a fractured society with little hope of establishing a rationalized, centralized and secure state. With social control being so inadequate, the basis for undertaking the kind of policies which might have a long-lasting and transformative effect upon the population has simply not existed. Migdal’s conclusions on the continuing influence of colonial rule were fairly unequivocal in 1988, and there seems no reason to believe that given the recent history of countries such as Sierra Leone that this influence is likely to disappear soon. At that he time, he argued that [f]or the people of today’s SL, these British policies in the dim past have had an enduring impact upon social and political life, as have similar

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policies in other former colonies. Such polities influenced the very structure of society, including the distribution of indigenous social control and the strategies of survival that could emerge. And that structure of society, in turn, has had a profound impact on the 20th century domestic politics and capabilities of the Sierra Leone state. (Migdal 1988: 141) The influence of the colonial legacy raises questions about our approach to burdened societies. As Migdal acknowledges, the differences between various countries are manifold due to their own particular circumstances, but as a general point it seems fair to accept that an appreciation of the influence of colonial rule problematizes the idea of explanatory nationalism. If the political culture of burdened societies is regarded as the fundamental obstacle to progress, the fact that this culture and its representative institutions are in part the result of colonial rule makes it more difficult to apportion responsibility to those societies alone. Consideration of the reality of states such as Sierra Leone suggests that the obstacles to progress are not simply cultural and indigenous to those societies, but that social structures and traditions fostered by colonial rule may be the heaviest burdens they bear. Not only does the idea of a colonial legacy undercut the case of explanatory nationalism, and the idea that indigenous factors are the overriding root cause of developing countries’ poverty, it also contributes to the notion presented by Reidy that the duty of assistance could be regarded as a duty of rectificatory justice. As we have seen from the Rawlsian perspective, in terms of upholding the international minimum it should make no difference whether an agent falls below the line due to brute bad luck, or due to their own misconceived or irresponsible decisions – the duty remains to ensure they are once again above the line. For this reason we might allow Rawls the omission of discussing burdened societies’ colonial past, because from the perspective of his own philosophical approach the origin of constraints bears no moral significance in grounding the duty. Rawls, however, also gives some importance to the idea of motivation, discussing as he does the need for the duty of assistance to be initially motivated by self-interest, because of the lack of mutual affinity. In this regard, if the problems of burdened societies can be shown to be a result of bad luck or others’ actions, then the motivation for the Society of Peoples to fulfil the duty may be greater. In this sense, it is interesting to consider the argument that the institutional problems of burdened societies result from a political culture that is ruinous due in large part to external interference. Even if we accept the duty’s inviolable status, it is still the case that where a society’s problems are regarded as largely self-inflicted, the probability that the members of the Society of Peoples fulfil their duty might well be less. If the ossified perspective of explanatory nationalism means members of the Society of Peoples have difficulty in perceiving their duty of assistance, or attempt to hide behind some

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notion that burdened societies do not merit aid, the case for rectificatory justice provides ground for demanding they meet their moral obligation.12

A robust and rounded duty If my assumptions about Rawls’ approach are correct, the idea that he espouses an explanatory nationalism in regard to burdened societies is misplaced. The literature he cites appears to be employed as a means to discredit the idea of resource redistribution rather than defending a mono-causal analysis of state failure. Moreover, the tendency of explanatory nationalism to assign an exclusive responsibility to the agent would seem to go against the grain of Rawlsian philosophy. Even if we accept the idea that political culture is the single most important factor in dictating state capability, the previous section demonstrates that there is a case to be made for thinking that burdened societies cannot be held largely responsible for their own institutional shortcomings. On this reading, not only is the duty of assistance a first principle of international relations, it is also a rectificatory duty. However, the foregoing adds very little to the case for broadening our conception of constraints for burdened societies. This remains as limited as our first interpretation of Rawls’ position, with the only change being that the motivation and nature of the obligations becomes clearer. It does not, however, lay the basis for increasing these obligations. Political culture is presented as the primary constraint, and other than the advice Rawls advocates, other realistic or effective options seem limited. What happens, however, if we turn to the contemporary literature which explicitly advocates state-building? I argue here that there is an obvious overlap between Rawls’ perspective and ideas espoused by the recent literature on state capability, especially in the emphasis placed on the importance of culture. At first glance it might seem that authors such as Fukuyama espouse an explanatory nationalism in keeping with the position attributed to Rawls – a mono-causal explanatory model focusing on the difficulties of states’ political culture. However, we also find a recognition of the fundamental importance of resources as an obstacle to the freedom of peoples. Furthermore, if we are able to look beyond the tendency for certain analyses to obscure certain factors, we see there is a case to be made for considering a multi-level analysis of state failure. In other words, there are multiple obstacles to the freedom of peoples that might be mitigated through the appropriate measures. State builders In introducing us to the various causes of state failure, Sebastian Von Einsiedel quotes the following passage from an article by Michael Ignatieff: Sometimes the cause is colonial legacy; sometimes it is maladministration by an indigenous elite; sometimes, failure is a legacy first of interference

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by outside powers, and then abandonment … [M]ost important, many failed and failing states are poor and have suffered from the steadily more adverse terms of trade in a globalized economy. (Ignatieff in Von Einsiedel 2005: 16–17) Von Einsiedel continues by breaking these factors down into three familiar levels of analysis, while simultaneously claiming they should be considered together: The list suggests that causes of state failure may be located at many levels: the system level, the state level and the level of individual leaders. These various explanations of the root causes of state failure are not mutually exclusive, but should be seen as complementary explanatory models. (Von Einsiedel 2005: 17) I wish to argue that while Von Einsiedel is right to note that there are many causes, and that they run together in precipitating state collapse, there is also a sense in which the list may go well beyond what both he and Ignatieff propose as a shorthand, and that in attending to these factors, it is not easy to maintain an overview combining explanatory models. In attending to ideas on political culture, resources, civil society and taxation, I will argue that Rawls is not the only one who necessarily obfuscates other important factors in focusing on one root cause. Identifying the full extent of a robust duty of assistance entails the recognition that in any single case of a burdened society, several perspectives may well be necessary. Political culture The importance of the amorphous notion of political culture, which is so central to Rawls’ normative approach, has been viewed with some suspicion by political scientists. However, with the renewed zeal for institution-building and democratization, ‘the attitudes, beliefs, and values that are said to underlie a political system’ have once again taken on central significance (Burnell 2008: 278). For Christopher Clapham, the causes of state failure in the most fragile of African states have, at the most fundamental level, been an incompatibility between the form of the state and indigenous traditions. The problems have ‘been ones of political culture and notably the difficulty of adapting cultures deeply attuned to their own environments, to the very different challenges involved in managing states of the kind that were imposed on the continent through colonialism’ (Clapham 2004: 85). The graft of the modern state onto certain cultures has simply failed to take.13 The pervasiveness of cultural norms should in many peoples’ eyes make us less sanguine about the hopes for building institutions, and this pessimism permeates the work of Fukuyama. However, rather than questioning the project of universal statehood, he investigates the small opportunities for

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assistance in state-building, and it is striking the degree to which his empirical arguments are anticipated by Rawls’ normative approach. Fukuyama claims that traditional development aid is ineffectual, and that it is customs and traditions (and certain habits of mind, as he calls them) which hold the key to institutional reform and capability-building (Fukuyama 2004: ix). The best policy option for liberal peoples is to offer guidance to those who require assistance, ‘helping afflicted countries develop the institutional capacity to use what resources they may acquire’ (Fukuyama 2004: xi).14 However, Fukuyama is the first to admit that the transference of theoretical knowledge to help afflicted countries develop their capability will be limited in its application, and he is pessimistic about the scope for providing a formalized theory of public administration. Culture and habits of mind affect the possibility of encouraging institution-building, as they reduce the extent to which knowledge of organizations and management can be transposed. The ambiguities of different traditions and individually internalized norms are most problematic in regard to their role in generating demand for institutional reform. According to Fukuyama, the question of why demand emerges for good institutions at particular junctures in particular societies ‘is likely to depend heavily on unique historical circumstances’ (Fukuyama 2004: 45). However random the initial cause may be, the creation of this demand is crucial: Insufficient domestic demand for institutions or institutional reform is the single most important obstacle to institutional development in poor countries. (Fukuyama 2004: 47) Where this demand does not arise internally, whether it be through a dramatic shift in circumstances, or through a gradual awakening, Fukuyama believes that the prospects of artificially generating it from the outside are slim. Given that everything ‘depends on context, past history, the identity of organizational players, and a host of other independent variables’ (Fukuyama 2004: 104), Fukuyama is, in keeping with Rawls, necessarily cautious in prescribing measures of assistance. The lack of an optimal model for organization or some general best-practice for public administration warns against trying to transpose practices directly. There is some hope that reforms and incentive structures, which have professionalized government and tackled corruption in developed and developing states, ‘can also be applied quite successfully in developing countries as well’ (Fukuyama 2004: 115). Some areas such as central banking, which are highly specific in nature and involve a small number of transactions (albeit hugely important ones), are far more conducive to reproduction. In terms of the kind of cultural values that might influence the demand for institutions and the capability to develop them successfully, any

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influence must be necessarily limited. The required changes in leadership, the education of elites and the increase in interaction with other societies cannot be forced. There are examples of such change, such as the increase in economic technocrats in Latin America who have experienced schooling in North America and Europe, and have been immersed in the values of transparency and accountability. However, the time scale for such changes to influence reform on a society-wide level is long term. Fukuyama provides us with one general recommendation: If we want to increase the institutional capacity of a less-developed country, we need to change the metaphor that describes what we hope to do. We are not arriving in the country with girders, bricks, cranes, and construction blueprints, ready to hire natives to help build the factory we have designed. Instead, we should be arriving with resources to motivate the natives to design their own factory and to help them figure out how to build and operate it themselves. Every bit of technical assistance that displaces a comparable capability on the part of the local society should be regarded as a two-edged sword and treated with great caution. Above all, the outsiders need to avoid the temptation to speed up the process by running the factory themselves. (Fukuyama 2004: 121) In general, it would seem that in terms of the basic concepts of state-building, and the policy recommendations which flow from his approach, Fukuyama provides a fair amount of support for the more conservative outlook attributed to Rawls and his duty of assistance. Those societal features, which Fukuyama terms cultural and structural factors, are held to have the greatest significance in terms of a state’s institutional reform, and the prospects of increasing its capability. Civil society Despite the obvious similarities between this state capability perspective and Rawls’ preoccupation with political culture, one need not look too far to find ideas about institution-building that reach beyond his perspective. Indeed, the influence of culture and norms themselves is closely tied to that of civil society, a phrase that finds little articulation in his discussion of burdened societies. That is despite its apparent ‘magical qualities for improving governmental performance – from promoting good health, reducing crime, and generating economic growth to facilitating political reform and easing the reintegrating of ex-combatants after civil wars’ (Posner 2004: 236). Clearly, the associational groups of civil society cannot be thought of as official state institutions, but in regard to the functioning of the state, they are nevertheless a necessary institution. Marina Ottoway notes that it is common for international donors ‘to bemoan the weakness, or even the absence, of civil society’ (Ottoway 2008: 171).

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The cathartic aspects of civil society has been conceptualized most prominently in the idea of ‘social capital’, a concept that has taken on a life of its own since Robert Putnam’s original study (1993), which found successful government to be linked to high levels of trust, reciprocity and collective identity. As Posner argues, however, civil society is an ‘empty vessel’, the ‘reservoir of formal and informal organizations in society outside of state control’. It can therefore be occupied by those who will actively undermine the process of building state capability (Posner 2004: 236). Civil society can also become a provider of public goods when the state is weak, which, although necessary under certain difficult conditions, can lead to problems such as the degeneration of vigilante groups into predators and protection rackets (Ottaway 2008: 178). Furthermore, we have already noted in the context of Migdal’s research that the structures of civil society can constitute long-term obstacles in regard to building state capability. Nevertheless, harnessing the power of social capital and building the norms of trust and reciprocity in a manner that builds state capability is clearly a progressive policy (Widner 2004). Posner highlights the difficulty in doing so in a failing state, when the mechanism of social capital is unlikely to have many collective resources to call upon. The prospect of enforcing collective action by the state is equally problematic, where the authority of the state is weak and social co-operation is managed through alternative structures. His suggestion in terms of constructive assistance is therefore the provision of ‘selective incentives’ (Posner 2004: 243), from which a critical mass of people can derive benefits. The basic idea is that efforts should be focused on providing support for civil society associations, whereby those who partake will benefit both from prestige and good standing, as well as the financial rewards. The process of identifying the correct type of groups to support will inevitably be complex, the most important factor being the long-term sustainability of these groups (Posner 2004: 251). Resources Underwriting these activities, however, requires contributions from the donor community – a scenario that brings us to the general theme of wealth redistribution. As we have noted, much of Rawls’ discussion on assistance for burdened societies rails against the cosmopolitan recommendations for ongoing redistribution (LP: 106, 108, 110, 117). One might suggest that he pays lip service to this aspect of state-building, as he mentions ‘that merely dispensing funds will not suffice to rectify basic political and social injustices (though money is often essential)’ (LP: 109). However, he does not go so far as presenting the lack of resources as a genuine obstacle to political autonomy. Nevertheless, a cursory glance at the literature, whether in discussing the need to support civil society or the state directly, reveals the significance of resources. Analysing the process of state-building explicitly leads to the conclusion that actual material resources are fundamental (Fukuyama 2004: 89,

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121; Snodgrass 2004: 263); while the shortcomings of international administrations can be linked in good part to the lack of ready resources (Caplan 2002: 66, 2006: 231; Chesterman 2005: 246; Zaum 2007: 65). The assertion that providing resources is necessarily a constructive policy to pursue must be qualified in two respects. Firstly, there is the question of whether resources necessarily promote successful institutions, and second, whether the process of actually donating resources to burdened societies will be beneficial rather than harmful. The first claim is thrown into some doubt by the idea of the resource curse, as articulated by Landes. However, an obvious point must be that, although a glut of natural resources can lead to institutional difficulties over time, in weak, post-colonial states, they can ‘help build up a significant public apparatus’ (Van de Walle 2004: 112). Nicolas Van de Walle argues that there is no necessary causal link between a surplus of natural resources and the underdevelopment of the state. Rather, it is the uses to which these resources are put that are most significant. It may be that the need to build an efficient tax-collecting bureaucracy that underscores development is waylaid (Bräutigam 2008: 19), and that some societies develop ‘rentier states’ (Ross 1999) as a consequence – but this is not a necessary outcome. Van de Walle argues that [n]atural resources wealth does increase the level of economic activity, and it provides states with easy sources of revenues. Thus, resources fuel the growth of not only public consumption (e.g., the number of civil servants) but also some public investment (e.g., schools, roads, etc.). I hypothesize that the … ability to derive revenues from resources ensures that states benefit from them, even when there is considerable leakage through corruption and rent seeking. (Van de Walle 2004: 102) Van de Walle gives the examples of Gabon and Cameroon as two oil-rich countries that in recent years have used their extra wealth to build states that are relatively strong, in the African context. Although there is only minimal evidence that some of this wealth has impacted on development and the health and education sectors, there are significant differences in the size of their states – ‘three times as many public employees as non-oil producers’ (Van de Walle 2004: 102). He hypothesizes that this may make state failure less likely, because they ‘can more easily manipulate government consumption to promote political stability’ (Van de Walle 2004: 102).15 Fukuyama is also unequivocal in regard to the importance of financial resources. He maintains that in seeking the important factors behind deficient public administration, one ‘obvious answer has to do with resources: Poorly funded organizations function less well at all levels, so it is not surprising that public agencies in poor countries with poorly trained staff and inadequate infrastructure will have difficulties delivering services’

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(Fukuyama 2004: 89). However, both he and Van de Walle are at pains to avoid a mono-causal perspective, and emphasize that the level of resources is only one contributing factor, claiming that increased state capacity is not a direct corollary of a resource surplus. State capacity should not be viewed as completely exogenous to the political system – something that is ineluctably the result of basic resource endowments and geographical constraints. African governments have systematically underinvested in the acquisition of capacity. (Van de Walle 2004: 101) That states can be equally cursed or blessed by resources, depending on the manner in which they are handled, would seem an uncontroversial conclusion to draw. Although claiming that resources can help to build up and sustain state capability is significant, it is a separate point to assert that providing resources for struggling states should be advocated as part of the duty of assistance. It would seem that Rawls has every reason to be sceptical of the benefits of foreign aid – especially in the context of building states. Von Einsiedel gives voice to the same sense of scepticism: Given the capacities of corrupt governments in weak or failing states to let aid money disappear into their own corrupt pockets, there has been a tendency since the end of the Cold War to channel some aid and investment money around governments … aid can accomplish something only in states where the government is broadly committed to development. Therefore there are good reasons to be sceptical about whether simply increasing foreign aid will be an adequate policy response, even though poverty and a scarcity of resources have been identified as one structural cause of state collapse. (Von Einsiedel 2005: 26) This is an argument echoed by Van de Walle. In spite of renewed levels of funding, deficiencies of donor conditionality have allowed weak and incompetent regimes to remain in power thanks to donor resources; governments have received aid whether or not they undertook policy reforms … it allowed governments to avoid the kind of reform that might have led to economic growth and peaceful political change. (Van de Walle 2004: 111) Furthermore, structural adjustment programmes ‘have resulted in an increase in corruption and rent-seeking’ (Van de Walle 2004: 111).

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The success of resource allocation needs to be linked – it is now suggested – to building up the basic institutions of law and governance. Again, Von Einsiedel points out that ‘promotion of “good governance” is easier said than done … countries often prove unwilling to allow outsiders an intrusive oversight role to monitor aid recipients’ performance’ (Von Einsiedel 2005: 27). Fukuyama argues that one way to circumvent this problem can be to provide grants ‘in exchange for measurable performance’ (Fukuyama 2004: 122). Programmes such as the U.S. Millennium Challenge embody an approach which does not ‘set precise conditions for how the resources are to be used but rather enforce strict accountability standards for certain kinds of results’ (Fukuyama 2004: 121). It might be claimed that although donor programmes do not represent an exact science, they are sensitive to the accusation of simply throwing funds at weak states.16 Although making a success of foreign aid programmes is difficult, this in itself does not constitute a reason for giving up on them. If we accept the experts’ views, the whole process is fraught with difficulty, and so it would not appear that there are any ‘easy options’ as such. If projects of state-building are to be undertaken, it would seem that donating resources is a necessary foundation stone. Taxation The collection of taxation can have an important role in building institutions, beyond simply accumulating resources for the state to spend. Deborah Bräutigam comments that the idea that taxation is a ‘central component’ in constructing the capability of a state ‘is largely missing from the new scholarship on state-building’ (Bräutigam 2008: 2). In her view this is a serious and inexplicable omission, ‘especially given the long-standing linkage between taxation and governance assumed by students of European and American history’ (Bräutigam 2008: 2). Such is the significance of tax for building state institutions that it has been declared by one prominent scholar that the history of raising taxes is in fact ‘the history of the evolution of the state’ (Levi in Bräutigam 2008: 1). The contribution of taxation to the building of state capability can, in Bräutigam’s view, be summed up with regard to three broad processes, the first of which is the raising of revenue. The other two are constitutive elements of the process itself. One relates to the role of taxation as a principal site for the conduct of state–society relations. The claim is that the social character of a state is developed in a significant way by the bargaining around tax, and the social contract that emerges. Taxation by the state has always been a process of bargaining with the populace, and so in regard to developing states, the case can be made that progress and reform in taxation might foster more representative and legitimate forms of government. The third aspect relates to the stimulus that tax collection provides for institution-building. Historically, the process of tax reform has increasingly demanded a trained, literate workforce, which in turn has fostered both

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improvements in education and bureaucratic structures. Mick Moore (2008) suggests that there is a correlation between state–society bargaining and institutional advancement. Those contemporary states where taxation is achieved through coercion – rather than state–society bargaining – have ‘under-resourced and under-regulated local government in poor agrarian environments’ (Moore 2008: 63). Bräutigam’s claim about the stimulus that taxation provides for institutional development would appear to be borne out by the experience of rentier states. In defence of her argument, that ‘reliance on natural resources and other kinds of rents led to a truncated process of institution-building’ (Bräutigam 2008: 19), she cites the research of Kiren Chaudhry (1997) on Yemen and Saudi Arabia. Without having to develop an extractive bureaucracy, these states lost incentives to centralize their fiscal apparatus, obtain information about their producers and basic data on the economy, set fiscal priorities, establish effective regulation for their private sectors and foster the adoption of modern accounting and managerial practices. (Bräutigam 2008: 19) Bräutigam, Fjeldstad and Moore’s volume on taxation possesses another feature that differentiates it from other recent contributions to the study of state-building. This is the sense in which it attempts, to some degree, to keep in view the complementary explanatory models that Von Einsiedel mentions. Not only are the influences of natural and fiscal resources, as well as state– society relations, accorded significance, but there is also recognition of the manner in which the colonial legacy has shaped tax collection (Fjeldstad and Therkildsen 2008). Most significantly, it offers a system-level analysis, with a discussion of ‘another set of influences that have shaped tax institutions in ways unlike those experienced in the advanced capitalist world: international experts, conditionality and foreign aid’ (Bräutigam 2008: 22). Odd-Helge Fjeldstad and Moore claim that there is a sense in which we can constructively talk about a ‘global tax reform agenda’ (Fjeldstad and Moore 2008: 243), whereby national tax policies are becoming increasingly alike under the influence of a certain group of norms. These norms, however, represent the particular interests of the more powerful global actors, such as the IMF, and a growing group of professionals that purvey a certain orthodoxy in regard to taxation: Our summary conclusion mirrors other arguments about globalisation more generally: there are many good things to report, but worrying problems in the poorest and most dependent countries. The governments of those countries have little choice but to go along with a reform agenda that is not strongly rooted in their particular circumstances. The choice

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of policy problems, and of the means of dealing with them, reflect too much the enthusiasm of the more powerful actors in the international context. Most important perhaps, the global reform agenda does not address some of the more urgent problems that the poorest countries face. The contemporary global tax reform agenda is least appropriate to those countries most in need of the state-building to which the taxation process has contributed at other places and times. (Fjeldstad and Moore 2008: 237–8) It can be justifiably claimed that it is this analysis – which incorporates international factors – that is the ‘explanatory model’ most obscured in contemporary volumes on state-building (Caplan 2006; Chesterman, Ignatieff and Thakur 2005; Chesterman 2005; Fukuyama 2004; Rotberg 2004; Zaum 2007). These types of factors would include the adverse terms of trade in a globalized economy referred to by Ignatieff, and fit into the system-level analysis that Von Einsiedel acknowledges. There are occasional exceptions to this tendency, most notably in reference to the donor system and the destabilizing nature of the end of the Cold War (Clapham 2004: 91; Van der Walle 2004: 108), but it remains pertinent to note that this aspect of analysis is given the least systematic attention. System analysis The tendency to waylay systemic analysis, and give little sustained attention to the influence of what broadly compares to Rawls’ global background structure, is one of the primary themes in David Chandler’s critique of the idea of state-building. In Empire in Denial (2006) he accuses the advocates of state-building of upholding a particular discourse that defends the interests of the liberal West. In concentrating on the internal, institutional difficulties of failed states, the influence of the globalized economy and the potential emancipatory action of international society is obfuscated. To restrict the conception of peoples’ freedom, to identify limited constraints and ignore systemic factors is not simply an oversight but a manifestation of a politically driven policy that has the effect of denying the responsibility of the powerful. We can argue that Rawls himself is sensitive to the effects of the global structure, inasmuch as he recognizes its role as part of his ideal theory. However, we might justifiably comment that with regard to the duty of assistance, he gives little indication as to whether more far-reaching measures are required in order to ensure that the global ‘playing-field’ is levelled further in the interests of burdened societies. The following gives some indication of the inequities they might face. Chandler builds on the critique of the informal exercise of empire, elucidated by Marxist-inspired theory. The informal relations of domination can be understood as operating in the socio-economic sphere, whereby developing states are exploited by the industrial nations. They are

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nominally free in the sense that they have sovereign power, but they are enmeshed within a relationship of domination. From this perspective the influence of the international economy cannot be ignored as an obstacle on the freedom of peoples. These ideas, which informed the world-systems literature, continue to find expression in the contemporary literature that Chandler advocates, and lays the basis for claims that it is the informal mechanisms of market inequality which mean that nonWestern states have little choice but to accept discriminatory trade regulations or to accept the conditions set by the World Bank and the IMF in order to gain access to loans or development aid. (Chandler 2006: 15) Chandler also adopts insights from Foucauldian literature, which theorizes the recent tendencies towards more interventionist models of international regulation. The project of ‘good governance’ from this perspective merely expresses a desire to ‘control and regulate the peripheral states of the “borderlands”’ (Chandler 2006: 16). It is domination and social control wrought through knowledge and values. Chandler detects a further trend, however, drawing a broad analogy between the projects of state-building and social inclusion in the domestic context. Both represent apparently selfless actions, which demand a significant amount of resources and investment, but actually play a key role in maintaining the power of elites and divesting those in power from responsibility – and precluding transformational measures. The lack of ideological conviction in today’s politicians leads to a desire on behalf of governments to deny responsibility; without such convictions, power is regarded less as an opportunity to mould the world in one’s vision, rather as something which politicians seek to deny. Both mantras rely on technical and administrative expertise, which espouse particular solutions that do little to get to grips with the root of the problem. The complexity and interdependence of the problems that are alleged to cause institutional difficulties (cultural and structural factors) means that instead of a transformative agenda, we move to the problems afflicting particular agents, which require technical expertise and localized assistance: The focus on the socially excluded like the international state-building focus on the poor is part of an agenda, which, in fact, insists that little can be done about social problems on a macro level. (Chandler 2006: 21) There is no recognition that far-reaching reforms at a systemic level might provide more opportunities for transformative change. There is no logical reason why the project of state-building need necessarily deny the possibility of such transformative change. However, if practitioners and academics

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overlook these factors, and fail to give credence to this explanatory model alongside others, then they leave themselves open to the accusation levelled at them by Chandler. Even if this type of structuralist critique is unappealing to others for ideological reasons, its obvious value – in the broader context of this chapter – is to alert our attention again to the idea that over time, the globalized economy will have marginalized weaker states and built up certain obstacles to their freedom.17 This brings us the full circle to the argument espoused at the beginning of this chapter by Pogge. He claims that this ‘global context … is of crucial importance for explaining the incidence of unfulfilled human rights and the persistence and severity of global poverty’ (Pogge 1998: 498). By ignoring the economic and geopolitical context in which the national governments of the poorer countries are placed, the explanatory nationalist stands accused of providing a one-sided perspective. Interestingly enough, although Pogge acknowledges his indebtedness to the Marxist-inspired world-systems literature (Pogge 2008: 297: n251), he is equally keen to deny that his project represents a socialist critique (Pogge 2008: 31), suggesting that he at least believes a liberal approach can embrace more radical views that may appear ideologically opposed. The type of claim he presents regarding the deleterious effects of the ‘system’ is articulated effectively in the work of Joseph Stiglitz. His powerful account of the management of globalization argues that the relations of domination in the global economy have been exacerbated, further marginalizing the poorer countries and making the goal of relative autonomy ever more unlikely. He declares of the end of the Cold War that [t]he world would have benefited had the United States used the opportunity to help build an international economic and political system based on values and principles, such as a trade agreement designed to promote development in poor countries. Instead, unchecked by the competition to ‘win the hearts and minds’ of those in the Third World, the advanced industrial countries actually created a global trade regime that helped their special corporate and financial interests, and hurt the poorest countries of the world. (Stiglitz 2006: xii) Two clear points can be taken from this statement that support Pogge’s normative stance; firstly, there is an acknowledgement of the foundational idea that the global structure is not something fixed or beyond the control of wilful human acts. Secondly, it also suggests not only that this structure is one that can be manipulated, but that it has also been manipulated by the advanced countries at the cost of the poorer states. In broad terms we can identify two main ways in which the transformation of the global background structure has developed and can be

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adjusted: regulations and finance. In regard to the first set of means, the history of trade agreements, as presented by Stiglitz, can be understood as a history of exploitation of the poor by the rich. The effect of these agreements is that rich countries ‘have cost poor countries three times more in trade restrictions than they give in total development aid’ (Stiglitz 2006: 78). There are numerous reforms he specifies which he suggests would form an equitable global trade regime, promoting the interest of both poor and advanced countries, although possibly damaging corporate interests.18 Another influential agreement has been on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which the richer countries sought so that other countries would be forced to acknowledge their copyrights and patents.19 Regulation pertaining to multinationals also requires an improvement, with a need for cartels to be restricted by better enforced laws, as currently it is only local jurisdictions that look after their own citizens’ interests: ‘Globalization of monopolies requires a global competition law and a global competition authority to enforce it’ (Stiglitz 2006: 203). One of Pogge’s central concerns, corruption, is also taken up by Stiglitz. The practice of international bribery is, it seems, rife, and ‘most rich states do not merely permit their firms to bribe foreign officials, but even entitle them to deduct such bribes from their taxable revenues’ (Pogge 1998: 500). This ‘institution’ of global trade is verified by Stiglitz, who recalls how at the OECD ministerial meeting in Paris in 1996, he ‘was shocked to see governments stand up to defend (with great circumlocutions) the existing system of bribery’ (Stiglitz 2006: 139). He also claims that corruption is aided and abetted by bank secrecy. Post 9/11, this secrecy is now legitimately violated in regard to the use of banks for financing terrorism, but other forms of secrecy ‘as bad as they are for development, are evidently still permissible’ (Stiglitz 2006: 209). It is a practice endemic also in the attempts of multinationals to appropriate the natural resources of developing countries, accompanied by sophisticated negotiation. Cheap sale ‘simply means the government has less money to pay for infrastructure, school and other facilities that are absolutely necessary if the region is to be developed’ (Stiglitz 2006: 141).20 The second aspect of the globalized economy under Stiglitz’ scrutiny is finance. For poorer countries, paying their debts and maintaining their place in the international financial markets ‘often requires countries to sacrifice education and health programmes, economic growth, and the well-being of their citizens’ (Stiglitz 2006: 212). Pogge claims the poverty of states is often ‘a mountain of foreign debt accumulated by previous dictators and military regimes’ (Pogge 1998: 502). He suggests an international law that states ‘need not repay loans incurred by a government that ruled them in violation of constitutionally recognized democratic procedures’ (Pogge 2000: 57). If succeeding governments were not required to repay them, then such loans would represent a greater risk – in all likelihood reducing the size of the loans and promoting more demanding terms. While Stiglitz concurs about the need

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to restructure national debts (Stiglitz 2006: 230), he also argues that responsibility falls on lenders not to offer loans which cannot be repaid, as some countries are so poor and desperate, that it is unreasonable to think that they will refuse money. Combining small-scale loans with grants is the only sure way to avoid their falling back into excessive debt.21 Despite the emphasis here on the transformational possibilities of a more equitable globalized economy, it should also be acknowledged that Stiglitz does not wish to undercut the influence of nation-states in terms of their own fortunes; he is quick to recognize that in the case of East Asian countries ‘it was their ability to take advantage of globalization, without being taken advantage of by globalization that accounts for much of their success’ (Stiglitz 2006: 31). On the other hand, in the case of some, the ‘system’ looms large, as with Eastern Europe which did well ‘because of the prospect of joining the EU. It forced them to adopt quickly a sound legal framework, and that reassured investors’ (Stiglitz 2006: 39). Others never stood a chance. Of the post-colonial African countries, he states they had been left ill-prepared for development and democracy. They didn’t have even a modicum of experience in self-government – there were few trained individuals, and the countries lacked the institutional infrastructure necessary for democracy and the physical infrastructure necessary for growth. (Stiglitz 2006: 40) In a sense therefore he attempts to present a more rounded view of global inequality, which in emphasizing the effects of the system, does not look to deny the importance of agency, where it has been influential. In the vocabulary set out in the previous chapter, although there are many obstacles to freedom in the international economy which can be addressed by explicit measures, this does not undercut the importance of internal constraints which also require attention. In sum, he offers what might be considered a distinctly Rawlsian philosophy: The rest of the world cannot solve the problems of the developing world. They will have to do that for themselves. But we can at least create a more level playing field. (Stiglitz 2006: 59)22

Conclusion This brief look at some of the obstacles facing weak states in the international system brings to an end the overview of some of the causes of state failure, and some of the possible measures that might be taken to alleviate their position. There is no claim that this serves as a definitive summation

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of the factors affecting institution-building. Rather, the intention has been to assess the more recent literature, both to grasp the types of factors at play that might provide some detail for the conceptual approach articulated in the previous chapter, and to detect any particular trends in the subject’s theory and practice that might invite consideration. Whereas Rawls’ focus upon the importance of political culture may have suggested that state failure lends itself to a mono-causal explanation (and that he advocates a limited range of measures), a modest conclusion might be that the causes and the remedies of state failure are multiple. This is a claim borne out by the fact that other prominent factors have not been attended to here, such as individual agency (Rotberg 2004), pre-colonial forms of governance (Clapham 2004), geographical factors (Von Einsiedel 2005), and regional factors (Armstrong and Rubin 2005) – although the latter two might be subsumed under the labels of ‘resources’ and ‘international factors’ respectively. This conclusion contributes to the overarching aim of the chapter: to provide a descriptive argument to support the claim that the duty of assistance is a robust and extensive principle, which can include a great number of measures that are aimed at lifting obstacles to the freedom of burdened societies. Taking a broad conception of freedom and applying it to peoples allows us to bring together all of these contributory factors, and regard them as obstacles to be acknowledged, and possibly addressed. This entails the recognition of all those factors that operate as constraints on the freedom of burdened societies and prevent them from attaining a basic level of capability. To recap the argument of this chapter in brief: an appreciation of the work cited by Rawls laid the basis for my claim that it provides no coherent grounds for explanatory nationalism, in regard to institution-building. Both Sen and Landes focus on economic development rather than institutionbuilding, and they do not discount multi-causal theories. It was concluded that Rawls employs their arguments to cast doubt on the idea that a distributive principle is the key measure for addressing global poverty – not to stake any claim to a mono-causal theory that advises cultural reform, and nothing else. The claims of explanatory nationalism were also questioned on the basis of the colonial legacy, an idea that grounded the assertion that the duty of assistance could be one of rectificatory justice. Given my claim that Rawls’ position is open to identifying innumerable obstacles to freedom, the second section looked beyond the work of Sen and Landes to identify other factors perceived to contribute to state failure. In seeking to expound a robust duty of assistance, Ignatieff and Von Einsiedel’s remarks on state failure were taken as a guide, as they suggested both the broad empirical and theoretical perspectives demanded by Rawls’ international minimum. In order to understand the constitution of a functional level of state capability (and thereby provide a guide for achieving the international minimum), a variety of factors ranging from the individual

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to the international must be considered. This in turn entails a theoretical perspective that keeps in view explanatory models focused on the individual, state and systemic level. Based on the summary of more recent volumes on state-building, it has been suggested that weak states, viewed through different exploratory lenses, do indeed exhibit a wide range of identifiable problems. Rather than a macro theory, or a mono-causal perspective, a multi-level analysis perhaps captures best the sum of these separate parts. It is particularly notable that the state-building literature viewed in this chapter has been inclined to avoid ascribing the failure of weak states to a more systemic explanatory model. This is especially surprising if we are to accept Stiglitz’s argument that developing countries have lacked the autonomy to shape globalization, echoed both in Ian Clark’s claim (1999: 55) that ‘the North have thus far imposed the heavier imprint’ upon globalization, and Peter Burnell’s assertion that the contributors to the International Political Economy literature ‘usually add that the freedom to adopt distinctive policy responses in the presence of globalization is probably more constrained in parts of the developing than in the developed world (Burnell 2008b: 295)’. In the case of those concentrating on international administrations, this omission is perhaps less surprising given that the focus is on the more immediate issues associated with post-conflict zones, but one might still anticipate more recognition of what Von Einsiedel refers to as the system level, and what Ignatieff describes as the deteriorating terms of trade in the global economy. In providing theories on state weakness that tend to concentrate on the more technical aspects, I would argue that there may be a tendency to lose sight of the influence of an increasingly interdependent world, and that critiques of the type suggested by Chandler will have some purchase as long as this tendency persists. It may be that present day statebuilders, as with the political modernizers of the 1960s, have decoupled the link between politics and economics. The foregoing therefore suggests the significance of a Rawlsian capability perspective applied to state-building. In the case of state-building experts, there may always be a tendency, deliberate or otherwise, to obfuscate certain explanatory factors in an effort to focus on the particular power of their own analysis. This may not be the result of denying the aptness of a multi-causal account, but simply a function of the fact that researchers will be inclined to give greater causal weight to some factors over others.23 As such, it may be asking too much to demand that they keep in view all the different factors and levels of analysis that Ignatieff and Von Einsiedel refer to – even if there is a latent acceptance of multi-causal factors. In regarding all constraints as obstacles to freedom, a normative framework built upon a Rawlsian capability perspective obliges us, in theory, to keep in view all those contributory factors that should be considered in addressing and alleviating state weakness and collapse. An immediate distinction that presents itself with this perspective is the manner in which it is state-focused, in the same way as the domestic

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capability approach is centred on the individual. In that context, the focus on interpersonal variation is advantageous, as it enables the consideration of the particular needs of the individual under scrutiny in attaining the social minimum, and the deployment of the relevant measures. Applied to burdened societies, we can imagine similar benefits. Rather than measures delivered by the duty of assistance being dictated by a particular explanatory model or ideological predilection, this approach would focus first on the state in question, beginning with the assumption that any number of combinations of obstacles might be responsible for its problems. It is likely that in the case of many societies ‘below the line’, they will be afflicted by similar obstacles, but the extent to which certain measures will benefit certain societies will depend very much upon their particular character. The principle remains that we begin with the individual case and maintain an open mind about the relevant obstacles and types of measures – and combination of measures – that will be of benefit. Although I have argued that this approach is in line with a Rawlsian approach, I acknowledge that the extent to which we can attribute this view to Rawls himself is a question of interpretation. Given the significance that he appears to attribute to political culture, it might be argued that he attributes the greatest causal weighting to this factor, to the extent that he rules out the approach sketched and endorsed here. However, on the basis of arguments presented already, and the analysis in the following chapter, I would submit that this capability approach to burdened societies is in the spirit of his work.24 In concluding this chapter I would like to suggest one related thought in regard to the idea of state capability. Attention has been drawn in an endnote (see n10) to what appears to be the interchangeable use of the terms state capacity and state capability. I have argued that state capacity in my understanding might be equated broadly with the capacity of individuals – it is the ‘core material’ of a people, its human capital and social norms. It is the population of a country and its social structure and culture that are moulded into the institutional capability of a well-ordered society. The term state capability in the perspective presented here thus signifies something different: the actual substantive freedom of peoples, the possible extent of their actions. As we have seen, this capability is constituted by a myriad of factors, not only a people’s raw capacity. In this sense I would claim that the term state capability employed here entails a broader and more progressive approach to the idea of state-building. Rather than concentrate solely on the internal factors affecting institutions, which seems to take most of the attention in the recent literature, the more integrated and emancipatory approach of state capability looks to all possible constraints on a people’s freedom. This wide-ranging perspective can, I believe, be embodied in Rawls’ duty of assistance. This interpretation of a robust and extensive principle, and the idea that it is consistent with Rawls’ broad approach, will be defended in the final part of the book.

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We arrive, therefore, at the conclusion of the second, constructive part of this book. The broad aim has been to build a robust conception of the duty of assistance, which can address the ambiguities identified at the end of Part I, regarding the principle’s justification and extent. I have explored the possibilities of Rawls’ principle and attempted to elaborate it to its full potential. This entailed the basic move of transposing the capability perspective employed by Rawls in his domestic theory to his international perspective on justice. Chapter 4 set out both Nussbaum and Sen’s critiques of Rawls’ domestic theory of justice. Nussbaum’s rejection of Rawls’ contractarianism highlighted its exclusionary tendencies and suggested that the duty of assistance should not be regarded as a duty of justice. Burdened societies’ omission from the original position signifies a lack of equal status. I suggested in response that their potential and the mutable nature of their problems qualify them for equal respect. Sen’s critiques offered both a deep criticism of Rawls’ approach to political theory, and demonstrated the difficulty of measuring justice as goods rather than freedoms. I argued that in clarifying his position in regard to Sen, Rawls acknowledges that he must extend his informational base to include interpersonal variation – in order to sustain the social minimum. Given that he adopts the capability perspective in this manner to substantiate his domestic approach, I suggested we apply it to his international theory in order to set out the extent of his duty of assistance in more detail. Chapter 5 therefore sought to utilize the capability perspective partially adopted by Rawls in his non-ideal domestic theory, by applying it to his nonideal international theory. Transposing the capability perspective entailed using the same broad conception of liberty Rawls uses in his domestic non-ideal theory to his international approach. This conception of liberty identifies all those constraints that undermine the guaranteed social minimum as ‘obstacles to freedom’. This same conception identifies all constraints that prevent burdened societies from attaining the international minimum as obstacles to their freedom. The application of a capability perspective in these terms results in the justification for remedial measures in pursuit of the freedom of peoples. The role of the last chapter was to substantiate this framework. I argued that there are innumerable constraints that affect the freedom or capability of burdened societies. I have suggested that employing the normative capability approach constructed here might provide a theoretical approach that justifies keeping all of these constraints in view, thereby preparing the moral foundation for addressing them with remedial measures. In this manner, the duty of assistance can be presented as a robust, far-reaching principle. In Part III, I evaluate to what extent this recapitulation sits easily with the broader trends of Rawls’ thinking.

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Part III

Part II concluded with a robust duty of assistance, framing the various responsibilities of the Society of Peoples in terms of addressing obstacles to the freedom of burdened societies. Whereas the second part of the book was constructive, in building up a more complete picture of the duty of assistance, Part III will be evaluative in character, seeking to reflect on the broader ramifications of this duty, so construed. My broad aims are: to analyse how the robust duty sits within the broader framework of Rawls’ international theory; to assess the degree to which it offers a convincing response to cosmopolitan theories and Sen’s critique; and to bring together the themes of this work in conclusion. Arguing that an augmented duty of assistance can be elaborated on the basis of Rawls’ own assumptions does not necessarily mean that it will remain coherent in terms of the broader framework constructed in the Law of Peoples. There may be good reason why Rawls has not explicitly advocated more extensive measures, namely a disruption of an equilibrium that exists in his international application of justice as fairness. The aim of Chapter 7, therefore, is to analyse the extensive duty of assistance that I have proposed and to evaluate it in light of the broader aims of LP. Chapter 8 will weigh up the success of the robust duty of assistance in meeting the cosmopolitan challenge, namely conceiving a progressive theory addressing injustice in the international realm, which begins from more conservative premises. In essence, I will assess how far-reaching a robust duty of assistance is in comparison to cosmopolitan principles. My claim will be that although Rawls begins from a view that takes the state and not the individual as the primary moral referent, he is able to generate comparably radical measures. The ideal concept of the nation-state which he presents – a people – will be identified as the key aspect in constructing such a perspective. With this analysis in hand, I will respond to the key criticisms offered by Sen as outlined in Chapter 4, claiming that a proper consideration of LP and the duty of assistance go some way in demonstrating that his critique of Rawls’ political theory fails to land any decisive blows.

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Both chapters will throw up questions regarding the degree to which Rawls’ duty of assistance is able to avoid the accusation of ethnocentricity, a charge that would undermine the idea of toleration that is central to his political liberalism. In attempting to avoid this label, Rawls addresses another central criticism faced by earlier research on political development. This idea that Rawls is revisiting old ground, as well as other key themes of the book, will be reflected upon in Chapter 9, the conclusion.

7 A Duty in Equilibrium?

In assessing the consistency of a robust duty of assistance with the general thrust of Rawls’ Law of Peoples, there are two possible outcomes: either the elaboration of the duty of assistance will be viewed as ‘filling in’ some gaps and sustaining the framework Rawls has constructed, or the extrapolation of the principle will be regarded as causing tensions with other key ideas, and disrupting the Rawlsian perspective. The tensions that could emerge through advocating extensive reforms relate in the most basic sense to the problem of collective action on an international level. The lack of coercive institutions is one reason why Rawls rejects an international distributive principle. From a Rawlsian perspective, might the measures implied in the previous chapter be too much to expect from largely autonomous peoples lacking extensive shared histories and institutions? Do they threaten the integrity of some peoples and thus threaten stability? Or could they be construed as ethnocentric: Western policies that are antithetical to Rawls’ political constructivism? It is my belief that none of these difficulties are intractable, and that the case can be made that the measures suggested do not go beyond what Rawls himself intended. In this sense, I consider a robust duty of assistance to be nothing more than an elaboration of Rawls’ own theory. In defending the consistency of a robust duty with the broader goals of his Law of Peoples, it is necessary to put the discussion in context. By this I mean to briefly outline what I regard as the general project of LP and its overarching aims. We can only make a proper evaluation of the scope for extensive measures in Rawls’ theory if we have a more in-depth appreciation of the priority and importance of the general aims of LP. I will outline the centrality of the foundational notion of a realistic utopia, before suggesting that there are four main themes in LP that flow from this ideal: a stable peace, justice for peoples, political autonomy, and the fulfilment of urgent human rights. I will argue that the idea of toleration is crucial to the broad aims of Rawls’ political liberalism, most especially in underwriting the autonomy of peoples. 161

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I go on to claim that although the lack of mutual affinity may cause problems in regard to the extensive demands of the duty of assistance, it is the idea of toleration that poses the greater problem. It will be argued that advocating some of the more demanding measures associated with institution-building, such as the redistribution of resources and reforming the background structure, is consistent with respecting the autonomy of peoples. However, I argue that the greatest tension between the duty and Rawls’ broad aims is his own original notion of reforming the political culture of burdened societies. In revealing the extent of possible measures, it is claimed that in the application of the duty of assistance the offer of ‘advice’ for burdened societies leaves the Rawlsian framework at its most precarious, threatening the idea of toleration. The question I raise in the conclusion is whether Rawls’ international political liberalism can hope to avoid being ethnocentric.

The foundations of a realistic utopia The Society of Peoples that Rawls presents is described as a ‘realistic utopia’ (LP: 4). In his view it is an ideal scenario that could become a reality; this is a claim that derives its inspiration from Rousseau, and the declaration in The Social Contract that principles of justice will be arrived at through ‘taking men as they are and laws as they might be’ (Rousseau 1987: 17). Rawls interprets this passage by assuming that his phrase ‘men as they are’ refers to persons’ moral and psychological natures and how that nature works within a framework of political and social institutions; and that his phrase ‘laws as they might be’ refers to laws as they should, or ought, to be. (LP: 7) The implication is that where laws ensure that institutions are just and reasonable, humans can be expected to grow up affirming these institutions and ensuring that they remain in place. If the framework of international society is just, there is every reason to suppose that humanity, and communities within which they live, will reaffirm it. This presumption about the capacity of humanity for moral learning underlies the two main ideas motivating Rawls’ Law of Peoples. The first of these encompasses the ends of this law: the eradication of ‘great evils’. Rawls states that the great evils of human history – unjust war and oppression, religious persecution and the denial of liberty of conscience, starvation and poverty, not to mention genocide and mass murder – follow from political injustice, with its own cruelties and callousness. (LP: 7)

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The second motivating idea flows from the first, and suggests the means for realizing the realistic utopia: where political injustice is to be considered the root of these evils ‘once the gravest forms of political injustice are eliminated by following just (or at least decent) basic institutions, these great evils will eventually disappear’ (LP: 7). Many may be suffering, but we have reason to hope that through changing our political climate, humanity at large will be given a chance to flourish as it can.1 It is essential that we give the foundational idea of a realistic utopia due consideration in weighing up any arguments about LP. We should note that what Rawls regards as a realistic aspiration in the here and now is not a world of liberal democracies where all individuals can expect rights, liberties and resources according to his domestic ideal theory, but rather a peaceful and stable world where people can live without fear of misery and death. In such a world, the problems of war, nuclear weapons and destabilizing mass migration would be largely precluded. In view of this tempered ideal, we might regard LP not simply as a pragmatic response to the cosmopolitan concept of global justice, but also as an attempt to persuade the reader against the more pessimistic outlook of realist theory (LP: 46–8).2 Rawls acknowledges the fact of a diversity of cultures in the world and the limits it places on principles of political justice, but the general aims of overcoming the great evils of this world are universal in their appeal, and unspecified enough to overcome the possible obstacle of reasonable pluralism. As with his domestic theory, the vision of his realistic utopia is dictated by the historical conditions of the here and now. The ideal is grounded in the shared norms that arise within international society. As highlighted in Chapter 1, Rawls states in relation to his eight principles: ‘these familiar and largely traditional principles I took from the history and usages of international law and practice’ (LP: 57). In simple terms, we might view Rawls’ project as finding the common ground between a diversity of peoples. Rawls is happy to acknowledge his project as a liberal law of peoples: ‘in developing the Law of Peoples within a liberal conception of justice, we work out the ideals and principles of the foreign policy of a reasonably just liberal people’ (LP: 10). However, although he considers the liberal constitutional democracy to be the superior form of society (LP: 62), he defends a liberal Law of Peoples not on the basis of his belief in its moral superiority (which would be unacceptable ethnocentricity in his view), or any wish to promote a cosmopolitan liberalism (which he regards as imprudent), but more practically because it is a most promising means for overcoming the type of injustices he has in mind. As he states, ‘I cannot be sure in advance that this approach to the Law of Peoples will work out, nor do I maintain that other ways of arriving at the Law of Peoples are incorrect’ (LP: 10). However, if we are to hope that the great evils of the past and present are to be overcome, then political liberalism is for Rawls an appropriate starting point.3

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This broad ‘project’ of his Law of Peoples, and the political liberalism he espouses as its form, encompass four central aspirations. The first of those is the notion of a stable peace. One central argument for a liberal Law of Peoples in Rawls’ eyes is the apparent tendency of liberal democracies towards peaceful co-existence. He uses Raymond Aron’s term of ‘satisfied peoples’ (Aron 1966: 160) as one analogy for liberal peoples, suggesting that they are not power-seeking and have a mutual respect for other societies, acknowledging the principle of equality among peoples.4 Rawls makes no secret of his preference for liberal constitutional democracies, arguing that the extent to which they are stable and accord with his ideal of peoples, reflects the extent to which they will uphold the ideal of democratic peace (LP: 50–1). In fact, any hope we have ‘of reaching a realistic utopia rests on there being reasonable liberal constitutional (and decent) regimes sufficiently established and effective to yield a viable Society of Peoples’ (LP: 30). Citing Michael Doyle’s work (1997), Rawls extends the theory to his construct of the decent people, arguing that the prospect of peaceful co-existence between them and liberal peoples ‘underwrites the Law of Peoples as a realistic utopia’ (LP: 54).5 The idea of equality and respect among peoples, which is important to the foundation for peace as it delimits the extent to which they pursue self-interest, brings us onto the second identifiable theme. In this sense the Law of Peoples is not merely a modus vivendi, where peace exists due to a balance of forces, but aspires to serve the interests of peoples within a just framework and to encourage stability for the right reasons. Rawls claims that in thinking of themselves as free and equal, both liberal and decent societies have similar aspirations. In the case of liberal peoples, he claims that they ‘strive to protect their political independence and their free culture with its civil liberties, to guarantee their security, territory, and the well-being of their citizens’ (LP: 34). Decent peoples do not have aggressive aims, believe in basic human rights, impose duties and obligations on citizens and hold a common idea of justice. As a consequence, they ‘do not engage in aggressive war … strive both to protect the human rights and the good of the people they represent, and to maintain their security and independence’ (LP: 69). We can therefore understand as Rawls’ intention a Law of Peoples that not only sustains peace, but also promotes justice. A just Society of Peoples recognizes the fundamental equality of its members and promotes conditions whereby they can pursue their interests. These interests we can characterize as maintaining political autonomy and protecting the rights and interests of their citizens: the two other prominent themes to emerge as the broader aims of the Law of Peoples. As we have noted, autonomy is guaranteed by the duty of assistance and is a benchmark for societies wishing to become members of the Society of Peoples. We can understand political autonomy of peoples as the capability to control their development: ‘to be able to determine the path of their own future for themselves’ (LP: 118).

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The fundamental importance of peoples’ autonomy is underscored by their characterization as corporate moral agents. Just as the two moral powers underwrite the political and civic autonomy of individuals (LP: 92), Rawls attributes to peoples an all-important moral nature (LP: 17, 27) capable of developing self-respect, respect for other peoples, and even mutual trust and confidence (LP: 44). He goes so far as to anthropomorphize peoples, by claiming that they ‘see’ international norms as advantageous, and that they undergo a ‘psychological process’ (LP: 44). This sense in which peoples constitute a collective mind is most keenly felt in the notion of a proper patriotism, which allows peoples to feel ‘a certain proper pride and sense of honor; they may be proud of their history and achievements’ (LP: 44). There is a particularly obvious analogy in the notion of a society bearing ‘the common aim or end’ and the individual holding a conception of the good. The idea of the common aim or end ‘is what the society as a whole tries to achieve for itself or its members’, and where there is no common aim, Rawls at least expects there will be ‘special priorities’ (LP: 71), specific to that society. The importance of autonomy derives not only from the status of peoples as moral agents, but also from its instrumental importance for the individual. He states: it is surely a good for individuals and associations to be attached to their particular culture and to take part in its common public and civic life. In this way belonging to a particular political society, and being at home in its civic and social world, gains expression and fulfilment. (LP: 111) Political autonomy, therefore, is clearly a central organizing theme. Where a liberal Law of Peoples seeks peace and justice, it will look to secure the fundamental interests of peoples, allowing them to pursue their common aim, free from intervention. Not to respect the autonomy of others would be to present an ethnocentric law of peoples, unacceptable to nonliberal but decent peoples. In satisfying the criterion of reciprocity (§1.2), reasonable peoples asks of other societies only what they can reasonably grant without submitting to a position of inferiority or domination. Here it is crucial that the Law of Peoples does not require decent societies to abandon or modify their religious institutions and adopt liberal ones. We have supposed that decent societies would affirm the same Law of Peoples that would hold among just liberal societies. This enabled that law to be universal in its reach. (LP: 121)

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In taking this normative approach, Rawls is expressing the fundamental value of political liberalism in its international incarnation, which is ‘to express due toleration for other acceptable ways (if such there are, as I assume) of ordering society’ (LP: 59). To go any further in trying to foist political liberalism on decent societies would represent a moral wrong and a philosophical incoherence. Furthermore, there are pragmatic reasons for advocating tolerance, as in Rawls’ view it is likely to encourage liberal reform in decent societies (LP: 61), while actively trying to promote liberal democracy may threaten stability. Rawls states: Lapsing into contempt on the one side, and bitterness and resentment on the other, can only cause damage … The Law of Peoples considers this wider background basic structure and the merits of its political climate in encouraging reforms in a liberal direction as overriding the lack of liberal justice in decent societies. (LP: 62) From the perspective of political liberalism, there is no place for threatening stability on the basis of promoting liberal ideas of domestic justice. This is both a pragmatic and normative argument: the autonomy of decent peoples is to be respected as a first principle of the Law of Peoples, and in the hope of allowing these societies to develop more liberal institutions in their own time.6 However, this political autonomy cannot be exercised with impunity. An important feature of peoples is that they are denied ‘unrestricted internal autonomy’ (LP: 27). This autonomy may well be restricted in the case of human rights violations, which is the fourth theme that emerges as a priority of the Law of Peoples. It might be supposed that human rights hold significance or worth simply in virtue of being an interest of peoples. Where the government of a people is conceived as an embodiment of collective unity, it is expected that, to serve the interests of their citizens, fulfilling their rights would be an obvious priority. However, it is not necessarily the case that all governments will perceive their role as such. In outlaw states and benevolent absolutisms, human rights may be well down the list of priorities. Even in societies that might be regarded as liberal or decent, it will not inevitably be the case that the human rights of all its citizens will be prioritized. The common aim, or special priorities of such a society, could mean that what certain individuals receive is aversely affected. Other societies may be willing, but simply unable to uphold these rights. Given that upholding universal human rights (especially in other societies) will not necessarily be the priority of all peoples, and that both the sixth and the eighth principles relate directly to their fulfilment, it suggests that their centrality in the Law of Peoples derives from a source other than

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the strict self-interest of peoples. As well as having derivative value, they constitute a universal standard and operate as a check upon the political autonomy of peoples. According to Rawls, basic equality, subsistence and physical integrity ‘cannot be rejected as peculiarly liberal or special to the Western tradition. They are not politically parochial’ (LP: 65). Neither do they depend ‘on any particular comprehensive religious doctrine or philosophical doctrine of human nature’ (LP: 68). Unlike some cosmopolitan perspectives, we are not to understand these rights as reflecting a universal conception of the individual or individual needs. They are the subject of a political agreement between peoples on what constitutes a decent standard of individual life, derived from the plural conceptions of the person and the good espoused by the different members of the Society of Peoples.7 They ‘express a special class of urgent rights’ (LP: 79), the violation of which would be ‘equally condemned by both reasonable liberal peoples and decent hierarchical peoples’ (LP: 79). In making the case that this standard does not necessarily exclude many types of society from the Society of Peoples, Rawls also acknowledges that it sets ‘a limit to the pluralism among people’ (LP: 80). The limits of toleration within a liberal Law of Peoples can only extend so far. In setting these limits, the corollary is that as well as having a benchmark for assistance, we also have a clearer idea for when the Society of Peoples is justified in disturbing the peace. That is to say, where societies violently and persistently violate these universal standards of decency, then there are grounds for ‘justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force’ (LP: 80). It is not clear that such intervention would merely be an effort to uphold a moral standard, however. In the case of outlaw states, which are likely to grossly violate these standards, liberal and decent peoples, have extremely good reasons for their attitude. Outlaw states are aggressive and dangerous; all peoples are safer and more secure if such states change, or are forced to change, their ways. Otherwise, they deeply affect the international climate of power and violence. (LP: 81) Rawls argues that the more the individual is respected and the means for their worthwhile lives secured, the more likely it is that they will live in a peaceful and stable society, and the less threat there will be for the Society of Peoples. Here Rawls draws an intimate link between peace and justice, suggesting an interdependent relationship that we will analyse further below.8 To conclude: the aim of this section has to been to outline the general project of Rawls’ Law of Peoples and its overriding aims. This was premised on the idea that to make a proper evaluation of the scope for elaborating the duty of assistance, we should have a greater appreciation of the priority

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and importance of the general aims of his Law of Peoples. It has been my argument that Rawls’ general aim is to conceive a realistic utopia that is free of the great evils of war, starvation and human misery. In identifying political injustice as the root cause, and holding an optimistic view of human nature with a capacity for moral learning, he attempts to set out a vision of a just and well-ordered international society with institutions and principles, which over time will lead to an increasingly peaceful and stable Society of Peoples. Although Rawls concedes that there are other options, as a committed liberal he seeks to argue how a liberal Law of Peoples might achieve these aims. Central to his argument are the themes of peace, justice, the political autonomy of peoples and the protection of human rights. The importance of political liberalism in an international context is the tendency that liberal democracies have towards peaceful co-existence. It makes sense therefore to think of a liberal Society of Peoples that attempts to reach outwards to other societies. Central to such an international society is the notion of justice, and the idea that its institutions should afford peoples the opportunity to pursue their own interests, circumscribed by the ideas of equality and respect that liberal and decent peoples possess. Such a notion of justice – as facilitating peoples’ pursuit of their interests – relies on Rawls’ particular conception of peoples. Conceived as they are as agents with special priorities, their political autonomy becomes the central demand of justice. This is underwritten by the core value of political liberalism: toleration. However, this political autonomy is restricted not only by the idea of reciprocity and the respect of other peoples, but also by the limits of pluralism, delineated by the notion of the urgent rights of individuals. Where these are violated, then a people is disqualified from membership, and may leave itself open to sanctions or even intervention. Not only are these urgent rights important in demonstrating the limits of liberal toleration, but their realization is essential if the great evils of the world are to disappear. If urgent rights are violated, this in itself is a cause of great misery, and in Rawls’ view increases the likelihood of unstable societies that might constitute an external threat to peace. Rawls desires peace, but a stable peace that both promotes and is built upon justice for peoples, and the defence of individuals’ urgent rights.

Destabilizing assistance? Having outlined my understanding of Rawls’ Law of Peoples, this section evaluates whether the measures advocated in my elaboration of the duty of assistance constitute a threat to its stability and coherence as a theory. The themes of peace, justice, political autonomy and urgent rights will emerge at various points in the discussion. It requires an appreciation of how Rawls’ treatment of burdened societies is circumscribed by the broader priorities

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and presumptions outlined in the previous section. This will identify the parameters for extending the duty of assistance. By way of introduction, I will argue that peace and justice are complementary goals for Rawls, and that just actions in general (and not only in regard to burdened societies) are crucial to promoting an orderly Society of Peoples. Once I have established that Rawls presents us with a nuanced position in regard to burdened societies, I will go on to argue that the more demanding measures I have outlined do not compromise this position. In fact, the argument in the final section will be that the biggest tension in Rawls’ approach is already latent in his position, which the capability perspective helps to reveal. I have already set out in detail how I believe the duty of assistance operates. The aim here is to discuss this interpretation in the context of the broader trends in LP. In simple terms, the target of assistance is the political autonomy of burdened societies, which constitutes the capability to pursue their own ends, while also meeting the basic needs of their citizens. The crucial question is the extent to which the type of measures suggested in Part II can be pursued, without conflicting with the goal of peace and exacerbating the ‘great evils’ of a non-ideal world. For Rawls, given that he dismisses the idea of promoting liberal democracy, one might argue that stability is the priority. However, justice is not diametrically opposed to stability, and although stability takes precedence for Rawls, it is also intimately connected to the eventual achievement of justice. If the measures of the duty of assistance aspire towards greater justice, they should in his view encourage peace and stability. This point requires further elucidation. Although we might label Rawls’ Law of Peoples a theory of international justice, he is also at pains to point out that it serves as a guide to the foreign policy of liberal states (LP: 10). It might be read, therefore, as a handbook for liberal states for achieving their strategic aims. Rawls himself takes this aim to be the formation of a Society of Peoples in the image of a politically liberal state. The long-term aim therefore is ‘to bring all societies eventually to honor the Law of Peoples and to become full members in good standing of the society of well-ordered peoples. Human rights would thus be secured everywhere’ (LP: 93). Thus the type of stability that is the aim of the Law of Peoples is a liberal peace. This liberal peace does not advocate the achievement of stability through any type of means – subjugation and domination are antithetical to its principles. Stability is sought through promoting liberal and decent societies and has the liberal notion of peoples as its moral referent, and the urgent rights of individuals as a moral benchmark. Maintaining stability will not, ideally, be in conflict with these aims of liberal peoples and international justice. Rawls would claim that the concomitant aims of justice and stability dovetail neatly because of the propensity of liberal peoples towards peace. In promoting a world society in their own image, they may at heart be

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self-interested, but we can regard this self-interest as beneficial for all reasonable peoples, insofar as we have faith in the democratic peace thesis. The notion of a peaceful, liberal Society of Peoples, where all of the world’s peoples are liberal or decent and live in harmony, would seem to be a realistically utopian goal from this perspective. However, whereas liberalism and pacifism may appear to be likely bedfellows, and a society of peaceful liberal peoples may be an attainable prospect, the extension of this society and promotion of these two values in attaining a utopian end point is, as Rawls himself acknowledges, a thorny issue. ‘How to bring all societies to this goal is a question of foreign policy; it calls for political wisdom, and success depends in part on luck. These are not matters to which political philosophy has much to add’ (LP: 93). If we accept in theory that a liberal Law of Peoples can balance peace and justice, in its ideal manifestation, the sticking point lies in the practical realization of this end.9 It is clear from the outset of Rawls’ discussion of non-ideal theory that caution is prevalent, both in the case of aggressive, outlaw states, as well as burdened societies. In a Society of Peoples where it is taken for granted that its members would wish that all peoples live by the Law of Peoples, ‘non-ideal theory asks how this long-term goal might be achieved, or worked toward, usually in gradual steps. It looks for policies and courses of action that are morally permissible and politically possible as well as likely to be effective’ (LP: 89). The initial proposition of extending the duty of assistance – by promoting measures that accelerate the progress of burdened societies towards political autonomy – appears logical in terms of expanding the circle of liberal and decent peoples, and attaining greater justice for these societies. This, however, is not to say these measures are unquestionably permissible and practical. In my view, there are two major obstacles to the measures advocated: firstly, the lack of mutual affinity calls into question the degree to which members of the Society of Peoples are willing to sacrifice their own interests; secondly, there may be resistance within burdened societies to the anticipated reforms. With respect to the first obstacle, it is important to recall that the measures implicit in the duty of assistance are being judged for their consistency with the background of Rawls’ realistic utopia, and not the more pessimistic view of international society as it stands. Nevertheless, the suggestion is that, even in a realistic utopia, the lack of affinity between peoples that Rawls concedes (LP: 112), and the proposition of selfless reforms and financial aid, might threaten the stability of his Society of Peoples. There may be a case to be made that as a thinker who advocates gradual change towards a just Society of Peoples, Rawls does not wish to impose a strong claim of justice upon its members, and instead sees the duty of assistance strengthening over time. As he states, a ‘legitimate concern about the duty of assistance is whether the motivational support for following it

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presupposes a degree of affinity among peoples’ (LP: 112). In his view it is the role of the statesman to work to overcome the ‘short-sighted tendencies’ that arise as a result of the lack of ‘a common central government and political culture’ (LP: 112). Statesmen can, however, be encouraged by the fact that relations of affinity can grow over time, through working in cooperative institutions. Rawls here concedes that at the beginning, the aim of well-ordered peoples to create a realistic utopia is moved by self-interest, but as ‘co-operation between peoples proceeds apace they may come to care about each other, and affinity between them becomes stronger … and they become willing to make sacrifices for each other’ (LP: 113). It is this fact of the lack of affinity which might argue against a robust duty. If we were to accept the duty on its initial, conservative reading, this lack of affinity would not appear too problematic, given that the provision of ‘advice’ is not particularly onerous, and unlikely to meet with much opposition. However, given the extent of the measures I have identified, we need to be more certain that Rawls would be comfortable in advocating them, given their potential controversial nature. We might expect that some of the extensive reforms of the type advocated by Stiglitz would cause some problems in this regard (allowing for the prospect that the Society of Peoples would already espouse some of those central ideas). Had Rawls advocated extensive measures of this nature, would he have gone to greater lengths to justify such commitments on behalf of the Society of Peoples? Or might we suppose that he could foresee such assistance somewhere in the distant future? It is my argument that, although Rawls does not elucidate the extent of reforms the duty of assistance might entail, it would not be in contradiction to the gist of his thinking to advocate the structural reforms outlined in the previous chapter. As I argued at the beginning of this work, the several allusions to the global structure that he makes signify that he is aware of these factors, in a manner which contradicts some of the harsher criticisms which accuse him of having a ‘Westphalian’ world view. These allusions buttress my argument that Rawls would see a great deal of room for reform as part of a duty of assistance. It is problematic, however, that in concentrating on the issue of redistribution, he fails to elaborate on these reforms in regard to burdened societies. The main question, therefore, is not whether he advocates reform of the background structure, but whether this reform is to apply only between the members of the Society of Peoples, or whether additional measures are to be included within the duty of assistance that apply directly to the particular problems of burdened societies. In other words, is the Society of Peoples to go further in insuring that the structure is tilted more in favour of those outside its community? There are a couple of brief but not insignificant passages that should take our attention in this regard. Rawls would seem to suggest that not only would measures apply to member societies, but that fair terms of trade

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would be established for burdened societies through the application of the duty of assistance. He argues that supposing as before that the veil of ignorance holds, so that no people knows whether its economy is large or small, all would agree to fair standards of trade to keep the market free and competitive (when such standards can be specified, followed, and enforced). Should these cooperative organizations have unjustified distributive effects between peoples, these would have to be corrected, and taken into account by the duty of assistance. (LP: 43, my italics) The implication here is that these international organizations must not only ensure that the effects on member societies are not unjust, but that they also do not discriminate against burdened societies. Thus the duty of assistance is to include any necessary reform to these organizations that might have unjust effects on those outside, trying to gain entry. This separate acknowledgement of the influence of the duty of assistance allows for the potential of generating separate, specific measures, to adjust the inequities between the haves and the have-nots. Although he does not return in any detail to the types of measures he has in mind during the discussion of the duty of assistance, we are reminded of this commitment one further time. He states that ‘parties will formulate guidelines for setting up cooperative organizations, and will agree to standards of fairness for trade as well as to certain provisions for mutual assistance’ (LP: 115). On this basis I would argue that Rawls himself would not regard the measures proposed to the international economy as contrary to the spirit of his theory, or his duty of assistance. Fair trade is clearly of great concern to him, and is to apply not only between member societies, but also in their treatment of burdened societies in the application of the duty of assistance. We can therefore, I believe, defend the idea that extending the duty of assistance with measures, exemplified by Stiglitz, is in the spirit of Rawls’ original theory, and that it would not in his view entail coercion that might threaten stability, or compromise the goal of encouraging well-ordered peoples. As measures that are consistent with the fulfilment of individual rights, the promotion of burdened societies’ autonomy, and therefore the improvement of conditions for justice and stability, no reasonable objection could be made by the Society of Peoples.10 As Rawls maintains, it is the duty of statesmen to overcome blinkered and self-serving policymaking that harms the long-term prospects of expanding the Society of Peoples and promoting stability and justice. Although it is fairly straightforward to reconcile these measures with the duty of assistance, the case for reconciling the duty with the financial redistribution recommended by the state-building literature is less clear.

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It appears to be in direct contradiction with what Rawls himself has to say on the matter. His rejection of redistribution would appear to be twofold. First is the empirical argument that throwing funds at burdened societies is no way of guaranteeing that they will develop into well-ordered societies. This is not simply because foreign aid has, over the years, failed to make a significant impact, but equally because of Rawls’ foundational view that the fortunes of such peoples are tied to their ability to reform their political culture. Second is the normative argument, which holds that egalitarian principles, as proposed by the likes of Beitz and Pogge, are in conflict with the aims of the Law of Peoples. To recap briefly, the problem is that they go against the spirit of Rawls’ Law of Peoples, in aiming at continuous redistribution without end. Well-ordered peoples, who have become wealthy through their own efforts, would have to redistribute their gains to other well-ordered peoples that have chosen another way of life. Where peoples are politically autonomous, insisting on such a redistribution would be to promote substantive equality as a good in itself, which contravenes the Law of Peoples (LP: 113). Rawls is, however, a little more sympathetic to the notion of financial redistribution than a resource redistribution principle (Beitz 1999: 141). He admits ‘if a global principle of distributive justice for the Law of Peoples is meant to apply to our world as it is with its extreme injustices, crippling poverty, and inequalities, its appeal is understandable’ (LP: 117). At this point it seems Rawls is prepared to recognize it may be better to at least try and contribute something – but then he baulks against the principle for the reason that it represents an unethical redistribution. This is Rawls’ central objection to the proposed principles of the likes of Beitz and Pogge, and the reason why his duty of assistance differs in possessing a cut-off point. It is a principle of transition, and its target is the political autonomy of peoples. Rawls sees no requirement for an ongoing redistribution to level out inequalities above the international minimum. For him, such material differences do not compromise the autonomy and self-respect of peoples, or the reciprocity of the Law of Peoples. In the domestic context a permanent difference principle is required to attain fully just conditions, as resources have a more palpable influence on the ability of people to pursue their own ends and ensure fair equality of opportunity. We can, therefore, reject with certainty any notion of a permanent egalitarian principle, and it would seem that any type of financial redistribution would be contrary to Rawls’ position, given his view on the inefficacy of wealth and resources. However, certain passages towards the end of his discussion suggest that his position is not so clear cut. We have already noted that he concedes the appeal of a principle of distributive justice, and it is more to the notion of an ongoing principle that he takes exception. He then acknowledges that a global egalitarian principle could work in the same way

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as the duty of assistance. They both have, bar the terminology, the same target: one ‘is designed to help the poor all over the world,’ while the other ‘seeks to raise the world’s poor until they are either free and equal citizens of a reasonably liberal society or members of a decent hierarchical society’ (LP: 119). The crucial difference is that the duty of assistance has a cut-off point when the target of political autonomy is reached. The interesting point, therefore, is that Rawls concedes that a ‘global egalitarian principle could work in a similar way. Call it an egalitarian principle with a target’ (LP: 119). Thereafter follows a rather ambiguous passage that we can interpret as an acceptance of financial redistribution under certain conditions: How great is the difference between the duty of assistance and this egalitarian principle? Surely there is a point at which a people’s basic needs (estimated in primary goods) are fulfilled and a people can stand on its own. There may be disagreement about when this point comes, but that there is such a point is crucial to the Law of Peoples and its duty of assistance. Depending on how the respective targets and cutoff points are defined, the principles could be much the same, with largely practical matters of taxation and administration to distinguish between them. (LP: 119) What can certainly be understood from these words is that it is the cut-off point that is crucial to the legitimacy of the duty of assistance. The final sentence could then be read as an acknowledgement that a ‘distributive’ principle, very similar to the duty of assistance, might well be acceptable in Rawls’ eyes. The details of how it might be executed could be debated and will diverge, but without casting doubt upon its legitimacy. Having drawn the parameters, this may well be the point at which political philosophy has little to add, and where detailed discussion begins. It would be my argument that Rawls has allowed sufficient room for manoeuvre here to suggest that recommending financial redistribution to promote institution-building does not necessarily contravene the spirit of his Law of Peoples – couched as it has been in terms of a measure implicit in the duty of assistance. Two points support this argument. The redistribution I have advocated has not been a redistribution targeted towards increasing or equalizing wealth – this would be to go against the terms of the Law of Peoples and therefore present a threat to its stability. It has, rather, been defined as the necessary resources that lay the foundations for building just institutions in burdened societies. In this sense the resources would be aimed at the long-term goals of the Law of Peoples, increasing the circle of well-ordered peoples to create a more just and peaceful international order. Following on from this point is that the extension I propose is founded upon a discussion of the administration of the duty of assistance, which at least acknowledges

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the reality of institution-building. I have been at pains to identify how both Rawls and his critics do not sufficiently distinguish between the processes of building institutions and economic development, and my claim for the necessity of financial support for burdened societies is based on this distinction, to a large degree. Whereas Rawls is justified in questioning the efficacy of financial redistribution in general, and specifically in its role in boosting economic development, I feel he would not be in such a strong position to refuse redistribution aimed directly at the funding of institution-building. This is a measure that can be tangibly linked with the goals of upholding individual rights and promoting the autonomy of peoples.11 The obvious response is to question whether such demands on members of the Society of Peoples would cause opposition and unrest and be regarded as beyond the scope of justice. To use the term employed by Rawls, is there the required affinity between peoples to ensure that such measures can be carried out without causing discord? As we have seen, Rawls makes no attempt to dismiss redistribution on the grounds that the required circumstances do not hold (although a similar argument did appear as an argument in the first version of LP). It is the inefficacy and unfairness of ongoing resource redistribution that troubles him. He does not reject the principle on the basis of the non-existence of a system of mutual co-operation. Moreover, he does not question Beitz’ global principle of distributive justice on the grounds that Beitz ‘believes that in this case a global system of co-operation already exists’ (LP: 116). Although Rawls admits that the lack of strong, shared institutions between peoples makes the implementation of the duty of assistance more difficult, this is not to say that he believes there to be too little in the way of international co-operation to justify and merit its measures. In dispensing with a distributive principle Rawls has met this concern – the duty of assistance is far more limited in scope. Furthermore, our understanding of Rawls’ approach to a global egalitarian principle (with a target) can be framed in terms of the earlier discussion of the gradual increase in affinity between peoples. In the case of redistribution of resources, it might well be that to begin with a people will be motivated by selfinterest in attempting to promote a well-ordered society, and that such financial aid would be argued for on the grounds of it being a ‘good investment’. There would also be a case in certain instances of demanding payments on the grounds of rectificatory justice. As mutual concern grows out of co-operative efforts and common experience, and the circle of mutually caring people grows, it may be that such redistribution can be regarded also as the means to helping burdened societies towards political autonomy and a more just world.

Intolerant advice? Thus far, I have argued that the extension of the duty of assistance proposed in the previous chapter can be considered consistent with the general aims

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and priorities of Rawls’ Law of Peoples. The case can be made that the more extensive measures recommended, such as the reform of the global context and the sanctioning of financial redistribution, are not at odds either with the original text or with the spirit of his theory. Both sets of reforms promote a peaceful and just Society of Peoples in the Rawlsian image, and are in keeping with the central tenets of political autonomy and the respect of urgent rights. Neither would they (on the basis of my understanding of Rawls’ position) destabilize the Society of Peoples, or make demands that its members could consider unreasonable. I have also suggested that if we were to advocate a duty of assistance, at least partially grounded in claims of rectificatory justice as well as self-interest, then a more intuitive motivation for pursuing these measures could be generated. In this final section, however, I address the second point raised earlier: that the duty might meet with resistance within those societies themselves. Although he does not allude to the problem quite in the same way, I would argue that the difficulty of respecting the autonomy of burdened societies is the root of this problem, and is grasped by Rawls. It is the one obvious aspect in which the duty of assistance is troublesome and in tension with the broader themes of the Law of Peoples. This is not because of the newly realized extent of the duty, although it does come into view through elaborating this principle. In essence, the problem lies with the initial idea, clearly expressed by Rawls, that the Society of Peoples should encourage burdened societies to reform their political culture and give them advice. This, I argue, is in direct tension with the idea that political autonomy is of central importance. At first blush the issue of respecting the autonomy of burdened societies would seem misplaced. Given burdened societies remain outside the Society of Peoples, we should surmise that they do not have the respect of other peoples and are not regarded in a position of equality. This might suggest that as with outlaw states, the Society of Peoples can place sanctions against them and even forcefully intervene. Offering ‘advice’ would from this perspective be highly constructive and sensitive – and unlikely to meet with resistance. Rawls complicates this idea, however, by advocating that ‘the well-ordered societies giving assistance must not act paternalistically, but in measured ways that do not conflict with the final aim of assistance: freedom and equality for the formerly burdened societies’ (LP: 114). As with the question of the justification of the duty, the ambiguous and complex status of burdened societies comes into question: they are excluded from the original position yet are an equal party to the Law of Peoples with a partial moral agency. Where we are warned against paternalistic behaviour, and respect for their autonomy is emphasized, we must ask to what extent the duty of assistance and the call for ‘advice’ actually respects their potential equality and autonomy.

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This is because ‘advice’, as innocuous as it may seem, comes in this particular instance in a very specific form and advocates very specific measures. It is advice on how to adapt one’s political culture in order to the lay the foundation for just institutions. The question is whether or not the advice contravenes Rawls’ own political liberalism and the toleration of nonliberal but decent cultures. Were burdened societies ‘beyond the pale’, if they had no proper claim to treatment that acknowledged their potential equality and freedom, then advice on their political culture and institutions would be less problematic. As ‘inferior’ and possibly threatening peoples beyond the Society of Peoples, they could be subjected to much more aggressive treatment. However, Rawls’ injunction that they should be treated in a way consistent with their potential freedom and equality complicates matters. Certainly they are distinguished from those societies that are not dangerous or aggressive, but nevertheless deliberately violate the rights of some of their members. These are for Rawls outlaw states of a certain description (LP: 93 n6). This suggests that the burdened societies are those that demonstrate a will to reform and a desire to co-operate, perhaps justifying Rawls’ claim that they should be treated in line with the ideas of equality and respect. The key problem that we face is that the kind of advice that exists for weak and failed states (to use the ‘real world’ euphemism for burdened societies) is predominantly in the form of promoting liberal democracy.12 When Rawls himself talks of promoting just (and of course, decent) institutions, he refers as we have seen to the research of Sen. Sen’s research however, does not even countenance the possibility of non-liberal, undemocratic societies, which could construct decent enough institutions to protect the urgent rights of its citizens. In actual fact, he speaks not only of the superiority of democracy, but also of its singular ability to ensure the basic capabilities of its citizens. Building the state capability to ensure the basic capabilities of citizens is invariably couched in terms of building democratic institutions. Rawls himself states that he believes that decent, hierarchical peoples can develop, but there is very little in the way of ‘advice’ we might turn to which could offer burdened societies alternative routes to a decent society. It is with this presumption in favour of democracy that the current literature on state-building can be said to fall foul of the same problem of ethnocentricity as earlier research on political development (Jackman 1993: 10). In buttressing his perspective with Sen’s research, Rawls appears to invite the same problem, and one that goes expressly against his injunction to tolerate other forms of political society. It seems that the equality and freedom of burdened societies will be compromised because there is little option in the current climate other than to frame their own ‘special priorities’ in terms of liberal democratic interests, which may or may not be relevant to them. Is this really an example of toleration, and international political liberalism in practice?

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Conclusion In brief, I have identified the aspiration of the Law of Peoples to be that of trying to overcome the great evils of history. Rawls views his political liberalism as a suitable vehicle for this journey, advocating as it does a stable peace, with a just international society upholding the autonomy of peoples and rights of individuals. A robust duty of assistance has been shown to be both consistent with sustaining the interdependent goals of peace and justice, and consistent with the text. The clearest difficulty with the duty is that the notion of advising burdened societies seems to be inherently paternalistic and lacking due tolerance. This question will rear its head once again in the penultimate chapter, where I discuss the significance of this robust duty of assistance in regard to the cosmopolitan challenge. This conundrum takes us into the final chapter, where the Rawlsian capability perspective that I have constructed will be compared with a cosmopolitan approach. The original aim in making this comparison was to see whether a social liberal approach to international justice could generate more extensive measures that might offer an alternative to the cosmopolitan perspective. My argument is that, in fact, Rawls’ own Law of Peoples offers the scope for such measures. However, in evaluating where the capability perspective has taken us, I will make the case that it throws up difficult questions about the extent to which we can actually separate out Rawls’ political liberalism and the cosmopolitanism of the likes of Beitz and Pogge. In looking more closely at what the duty of assistance entails, in terms of influencing burdened societies, the question is raised as to what extent a liberal Law of Peoples and liberal foreign policy can ever be ‘politically liberal’, neutral and separated from the comprehensive core of its philosophy. While I do not expect to solve the question, it may well offer interesting ideas as to how we should cope with this problem, and how liberal societies should approach the problem of propagating their ideal of international justice.

8 Creeping Cosmopolitanism?

In the previous chapter I argued that the extensive measures introduced in Part II are broadly compatible with Rawls’ international approach. This chapter will assess his Law of Peoples in light of this reinterpretation. The main aim is to address the central cosmopolitan challenge identified by Beitz. To recall the burden of this challenge, it was to ‘disarm cosmopolitan liberalism of its critical thrust by showing that a view with more conservative premises converges with it at the level of policy’ (Beitz 2000: 678). A second aim is to reflect on the earlier criticisms posed by Sen, with regard to the Rawlsian approach to justice. Essentially, I will argue that the duty of assistance represents a credible and robust response to the challenge of global poverty. It provides the basis for a response to some of Sen’s key criticisms, and despite being more pragmatic in its aspirations than some cosmopolitan ideals, it remains a far-reaching principle worthy of consideration by those of an idealist persuasion. The first section will, therefore, briefly compare the extent of the measures advocated by the duty of assistance with that of the most comprehensive and detailed approach of the cosmopolitan theorists, Pogge.1 Such is the convergence that one problematic conclusion might be that Rawls is in fact a cosmopolitan of less radical colours. The second section is therefore given to drawing out the contrast in their foundational perspectives and demonstrating that Rawls is more conservative – primarily in the sense that he takes peoples to be the fundamental moral referent. I will argue that rather than there being any great difference in their method, it is his idealized notion of the nation-state which, despite being a different point of departure to the cosmopolitans, generates similar outcomes. It is this ideal – his notion of a people – which is the touchstone of his theory and that generates the possibility of principles that have individual benefits as their outcome. The third section will then go on to emphasize the policy differences arising from this distinction in the two contrasting normative approaches, demonstrating how Rawls’ view is more limited in its aspirations. Developing 179

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ideas presented briefly in the last chapter, I argue that the inherent value that Rawls imbues in peoples gives rise to a greater toleration of non-democratic societies. I will argue that there is also a pragmatic aspect to this policy. The upshot in regard to individuals is that Rawls does not include democratic political rights within the package of urgent rights. I will argue that rather than being a weakness of Rawls’ approach, this is in fact what makes it unique and gives it its credibility. In the penultimate section, the three criticisms posed by Sen in The Idea of Justice are scrutinized. With reference to the foregoing discussion, I will elucidate how Rawls’ approach is sensitive to both the contingencies of the ‘real world’, and the need for incremental improvements in the struggle against injustice, and how his contract approach allows for the external scrutiny of other cultures – both liberal and decent. In conclusion, I claim that Rawls cannot go any further in advocating both egalitarian measures and liberal values, if he wishes to remain faithful to the social liberalist perspective he advocates. In other words, he can do no more to assuage the concerns outlined in the cosmopolitan critique in the first chapter, save for adopting cosmopolitanism. However, we will here reach the same point as the conclusion of the previous chapter. There is a sense in which Rawls is walking a tightrope in the attempt to negotiate a foreign policy position for liberal peoples: between the normative (and pragmatic) toleration of other societies and the desire to see a world in their own image. The duty of assistance captures that struggle in its aspiration to aid burdened societies to become politically autonomous and capable, while not overstepping the line and foisting ideals and practices upon them. The question is whether the duty is too ‘cosmopolitan’, and the perspective of social liberalism in the global sphere reaches beyond its limits to a perfectionist, liberal cosmopolitanism.

Converging with the cosmopolitans How do the policies subsumed under the duty of assistance compare to cosmopolitan ideas? There are, of course, various approaches to global principles of distributive justice from different thinkers who fall under this label. Tan is one of the authors who has most recently devoted himself to the establishment of ‘the moral force and coherence of the cosmopolitan vision’ (Tan 2004: 15). However, he prefers to concentrate on the normative arguments rather than providing practical detail. Beitz’s seminal work is also dedicated to the normative groundwork of the cosmopolitan vision and his resource redistribution and global distribution principles are given little substance (Beitz 1999: 141, 151). The four principles identified by Caney are presented in a typically rigorous but austere fashion (Caney 2004: 122–3), and although Buchanan provides a clear statement of how Rawls’ second principle could apply to a Society of States (Buchanan 2000),

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Pogge is perhaps the thinker most renowned for elucidating how cosmopolitan ideals might play out in a more practical sense, and therefore provides the best grounds for comparison. This is not to claim, however, that Pogge’s arguments outlined here should be taken as representative of cosmopolitanism (or even Pogge’s ideas) as a whole. The claim here is that in practice, the policy aims of the two thinkers are not so easily distinguished. Both advocate sweeping reforms of the global structure and the redistribution of wealth, with a package of similar human rights and the idea of ‘worthwhile lives’ as their target. Although some cosmopolitans would, in principle, appear to espouse global redistribution in line with a worldwide realization of the difference principle (or a similar principle whereby individuals have greater substantive equality), it seems to be Pogge’s view that such ambition must be tempered in presenting a less controversial and more persuasive approach. I will argue that the most significant dividing line in matters of policy is Pogge’s advocacy of democracy, expressed in a more comprehensive package of political rights for the individual. In terms of the reform of the global structure, it is a foregone conclusion that, as an author who puts an explicit emphasis on international regulation, Pogge covers a wide variety of required policies that overlap with those identified here as part of a duty of assistance. He discusses in detail the problems associated with global institutions, the borrowing and resource privileges of corrupt regimes, and the inequity of intellectual rights and pharmaceutical companies (Pogge 2008). In the case of the institutions and agreements of the global structure, once the principle of fairness is arrived at – either from a capability or cosmopolitan perspective – it seems the extent to which policy converges may depend, not so much on the difference in normative approach, but rather on the extent or focus of empirical knowledge. In the case of fiscal redistribution, I have argued that Rawls’ position is consistent with resource transfers recommended by the cosmopolitans, with one significant difference. As outlined above, redistribution in line with the duty of assistance would come to an end once just or decent institutions have been established, and the basic needs and rights of the population have been fulfilled. However, Pogge, as with other cosmopolitans, criticizes Rawls’ apparent inconsistency in not applying his difference principle to the global context to ensure that all inequalities are to the benefit of the worst off (Pogge 2008: 111). He is one who has argued there is no reason why such a distributive principle should apply to the worst-off individual in the liberal, domestic society, and not to the worst-off global individual. It merely allows the contingency of birth and the fact of belonging to a certain national community to get in the way of attaining a just distribution of rights and resources. As such, one might assume that Pogge’s view on redistribution is that it should be applied continuously in order to ensure that the global worst

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off benefit from any inequalities. The fundamental difference from this perspective, in terms of policy, would be that where Rawls would terminate redistribution at the point where individuals’ basic rights are secured, the cosmopolitan would advocate continual redistribution to ensure more regulated socio-economic inequalities on a global scale. Although the level to which cosmopolitans might pursue the global application of the difference principle is unclear (how would the global social minimum be set, for example?), this is a significant difference. In layman’s terms, it would seem that the cosmopolitan approach is more idealistic and ambitious in its aims, believing that we should aim at greater substantive equality between all the citizens of the world, whereas Rawls sets the bar significantly lower. However, it is worth comparing the specific commitments made by Pogge in regard to fiscal redistribution with the brief remarks of Rawls, as one finds the difference to be less significant. Pogge committed himself to the idea that Rawls’ principles of justice could be applied to the global realm in Realizing Rawls (1989), not only arguing that ‘Rawls’ conception of justice will make the social position of the globally least advantaged the touchstone for assessing our basic institutions’ (Pogge 1989: 242), but also that in ‘its most unified and elegant interpretation, Rawls’ conception is still plausibly applicable to our world – despite, in particular, significant intercultural diversity of convictions even about justice’ (Pogge 1989: 242). However, whereas the theoretical lines between his and Rawls’ positions appear here to be quite distinct, the practical differences are less clear in Pogge’s later work. Here Pogge forgoes the ideal of regulating global inequalities in line with the difference principle. One could understand the shift in Pogge’s thinking between Realizing Rawls (1989) and World Poverty and Human Rights (2008) as being representative of two different projects. The first was an intellectual exercise in arguing that a consistent application of justice as fairness calls for a cosmopolitan approach, while in the latter the author works through his own distinctive approach to global justice.2 It is clear enough that, in specifying (in his later, more empirically focused work) the basic level of primary goods that is morally defensible from Pogge’s cosmopolitan standpoint, it is significantly less demanding than that which Rawls specifies in the domestic context; if not quite as basic as the urgent rights that Rawls specifies in LP. Pogge terms his perspective moral cosmopolitanism, where ‘every human being has a global stature as an ultimate unit of moral concern’ (Pogge 2008: 175). This normative viewpoint can be fleshed out in any number of ways, but rather than opt for a Rawlsian difference principle applied to all individuals, Pogge proposes a variant ‘that is formulated in terms of human rights with straightforward interpersonal aggregation’ (Pogge 2008: 176). What these human rights might be are elaborated elsewhere as ‘a rather minimal conception of human rights, one that rules out truly severe abuses,

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deprivations, and inequalities while still being compatible with a wide range of political, moral, and religious cultures’ (Pogge 2008: 301 n283). Despite some specificity in drawing up a standard for the globally worst off, there is no mention of an interpersonal standard of measurement framed in terms of the difference principle or any other egalitarian measure. He endorses in its place the less stringent idea of a ‘social context and means that persons normally need, according to some broad range of plausible conceptions of what human flourishing consists in, to lead a minimally worthwhile life’ (Pogge 2008: 54). The ‘essential presuppositions’, which he identifies as being required for people to realize their own ethical view of the world, are detailed as the following: First, liberty of conscience, the freedom to develop and to live in accordance with one’s own ethical world view so long as this is possible without excessive costs for others. This freedom must include various other liberties, such as freedom for access to informational media … and the freedom to associate with persons holding similar or different ethical views. And second, political participation: the freedom to take part in structuring and directing any comprehensive social systems to which one belongs. This includes the freedom publicly to express ethical criticisms of political institutions and decisions, freedom of assembly, and freedom to participate on equal terms in the competition for political offices and in the struggle over political decisions. Other, more elementary basic goods are important … among these are physical integrity, subsistence supplies (of food and drink, clothing, shelter, and basic health care), freedom of movement and action, as well as basic education, and economic participation. (Pogge 2008: 54–5) This is indeed a fairly comprehensive body of rights that Pogge demands. However, even in terms of Pogge’s proposed distributive principle, the Global Resources Dividend, the aim is not to regulate inequality but for it ‘to be used toward ensuring that all human beings can meet their own basic needs with dignity’ (Pogge 2008: 203). Taken together, these statements demonstrate that Pogge restricts his moral cosmopolitanism to a more attainable goal. He states that given the ‘recent development of, and progress within, both governmental and nongovernmental international organizations supports, I believe, that such a conception might, in our world, become the object of a worldwide overlapping consensus’ (Pogge 2008: 300 n270). How far there is an overlap between Pogge’s ideas of basic rights and dignity and Rawls’ own notion of urgent rights is questionable. There is enough, however, to claim that their positions are not as far apart as an initial understanding might presume.3 It is an open question the extent to which Pogge

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would commit to regulating the comparative levels of wealth between societies; his practical focus lies instead with ensuring a basic package of rights. This is also a primary concern of Rawls, and although he states that it is the ‘justice of societies’ that is the ultimate concern of his theory, one can understand this remark not only as referring to just relations between societies, but also to the internal justness of relations within those societies. It is to this end that Rawls employs his own notion of rights that not only individuals have a claim to, but that also ‘provide a suitable definition of, and limits on, a government’s internal sovereignty’ (LP: 27). As previously noted, these rights are outlined in his criteria for decent societies and the characteristics that are required for them to qualify as a member of the Society of Peoples: Among the human rights are the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly). (LP: 65) If taken literally, these rights are obviously more limited than those outlined by Pogge. However, Rawls’ notion of rights is not that far removed from that of his critic (and student).4 As I have noted elsewhere, Rawls draws a parallel between the duty of just savings and the duty of assistance by stating that they both aim at preserving just or decent institutions, and that a fundamental role of such institutions is to ‘secure a social world that makes possible a worthwhile life for all its citizens’ (LP: 107). We can understand this notion of ‘worthwhile lives’ as providing another version of the threshold required of decent societies to become a member of the Society of Peoples, and as one of the fundamental aims of redistribution. This recalls Pogge’s words quoted earlier, that in drawing up a standard for the globally worst off, he wishes to determine the social context and means for individuals to lead minimally worthwhile lives (Pogge 2008: 54). Although Rawls’ description of what basic needs should be met by the duty of assistance is rather vague, it is worth reminding ourselves of them once more: By basic needs I mean roughly those that must be met if citizens are to be in a position to take advantage of the rights, liberties, and opportunities of their society. These needs include economic means as well as institutional rights and freedoms. (LP: 38 n47) The parallels between the two positions hardly need to be drawn out, and I suggest that these passages give a good indication of the extent to which

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Rawls’ perspective overlaps with that of his most formidable cosmopolitan critic. The consequent aim of ‘worthwhile lives’ as a policy goal for the duty of assistance indicates a significant convergence with Pogge in this respect. However, there are obvious discrepancies between the two positions that will be acknowledged later in the chapter. The most notable of these is the idea that unlike Pogge’s more extensive notion of rights, Rawls does not demand that decent societies extend equal political rights to all. Each individual should have at least some avenue for expressing his or her political preferences, but it is not necessary that within a hierarchical structure there should be an equal claim to take political office. At the level of policy therefore, liberal peoples should, according to Rawls’ Law of Peoples, advocate reform of the global structure and redistribute their wealth, but there is no reason to pursue a policy of attempting to democratize nonliberal societies. They should aim to ensure that their assistance protects other basic rights, but ensuring the democratic right to vote is not one of them. Whereas Pogge openly advocates the spread of democracy, Rawls is less the perfectionist, as he allows for the idea that burdened societies may wish to develop hierarchical structures and decent, rather than fully just, institutions. This concession reflects the broader implication of the Law of Peoples: nonliberal political systems should be tolerated, and no attempt should be made to influence decent peoples to change their ways. This would be to violate the principle of mutual respect that is to govern relations between peoples.

Normative difference If Rawls’ perspective converges with a brand of cosmopolitanism in significant ways at the point of policy, does this imply a more basic convergence in terms of their foundational principles? The comparable weight ascribed to basic rights from both perspectives raises questions of the extent to which Rawls is actually correct to draw such a sharp dividing line between his own approach and the cosmopolitans. If we examine their philosophical methods, it might be claimed that there is more convergence than is initially apparent. The difference in the two methods centres on the question of whether principles should be, in crude terms, constructed or abstractly conceived. Are they better bottom up or top down? In other words, as Miller asks ‘Should not a theory of global justice start with a blank sheet?’ or ‘should our principles of justice be tailored to fit either the facts of human life in general or the facts of life given human relationships of a particular kind?’ (Miller 2007: 18). Miller for one accepts the idea that ‘justice is a virtue whose purpose is to regulate human behaviour and human institutions’ (Miller 2007: 18), and for that reason has to acknowledge certain features and constraints of those two constants. The question from his perspective

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is where to draw the line: to what extent can we abstract from the present circumstances before principles and ideas lose their practical relevance, and therefore their transformative power? By the same token, we need to be wary of not accepting too many facts as permanent and unalterable, in case we lose our critical capacity. This method, of attempting to ground principles in the here and now, while simultaneously looking to push the possible limits of these circumstances, is the one adopted by Rawls, with his notion of a ‘realistic utopia’. As we saw in Chapter 2, his political constructivism entails the acceptance of present institutions. The most significant question, in terms of considering the here and now, is the extent to which the existence of separate states should be considered as fundamental, and not contingent. Rawls, as with Miller, frames a theory that provides a rough fit with the world as we see it today, where states (or peoples) are not only considered as fundamental institutions but also as morally worthy carriers of norms and cultures. This means that they take a primary role in the framing of the principles of international justice. In contrast, we might think of cosmopolitans as theorists who, in framing their principles, abstract from the world as it exists today. This is a step they take in disregarding the moral primacy of national borders. However, it would seem to be misplaced to represent cosmopolitans as being peculiarly abstract thinkers, who grasp their principles from some ideal realm and impose them in a top-down fashion. Rather than thinking about them as theorists who reject any relevance in the current circumstances in framing principles of justice (this would seem to be a logical impossibility), we might think of them instead as pushing the line a little further and abstracting to a slightly greater degree than Rawls. In denying the moral primacy of state borders in thinking about global justice, they would not, I imagine, claim that they are plucking a new moral perspective from thin air, or starting, as Miller suggests, with a blank sheet. They are instead making the case that in framing principles of global justice it is apt to abstract a little further. Given that we are trying to conceive rules and guidelines for how we should live side by side on this one planet, there is good reason to tap into the cosmopolitan ethic that exists in many corners of the globe. One might argue that there is a general notion of a common humanity that exists – documented most obviously in the Declaration of Human Rights. To consider the moral worth of individuals to be ultimately greater than that of historically contingent and mutable national communities is not to abstract excessively from the circumstances of today’s world. Neither is it the case that Rawls begins with the circumstances of the here and now, without having some ideal in his mind towards which he is working. The very idea of a realistic utopia, extending the limits of practicable political possibility, entails an abstract ideal. A certain level of abstraction is therefore necessary as a target point, and the ideal that Rawls has in mind is the international application of his concept of justice as fairness.

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In building up the content of his notion of international justice, Rawls has the principles of justice in fairness in mind, and sees how best they can be constructed into a workable set of international principles, given the restrictions of the here and now. Strong cosmopolitans such as Tan differ in that they are willing to defend a global egalitarian principle, but it seems difficult to explicitly differentiate Rawls’ approach on the basis of his philosophical method. Pogge holds the same cosmopolitan ideal as Tan, but in a similar fashion to Rawls he constrains his ideal in order to capture what is realistic and essential, given the vast individual inequalities of the here and now. In conclusion therefore, the philosophical method of what Beitz terms ‘social liberalism’ would not seem to differentiate it categorically from a cosmopolitan outlook. However, if the difference in philosophical method seems to be one of degrees, then it is the normative perspective where the important difference exists. It is also in this contrast that Beitz identifies ‘the most fruitful theoretical problem in international political theory’ (Beitz 1999: 214). In the case of social liberalism, which Beitz also identifies with Miller and R. J. Vincent, ‘the agents of international justice are states or societies, and its object is to establish a political equality of states, each committed to and capable of satisfying the human rights and basic needs of its own people’ (Beitz 1999: 215). The cosmopolitan view on the other hand would ‘recognize the constraints of the states system and take advantage of its institutional capacities, but it would treat the reform of institutional structures, both domestic and international, as an instrument for the satisfaction of the just interests of individual persons’ (Beitz 1999: 216). Although Beitz recognizes that the two positions may converge in terms of policy, he believes there is a stark difference that separates the two and demands that we make a choice: ‘both views cannot be right: social liberalism accepts the national community as having a moral status which cosmopolitan liberalism must regard as suspect’ (Beitz 1999: 216). However, this categorical difference that Beitz presents might be regarded as somewhat overstated. Tan’s entire project in Justice Without Borders (2004) is to demonstrate how the intrinsic moral status afforded to national communities by individuals can sit side by side with cosmopolitan liberalism – insofar as that moral status is ultimately limited by individual rights. It may also call into question Pogge’s notion of a dispersed political identity, which can find expression in the state (Pogge 2008: 184). Beitz acknowledges that even from the social liberal perspective, societies must be seen to satisfy the basic rights of their citizens, which might be regarded as giving a higher moral status to individual rights. Beitz’s desire to drive a wedge between the two positions would therefore seem a little unnecessary, where the intrinsic moral worth of the national community is tempered by cosmopolitan concerns. However, there is clearly some difference in approach here to which philosophers attach significant importance. Indeed, Rawls himself goes

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out of his way to compare and contrast his own approach with that of the cosmopolitans, and, as is evident, his social liberal position does have some very important policy implications with regard to democratization. Before assessing these implications, it is important to first try and identify the exact nature of the normative difference, and how it is that Rawls’ social liberal approach overcomes the apparent stringencies of its conservatism, to offer progressive reforms. The cosmopolitan approach is unequivocal inasmuch as it identifies individual well-being as the relevant unit of moral concern, even if there is a variety of ways in which one might aggregate this notion of well-being. It is radical because it demotes the moral significance of political boundaries without hesitancy, and regards the primary importance of political communities to reside most importantly in their instrumental worth in meeting individual needs. It is this moral significance of the political community that Rawls maintains, and he is not so prepared for the demands of individuals to take precedence over the rights of peoples. In the Society of Peoples, individual rights, at least superficially, would appear to be secondary to the rights of the political community itself. International justice is to address peoples as the relevant moral concern. From this more conservative premise, which acknowledges the moral worth of the current statist world in which we live, the more traditional international principles prevalent in Rawls’ Law of Peoples would seem inevitable. However, whereas the likes of Buchanan have argued that this Westphalian view of the world seems to have led Rawls to such conservative principles, I have claimed that the duty of assistance is in fact a farreaching principle that offers the type of measures cosmopolitans advocate. What, therefore, is doing the work for Rawls? This is where we must take another look at his idealized notion of peoples in order to appreciate how it actually provides him with the normative leverage for generating extensive policies. Although Rawls does not give a structured and comprehensive account of his conception of peoples, there are passages that suggest what he has in mind in terms of his ideal. When he refers to peoples, he implies the idea of a political community embodied in the traditional nation-state, and gestures towards the understanding of the government or state as an embodiment of the peoples’ will. It is more than merely the role of caretaker for their territory;5 rather from the perspective of the population of a particular society, the government should be ‘effectively under their political and electoral control, and that it answers to and protect their fundamental interests as specified in a written or unwritten constitution and in its interpretation’ (LP: 24). This posits a notion of the government as the servant, or embodiment of its people. Given this ideal conception of a people and its state/ government, it follows naturally that they will be conceived of as internally just and aspiring to provide worthwhile lives for their citizens.

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As stated previously, when Rawls asserts that his approach is one which is concerned with the justice of societies, it is not simply the case that it is concerned with justice between peoples and the principles governing their relations; it is also concerned with the internal justice of peoples. What is ‘important to the Law of Peoples is the justice and stability for the right reasons of liberal and decent societies’ (LP: 120). By holding up such an ideal as the basis for membership in the Society of Peoples, Rawls goes beyond a traditionally pluralist conception of international relations, which limits itself to viewing states as discrete agents regulated by the principle of nonintervention. The normative work is therefore being done, at least initially, not by the ideal of individual rights but instead by an ideal of what a political community should be and how its state machinery should operate. It is this idealized notion of how a society should be organized, which is the concept that generates realistically utopian principles. It also grounds the progressive policies of the duty of assistance. Burdened societies can make claims on other peoples by virtue of the fact that they are pursuing their end of being just and stable political communities. This duty is not a cosmopolitan principle aimed initially at individual well-being, it is rather a duty which seeks to increase the state capability of burdened societies to fulfil their political ends of justice and stability. It is ultimately Rawls’ idea of what constitutes the just institutions of a society that generates a target of assistance that has individual well-being as one of its aims. For Rawls, a society should display certain facets to be thought of as a people. Not only must it be reasonable, and not aggressive, but it must also provide worthwhile lives for its citizens. If Rawls’ notion of a people were less demanding, were it not to require that such provisions be made for individuals, then clearly the duty of assistance itself would not be as demanding, and thus the associated policies would not come as close to those of the cosmopolitans. Equally, it could be argued that, given a highly idealized notion of the nation-state, one could arrive at even more radical global principles that might match those of a cosmopolitan, which insist on greater material equality between individuals – an ideal of the nation-state featuring Rawls’ two principles, for example. However, such a highly specified notion of the state would be dismissed by Rawls for the same reasons as he rejects cosmopolitanism – its central tenets would be ethnocentric and not subject to an international overlapping consensus. What is of central importance here, and what differentiates Rawls’ approach from the cosmopolitan approach, is that the principles do not emerge from taking the individual first and working downwards. Instead, he begins with peoples, and generates the requisite international principles in order to best attain this specified ideal of the nation-state. Although Rawls’ own chosen ideal would obviously be that presented in TJ and PL, in the international context he must acknowledge that there may be other reasonable ways of organizing a political community, and so the ideal of

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a people that he proposes has less specific content. This ideal, nevertheless, serves as the moral referent for the principles of his international theory of justice, and with the provision of worthwhile lives as one of its key tenets, far-reaching policies are assured.

Difference and toleration I have argued that there is a significant policy convergence between Rawls and Pogge, while clarifying the normative contrast that differentiates their positions. The next section sets out the most important policy contrasts with the cosmopolitan position that arise from Rawls’ normative perspective: the toleration of nonliberal societies and the avoidance of influence, intervention and paternalism. These differences are vital as they underscore the manner in which Rawls’ approach is intended to be progressive, yet respectful of difference. Developing ideas introduced in the previous chapter, I present the justification of Rawls’ toleration of decent societies and defend it as both a normative and pragmatic response. He espouses neutrality over liberal perfectionism both on a principled basis and on account of its utility in attaining the goals of peace, stability and liberal supremacy. I will then consider Rawls’ approach with regard to the criticisms offered by Sen, before moving on to a concluding section. Here, in spite of my general faith in his work vis-à-vis his critics, I ask once more to what degree one can consider Rawls’ international approach as politically neutral and tolerant – given the policy ramifications of the duty of assistance. Rawls’ willingness to tolerate nonliberal societies is captured by a minimum threshold, which does not demand equal political rights in his specification of human rights (LP: 65). An acceptance on the part of Rawls that basic human rights need not entail political equality is also an acceptance of political systems that do not afford equal political rights. What does the toleration of such political systems entail? It takes seriously the thought that other political systems alternative to democracy might be acceptable. It accepts the idea that certain cultures might regard the singularly individualistic ideas of liberal democracy as simply mistaken, and that persons can first be regarded as belonging to groups. A minimal political representation is nevertheless required in decent societies, which allows an opportunity for different voices to be heard … persons as members of associations, corporations, and estates have the right at some point to the procedure of consultation … to express political dissent, and the government has an obligation to take a group’s dissent seriously (LP: 72) Moreover, Rawls acknowledges there could be a justification for persons being represented as part of a group, on the grounds that

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in a liberal society, where each citizen has one vote, citizens’ interests tend to shrink and centre on their private economic concerns to the detriment of the bonds of community, in a consultation hierarchy, when their group is so represented, the voting members of the various groups take into account the broader interests of political life. (LP: 73) Rawls suggests further features of a decent society, where a state religion might be the ultimate authority, but would not make it intolerable for the Society of Peoples. Some necessary concessions would be that they ‘admit a sufficient measure of liberty of conscience and freedom of religion and thought’. Furthermore, ‘it is essential to the society’s being decent that no religion be persecuted, or denied civic and social conditions permitting its practice in peace and without fear.’ Lastly, a decent and reasonable society should also ‘provide assistance for the right of emigration’ (LP: 74). Ultimately, the procedure for hierarchical consultation must be such that it will ensure that any violations of the basic human rights are prevented. This toleration of nonliberal societies by Rawls is possibly the most controversial aspect of his Law of Peoples. It is the subject of the most prominent strand of cosmopolitan criticism as identified in Chapter 1 of the book. These philosophers do not accept the idea that a liberal theory of global justice should tolerate nonliberal ideas. This is to be expected in the case of Tan, who remains resolute in his advocacy of a strong cosmopolitanism, which aims at a substantive global distributive equality applicable to persons. Very simply, ‘liberal toleration does not and cannot extend to alternatives to liberalism itself’ (Tan 2004: 79). From his perspective, this stance of non-tolerance allows for the approbation of decent societies, and while ‘hierarchical societies may find such critical judgments on their domestic institutions an imposition, this is not an unreasonable imposition from the liberal point of view’ (Tan 2004: 79). The non-toleration of Rawls’ tolerance extends, however, to less committed global egalitarians such as Beitz and Pogge, who do not explicitly subscribe to such a strong cosmopolitanism, and are generally less ambitious with regard to the aims of international distributive justice. However, as previously alluded to, the basic package of human rights that Pogge regards as the minimum target for a theory of global justice must include ‘freedom to participate on equal terms in the competition for political offices and in the struggle over political decisions’ (Pogge 2008: 55). Clearly this would exclude decent peoples from being morally permissible from this point of view. Pogge offers an explicit criticism that presents a similar rationale to that of Tan: ‘Why should we liberals accord equal respect to those who run a decent hierarchical regime abroad, if we do not accord equal respect to those who want to run such a regime in the USA or UK?’ (Pogge 2000: 248) In the simplest terms, cosmopolitanism denies the possibility that anything other

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than a democratic political system is morally permissible from the perspective of a liberal, global theory of justice. Rawls, however, is willing to tolerate political systems that contradict his own values, on both normative and pragmatic grounds. If reasonable peoples – who are not expansionary and respect basic rights common to all individuals – have established their political system through their own reason, to condemn them is not only to violate the normative element of toleration and the sense of mutual respect, but it is ultimately to destabilize international society and provoke conflict. Rawls points out that in the international context, we should not automatically assume that liberal democracy is the only reasonable form of government. To presume this and condemn and sanction others on this basis is to leave oneself open to possible ‘error, miscalculation, and also arrogance’ (LP: 83). Just as individuals can have several different reasonable conceptions of the good, we should account for the possibility that there may be several different reasonable forms of political system. To presume otherwise is to be unreasonable, intolerant, and illiberal: If all societies were required to be liberal, then the idea of political liberalism would fail to express due toleration for other acceptable ways … of ordering society … we say that, provided a nonliberal society’s basic institutions meet certain specified conditions of political right and justice and lead its people to honor a reasonable and just law for the Society of Peoples, a liberal people is to tolerate and accept that society. (LP: 59–60) By defending the toleration of decent peoples, Rawls demonstrates clearly the priorities of his political philosophy. Unlike the comprehensive liberalism that informs the cosmopolitan position, his political liberalism does not value individual autonomy above all else. In the domestic context, those ways of life that do not venerate individual autonomy are considered morally equal with liberal individualism (insofar as they can affirm the principles of justice). This toleration, and equal respect for reasonable conceptions of the good, finds its international expression in the equal respect accorded to reasonable, decent societies.6 Where other societies can be tolerated by virtue of their respect for universally applicable human rights, then it should be so, especially if one takes the Rawlsian approach, that a liberal theory of international justice should first and foremost seek to ensure peace and stability. Obviously, where starvation and poverty exist, or genocide and mass murder are being perpetrated, the limits of liberal toleration are put to the test, and the priorities of peace and stability are thrown into question. Until then, however, the equality of peoples should be respected, as the equality of reasonable individuals in a liberal democracy is respected. This toleration should extend

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to the ruling out of attempts to provide incentives for the members of the Society of Peoples to liberalize, as this will not only cause conflict within decent societies, but also prompt hostility with liberal peoples (LP: 85). The idea that there is a pragmatic as well as normative element to Rawls’ perspective is emphasized in a previously quoted section: Some may feel that permitting … injustice and not insisting on liberal principles for all societies requires strong reasons. I believe that there are such reasons. Most important is maintaining mutual respect among peoples. Lapsing into contempt on the one side and bitterness and resentment on the other, can only cause damage …. maintaining mutual respect among peoples in the Society of Peoples constitutes an essential part of the basic structure and political climate of that society. The Law of Peoples considers this wider background basic structure and the merits of its political climate in encouraging reforms in a liberal direction as overriding the lack of liberal justice in decent societies. (LP: 62)7 It may be that as liberals we would prefer to see a society of entirely liberal peoples, but promoting such an outcome would not only be normatively misguided, it would destabilize a peaceable international climate that would have the effect of discouraging the liberalization of decent societies. Not only will toleration serve as a better basis for a peaceful and stable Society of Peoples in the short term, it will also encourage the development of more liberal societies in the future – which in turn will increase the chances of a realistic utopia: [D]ecent peoples allow a right of dissent, and government and judicial officials are required to give a respectful reply … Dissenters may not be dismissed as simply incompetent or lacking in understanding. In this and other ways, the common good conception of justice held by decent peoples may gradually change over time, prodded by the dissents of members of these peoples. All societies undergo gradual changes, and this is no less true of decent societies than of others. Liberal peoples should not suppose that decent societies are unable to reform themselves in their own way. By recognizing these societies as bona fide members of the Society of Peoples, liberal peoples encourage this change. They do not in any case stifle such change, as withholding respect from decent peoples might well do. (LP: 61) Moreover, if a liberal constitutional democracy is, in fact, superior to other forms of society, as I believe it to be, a liberal people should have confidence

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in their convictions and suppose that a decent society, when offered due respect by liberal peoples, may be more likely, over time, to recognize the advantages of liberal institutions and take steps toward becoming more liberal on its own. (LP: 62) The cosmopolitans, Rawls suggests, are therefore both unreasonable and imprudent. There may be much to admire in their aspirations for common humanity, and the aims of expanding universal suffrage and extensive social and economic rights. However, they would be wise to keep their own counsel. Love for one’s neighbour can be expressed without imposing one’s own values and aspirations in an insensitive manner; the boundaries that separate peoples but bind political communities can be maintained. Rawls’ rejection of cosmopolitans’ liberal perfectionism rests not simply on his view that decent peoples should be viewed as moral corporate agents that express an idea of justice and common interests. It is more than the idea that their reasonable nature demands toleration and mutual respect from the point of view of justice as fairness. He also believes that the most effective way of ensuring their transition into liberal societies is to maintain a peaceful, stable and tolerant international climate. In this sense, Rawls distances himself from the cosmopolitans on the one hand, while simultaneously drawing himself closer on the other. The principle of toleration allows him to advocate political communities with distinct societal arrangements and promote a reasonably pluralist conception of the international realm. At the same time, he is attuned to the cosmopolitans in promoting an arrangement that he hopes will lead to the realization of a society of purely liberal peoples. As with his perspective on the global poor, his normative approach is clearly distinct to the cosmopolitans, but his normative goal is not so easily differentiated.

A response to Sen Now that the duty of assistance has been given its fullest expression, and we have considered LP from numerous perspectives, it is appropriate to evaluate the arguments that Sen employs in his critique of Rawls’ political theory. As alluded to in the earlier exposition of Sen’s criticisms, he accuses LP of being emaciated and uninspiring, with minimal principles that barely amount to principles of justice. I believe I have shown that Rawls’ international theory is more robust and engaging than Sen suggests. I now dedicate this penultimate section of the chapter to a broader argument that takes on Sen’s deeper criticisms of Rawls’ theoretical approach; in essence, I propose that the application of Sen’s capability approach to the duty of assistance has helped to demonstrate that at least some of the key elements of his critique of Rawls are misplaced. Had Sen attributed greater significance to the

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content of LP (and for that matter, PL), his sweeping statements about Rawls’ alleged transcendental institutionalism may have demonstrated less force. I will restate the three main arguments identified previously, responding to each in turn. 1) Rawls’ transcendental institutionalism ignores the actual behaviour of agents, thereby circumventing crucial questions such as how compliance with his principles might be achieved, and how these principles will be realized in different societies with different behaviours. Questions about how things are going ‘on the ground’, and how they might be improved, are neglected. Here, arguably, Sen fails to consider in detail how Rawls’ ideas in PL might affect his arguments. Sen makes only passing reference to this part of Rawls’ oeuvre (Sen 2009: 58). However, in spite of the fact that one of the stated aims of PL is to discuss the possibility of a stable and just democratic society – given the different cultures and values that exist within these societies – Sen does not choose to consider how convincing Rawls’ arguments are. Given Rawls’ attempts at establishing a baseline of political legitimacy (rather than positing ideal institutions), and the broadening of his political conception of justice, PL might have been given greater attention. Whether this work actually provides a convincing response to Sen’s criticism is a separate discussion, but I believe that we can say as much of LP. Three comments seem to be appropriate in this regard. First, with respect to the behaviour of peoples and the extent to which we can anticipate their compliance, it may be fair to accuse Rawls of oversimplification. However, this is not to say that he merely ignores the problem of encouraging compliance. In Chapter 7 we considered briefly his ideas on how peoples might be encouraged to comply with the duty of assistance, through mutual affinity. Rawls proposes that peoples are capable of what he calls ‘moral learning’ (LP: 44), and while we cannot expect reasonable behaviour overnight, where there is a mutual intention to comply to the law and its institutions ‘peoples tend to develop mutual trust and confidence in one another … [they] see those norms as advantageous for themselves and for those they care for, and therefore as time goes on they tend to accept that law as an ideal of conduct’ (LP: 44). As we saw earlier, this faith in the idea that persons and peoples will tend to affirm the just institutions under which they exist, relies on an affirmation of a view of humanity inspired by Rousseau. One might be sceptical as to whether such a human disposition is prevalent enough to ground Rawls’ theory, and whether political communities are capable of moral learning in the same way as individuals, but one can be equally sceptical of the claim that he overlooks the issue of compliance. With regard to the objection that Rawls’ approach fails to take account of the different conditions that exist within societies, again it seems pertinent

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to note that the discussion of the constitutional essentials and ideas of basic justice in PL is sensitive to the fact that some societies will come to different conclusions on what constitutes fair distribution (as a result of which, Rawls endorses the notion of a family of reasonable liberalisms). In LP, consideration of the variety of behavioural patterns extant in different societies is fundamental to his approach. It is Rawls’ respect of shared histories, cultures and values that lead him to dismiss the idea that any liberal principles, let alone those of justice as fairness, should be imposed upon decent societies. This respect is especially prevalent in the duty of assistance, reflected in the injunction that it is to be carried out in a manner attuned to the practices and values of the burdened societies in question. They need not aspire to the principles of justice as fairness, or other liberal conceptions of justice, insofar as the type of society they choose to promote is attuned to the principles of the Law of Peoples. Third and finally, this approach espoused by the duty of assistance is clearly aimed at incremental improvements and the attainment of a less unjust world. Rather than positing perfectly just institutions, this principle aims at trying to ensure a basic package of rights that will allow individuals to live worthwhile lives. It is a duty of justice that is concerned with the here and now, and the social states that actually emerge within burdened societies. 2) Rawls’ transcendental institutionalism does not provide a method for dealing with comparative assessments, which are so crucial in judging which policies and acts might be considered as improvements in trying to establish a less unjust world. It is true to say that Rawls’ gives a great deal of attention to the idea of institutions, and this is evident in LP with regard to the emphasis placed upon the duty of assistance, as a principle aimed at building up institutional and state capability. However, in the case of burdened societies, the measures are advocated not in the search for a perfectly just society, but because of their fundamental importance in improving the lives of those who suffer most and ensuring fewer injustices. The benchmark for these institutions is the guarantee of a certain package of rights and worthwhile lives for their citizens; although Rawls’ conception of what constitutes such a life does not have the benefit of the acuity of a capability approach, it is nevertheless justifiable to claim that it is the social realizations of the individuals in question that is of ultimate concern. TJ may have been aimed at identifying fully just institutions, but in both PL and LP Rawls is concerned with identifying those standards that indicate institutions are legitimate, not fully just. In PL Rawls specifies the constitutional essentials, while in LP he specifies the type of societies that are to be regarded as acceptable to the Society of Peoples. Rawls therefore circumvents Sen’s criticisms to a degree, because although there is no provision for

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judging relational rankings, he nevertheless specifies criteria for identifying political orders that are too unjust to be legitimate. We are given criteria to judge when departures from ‘transcendental’ institutions (to use Sen’s phrase) are unacceptable. For Rawls, it is not the role of an international theory of justice to then provide incremental criteria beyond this minimum; where these standards are complied with, it is for each society to decide which types of policies they are to pursue and to what conception of justice they wish to abide by. Rawls’ approach descends from its transcendental institutionalism to suggest how we might identify injustice, through basic standards of legitimacy. 3) The device of the original position gravitates away from the idea of global justice, preventing any consideration of the effects of principles and policies on other polities, and precluding the exposure of a polity’s ideas and practices to external scrutiny. In order to respond to this criticism it is necessary to recognize the importance of taking Rawls’ three major works together as a coherent whole. If we consider Rawls’ domestic theory without reference to LP, then Sen’s criticism may have some purchase. However, once we acknowledge that societies are subject to the Law of Peoples, it simply does not make sense to assert that the pursuit of justice is limited to domestic society, thus precluding consideration of its externalities, or exposure to others’ ideas and demands. The Law of Peoples circumscribes the action of peoples in obvious ways that demand that each society pays attention to the consequences of its actions for others. As an example, the principle of free and fair trade will contain many regulations that ensure peoples cannot merely pursue their own political conception of justice without regard for its consequences on others. In elucidating Rawls’ international minimum, we also saw how it emulates the duty of just savings in demanding that societies must not consume or overproduce at a rate that threatens the sustenance of their population. We can presume on the basis of the duty of assistance that well-ordered peoples cannot threaten the long-term prospects of others through precipitating a lack of resources. Although Sen’s criticism appears wide of the mark here, it is provocative inasmuch as it opens up interesting questions about the structural relation between the domestic and international original positions, and the more general relation between Rawls’ domestic and international theories. Sen’s other complaint is that Rawls’ procedural parochialism does not allow for the exposure of local beliefs to global examination and the type of scrutiny he envisages through the figure of the impartial spectator. Again, it seems reasonable to suggest that if we examine Rawls’ political theory as a whole, we see that his Law of Peoples allows for this very scrutiny. Through encouraging a society of liberal and decent peoples that works towards an overlapping consensus, he establishes the idea of a peaceful and stable

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realistic utopia, within which the free expression and sharing of different ideas is inevitable. As we have seen, in the case of decent societies Rawls is convinced that over time they are likely to revise and reflect upon their values and traditions in light of the practices of liberal societies. Such a cultural exchange is not necessarily conceived as being unilateral either. As mentioned earlier in this chapter, certain decent societies may also find the practices of liberal peoples perplexing, and there is no reason why liberal peoples should not pay attention to their way of life. The individualism that is widespread in some liberal societies might benefit from being seen in the light of the more collective traditions of other societies. A member of a decent society might well question the effectiveness of a political system such as the US or UK where it appears significant minorities regard themselves as disenfranchised. Rawls is at pains to point out that the relationship between peoples should be one reflecting equality and reciprocity, which should encourage these kinds of discussions and reflections. Yet despite the fact he emphasizes the need to refrain from exporting liberalism, the sense in which the relationship is bilateral is undermined, it may be suggested, by the underlying sentiment that the liberal constitutional democracy is ultimately ‘superior to other forms of society’ (LP: 62). This question leads us back to the question of the tension between his advocacy of toleration and espousal of liberalism.

Toleration vs assistance In the previous chapter we were led to a tension in the duty of assistance, with the insight that it is the notion of ‘advice’ that is most at odds with the general tenor of Rawls’ perspective on international justice. It threatens its equilibrium by sliding towards ethnocentricity. We arrive at the same problem in this chapter, but from a different direction. It has been argued that the measures of the duty of assistance come close to those of the cosmopolitans from a social liberal perspective, but that Rawls offers a distinctive approach in tolerating decent societies. However, the remarks on political liberalism – as the most effective philosophy for encouraging liberalization – are revealing. They illustrate the tension that exists in his international thought, between toleration of difference on the one hand, and the deep desire to see the realization of a peaceful world and individual wellbeing, attained through politically liberal societies. Can this tension exist without the Law of Peoples lapsing into ethnocentricity? On the one hand, Rawls claims to be neutral and tolerant, while on the other he is clearly ethnocentric in desiring to see a world in his own image. As I will argue, this tension comes to a head in the same aspect of the duty of assistance that revealed its possible ethnocentricity in the previous chapter. Advice to burdened societies, Rawls suggests, should be tendered in a neutral manner, which does not favour the development of liberal institutions. As such, it is difficult to see what kind of principle Rawls could advocate

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that is more neutral and tolerant, while simultaneously offering such extensive measures. In setting out the proposed means to the coextensive ends of autonomous peoples, and worthwhile lives for the world’s poor, it has emerged that neither the measures nor the aspirations advocated by Rawls could be augmented any further, without his entire normative stance buckling. With his duty of assistance, Rawls offers the most extensive principle he can without obviously collapsing his position into cosmopolitanism. To demand more individual political rights in decent societies would clearly be to step beyond the normative reach of social liberalism, and foist political values on other peoples worthy of respect, while to advocate a more invasive, demanding and radical duty of assistance might violate the value of autonomy imbued in burdened societies. In this sense, the cosmopolitan critique would seem to be wide of the mark. It would be justifiable to criticize Rawls for not extending the boundaries of his position as far as possible, because this would be to criticize him on his own terms. However, my claim is that the duty of assistance offers as much as it can for a social liberal theory applied to a world of states. To criticize Rawls for not providing a more extensive principle would be to criticize him for not being a cosmopolitan. Many of his critics might indeed feel frustrated that Rawls does not follow their preferred path. However, to criticize him for not seeing the world in the same way as them seems a less pertinent criticism than the claim that his ideas are internally incoherent in not presenting a theory that at least aspires to a more liberal and equal world. A duty of assistance, further augmented than what has been suggested here, would surely violate the principle of autonomy and slide into paternalism. However, the suspicion is that Rawls’ own version of the principle has already contradicted his own terms of assistance. This is where the devil is in the detail, and where the principle of toleration may be unable to inhibit the ethnocentric aspiration of a society of liberal peoples. The type of measures that are compatible with his duty of assistance, in seeking to ensure a more level global playing field, should not be regarded as violating the principle of autonomy, at least superficially. They concern the removal of constraints on the freedom of peoples, external to their societies, which should ensure that they gain a fair price for their goods and are able to compete on the basis of equality. This should not involve instructing burdened societies on how they should use their resources or build up their wealth, but would simply involve ensuring that their efforts are not penalized. However, when we address the issues of redistribution and advice, the ambiguities surrounding the duty of assistance emerge, as it seems difficult to avoid the conclusion that such measures might be conducted with liberal goals in mind. As equals, decent societies should not be influenced and will likely respond to any such overtures in a manner that is to the detriment of the long-term goals of liberal peoples’ foreign policy. However, in the case of

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burdened societies – lacking as they are equal moral status – it is difficult to see how the temptation to act paternalistically can be easily avoided. Those providing resources through the duty of assistance will obviously have certain demands in line with its target: politically autonomous, reasonable, decent or liberal societies that provide worthwhile lives for their citizens. In themselves, these demands may be construed as paternalistic, but it should be kept in mind that burdened societies themselves are party to the collective aims of the Society of Peoples and seek to attain these targets. Rawls provides no specific example of a burdened society, nor does he present an analogue in the way that the fictional ‘Kazanistan’ illustrates his notion of a decent hierarchical people. However, we can at least be sure that a burdened society is distinguished from an outlaw state, which would reject the terms of the Law of Peoples. The type of society which Rawls has in mind would seem to be a peaceable political community that desires a place in the Society of Peoples, and is willing to co-operate in order to fulfil this aim. Redistribution might therefore be ideally regarded as a partnership, with the negotiation of specific reforms occurring through the use of public reason (LP: 19, 56, 123). Where the line might be most obviously crossed is a case where the recipient society finds itself having to adopt liberalizing reforms that are entirely incongruous with its current political culture and institutions. Whereas the aspect of redistribution is ambiguous, in the sense that it may or may not lead to paternalistic actions, the process of advising burdened societies on the reform of their political culture (the element most emphasized by Rawls) raises even tougher questions. This is where the tension between tolerating political communities and their culture, and the desire to see progress towards liberal societies is at its most obvious and troubling. These societies are not acceptable to the members of the Society of Peoples, and it is their culture that is one of the root causes. They are to be advised to adopt measures that increase individual rights in a manner that liberal societies favour, yet, at the same time, Rawls wishes to insist that such actions are not to be conducted in a paternalistic fashion. Given the tendency to regard institution-building as democracy building, we seem to be caught in a Catch 22: sit back and allow burdened societies to find their own way in reforming their institutions, and so renege on the duty of assistance, or provide them with advice and know-how inevitably steeped in liberal and democratic traditions and values, and thereby fall foul of paternalism.

Conclusion This chapter has sought to tie up the project in certain respects. Firstly, it was argued that Rawls’ Law of Peoples does converge to a significant degree with some cosmopolitan ideas at the level of policy. It was then demonstrated how these comparable policies are arrived at, not through a

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normative convergence with the cosmopolitan perspective, but from a social liberal perspective with the state capability approach elucidated in this work. The idealized notion of the state and its role in serving the population provides the normative leverage to demand measures that ultimately protect the interests of individuals. To build state capability and promote the justice of peoples is to simultaneously promote individual rights and freedoms. It was therefore claimed that the duty of assistance provides a robust response to Beitz’ challenge: that a theory with more conservative premises can be shown to converge with the cosmopolitan approach at the level of policy. I then went on to explicate how the progressive agenda Rawls advocates sits side by side with those policies that differentiate his position from the cosmopolitans, and necessarily limit the breadth of his perspective. The most striking of these policies is Rawls’ concession that liberal peoples should not actively strive to influence decent societies into democratizing their political systems. This is manifest in the package of urgent rights that he advocates, which does not include the political rights that the cosmopolitans demand. In the penultimate section, and in light of the foregoing consideration of LP and the duty of assistance, I outlined a response to some of Sen’s most pointed criticisms of Rawls’ political theory. A key point is that in taking LP seriously and considering Rawls’ work as a whole, criticisms relating to his apparently abstract approach lose their force. In the final section it was claimed that the policies Rawls advocates as part of the duty of assistance are in fact as ambitious as possible, while attempting to promote toleration and avoid paternalism. However, the inherent tension in his advocacy of toleration – between the normative ideal of respecting the autonomy of peoples and the pragmatic intention of encouraging their reform – comes to the fore in regard to this duty. In the practice of assistance, and the provision of advice for burdened societies, I claimed that the underlying desire to see a society of liberal peoples may slip into paternalist actions. This prospect leads us to our conclusion.

9 Conclusions

By way of introduction, I suggested that at its most fundamental level, this is a book on global poverty. In conclusion, it is also to state the obvious that, in the main, it has been a work of Rawlsian scholarship. A priority has been to contribute to a growing literature that takes LP seriously and is restoring its reputation, following some initial forceful criticisms. Using the capability perspective as a conceptual tool, the main aims have been: to elucidate Rawls’ duty of assistance as an insightful institution-building approach to global poverty; to demonstrate that his international theory is a consistent development of his domestic perspective; and to argue that he presents a progressive and far-reaching principle that can be viewed as responding to the challenge of cosmopolitan ideas, including Amartya Sen’s recent critique. The argument in this book has been built up in three parts, and it is apt to recount these stages and highlight the most significant arguments. Chapter 1 began the critical part of the work, providing the context and starting point for the argument, evaluating the cosmopolitan criticisms of Rawls’ Law of Peoples – specifically in relation to those elements that mirror the discussion of socio-economic resources in the domestic context. The main concern was the claim that LP is inconsistent with Rawls’ original political theory, taking a libertarian turn and rejecting the idea of a global distributive principle. As a consequence, his international theory is allegedly left with little to say to those who are persuaded by his domestic liberal egalitarianism. Some of the more prominent responses of thinkers such as Charles Beitz, Allen Buchanan and Kok-Chor Tan were considered, but their accounts of Rawls’ international approach were judged to be unconvincing in some respects. One problem with their critique has been the lack of significance attributed to the distinction Rawls makes between ideal and non-ideal theory, which, as Chris Brown argues, is crucial to fully understanding Rawls’ approach, and his duty of assistance. The lack of emphasis given to this distinction has led to a somewhat constrained view of LP, most especially in overlooking the point that Rawls’ realistic utopia represents a just 202

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and equitable ideal international society, where the problems of our current world order are largely overcome. For this reason, I endeavoured to integrate this theoretical distinction into my analysis. Chapter 2 therefore concentrated on the realm of ideal theory, and sought to explicate the exclusion of a global distributive principle in this context. The arguments of Rawls’ advocates, Samuel Freeman and David Reidy, were considered in accounting for his position. The most significant claims were the following: that neither the ideas of fraternity nor domestic reciprocity, which require expression through the difference principle, pertain in the same way at the international level; that Rawls’ political constructivism, and its application to institutions as we know them, preclude the possibility of a global distributive principle; and, most importantly, that given Rawls’ ontology of peoples and their basic autonomy, the principle of redress does not figure in the equation of international justice. This last argument was presented as the most fundamental claim because it precludes even the most basic of distributive measures – the type of wealth transfers that cosmopolitans have advocated. In the context of a realistic utopia, where all peoples are politically autonomous and well-ordered, the idea of redistributing wealth would go beyond the bounds of justice as fairness by promoting equality as a good in itself. As elucidated at the end of the chapter, the only substantive element of equality in Rawls’ perspective is captured in the social minimum. This chapter addressed the concern with Rawls’ consistency as a thinker, as the Law of Peoples, without a distributive principle, was presented as a logical development of justice as fairness. In Chapter 3, however, I moved on to address the concern that Rawls offers little for those of an egalitarian persuasion in his theory. Here I concentrated on his non-ideal theory, which among other issues, addresses the fate of those burdened societies where endemic poverty is at its most prevalent. Rawls’ response to this challenge is the final principle in the charter of the Law of Peoples: the duty of assistance. This principle was given lengthy consideration, and it was acknowledged that in spite of its apparently noble aspirations, Rawls cannot escape the criticism that its elaboration is somewhat lacking in precision. I suggested that one possible reason for this shortcoming is the lack of emphasis and focus that Rawls generally places on non-ideal theory. The main conclusions drawn were the following: that the duty of assistance represents an institutional or capability-building principle; that it provides an international minimum analogous to the social minimum in his domestic theory; and that it lacks clarity in terms of its justification and its extent. It is a potentially radical principle with an ambitious target, but Rawls fails to elaborate on its transformative capability. Having concluded the evaluative part of the work, the next step was to move on to the constructive stage, where the broad aim was to deal with the ambiguities surrounding the duty of assistance. In outlining a principle

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that seeks to guarantee the political autonomy of all peoples, Rawls provides the basis for a far-reaching principle, which should appeal to those of an egalitarian bent. However, there is much work to be done in order to present it as a robust and convincing idea. Given the insight that the capability perspective has provided into Rawls’ domestic ideas, I argued that its application to the international context might help us in realizing the full extent of the duty of assistance, and provide food for thought in regard to its justification. Chapter 4 therefore entailed an introduction to the work of both Martha Nussbaum and Amartya Sen. The most important idea taken from Nussbaum, drawn from her critique of Rawls’ social contract approach, is that his expulsion of non-compliant agents from the original position complicates the idea of the duty of assistance as a duty of justice. There is a tension in his international theory, because the duty is listed as a first principle of justice, yet in its application to burdened societies, its status appears to be demoted to a duty of charity, given their inferior status outside the original position and the Society of Peoples. A sustained attempt was made to convince the reader of the centrality of the duty as a pillar of Rawls’ international theory, and that the complexity of burdened societies’ status means that, in its application to these non-compliant agents, we might still consider it a duty of justice. Once the ambiguity of the duty’s justification had been addressed, the chapter progressed to the main task of the second part, which involved elaborating on the extent of the duty. This entailed an analysis of how Sen’s capability approach provides an important insight into Rawls’ non-ideal theory, preceded by a brief evaluation of Sen’s deeper critique of Rawls work, which would be resumed in Chapter 9. The capability perspective involves the idea of broadening the informational base in questions of distributive justice. Whereas Rawls discounts the relevance of interpersonal variations in capacity, Sen claims that they are crucial in grasping the extent of individual capability – the appropriate measure of justice in his view. Although Rawls rejects this claim in regard to his ideal theory, in respect of the social minimum and the maintenance of temporarily afflicted individuals ‘above the line’, his non-ideal theory adopts a capability perspective in a limited sense, by accounting for individual capacity. Rawls integrates this capability perspective into justice and fairness and actually broadens his informational base in regard to his non-ideal theory, and this move was taken as the basis for an elaboration of his non-ideal theory in the international context. The hypothesis was that if the capability perspective is helpful as a method for conceptualizing the attainment of the social minimum, then it could provide insight through its application to the international minimum and the duty of assistance. This conceptual transposition was the subject of Chapter 5. It involved working out an appropriate way of conceptualizing capability in terms of peoples.

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While Robert Jackson’s idea of state capability as positive sovereignty was acknowledged as helpful, Gerald MacCallum’s concept of liberty was utilized in order to provide a framework with more analytical precision. The insight this move provides is that promoting capability can be conceived of in terms of addressing obstacles to freedom. From this perspective, the crucial step that Rawls makes in his domestic non-ideal theory is to broaden his informational base by regarding incapacity as an obstacle to freedom. In fact, from the perspective of his social minimum, any constraint that threatens this substantive level of ‘meaningful freedom’ should be considered an obstacle to freedom. Applied to burdened societies, this conception of freedom should also regard any constraint to their attainment of the international minimum as an obstacle to their freedom. This conception, which identifies an unspecified yet broad spectrum of obstacles, provides the normative grounds for their mitigation through measures to be encompassed in the duty of assistance. In a sense, this interpretation of the duty of assistance provides carte blanche in terms of identifying obstacles to freedom. Any factor deemed to be a constraint on burdened societies’ capabilities and their attainment of the international minimum can be construed as an obstacle to freedom – regardless of the origin of that constraint. For those ‘below the line’, Rawls considers any constraint to be a legitimate obstacle. Chapter 6, with its overview of some of the literature on state-building and development, can be understood as an attempt to flesh out the conceptual framework constructed in the previous chapter by identifying such constraints on burdened societies. The perspective of explanatory nationalism that is attributed to Rawls by Thomas Pogge was rejected in favour of identifying a broader range of obstacles. These include both internal obstacles such as the political, social and cultural practices of a people, their lack of material and financial resources, as well as numerous external obstacles in the form of international trade regulation, and financial and institutional practices. Encompassing as it does such a broad conception of freedom, this Rawlsian capability perspective allows all these factors to be legitimately considered as obstacles, which might be addressed by the duty of assistance. This idea regarding the centrality of freedom requires further reflection. To repeat the point made in Chapter 5, the debate over what should be taken as legitimate obstacles to freedom is, according to Ian Carter, of ‘great importance … for ideological reasons, affecting as it does questions like that of whether or how far a government interested in the maximization or fair distribution of freedom should pursue certain welfarist policies’ (Carter 2006: 222). Transposed to the Society of Peoples, the implication is that the constraints regarded as genuine obstacles for burdened societies will be crucial in dictating the extent to which it will pursue equivalent, international ‘welfarist’ policies. Carter suggests that the conception of freedom employed is essentially an ideologically driven decision. With this in mind, we might

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claim that the particular perspective of theorists on state capability is dictated by the particular constraints they presume to be genuine obstacles to the freedom of peoples. In the case of those who espouse a version of explanatory nationalism, we can argue that they tend to overlook international factors as legitimate constraints. The likes of Pogge, Joseph Stiglitz and David Chandler are more conscious of the ideological nature of their perspective, perhaps inevitably so, given that they are critiquing what they regard as the dominant discourses and practices. The significance of this from the perspective of normative theory is that, consciously or not, the perspective on state capability that is adopted by different theorists will be driven by a view on the obstacles of freedom, which can be viewed as an ideological choice. Some would disagree with the view that a field of study as complex as state capability can be reduced to the ideological outlook of its researchers. As a field of empirical study there is the aspiration that well-established norms can emerge through which knowledge claims can be meticulously tested. Robert Jackman complains that ‘the popularity of different approaches to development appears to have waxed and waned with ideological currents that are largely independent of any empirical considerations’ (Jackman 1993: 21). It would be spurious of me to make the claim that the aspiration of creating an empirically verifiable and sound theory of state capability is a chimera. There may be progress in our understanding of state failure, and there may come a time when we can identify key causal relations that inform a highly effective ‘one-size-fits-all’ explanatory theory, providing the basis for comprehensive and efficient remedial measures. However, it would be equally unwise to dismiss the idea that approaches to this most complex of fields can be entirely divested of ideological influence, or that experts will shed their predilections in their research. A basis for this scepticism can be found in the content of this book, for what emerges in discussing Rawls’ duty of assistance is that his own and others’ projects of building state capability face exactly the same ideologybased criticisms of the political development project of the 1960s. Rather than suggesting linear progress, it would seem to suggest circular motion. ‘Political development’ was the original field of study of political capacity that emerged at the time of decolonization. As Jackman acknowledges, during the 1970s ‘the whole idea of national political development came under attack from a variety of quarters’ (Jackman 1993: viii). Among the various critiques, two were particularly significant. The first of these is the world-systems approach, a perspective that is broadly emulated by Pogge (who explicitly acknowledges his debt to Richard Falk, Roberto Unger and Immanuel Wallerstein (Pogge 2008: 297 n251)). As Jackman describes it, ‘this attack centred on the proposition that nationstates do not exist in splendid isolation from one another but are instead embedded in a broader system … in which dominant classes in strong states

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exploit weaker, dependent states’ (Jackman 1993: 11). The parallels with the ideas of contemporary authors do not require much teasing out. Since Jackman attempted his own theorization of state capability in 1993, it seems that the prevalence of the state and its institutions has remained firmly ‘in’, at least if Francis Fukuyama’s claim is to be taken at face value.1 However, the fact that this narrow explanatory nationalism is subject to the same criticism as its forbearer suggests that different approaches to political development are still as tied to ideological currents as ever, and that we have come a full circle. Whereas Fukuyama and others in the state-building industry tend to sideline wider concerns of a systemic nature, it is my claim that Rawls’ normative perspective on state capability can incorporate them with its broad conception of obstacles. Such an approach would be ‘client-lead’ in the sense that the remedial measures advocated would be dictated not by ideological preferences, but by the nature of the particular problems faced by a weak-state – be they systemic, or relating to a lack of resources, robust taxation, social capital deficits and so forth. There seems no reason why particular perspectives at different levels of analysis cannot complement each other, or why attempts to alleviate the poverty of burdened societies cannot incorporate measures relating both to their internal and external constraints. To continue the theme, we can consider a significant aspect of Part III as encompassing the second of the main strands of criticism aimed at the political development project of the 1960s. This was ‘a populist attack that argued that the term development was itself ethnocentric’ (Jackman 1993: viii). It was taken for granted that ‘the use of the development label necessarily meant that one had an end in mind, and that end was typically assumed to involve Western institutions … The idea of development in this view could be no more than one element of cold war ideology’ (Jackman 1993: 10). This problem of ethnocentricity is one that Rawls is at pains to avoid, but on my reading, the duty of assistance as a principle of state capability-building brings him dangerously close to slipping into paternalism. The priority of Chapter 7 was to demonstrate that the extent of the measures implied by a robust duty of assistance would not cause problems for the equilibrium of his theory by overriding other aims, demanding too much of the Society of Peoples, or by simply contradicting the text. It was argued they are in keeping with the broader aims of peace, stability, autonomy and individual rights, but that Rawls’ original notion of offering ‘advice’ is problematic. Grounded as it is in the idea of increasing individual rights and the empirical research of Sen, it is difficult to avoid the prospect that advice given in line with Rawls’ duty of assistance might violate the idea of toleration so central to political liberalism. Although burdened societies are ostensibly outside the Society of Peoples, they are to be treated in the spirit of equality, and to influence them into democratizing would, from Rawls’ perspective, be slipping into paternalism.

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This problem emerges once more in Chapter 8. Here the main aim was to address a problem posed at the beginning of the book. This was the challenge of presenting a theory that begins on the more conservative premise of a society of states, which is nevertheless able to generate measures similar to those of cosmopolitan theories. It was claimed in this respect that LP, and the robust duty of assistance elaborated here, represent a progressive and challenging approach to the problem of global poverty, which could be equally attractive to those persuaded by Rawls’ domestic liberal egalitarianism. A comparison with the ideas of Pogge revealed that, in effect, the measures advocated by the duty of assistance are not so distant from those of a cosmopolitan theorist. Such is the convergence, it was necessary to make clear the distinctions between the two positions. It was argued that Rawls is able to generate such far-reaching measures on the basis of his ideal concept of a people. Given the particular expectations implicit in this ideal, and the high threshold required in order to gain the status of a wellordered society, the accompanying duty that attempts to attain this target is necessarily robust. Here I argued that reflections on this conception of the duty of assistance in the broader context of LP provide a telling response to the critique of Sen, showing Rawls’ approach to be sensitive to real-world issues, considerations of international justice, and securing a less unjust world. What differentiates Rawls’ duty of assistance from Sen’s approach and the principles of the cosmopolitans is that it does not aim at ensuring democratic rights for all individuals. This reflects Rawls’ toleration of nondemocratic, decent peoples. The chapter closed by bringing the argument back to the problem of ethnocentricity. Although Rawls tolerates decent peoples on normative grounds, there is also a pragmatic element to this idea, in the sense that Rawls considers it the most realistic policy in trying to encourage their democratization. It was my claim that this desire of Rawls to see a world in his own image becomes problematic because, as alluded to in Chapter 7, it appears to entail the explicit promotion of liberal democracies through the duty of assistance. Can we therefore assert that Rawls’ approach to state capability-building falls foul of the same criticism as the original research on political development? Certainly in espousing the democratizing ideas of Sen, he appears to lead himself into this trap. It can be described as a trap because, unlike the cosmopolitans, Rawls explicitly wishes to avoid the predicament of foisting liberal values upon other societies. In this sense, we might argue that Rawls’ position is sensitive to both of the original criticisms of political development. However, it is questionable whether he can espouse a duty of assistance that aims at reforming the political culture of burdened societies and building their institutions, while maintaining the supposed neutrality of political liberalism. The difficulty for liberal peoples of maintaining neutrality can be explicated in one sense on a theoretical level. The basic structure of the Society

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of Peoples operates in such a way that makes the neutrality of political liberalism in the domestic context unattainable. In the domestic context there is a presumed equality among individuals that relates also to their conceptions of the good and their judgements. Insofar as they are reasonable and fall within the overlapping consensus on justice as fairness, these conceptions and judgements are not in competition, and the basic structure of society does not favour one over the other. The political arrangements are settled around an overlapping consensus on this freestanding political conception of justice, which allows for reasonable disagreement. However, in the international context, the aim is to bring different political conceptions of justice into an international overlapping consensus. The bias appears in the sense that the overlapping consensus is a politically liberal international consensus, which favours peoples with liberal conceptions of justice. From the point of view of international political liberalism, the more liberal peoples that exist, the more stable and just the Society of Peoples will be. From the point of view of domestic political liberalism, there is no suggestion that individuals’ conceptions of the good need to become more liberal in order to ensure stability and greater justice. There is no sense in which one conception of the good is more reasonable than the next. Given the structural bias within the Society of Peoples, in favour of liberal peoples, justice as fairness in the international context is not neutral in the same way. The idea of toleration remains as central to this manifestation of justice as fairness; it simply has more work to do in trying to restrain the bias towards liberal peoples. As we have seen, it is in application of the duty of assistance that this precarious neutrality is tested most. This theoretical bias is supplemented by an empirical literature and a practice inclined towards liberal democracy. It is somewhat inevitable in the current climate that the ideas and literature generated on capability-building are largely concerned with building democracy. The field of state-building is one of the most relevant in the international sphere today, due to dovetailing concerns of failed states as a security threat and as a cause of global poverty. However, those concerned parties who have the capability to react and frame policy are the major Western states, international institutions, and non-governmental organizations. There seems little doubt that these bodies perceive and promote only one viable form of government. It is an ever-increasing practice: State-building practices of external support for governance capacity now extend to most of the countries in the world. Practically every international engagement between international institutions and non-Western states includes forms of conditionality which relate to the internal governance mechanisms of non-Western states. (Chandler 2006: 4)

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From this perspective, the case can be made that institution-building is a wholly ‘Western’ project, designed to realize democratic modes of government, falling into the trap of treating these failed states in a manner that precludes any claims to autonomy or equality. There is no opportunity for them to develop their own path towards becoming well-ordered, in a manner that is sensitive to their societal and political traditions. In its most severe form, which William Bain equates with a resurrection of the practice of trusteeship, there is no doubt that it amounts to acting paternalistically: Thus, trusteeship answers the call of humanity by treating states, and the peoples residing within them, as if they have no will of their own; for it denies the personality that makes a sovereign state what it is: free, equal to all others of its kind, and entitled to strive for the good life that is distinctly its own. (Bain 2003: 172) This is the kind of scenario that Rawls would undoubtedly wish to avoid, but given the broad similarities between the current practice of state-building and his own institutional approach, his duty of assistance is in danger of being conflated with these ideas. If his perspective is to have any normative or critical import, therefore, it is crucial to highlight those key principles he espouses. It may be that given current practices, a notion of capabilitybuilding and assistance that is not paternalistic, ethnocentric and democratizing, is unlikely; but this does not mean it should be dismissed as an impossibility – or that Rawls’ values of toleration, neutrality and mutual respect should not be considered. In light of the problems that the democratization project has suffered in the last decade, it is surely necessary to consider alternative approaches to the problem of weak states. Rawls’ encouragement of decency and political participation in place of aggressive democratization, his advocacy of toleration and the power of example represent compelling first principles in the current climate. There seems no logical reason to assume that institution-building must be inherently intolerant of difference.2 One of the most significant claims of the duty of assistance is that we should strive to promote the capability, or the freedom, of burdened societies, without entirely destroying their negative liberty in the pursuit of a perfectionist vision of the state. We should ask on whose authority we can identify the positive liberty of peoples, and insist on their development to self-realization. Dominik Zaum’s expresses the same doubts about state-building by pointing out the profoundly illiberal, un-Millian practice of ‘forcing states to be sovereign’ (Zaum 2007: 230). In more prosaic language, we might acknowledge that there is more than one way to skin a cat, and practitioners and intellectuals alike would do well to

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consider how political development might occur in a variety of reasonable ways, deserving of our respect and toleration. In the domestic context, Rawls’ theory, and specifically the difference principle, is regarded as attempting to steer a path between liberty and equality. In the international context we might conclude that his theory, and specifically the duty of assistance, attempts to steer a path between other ideas. Firstly, I regard his duty as an attempt to account for the importance of both the internal and external obstacles to the freedom of peoples. Whereas literature on political capacity has tended to overlook the importance of external factors, Rawls’ duty allows room to consider both the effects of internal culture and practices, and the obstacles of the international structure. Secondly, it also embodies an attempt to negotiate the boundaries between development and paternalism. The extent to which he manages this successfully is perhaps questionable, but international actors might do well to consider Rawls’ normative principles. All of the above, I hope, will contribute to the claims that Rawls’ theory presents us with an insightful and challenging perspective on today’s international society, and that it is worthy of sustained reflection. Beyond the scope of Rawls own work, I can only make tentative suggestions. Through arriving at a conception of state capability from the purely normative perspective, I hope that some insight may have been provided into this concept. Through considering state capability in terms of MacCallum’s concept of liberty, perhaps the most significant aspect has been the manner in which this perspective allows us to reflect on the practice of institution-building. In conclusion, I have argued that by viewing the building of capability as lifting constraints on freedom, we are forced to consider whether our opinions on the appropriate policies are ultimately manifestations of our ideological stance. The implication is that perhaps no perspective on state-building can be regarded as value free. Just as the broad spectrum of measures I have identified is intimately related to Rawls’ principle of an international minimum that should be respected, so the policies advocated by others will be related to their own ideological perspective. In the context of such a complex field of study, it would seem that the empirical reality can be made to match one’s world view. The approach advocated here – of beginning with the society in question, then addressing the requisite constraints of the international structure, mobilizing substantial resource redistribution, and offering assistance with institutional reform that is sensitive to the societal culture and tradition – represents a typically Rawlsian position in trying to bring together traditionally conflicting ideas. Framing the discussion in terms of the freedom of peoples may at the very least offer an alternative perspective on these issues. The extent to which the duty of assistance might have resonance in policymaking circles, is of course, open to speculation. There seems no reason to

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think that the foreign policy of liberal states or the actions of global institutions could not be conducted in something approaching the spirit of the duty. As the Washington Consensus loosens its grip, the perspective applied here to burdened societies may be an interesting lens through which to view the developing world. However, a fundamental problem is persuading the dominant forces in the international realm that they are bearers of this type of demanding duty, which inevitably requires the forfeiture of some benefits. The present-day international society is far from being informed by an idea of a social contract for mutual co-operation: an idea that accounts both for how burdened societies are excluded (in their failure to contribute to mutual goals) but also how principles of justice can be framed and duties discharged. A discussion of whether ‘such a Society of Peoples is indeed possible’ (LP: 124) is the work of another volume. In truth, we cannot know for sure whether international society will reach the stage where a genuine ‘mutual affinity’ exists, or whether states will reach such a point in their ‘moral learning’ that fairness and justice will be the predominant global forces. Collectively, we are more than aware of how bound together we are by our common fate, and we should have a good enough sense of the direction in which we ought to proceed. Our current economic crisis has served to remind us of our intimate connections, and if any positives have emerged from these travails, it is that these events have encouraged the kind of rhetoric that espouses international co-operation and collective obligations. In the meantime, however, poverty persists and people die as a result. It is possible that at least another fifteen people will perish due to its effects in the time it takes to read these final words. Although we are yet to live in a realistic utopia, with an obligation to pursue a duty of assistance, this does not mean that such a perspective cannot inform what we do now. If the duty is difficult to justify in such a realistic utopia, where peoples acknowledge their moral obligations to others, then perhaps in the present circumstances we might justify its measures as best we can. Various appeals can be made to the idea of rectificatory justice, the inviolability of human life, and plain old self-interest; all three may have a role to play. In 1980, the Brandt Report provided guidelines and suggestions on how we might work towards a more equitable world. Thirty years later, it seems pertinent to ask whether we have come any closer to realizing its aims and aspirations. The Commission that produced this report was set up with the intention of thinking through issues of global poverty in an impartial manner, representing as many views and interests, and as much political and regional balance as possible: a mimic of an international original position. Were a similar commission to meet again today, they might do worse than aspire to the ideals of the duty of assistance.

Notes Introduction 1. The term ‘international justice’ is used to denote Rawls’ perspective, given his focus on inter-state relations. See Chris Brown’s essay (2006) for a discussion of the two terms, and an assessment of how both terms are equally problematic in the face of developments in international and global relations. 2. ‘The distant needy’ is said by Deen K. Chatterjee to denote ‘those who are in need but who are strangers to us due to distance’ (Chatterjee 2004: 1). 3. The term ‘libertarian turn’ is shorthand for describing the manner in which Rawls’ international theory appears to depart from the egalitarianism of his domestic theory with the rejection of a distributive principle. It is intended to capture the idea that Rawls apparently turns away from some of his original ideas, and is not meant to assert that Rawls’ should be regarded anew as a strictly libertarian theorist in the international context. 4. This I understand to be the claim made in the ‘strong cosmopolitanism’ of Kok-Chor Tan (2004: 116–23).

1 The Cosmopolitan Critique 1. It is worth noting that Rawls’ concept of a ‘people’ is not without complication, and many facets of his taxonomy of societies will be discussed as the chapters unfold. At this stage, and for the benefit of brevity, it is easiest to regard them as representing idealized or schematic forms of the nation state. 2. Rawls allows for other types of decent people that may be ‘worthy of membership’ (LP: 4) that do not fit this specific description. The idea of a decent hierarchical people is returned to in more detail in Part III. 3. I am indebted to Derek Edyvane for clarification on this issue. This process of considering other alternatives is important in the domestic context with regard to the justification of Rawls’ theory, thus raising questions about his approach in LP (see note 8 for further discussion). 4. See, for example, Chris Brown (2000, 2002), Andrew Hurrell (2001), Peter Sutch (2001) and Leif Wenar (2001). 5. See, for example, Darren Moellendorf (1996), Thomas Pogge (1994) and Fernando Teson (1994). 6. ‘Rawls’s theory of international justice is unable to deal adequately with several pressing problems … As such it has diminished relevance to the current world order’ (Caney 2002: 95). 7. Barry also provides a much broader critique of Rawls’ project, developed at length in his later work (1989). 8. Brian Shaw (2005) also sets out his own cosmopolitan alternative to Rawls’ peoplebased approach. Shaw’s method is to incorporate Kant’s analysis of individual property rights in order to overcome the perceived shortcomings with regard to individual toleration and global redistribution.

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9. It is significant that Rawls provides only one set of principles for discussion in the international original position, in contrast to the situation presented in the domestic original position. His justification, I suggest, may be that no other realistic set of principles in our international public political culture present themselves for consideration by the representatives of peoples. The possibility that other reasonable sets of principles for inter-state relations may exist has implications with regard to his claim that the Law of Peoples is in an acceptable state of reflective equilibrium. He acknowledges the requirement of reflective equilibrium when stating that his contract approach should bring together our considered judgements ‘at all levels of generality’ (LP: 58) and that the acceptance of the ‘two-level sequence’ for the original position in LP ‘is settled by whether its outcome can be endorsed on due reflection’ (LP: 86 32n). However, part of the requirement for a theory in ‘wide reflective equilibrium’ is that it should be considered in view of all other reasonable alternatives. See Rawls (PL: 384 16n) for the distinction between narrow and wide reflective equilibrium, and Lehning (2009: 34–7, 121–5) for an enlightening discussion. 10. References to, or different variations of this argument are presented by Beitz (2000: 689–92), Cabrera (2001: 178), Caney (2002: 116–18), Hinsch (2001: 70–5), Pogge (2001: 251–3), Shaw (2005: 226) and Tan (2001: 501). It is also acknowledged by one of Rawls’ advocates, Audard (2007: 269, 272).

2 Elucidating the ‘Libertarian’ Law of Peoples 1. As I draw out later, it is Brown (2002: 15–16) who demonstrates how important it is to view the Society of Peoples in its ideal form, when discussing distribution and the duty of assistance in Rawls’ Law of Peoples. 2. I assume here that the economic co-operation of the EU is an example of the type of contingent measures to which Reidy refers. 3. It might be more appropriate to remark that solidarity would be essential to a fully just society, as the difference principle is not regarded by Rawls as a constitutional essential. 4. I use the word ‘direct’ here because it may be a matter of contention whether any increases in the wealth and opportunities of one society can actually occur without being at the expense of others. However small an improvement a people might achieve in the Society of Peoples, one could argue that it comes at the expense of others, as a relative gain for one means a relative loss for another. Given this possibility, it may be more sensible in practice to say that mutual affinity between the members of the Society of Peoples demands that no increases come at the direct cost, rather than relative cost of others. 5. Freeman’s account seems to lead us to the conclusion that an international distributive principle could be conceived of from a Rawlsian perspective – if the nature of the global structure transformed so extensively that it was no longer supervenient upon domestic institutions. Given the global practices and institutions within which we would live, our considered convictions of justice would not be anchored primarily in the domestic context. Freeman (2007: 321) seems to allow for this possibility. 6. One way to explain the normative approach of the cosmopolitans is to say that, unlike this perspective of political constructivism, it does call into question our current institutions such as sovereignty, paving the way for a more radical approach.

Notes 215 7. The extent of Rawls’ determinism here is far-reaching: there are echoes of Robert Owen’s ideas (1991) fiercely disputed by J. S. Mill (1884: 547–52) – which is one illustration of the claim that Rawls’ liberalism ‘pays moral tribute to the socialist critique’ (Lukes 1991: 52n). 8. The principles are arranged in lexical order. The basic liberties subsumed under principle (i) can be categorized as political liberties, such as the right to vote and freedom of assembly, and personal liberties such as freedom of thought, and freedom from dismemberment (TJ: 55). These liberties must be ensured, before fair equality of opportunity, or redistribution in line with principle (iia), are administered. Neither can these liberties be exchanged for the material benefit afforded by principles (iia) and (iib). Rawls buttresses his claim for the priority of the basic liberties with the idea that their integrity underscores the basic good of self-respect (TJ: 477). 9. For examples of the view that persons should be compensated for disadvantage deriving from circumstances but not for their choices, see Richard Arneson (2000), G. A. Cohen (1993) and John Roemer (1985). Alexander Kaufman is among those who dispute this idea as an unattractive ideal for egalitarian justice (Kaufman 2004). 10. This is the type of view that has also led commentators to criticize the difference principle because it is regarded at best as only mitigating inequalities, ‘and does not correct sufficiently for their effects … Often appealing to some of Rawls’ own views, they argue it fails to protect equality, or the right kind of equality, enough’ (Daniels 2003: 243). For an in depth illustration of why Rawls is not a luck egalitarian, see Freeman (2007: 111–43). 11. Early critiques of Rawls question the sustainability of Rawls’ theoretical distinction between liberties and socio-economic factors. They argue that social status, or one’s economic position relative to others, defines the extent to which basic liberties can be secured – see H.L.A. Hart (1999: 8) and Daniels (1999). Daniels’ arguments draw attention to the problems the worst off might experience in attempting to pursue their ends and live worthwhile lives, and the actual extent of Rawls’ ‘egalitarian conception of justice’ (TJ: 86). We will see later Rawls’ attempts to defend his position against accusations of purely formal equality, to which Daniels actually accedes (Daniels 2003). 12. This is an important aspect of Rawls’ rationale that seems to have evaded the critical eye of the cosmopolitans. Writing around the same time, and with a more sympathetic outlook, Brown (2000: 130) emphasizes the importance of Rawls’ emphasis on political culture – admittedly while questioning its pertinence, given the seemingly obvious economic constraints faced by weak states. However, he later makes the crucial point that in an ideal Society of Peoples, ‘there is every chance the external obstacles to economic development would be removed, or at least would be of much less significance than they currently are, and in those circumstances internal political culture might well take on the importance Rawls attributes to it’ (Brown 2002: 15–16). 13. It is important to remind ourselves, as Brown points out (2002: 15), that we are working within the context of ideal theory. Rawls is not discussing peoples that experience debilitating poverty. It seems intuitively more attractive to reject the idea of international redistribution when we think of it as being between autonomous, capable, well-ordered societies: for example, arguing that Portugal should not be subsidized by the UK, rather than, for example, Sierra Leone. While others may argue that substantive inequalities between well-ordered societies are unjust, this is not a view to which Rawls’ subscribes.

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14. On this account, the duty of assistance is not regarded as a distributive principle as it is not ongoing: there is a cut-off point after which there is no further claim on the economic system, thus it would not apply to all of the wealth within the economic system. 15. It should be noted that there is an important difference between the social minimum that Rawls identifies in justice as fairness and the social minimum that would qualify a conception of justice for the family of reasonable liberalisms. In a fully just society, adhering to Rawls’ two principles of justice, the social minimum aims to maximize the position of the worst off. In the case of other liberal theories that Rawls views as acceptable, the social minimum is a guaranteed minimum of freedom, rather than a maximizing principle. See Ian Carter (2006: 81–5) for a treatment of these two different positions. 16. This international minimum can be thought of as analogous to the social minimum that Rawls identifies as part of those theories that fall within the family of reasonable liberalisms. In this regard, it is a principle that is a guarantee of a minimal freedom for peoples, rather than a maximizing principle.

3 A Duty with No Obligations? 1. The most obvious way of accounting for this shift is that in Rawls’ view, noncompliant agents such as burdened societies take a far more central role in international politics than non-compliant agents take in the domestic context. A theory of international justice would be wholly inadequate, perhaps pointless, without due consideration given to issues of non-ideal theory. In the domestic context, theorizing justice between compliant agents is a consuming enough task, and as we will see, it is only in some cases that Rawls believes his approach can cope with the special demands of non-compliant individuals. 2. This is not an uncontroversial claim. As alluded to in the opening chapter, perhaps the most strident attack on LP from the cosmopolitan direction is focused on the idea that Rawls sacrifices individual rights, by granting decent societies a place in the Society of Peoples. 3. For a particularly good example of the importance that Rawls places on the connection between culture, institutions and a well-ordered society, see Rawls (1985). 4. See, for example, Beitz (2000: 689–94), Tan (2001: 496) and Pogge (2000: 201). 5. Although it should be acknowledged that Brown’s argument is a little more subtle than my claim that Rawls simply has less to tell us about non-ideal theory in general. In the context of comparing E. H. Carr’s utopian realism with Rawls’ realistic utopianism, Brown suggests that Rawls’ desire to circumvent the influence of power and the compromise this naturally entails leaves him with a less nuanced approach. 6. Miller might argue that there are numerous bases on which we can assign remedial responsibility, including moral responsibility and causal responsibility (2001, 2007). One other important way in which we can identify responsibility is on the basis of capacity; Miller’s argument is that simply by having the ability to address a situation we become responsible. His point could be that, regardless of whether burdened societies are morally or causally responsible for their problems, a remedial responsibility lies with the Society of Peoples on the basis of its capacity to help. However, if the duty is based only upon the capacity to help, then as Miller suggests, it can only be a humanitarian duty (Miller 2007: 261).

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4 Considering the Capability Perspective 1. In drawing attention to the influence of the idea of mutual advantage on Rawls’ perspective, Nussbaum seems to be following in the footsteps of Brian Barry, who identifies foundational problems for justice as fairness in the Humean notion of ‘the circumstances of justice’, which in turn create problems for Rawls’ notion of international justice (Barry 1989: 143–89). 2. In considering Rawls’ construction of the international original position from her perspective of ‘embedded cosmopolitanism’, Toni Erskine provides a related challenge (Erskine 2008). By omitting burdened societies, they are, she claims, ‘quite simply, located beyond the pale’ (Erskine 2008: 94), in a manner which precludes the possibility of the duty of assistance being motivated or justified ‘by acknowledgement of the equal moral standing of distant strangers’ (Erskine 2008: 97). 3. It is clear that such an injunction would be inappropriate in the case of children, whose rights, it is assumed, will be fulfilled and exercised on their behalf by their parents. On children and paternalism in TJ, see Williamson M. Evers’ ‘Rawls and Children’ (1978). 4. At no point does Rawls distinguish between those who require care due to bad brute luck (such as a car crash victim) and others who may require care due to bad option luck (such as individuals who pursue dangerous activities such as extreme sports or live an unhealthy life style in spite of knowing the risks). As Daniels points out, ‘basic institutions should not insist on knowing an individual’s history with an eye toward determining who is at fault for the need’ (Daniels 2003: 255). 5. This account may raise questions about the original position as a hypothetical construct and its temporal status. In one sense, in generating principles of justice this device is to be viewed as atemporal and applicable at any time, yet it is equally historically situated inasmuch as it applies to international society as we recognize it today. This is equally true of the domestic original position and its application to a domestic liberal society. Presumably therefore it is an abstract procedure for the here and now, which is applicable for as long as the conditions for liberal democracies or a Society of Peoples pertain. 6. The social minimum referred to here is the one that Rawls presents in justice as fairness, which operates as a maximizing principle, rather than a guarantee of minimal freedom that represents a constitutional essential for a liberal conception of justice. In my view, both versions of this minimum are open to the criticism presented here: that as an important idea in Rawls’ work, it is conceptually underdeveloped. 7. This argument is roughly transposed to Rawls’s international theory of justice. Although Rawls is concerned that peoples achieve the ‘international minimum’, in effect he has nothing extensive to say about how this might be achieved. In other words, his non-ideal theory lacks specificity in this regard. 8. In so doing, Sen acknowledges that Rawls ‘avoids the much-criticized feature … of giving more income to people who are hard to please and who have to be deluged in champagne and buried in caviar to bring them to a normal level of utility, which you and I get from a sandwich and beer’ (Sen 1980: 214–15). Sen, however, does not wish to discount utility completely as this is to ignore the real advantage gained from goods. Sen’s claim seems to be that in circumnavigating this problem, ‘Rawls went too far in the other direction’ (Roemer 1996: 188), leaving no space for considering the utility that might actually be gained from goods, and that some individuals’ relationship with their goods will be more productive than others.

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9. This capability approach is captured in concepts developed in Sen’s early work (Sen 1985). The first is that of ‘functionings’, representing those things one might value being or doing, such as being free from disease, or partaking in community life. We can understand ‘capability’ as the combinations of functionings that we are able to achieve. 10. To clarify, in Rawls’ view, individuals’ worth of liberty does not represent a substantive level of freedom. He does not take into account individual capacity in the case of these agents, therefore their worth of liberty is not isomorphic with actual capabilities given that some will make more of the same resources due to their superior talents. However, as discussed in the next chapter, it is debatable whether or not the idea of the worth of liberty can be properly distinguished from substantive liberty, or capabilities. 11. O’Neill, as a cosmopolitan, is concerned with the ‘capability set’ weak states might have because of their inability to meet the concerns of their individual citizens. She recognizes there are some states with such limited functionings that they are unable to improve justice, or control certain elements within their boundaries, or even enforce laws and levy taxes. In some cases the term ‘state’ is so vacuously formal as to be reduced to an ‘honorific appellation’ (O’Neill 2001: 198). 12. In fact, Nussbaum has criticized Sen for taking this approach (Nussbaum 1988: 176) but he has not been keen to take the Aristotelian route of making ‘robust use of an objectivist framework based on a particular reading of human nature’ (Sen 1993: 47). Rawls seems to later accept Sen’s arguments that it is not a comprehensive doctrine (LP: 13). 13. Perhaps his attitude is best summed up by the rather backhanded compliment that the capability approach is essential because it ‘is needed to explain the propriety of the use of primary goods’ (LP: 13 n3). One can argue his position is both pragmatic and principled – he regards the capability approach as unrealistic, which is also a problem in principle with regard to Rawls’ idea of reflective equilibrium; a moral theory should aspire to be attuned to our considered judgements. Caney argues in regard to measuring ‘even if it is hard to measure some qualities … this fails to establish that they are of no moral significance and should be ignored by a theory of justice’ (Caney 2001: 132). While they may only provide good approximations, Sen himself asks ‘Why must we reject being vaguely right in favour of being precisely wrong?’ (Sen 1987: 34). 14. Rawls concedes that he does not ‘know how far justice as fairness can be successfully extended to cover the more extreme kinds of cases. If Sen can work out a plausible view for these, it would be an important question whether, with certain adjustments, it could be included in justice as fairness when suitably extended, or else adapted to it as an essential complementary part’ (JF: 176 n59). 15. One point of note is that Rawls cashes out the social minimum in terms of the maximizing principle of justice as fairness, rather than its form as a guarantee of minimal freedom. However, regardless of the proposed level of this baseline for justice, its conceptual development, in both cases, requires the extension of the informational base.

5 Conceptualizing State Capability: The Freedom of Peoples 1. Sen himself states that transposing the capability perspective to collectives rather than persons need not be considered in contradiction to his basic approach. Despite capabilities being seen ‘primarily as attributes of people, not of collectivities, such

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2.

3.

4.

5.

6. 7.

as communities … [t]here is, of course, no great difficulty in thinking about capabilities of groups’ (Sen 2009: 244). However, mapping Sen’s theory of justice onto peoples could be fraught with complexity, as well as being in contradiction to his cosmopolitan approach. Happily, the exercise here is not to discuss how Sen’s theory can be transposed to the Society of Peoples in its entirety – the aim is far more limited. It is an elucidation of certain aspects of Rawls’ theory of international justice, through utilizing a capability perspective in an analogous manner to his domestic approach. It should be noted that Jackson’s dual concept of sovereignty is not uncontroversial, given that it is extended far beyond the traditional understanding of sovereignty. The tendency has been to deal with the substantive nature of states and their freedom to act in a different vocabulary, revealed in F. H. Hinsley’s treatment of sovereignty, where he separates out sovereignty and what he terms ‘international freedom to act’. He argues ‘that it is wrong to conclude that because the state has experienced a decline in its international freedom of action, sovereignty is no longer compatible with the state’s international position’ (Hinsley 1986: 226). This illustrates the manner in which he regards sovereignty as a categorical concept, which does not operate by degrees. For those in the West, liberty was to be understood in negative terms: what was important for individual agents was that their freedom from interference be protected to the greatest extent possible. For the states of the Soviet Bloc, liberty was understood in positive terms, as individual self-development and the realization of potential. In sum, liberty meant self-mastery. When Jackson and Daniels use the concept, they do not have perfectibility in mind — the idea of increasing positive freedom denotes the development of capabilities to the basic level where actors become functioning corporate agents, and not the development of self-mastery. Steven Lukes (1994) draws attention to Berlin’s fundamental philosophical project: the rejection of the idea of monism. This is the idea that our world and existence can be accounted for or explained in terms of an all-embracing vision and from the same source: ‘that the true answers, when found, must necessarily be compatible with one another and form a single whole’ (Berlin 1990: 6). In Berlin’s positive concept of liberty, we have monism converted into a political doctrine, whereby the true ends of humankind are identifiable and attainable. This belief of the perfectibility of persons is responsible for ‘the slaughter of individuals on the altars of the great historical ideas’ (Berlin 1958: 167). I use here the distinction between concepts and conceptions of liberty in the manner employed by Carter, whereby a concept is taken to denote a specific idea of the nature of freedom such as presented by MacCallum and Berlin, while rival conceptions are taken to be different interpretations of those particular concepts; in the case of MacCallum’s concept of freedom, we distinguish different conceptions by the manner in which they interpret the ideas of agents and restraints (Carter 2006: 15–16). This distinction between concept and conception is taken, in turn, from Rawls (TJ: 5). See the section in Carter’s book on Socialist versus Libertarian Conceptions of Constraints (2006: 234–6). The type of entities that can be identified as obstacles to freedom will vary on account of certain conditions that various theorists might apply. In other words, there will be specific reasons given by thinkers for why some entities can be regarded as obstacles to freedom while others are simply regarded as causing an inability on behalf of the agent (which presumably is insufficient for justifying

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remedial measures). Carter lists some of these ‘conditions for the existence of a constraint on freedom’ (Carter 1999: 221). They include the idea that a constraint must be imposed by humans rather than natural forces and the more restrictive ideas that they must be constraints for which others can be morally responsible or which others imposed intentionally. 8. A further possibility would be to provide a minimum list of ‘state capabilities’ that the duty of assistance might be regarded as guaranteeing, emulating the manner in which Nussbaum lists the ten capabilities she regards as being fundamental to human well-being (Nussbaum 2006: 76–8).

6 Actualizing State Capability 1. A further suggestion for the persistence of explanatory nationalism is that relative to change in some national institutions, ‘change in our global order has been glacial. In contrast to the colourful variety of national institutional schemes, our global order also has no simultaneous alternatives with which it might be compared’ (Pogge 2000: 61). Furthermore, the variety in standards between nations compounds the tendency to assign the causes of these differences directly to the nations themselves. 2. Assertions made in this chapter regarding common assumptions and practices in the development field at present are, in general, put forward on the basis of articles in the popular textbook, Politics in the Developing World (Burnell and Randall 2008). 3. Despite the complex nature of the causal factors behind many famines, Sen argues that ‘starvation can be prevented by systematically re-creating a minimum level of incomes and entitlements for those who are hit by economic changes’ (Sen 1999: 168). 4. Another facet of importance in democracy is an enterprising media. The lack of such scrutiny in China during their famines of 1958 to 1961 even ‘misled the government itself, fed by its own propaganda and by rosy reports of local party officials’ (Sen 1999: 181). 5. Sen cites the crisis in South East Asia as an example of how the lack of democratic institutions can have an effect in broader terms. The lack of a democratic forum to scrutinize financial and business arrangements was at the heart of the financial crisis in some of these economies (Sen 1999: 185). Given recent events, it may be apt to ask what this hypothesis suggests about the developmental progress of the US and UK. 6. If Rawls were to employ Sen’s argument to the letter, he would be advocating reform into a multiparty democracy as the means for burdened societies to become well-ordered and responsive to their citizens needs. This, however, would provide serious difficulty for Rawls as he does not want to foist comprehensive liberal values upon burdened societies or decent peoples. 7. The all important ‘culture’ which Landes refers to, and that he claims drives development, appears as a melange of factors which come together through no great design but rather historical accident, for example: climate (Landes 1998: 29), imperialism, as ‘the expression of a deep human drive’ (Landes 1998: 63) and the Industrial Revolution that ‘made some countries richer and others (relatively) poorer’ (Landes 1998: 168). The element of explanatory nationalism which apparently infuses Rawls argument is present, but the fortunes of nations are tied to the innovation and ethics of their society and culture, and not the values and attendant institutions of those in power.

Notes 221 8. It is worth considering the fact that Rawls refers explicitly to Landes’ argument about the OPEC nations. Is it the case that when Rawls frames the conditions of burdened societies that he has some Middle Eastern states in mind? It is a question worth raising as a possible criticism of the concept of a burdened society, because it fails to capture the sense in which many societies are burdened in different ways. 9. Landes is generally poorly disposed to assistance. He is inclined to conclude ‘I do not want to advocate any particular national policy, the less so as activist intervention can as easily make things worse as better’ (Landes 1998: 522). We are left in little doubt about where the greatest burden lies. ‘What counts is work, thrift, honesty, patience, tenacity. To people haunted by misery and hunger, that may add up to selfish indifference. But at bottom, no empowerment is so effective as self-empowerment’ (Landes 1998: 523). 10. When looking at this political culture, I have tentatively compared it to the category of capacity, identified with persons. However, state capacity in the literature is generally equated with institutional capacity – which we would equate with what has been described thus far as the substantive freedoms, or state capability. This is different from what I would term state capacity: a society’s human capital and social norms that is the raw material in building the institutions and capability of a society. Capacity is a quality that inheres in the agent; capability represents the extent of its possible actions. 11. It is Migdal’s overarching argument that the establishment of social control has been a historical struggle in Western states, which as yet many of third world states have been unable to accomplish – in great part due to the strength of networks, traditions and customs. He hints at other causal factors when he notes in passing that the ‘role and effectiveness of the state domestically is highly interdependent with its place in the world of states’ (Migdal 1988: 21). 12. Miller disputes that a duty is anything other than a humanitarian duty where causal or moral responsibility for poverty is not established (Miller 2007: 261). Identifying the problems of political culture with the policies enacted by the colonial powers might establish the necessary causal responsibility to circumvent this argument. 13. Clapham questions the whole ethos of state-building in some situations, suggesting that we should ‘come to terms with the re-emergence of a once familiar kind of global order, in which zones of statehood have to coexist with zones of less settled governance … The alternative project of attempting to restore statehood is chimerical’ (Clapham 2004: 78). Jeffrey Herbst (2004: 308–9) raises a similar point about the potential in thinking about alternatives to the sovereign state. 14. It is worth noting that, in the same vein as Sen describing development in terms of societies moving towards fully functioning democracies, Fukuyama sees the notion of state-building as one of moving towards ‘the material prosperity of market economies and the political and cultural freedom of liberal democracy’ (Fukuyama 2004: 3). 15. Van de Walle highlights other contingent factors. The African hinterland has suffered because of its lack of access to the oceans, which have facilitated trade in goods and ideas (Van de Walle 2004: 104) Terrain can affect the relative wealth of a country, with particularly vast and difficult territory making the collection of tax more difficult (Van de Walle 2004: 103). 16. See also Robert Rotberg (2002). 17. Furthermore, it indicates how another structural obstacle is inherent in the approach espoused by state-builders, in the sense that they prescribe one type of

222

18.

19.

20.

21.

22.

Notes institutional reform – along liberal democratic lines. For example, in the case of Bosnia, where the electorate have not prioritized mutual harmony in the mode of a liberal, tolerant society, extensive powers have been denied and withheld by the EU (Chandler 2005: 142). I am much indebted to Milja Kurki for outlining this argument. The prevalence of this assumption in favour of liberal democracies is discussed in the following chapters, and the manner in which Rawls’ tolerance of the idea of decent peoples offers an alternative approach. These include: rich countries opening their markets entirely, without reciprocity or conditionality; dissolving the escalation of tariffs on manufactured goods which discourages industrialization; liberalizing unskilled, labour-intensive services such as shipping (and not just skilled services like banking); liberalizing labour movement in the same way as capital markets so that workers from poor countries can move around, looking for the highest returns; the establishment of an international tribunal to prevent the abuse of nontariff barriers such as dumping duties; the dissolution of bilateral trade agreements which undermine multilateral agreements and tip the balance in favour of the richer countries. Last, but not least, are the institutional reforms: ‘How decisions get made, what gets put on the agenda, how disagreements are resolved, and how the rules are enforced are, in the long run, as important as the rules themselves’ (Stiglitz 2006: 97). The effective monopoly this gives inventors over innovations means that high prices are ensured for goods such as medicines, because generics are delayed from entering the market. TRIPs make closing the knowledge gap that much harder, and put the squeeze on limited resources (Stiglitz 2006: 118). To rub salt in the wounds, many drug companies profit through re-branding traditional cures ‘rediscovered’ in the tropical world (Stiglitz 2006: 126). Pogge suggests that those ruling in violation of their state’s constitution should be barred from selling natural resources, or borrowing funds. The misuse of resources is not always tied to tyranny, as Russia’s oligarchs have shown, and to this end Stiglitz outlines a list of further global measures to help resource-rich countries make the best of their endowments, including the institutionalization of transparency and product certification (Stiglitz 2006: 155–9). Stiglitz also identifies other types of debt which require regulation. One problem, with which we have recently become more acquainted, is that of private, crossborder debt, which was manifest in the East Asian crises and led then to private liabilities being nationalized. Prophetically, Stiglitz suggests that the situation might be avoided by more informed borrowing and lending (Stiglitz 2006: 231–3). It might be objected that in citing Stiglitz’ work, I am guilty of the ‘slippage’ between state-building and economic development which I have argued is problematic in analysing Rawls’ work. However, although Stiglitz focuses primarily on economic problems, his primary concern is the improvement of people’s lives through development, premised on good governance. He states, ‘even if globalization succeeds in increasing resources to developing countries and opening up new opportunities, development is not assured … A major factor determining how well a country will do is the “quality” of the public and private institutions, which in turn is related to how decisions get made and in whose interest, a subject broadly referred to as “governance”’ (Stiglitz 2006: 54). The problem with many IMF practices and trade agreements, and the practice of corruption, is that they undermine democracy (Stiglitz 2006: 56). Evidently, from this remark, he also favours a democratic form of government– which is problematic from the perspective of Rawls’ political liberalism.

Notes 223 23. Again, I thank Milja Kurki for drawing my attention to the importance of causal weightings in explanatory accounts. 24. However, if the reader is unconvinced about its fit with Rawls’ perspective, I would remain hopeful that they are persuaded that this approach to the issue of state-building merits consideration.

7 A Duty in Equilibrium 1. Raymond Geuss believes it tells us a lot about ‘the eccentricity of Rawls’s work’ (Geuss 2005: 31) that the question he should ask in the face of the atrocities of the Second World War is ‘What is the correct conception of justice?’ Geuss believes any number of issues could be reflected on as a response to mass murder and torture – such as security and the control of violence. However, it might be suggested that Hitler’s rise was connected to the political injustice experienced by the German population, post World War I, while the Nazi regime was predicated on a deeply unjust world view. 2. Robert Jackson notes ‘that Rawls bypasses classical realism out of preference for a late-twentieth-century social science conception: so-called neorealism’ (Jackson 2005: 160). The neorealist idea of a state is far more differentiated from Rawls’ concept of peoples than the classical realist notion, which blurs the distinction between the two. 3. In presenting what appears to be the relatively pluralist perspective of Rawls, it is worth noting again Jackson’s response to LP. Whereas Rawls has been admonished for what is considered to be his acquiescence to illiberal values, Jackson reads him as rejecting pluralism and advocating instead a kind of creeping cosmopolitanism: ‘His “Society of Peoples” is not a horizontal arrangement of multiple states that are subject to a thin but universal international law that allows for a diversity of domestic constitutions around the world: an international society as conventionally understood. Rather, it is a cosmopolitan arrangement, resting on a thick notion of a community of humankind’ (Jackson 2005: 177). 4. Catherine Audard raises the question of whether the idea of ‘peace by satisfaction’ is ‘too obviously culturally situated and inapplicable beyond the Western cultural world because of its appeal to rational self-interest’ (Audard 2007: 264). 5. Rawls’ statement, that the democratic peace thesis underwrites his Law of Peoples, may appear to leave him a hostage to fortune, as the thesis itself has not been without its detractors (Brown 2002: 12). However, Fred Chernoff’s paper (2004), as well as providing an overview of the debate (2004: 51), suggests that Rawls could do worse than to base his argument on this theory. Chernoff uses democratic peace theory as an indicative example for advancing his claim that there are some parallels between categories of international relations and the natural sciences. Even critics acknowledge a strong consensus on the dyadic hypothesis (Chernoff 2004: 71) that democratic states are more peaceable with one another – although there remains a dispute on the monadic hypothesis that they are more peaceable in general. John MacMillan is one author who presents an argument in favour of this hypothesis (2003). Moreover, in spite of other, more sceptical responses, Brown makes the point that in its guise as part of Rawls’ ideal theory the democratic peace thesis is more convincing, given that the democratic societies in the Society of Peoples ‘could be relied upon not to make war on one another’ (Brown 2002: 12).

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6. Whether liberal peoples’ tolerance and Rawls’ project for world peace is sustainable is taken up by Audard, who is sceptical about the hopes of avoiding cultural imperialism (Audard 2007: 262–6). 7. Reidy (2005) provides a thorough analysis of Rawls’ conception of human rights. 8. Rawls’ position on humanitarian intervention is largely undeveloped, and one might suggest it is inconsistent with the tenor of the Law of Peoples, offering some support for the idea that he is an aggressive cosmopolitan. What differentiates him, however, is that although he is willing to sanction intervention in ‘egregious’ cases (LP: 94 n7), he rejects the idea that liberal foreign policy should encourage the proliferation of liberal democracies. His position could align him with solidarist thinkers such as Nicholas J. Wheeler (2002), and The Responsibility to Protect report, which advocates coercive use of force in the case of ‘actual or apprehended genocidal massacre or massive ethnic cleansing’ (Ignatieff 2005: 64). 9. It is worth noting that the question we face here with Rawls’ theory bears similarity to questions of ‘order versus justice’ addressed by thinkers in the English School (Linklater 2005: 93–8). To be clear, we are not addressing the problem of humanitarian intervention – the question here is whether placing extensive demands on the Society of Peoples (which may require some sacrifice on behalf of its members’ self-interest) and the burdened society in question (in terms of its own reform) is potentially destabilizing. 10. Rex Martin argues that ‘the duty to assist burdened societies to become selfsupporting decent societies also requires that the assisting countries (and their citizens and corporations) work to effect structural changes in the financial and economic environment in which formerly burdened societies interact with wealthier and more technologically advanced societies’ (Martin 2006: 238). 11. There is, however, a question to raise with regard to the paternalism inherent in ‘less intrusive statebuilding measures’ (Zaum 2007: 39). Can resources be ringfenced for institutions without transgressing Rawls’ injunction against paternalism? The donors’ autonomy is infringed upon if they must provide resources without condition. Such a stand-off between donor and recipient would be of benefit for no-one, and the situation requires concessions by both. Certainly on Rawls’ terms, no donor could dictate the form of institution to be assisted, but they could reasonably withhold further aid until positive outcomes are identifiable. 12. In terms of the state-building literature referenced in this book, a presumption in favour of democracy is both assumed by authors (Caplan 2002: 40, 64; Fukuyama 2004: 3; Zartman 2005: 283), and identified in the practices of states, the United Nations Development Programme and the international community in general (Burnell 2008b: 307; Chesterman 2005: 9, 247; Zaum 2007: 40). Even where Chesterman, Ignatieff and Ramesh Thakur (2005: 365) draw some concluding thoughts in their volume on state-building, and recognize the criticisms of international responses that have been guilty of assuming ‘one-size-fits-all’, the scope of alternatives appears to remain within the category of liberal democracy.

8 Creeping Cosmopolitanism? 1. There will clearly be various differences between the works of thinkers who might be termed cosmopolitan. The primary reason for choosing Pogge as the exemplar

Notes 225

2.

3.

4. 5.

6. 7.

9

of the cosmopolitan position is that he is the philosopher who expands most upon his normative position, with a detailed engagement with empirical difficulties and policy ramifications. I am indebted to Kok-Chor Tan for clarifying this point. In his review of World Poverty and Human Rights, Tan describes Pogge as adopting a ‘libertarian position’ (Tan 2004: 585) that ‘has important normative limitations’ (Tan 2004: 587), and states that Pogge’s ‘main objective is to counter poverty rather than global inequality as such’ (Tan 2004: 586–7). Although Pogge is notably more forthcoming with the detail. Elsewhere he elaborates a little further on what he has in mind, when he states that all individuals have a moral claim to ‘[presuppose] that they are freed from bondage and other relations of personal dependence, that they are able to read and write and to learn a profession, that they can participate as equals in politics and in the labor market, and that their status is protected by appropriate legal rights which they can understand and effectively enforce through an open and fair legal system’ (Pogge 2008: 203). Rawls identifies his own position with that of Henry Shue (1980) and R. J. Vincent (1986). He suggests that government is crucial in maintaining the ‘asset’ of a people: ‘the asset is the people’s territory and its potential capacity to support them in perpetuity; and the agent is the people itself as politically organized’ (LP: 8), or as he says later, ‘an important role of a people’s government … is they take responsibility for their territory and its environmental integrity as well as for the size of their population’ (LP: 38–9). See Tan (2000) for an extensive and illuminating explanation of how the differences in liberal approaches are recast in the international context. See also LP (84) for the repetition of this argument.

Conclusions

1. To recap: ‘the importance of state strength is now taken for granted within the development policy community, whose mantra since at least 1997 has been the dictum that “institutions matter”’ (Fukuyama 2004: 17). 2. It is interesting that in his earlier research with Jean Drèze, Sen was more inclined to espouse the pluralist idea that different forms of what we might describe as ‘good governance’ could exist. They suggest that the political participation needed to establish responsive regimes requires more than merely the securing of individual political rights, and it is equally, if not more important to encourage ‘adversarial politics and social criticism in influencing state action in the direction of greater sensitivity to the well-being of the population’ (Sen and Drèze 1989: 278).

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Index Argentina, 49 Arneson, Richard, 215 Aron, Raymond, 164 Audard, Catherine, 223, 224 autonomy, political, constitutive of peoples, 62–3, 203 individual, 192, see also meaningful freedom infringment of peoples’, 6, 22, 76 limits of peoples’, 168 peoples’, 31, 44, 49, 51, 55, 66, 144, 165–6, 167, 168 as a target of the duty of assistance, 74, 75, 80, 170, 172, 174, 204 as a value of the Society of Peoples, 39, 108, 161, 164–5, 166, 168, 169, 175, 176, 178, 199, 201, 207 see also burdened societies background structure, domestic, 55, 97, 108 see also international/global structure Bagehot, Walter, 93 Bain, William, 210 Barry, Brian, 10, 15, 17, 18, 19, 21 213, 217 basic structure (of society), 10, 26, 30, 40, 42, 43, 45, 46, 47, 49, 85, 102, 119 Beitz, Charles, 1, 2, 3, 10, 15, 16, 17, 18, 19, 22, 29, 49, 60, 69, 71, 135, 173, 175, 178, 179, 180, 187, 191, 201, 202 Berlin, Isaiah, 4, 77, 89, 90, 106, 107, 110, 111, 114, 126, 219 Bosnia, 222 Brandt Report, 67, 212 Bräutigam, Deborah, 147, 148 Brown, Chris, 67–8, 75, 122, 202, 213, 214, 215, 216, 223 Buchanan, Allen, 23–24, 26–8, 180, 188, 202

burdened societies, 2, 4, 5, 8, 50, 69, 71, 76, 77, 80, 85, 109, 112, 113, 127, 128, 134, 139, 143, 156, 157, 169, 170, 203, 212 and advice, 66, 75, 107, 123, 136, 140, 162, 171, 175–7, 198–200, 201, 207 analogous to impaired individuals, 82–3 capability of, 3, 4, 56, 109 description of, 58, 59–60, 74 and the duty of assistance, 3, 6, 7, 56, 63, 67, 68, 70, 72, 73–4, 79, 81, 103, 144, 162, 178, 180, 208, 210 obstacles to the freedom of, 107, 120–5, 126, 154, 159, 205 and political autonomy, 62–3, 74, 106, 109, 169, 172, 173, 175, 176, 185, 189, 196 potential as moral agents, 86–7, 176, 177 and redistribution, 171, 174 and self-determination, 60–2 status of, 73, 79, 86–9, 104, 176, 177, 204 and structural reform, 108, 149, 172 the transition of, 64–6, 131, 132, 135, 136, 145 burdens of judgement, 25–6 Burnell, Peter, 155 Cabrera, Luis, 18, 69, 72 Cameroon, 145 Caney, Simon, 17, 21, 23, 32, 180 capabilities, 92, applied to Rawls’ international theory, 76, 77, 89, 103, 104, 106, 109, 110, 112, 113, 115, 122, 125–7, 157, 169, 178, 194, 204, 211, 218, 219 applied to Rawls’ justice as fairness, 80, 81, 89, 94, 98–102, 120, 204 basic, 99–101 capability critique of Justice as Fairness, 94–9 capability perspective, 3, 6, 59, 75, 76, 77, 78, 79, 91, 107, 233

234

Index

capabilities – continued constitution of, 97–8, 108 see also burdened societies, Martha Nussbaum, John Rawls, Amartya Sen Carr, E.H., 216 Carter, Ian, 114, 116, 117, 118, 122, 205, 216, 219, 220 Chandler, David, 149, 150, 151, 155, 206, 209 Empire in Denial, 149 Chatterjee, Deen K., 213 Chaudhry, Kiren, 148 Chauvier, Stephane, 41–2 Chernoff, Fred, 223 civil society, 143–4 Clapham, Christopher, 141 Clark, Ian, 155 Cohen, G.A., 95, 215 Cold War, 133, 146, 149, 151, 207 colonial legacy, 78, 128, 136–40, 141, 148, 154 compliance, 11, 34, 36, 94, 195 comprehensive liberalism, 23, 25, 61–2, 98, 178, 192, 218, 220 see also liberal perfectionism conception of the good, collective, 12, 26, 165 individual, 26, 27, 30, 49, 100, 165, 209 corruption, 108, 152 constitutional essentials, 30, 84, 196 and the basic questions of justice, 30, 99, 196 constraint types, 120, 124, 219–220 constructivism, political, 37, 42–4, 161, 183, 186, 203, 214 cosmopolitan challenge, 3, 5, 6, 22, 159, 178, 179, 201 cosmopolitan critique, 4, 5, 8, 9, 13, 14–33, 35, 36, 57, 75, 80, 122, 180, 199 cosmopolitanism, 15–17, 178 as imprudent, 194 moral, 182–3 normative perspective of, 187–9, 191–2 philosophical method, 186 strong, 187, 191 vis-à-vis Rawls, 60, 181–201 see also liberal cosmopolitanism

Daniels, Norman, 89–90, 102, 110, 112, 215, 217, 219 decent hierarchical peoples, 12, 167, 177, 200 decent peoples/societies, 11, 12, 28, 60, 61, 63, 70, 72, 86, 87, 164, 166, 167, 168, 169, 170, 189, 201, 216, 222, 224 aspirations, 164 and individual rights, 21, 64, 185, 190–1 and the threshold of decency, 69–71, 184 toleration of, 4, 9, 13, 14, 17, 18, 20, 21, 132, 165, 177, 180, 185, 190–4, 198–200, 208 democracy, 20, 30, 61, 64, 131–32, 133, 153, 163, 166, 169, 177, 181, 185, 190–1, 192, 193, 198, 200, 209, 220, 221, 222, 224 democracy promotion, 166, 169, 177, 185, 200, 209–10 see also democratization, liberalization, paternalism, state building democratic equality, system of, 36, 37, 52, 53, 76, 102 democratic participation, 185 international, 27 democratic peace, 164, 170, 223 democratic theory, 38 democratization, 141, 188, 192, 200, 201, 208–10 see also democracy promotion, liberalization, paternalism, state building desert, 45, 46 development, 4, 82, 153, 205, 220 aid, 65, 142, 148, 150, 152 of burdened societies, 77, 107 economic, 11, 49, 63, 66, 67, 130, 132, 133, 134, 135, 137, 154, 175, 215 economic development vs statebuilding as a concept, 130, 132–4, 175, 222 and ethnocentricity, 207 and explanatory nationalism, 129–36 and fair trade, 151

Index and financial resources, 145 Landes on, 133–6, 220 and natural resources, 145 and paternalism, 5, 198, 208, 210, 211 relationship with state capability, 49, 63, 65, 66, 123, 225 Sen on, 123, 130–3, 134, 136, 154, 207, 208, 220, 221, 225 well-ordered societies and, 49, 59, 63, 73, 75, 109, 164 see also political development/ modernization, state building, state failure difference principle, 5, 10–11, 24, 25, 26, 30–31, 36, 38, 40, 41, 42, 43, 45, 46–8, 51, 52, 54, 55, 84–5, 90, 97, 117, 118, 173, 181, 183, 203, 211, 214, 215 international, 7, 15, 16, 17, 28, 36, 37, 38–42, 44, 49, 51, 52, 55, 56, 57, 75, 79, 181, 182 distributive principle, international, 9, 13, 15, 17, 22, 23, 24, 26, 27, 28, 29, 35, 36, 38, 42–4, 51, 52, 58, 76, 109, 161, 173, 174, 175, 181, 214 Doyle, Michael, 164 the duty of assistance, 2, 36, 52, 56 aims/target of, 60, 65, 66, 75, 120, 122, 124, 125, 169, 173–4, 189 ambiguity, 67–74, 121, 122, 125, 159, 161, 169–178 consistent with structural reforms, 171–2, 224 consistent with the Law of Peoples, 2, 4, 161–178, 196, 199 consistent with the redistribution of wealth, 172–5 and ethnocentricity, 132, 160, 198, 199–201 extent, 3, 59, 64–6, 67–9, 77–8, 79–80, 9, 103, 104, 125, 157 justification, 3, 59, 71–4, 77–8, 79, 81–9, 104, 157 lack of persuasive development of, 3, 58, 59, 64–6 and motivation, 139–40, 170–1, 175, 176 and paternalism, 4, 66, 87, 199–201

235

as a pillar of international justice, 84–5 as a principle of capability/statebuilding, 4, 5, 59, 63, 65, 66, 75, 120, 128, 196 as a principle of transition, 64–6, 173 reception of, 67–74 relationship to cosmopolitanism, 62, 180 and responsibility, 73–4, 88, 89, 140, 148, 175, 216 as a robust duty, 3, 4, 63, 129, 140–1, 154, 156, 157 Sen’s critique of, 93–4 and stability, 170 tension with the principle of toleration, 2, 4, 132, 162, 175–8, 198–200, 201, 207 threshold of, 69–71 duty of just savings, 60, 63, 70, 71, 85, 104, 184, 197 emigration, 191 equality, between peoples, 9, 11–2, 13, 23, 24, 27, 28, 37, 55, 56, 67, 83, 86, 87, 164, 198 as a good in itself, 36, 46, 48, 52, 173, 203 of opportunity, 9, 50, 56, 101, 102, 117, 118, 173, 215 as part of democratic theory, 38 Rawls’ understanding of, 36, 45–8 substantive, 13, 21, 23, 36, 37, 45, 46, 48, 49, 50, 52, 54, 56, 76, 173, 181, 182 of women, 50, 64, 66, 123, 131–2, 135 Erskine, Toni, 217 ethnocentricity, 5, 132, 160, 161, 162, 163, 165, 177, 189, 198, 199–201, 207–9 European Union (EU), 153, 214, 222 Evers, Williamson M., 217 explanatory nationalism, 127–30, 133, 134, 136, 139, 140, 151, 154, 205, 206, 207, 220 fairness, 46, 53, 54, 56, 57, 172, 181, 212 family of reasonable liberalisms, 25, 26, 30, 53, 84, 196, 216

236

Index

Fjelstad, Odd-Helge, 148 foreign policy, 4, 22, 61, 66, 163, 169, 170, 178, 180, 185, 199, 212, 224 Fourier, Charles, 131, 135 fraternity, 36, 37, 38–9, 42, 45, 51, 203 freedom conception of, and relation to a political theory, 113, 116–17, 205, 219 MacCallum’s concept of, 4, 6, 113, 115, 116, 120, 121, 122, 126, 219 meaningful/intelligent/effective use of, 25, 31, 52, 53, 54, 63, 71, 76, 84, 95, 98, 100, 108 negative, 89–91, 109–10, 112–5 obstacles to, 5, 77, 113, 116, 117, 118, 119, 120, 121, 122, 123, 124, 126, 128, 153, 154, 155, 157, 205 positive, 81, 89–91, 95, 102, 104, 106, 109–110, 111–115, 121, 125, 126, 219 Rawls’ conception of, 115–120, 121 substantive, 80, 84, 91, 95, 96, 97, 98, 104, 109, 118, 122, 156, 221 see also Liberty the freedom of peoples, 4, 5, 77, 80, 113, 128, 129, 134, 140, 150, 156, 157, 199, 206, 211 Freeman, Michael, 130 Freeman, Samuel, 34, 38, 39–40, 42–4, 48, 51, 68, 69, 70, 73, 203, 214 Fukuyama, Francis, 65, 140, 141–3, 145, 147, 207, 221 functionings, 218 Gabon, 145 Geuss, Raymond, 223 Gilpin, Robert, 132–3 global economy, see international economy global justice, 1, 5, 9, 93, 94, 182, 185, 186, 191, 192, 197 definition with respect to international justice, 213 principles of, 22 see also international justice globalization, 151, 152, 153, 155, 222 good governance, 147, 150, 222, 225 government as discussion, 93 Hart, H.L.A., 215 Herbst, Jeffrey, 221

Hinsch, Wilfred, 73 Hobbes, Thomas, 42, 92 human rights, 12, 21, 34, 61, 64, 65, 69, 70, 71, 93, 123, 129, 130, 131, 132, 151, 161, 164, 166–7, 168, 169, 181, 182–3, 184, 187, 190, 191, 192 see also, decent societies, individual rights, rights Hurrell, Andrew, 68–9, 213 ideal theory, 7–8, 11, 34–5, 45, 56, 58, 68, 75–6, 99, 100, 101, 129, 130, 150, 202 Ignatieff, Michael, 140–1, 149, 154, 155 impartial spectator, 92, 93, 197 individual rights, 20, 21, 64, 65, 66, 131, 132, 172, 175, 185, 187, 188, 189, 190–1, 200, 201, 207, 216 see also decent societies, human rights, rights industrialization, 50, 222 inequality, 49 global, 16, 17, 21, 32, 150, 153, 183, 225 between individuals, 16 between peoples, 13, 50, 73 unjust 52–6 informational base/scope, 77, 78, 96, 98, 103, 104, 106, 107, 108, 109, 113, 120, 121, 125, 127, 128, 129, 157 injustice, 52–4, 56, 98, 144, 162–3, 168, 180, 193, 197, 223 international/global economy, 14, 32, 34–5, 44, 124, 128, 140, 150, 151–3, 172, 222 international/global structure, 16, 26–8, 31–2, 34–5, 43–4, 54–5, 67, 108, 124, 129, 136, 148–9, 149–153, 155, 162, 171–2, 180, 181, 185, 193, 208, 211, 214 international justice, 1, 4, 21, 23, 28, 43, 61, 74, 75, 107, 169, 178, 188, 203, 208, 213, 216, 219 definition with respect to global justice, 213 and inequality, 54–5 principles of, 24, 35, 72, 83, 84, 85, 113, 186, 204 Rawls approach to/view of, 14–5, 31, 34, 62, 76, 81, 104, 109, 128, 187, 192, 198

Index international minimum/global social minimum, 36, 52, 55–6, 57, 58, 62, 69–71, 76, 79, 84, 89, 97, 104, 106, 120–1, 122, 124, 125, 127, 154, 173, 196–97, 216 elaboration of, 107–110, 122–3 International Monetary Fund (IMF), 27, 148, 150, 222 Jackman, Robert, 206 Jackson, Robert, 4, 77, 106, 109–10, 112, 113, 121, 125, 205, 219, 223 Japan, 49 justice, and peace, 165, 167, 169, 170, 178 for peoples, 161, 168, 172, 189 and stability, 169, 172, 189, 209 see also global justice, international justice, principles of justice justice as fairness, 9, 11, 13, 19, 25, 26, 29, 31, 77, 79, 85, 89, 90, 93, 119, 182, 186–7, 194, 196, 216 as a freedom-based theory, 116 limits of, 81, 82, 91, 95–8, 100, 104, 159, 196, 203, 209, 218 Nussbaum’s critique of, 81–2, 217 Sen’s critique of, 80, 81, 93, 94–7, 99 stability of, 30, 38, 159 Justice as Fairness, 99, 121 Kant, Immanuel, 91, 213 Kaufman, Alexander, 215 Kuper, Andrew, 18, 22 Landes, David, 123, 130, 133–6, 145, 154, 220–1 The Wealth and Poverty of Nations, 133 The Law of Peoples (1993), 14, 16, 23, 28–9 The Law of Peoples, 1, 9, 10, 11, 14, 17, 22, 36, 58, 59, 159, 161, 163, 182, 195, 196, 197, 201 and change of view on redistribution, 29–30 reception of, 9, 10, 14, 28, 32, 91, 194 the Law of Peoples, 14, 17, 19, 20, 21, 31, 34, 44, 58, 61, 66, 67, 122, 125, 161, 167, 168, 173, 176, 178, 200, 202, 223, 224 the basic charter of, 12, 26, 32, 34, 36, 79, 84, 94, 203

237

consistency of, 2, 4, 6, 203, 214 consistency with PL, 24–6, 30–1 consistency with robust duty of assistance, 2, 4, 159–79, 196, 199 consistency with TJ, 3, 4–5, 13, 14, 29–31, 32, 36, 55, 85, 173 and external scrutiny, 197–8 and foreign policy, 4, 163, 169, 178, 185, 199 and fraternity, 38–9 legitimacy of, 22–4, 72 as a liberal law of peoples, 19, 163–4, 165, 167, 168, 170, 178, 185 not contingent, 11 and peace, 163–4, 165, 169, 170, 193 principles of, 12, 13, 73, 112, 188, 196 and reciprocity, 39–40, 173 and redistribution, 49, 85, 173, 174 social liberalism, example of 22, 178 as a theory of international justice, 169 and toleration, 165–7, 185, 191, 198 and the use of force, 123 legislative stage, 84, 91, 99, 101 legitimacy, 19, 22–4, 72 of the duty of assistance, 174 of the principles of justice, 30, 195–97 Lehning, Percy, x, 19, 214 liberal cosmopolitanism, 61, 180 critique of Rawls, 2–3, 9, 14 philosophical outlook, 2–3, 14, 16 Rawls’ rejection of, 17–21 liberal egalitarianism, 2, 48, 202, 208 liberalization, 4, 183, 198 see also democratization liberal peoples, 12, 19, 20, 24, 29, 72, 167, 169, 193, 194, 198, 201, 208, 209 aspirations, 164 nature of, 11 liberal perfectionism, 190 see also comprehensive liberalism the ‘libertarian turn’, 2, 10–13, 14, 24, 202, 213 liberties, fair value of political, 54 liberty, of conscience, 162, 183, 191 vs equality, 48, 56 individual, 17, 46, 101, 184 MacCallum’s concept of, 77, 106–7, 111, 112–116, 126, 205

238

Index

liberty – continued negative, 210 as part of democratic theory, 38 Rawls’ conception of, 117–19, 157 two concepts of, 4, 77, 89–91, 106, 109–116, 126, 211, 219 worth of, 96, 111, 116, 117–19, 218 see also freedom Locke, John, 92 luck, 88, 89, 139, 217 luck egalitarianism, 37, 47, 48, 215 Lukes, Steven, 219 MacCallum, Gerald, 4, 115, 117, 205, 219 concept of freedom, 6, 77, 106, 107, 111, 112, 113, 114, 116, 118, 120, 121, 122, 126, 211 MacMillan, John, 223 Martin, Rex, 68, 224 Marx, Karl, 92, 149–151 Mayall, James, 137 Migdal, Joel, 137–8 Mill, John Stuart, 92, 215 Miller, David, 38, 39, 49, 50, 69, 73–4, 134, 185, 186, 187, 216, 221 moderate scarcity, as a condition for the social contract, 41, 45 modus vivendi, 24, 164 Moellendorf, Darren, 213 mono-causal explanation, 67, 128, 133, 134, 135, 136, 140, 146, 154, 155 Moore, Mick, 148 moral learning, 162, 168, 195, 212 moral powers, two, 48, 71, 99–101, 120, 165 multi-causal/level explanation, 5, 140–1, 148, 154, 155, 206–7 mutual advantage, 41, 45, 55, 81, 103, 217 mutual caring/affinity, 39, 73, 139, 162, 170–1, 175, 195, 212, 214 natural disasters, 72, 87, 124 non-ideal theory, 7–8 , 34, 36, 57, 58, 68, 69, 74, 75–6, 79, 90, 100–103, 106, 107, 120, 126, 127, 130, 157, 170, 202, 216 Nussbaum, Martha, 17–18, 80, 157, 204, 217, 218, 220

capability perspective, 3, 77, 79, 81–3, 89 critique of Rawls, 3, 6, 79, 81–2, 104 Frontiers of Justice, 91 on non-compliant agents, 81–2, 102, 103 O’Neill Onora, 97, 218 OPEC, 135 original position, 10, 13, 15, 16, 46–7, 55, 84, 85, 88–9, 217 exclusion from, 81–2, 86, 87, 88, 89, 103, 157, 176, 204 international/global, 11, 12, 14, 15, 16, 27, 28, 37, 41, 55, 71, 72, 79, 83, 212, 214, 217 Sen’s critique of, 92–3, 94, 197–8 Ottoway, Marina, 143 outlaw states, 59, 166, 167, 170, 176, 177 overlapping consensus, 26, 30, 209 international, 29, 183, 189, 197–8, 209 Owen, Robert, 215 paternalism, 4, 5, 62, 87, 176, 180, 185, 190, 198–201, 207–9 peace, 62, 161, 163, 164, 165, 167, 168, 169, 170, 178, 190, 191, 192, 193, 207, 223, 224 people, concept of, 11, 159, 165, 188–9, 213 as the touchstone for Rawls’ theory, 179, 188–89 pluralism, 93, 167, 168, 188, 223 reasonable, 30, 163 Pogge, Thomas, 1, 2, 10, 18, 19, 29, 151–3, 173, 178, 179, 187, 190, 191, 206, 208, 213, 222, 224–5 on cosmopolitanism and human rights, 181–85 critique of LoP, 16, 17, 32, 58 and explanatory nationalism, 127, 129, 205 global resources dividend, 51, 183 Realizing Rawls, 16, 17, 182 political culture, 88, 107, 127, 128, 130, 135, 154, 156, 162, 171, 176, 200, 208, 215, 221 colonial legacy for, 136–9

Index as an obstacle to freedom, 78, 123, 127 role in building state capability, 49, 56, 59, 64, 65, 66, 67, 108, 132, 133–4, 140, 141–43, 173, 177 political development/modernization, 155, 160, 177, 206–8, 211 see also development, state building political liberalism, 20, 22, 72 vs comprehensive/perfectionist liberalism, 25–6, 30–1, 61 in the international context, 61, 62, 160, 162, 163, 164, 166, 168, 177, 178, 192, 198, 207, 208, 209 and neutrality, 209 Political Liberalism, 22, 24, 29–31, 62–3, 67, 98, 99, 189, 195, 196 consistency with LP, 24–6, 30–1 in contrast to TJ, 24–26, 30–31, 196 population growth, 50, 64, 123, 131–2 potentiality as sufficient, 86, 87, 89 poverty, 37, 58, 69, 139, 146, 152, 162, 173, 192, 203, 207, 215, 221, 225 global, 1, 2, 3, 4, 6, 7, 8, 32, 76, 129, 136, 151, 154, 179, 202, 208, 209, 212 as an obstacle to freedom, 117–119 primary goods, 10, 25, 47, 50, 76, 80, 81, 83, 84, 89, 90, 91, 95, 96, 97–8, 99, 100, 101, 174, 182, 218 principle of free and fair trade, 35, 37, 54–5, 67, 72, 108, 197 principles of justice, 7, 19, 43, 93, 162, 185, 186 domestic, 10–11, 22, 23, 26, 30–1, 40, 42, 46, 49, 81, 87, 99, 100, 108, 192 equality of opportunity, 9, 10, 24, 30, 31, 47, 54 global/international, 14, 16, 23, 88, 187 see also difference principle, distributive principle principle of redress, 37, 38, 44–52, 56, 73, 74, 203 proper patriotism, 61, 165 public political culture, 19 global/international, 20–1, 214 Putnam, Robert, 144 quasi-states, 106, 109, 110, 137

239

rationality of, individuals, 10, 15, 28, 46, 47, 71, 85, 88, 100 peoples, 39, 63, 64, 82, 86, 223 Rawls, John, consistency between domestic and international thought, 2, 9–10, 29–30, 199 convergence with the cosmopolitans, 179 domestic theory of justice, 3 influence, 1, 9 opinion of the capability perspective, 99, 218 philosophical methodology, 17–21, 186–7 and pragmatism, 192 rejection of cosmopolitanism, 17–21, 60–2, 135 response to Sen, 98–103, 116 view on the concept of liberty, 111 realistic utopia, 6, 7, 35, 92, 185, 186, 192, 193, 212 idea of, 1, 31, 34, 58, 122, 161, 162–8, 186, 202–3 lack of affinity in, 170–1 need for realism in, 75 the sharing of ideas in, 197–8 realism, 163, 216, 223 reasonableness, of individuals, 10, 26, 86 reasonable disagreement, 25–6, 30, 209 reciprocity, 36, 38, 39–42, 45, 53, 73, 144, 164, 222 between peoples, 12, 20, 22–3, 39–42, 51, 67, 72, 87, 165–6, 168, 173, 198 democratic, 39–42, 203 redistribution, 5, 9, 30–1, 51 domestic, 28, 29–31, 45, 53, 121, 215 global/international, 7, 10, 13, 15, 21, 22, 23, 24, 26, 31, 36, 37, 49–51, 68, 130, 135, 144, 171, 172–75, 180, 181–2, 200, 213, 215 see also resources, wealth transfers reflective equilibrium, 18–21, 24, 38, 214, 218 Reidy, David, 34–5, 41, 54, 56, 68, 71, 72–3, 74, 83, 139, 203, 214 rentier states, 145, 148

240

Index

resources, 55, 56, 57, 59, 65, 128, 135, 142, 199, 200 distribution of, 9, 15–6, 23, 35, 37, 49, 108, 162, 174, 175, 224 for individuals, 31, 56, 57, 91, 94–8, 102, 108, 113, 116, 118, 119, 123, 163, 173, 202 as a measure of justice, 92, 94–8, 101, 218 as an obstacle to freedom, 140, 144–8 peoples’ financial, 55, 57, 64, 108, 124, 135, 144–5, 150, 205, 207 peoples’ natural, 11, 15, 16, 41, 42, 49, 51, 55, 56, 59, 64, 85, 125, 135, 140, 145–6, 152, 153, 197, 207, 222 see also wealth, relationship with domestic institutions respect, 192 of burdened societies, 72, 83, 86, 157, 176, 196 between peoples, 3, 11, 12, 20, 39, 42, 62, 164, 168, 176, 177, 185, 192, 193–4, 211 between persons, 18, 167 Responsibility to Protect, 224 rights, political 181, 185, 190–91, 199 urgent, 167, 168, 169, 176, 177, 180, 182, 183, 201 see also decent societies, human rights, individual rights Risse, Matthias, 65 Roemer, John, 215 Rousseau, J.J., 92, 162, 195 The Social Contract, 162 satisfied peoples, 164 Saudi Arabia, 148 self-determination, 60–3, 66 self respect, 48, 52, 53, 56 of peoples,11, 24, 27, 55, 56, 57, 165, 173 self-interest, 212 of individuals, 10 of peoples, 11, 51, 72, 139, 164, 167, 170, 171, 175, 176 Sen, Amartya, capability perspective, 3, 77, 79, 89–91, 97–8, 104, 106, 129, 217–8

critique of LP, 77, 93–4, 179 critique of Rawls’ domestic theory of justice, 3, 6, 80, 81, 89–91, 95–97, 98, 106, 157, 204 critique of Rawls’ political theory, 4, 5, 6 80, 81, 91–4, 104, 157, 159, 180, 190, 195–8, 201, 202, 204, 208 on development, 123, 130–3, 134, 136, 154, 207, 208, 220, 221, 225 ‘Equality of What?’ 95 on famine, 64, 131, 132 The Idea of Justice, 80, 91–4, 180 on protective security, 131 on women’s rights, 131–2, 135 see also transcendental idealism, John Rawls’ response to Shaw, Brian, 22, 67, 72, 213 Shue, Henry, 225 Sierra Leone, 138–9, 215 Smith, Adam, 92 social contract approach, 3, 10, 19, 46, 79, 81, 82, 91, 103, 204, 212 social capital, 144, 207 social liberalism, 22, 178, 180, 187, 188, 198, 199, 201 social minimum, 25, 31, 52, 53, 54, 56, 67, 70, 71, 74, 76, 79–80, 81, 84, 88, 89, 90–1, 97, 100, 103, 104, 106, 107, 119, 120, 121, 124, 125, 126, 156, 157, 216, 217, 218 nothing specific to say on, 90, 91, 95, 98 the Society of Peoples, 61, 167, 168, 169, 188, 200, 205, 209, 217, 219, 223 basic structure of, 32, 34, 67–8, 69, 171–2 constitutional essentials of, 84 and the duty of assistance, 7, 56, 59, 63, 65, 68, 70, 72, 73–4, 75, 85, 87, 89, 120, 122–4, 126, 127, 139, 159, 170–8, 204, 207 equality in, 9, 11–2, 13, 23, 24, 27, 28, 37, 55, 56, 67, 83, 86, 87, 164, 198 and ideal and non-ideal theory, 8, 34, 36, 56, 58, 170, 214, 215 and individual rights, 188–91

Index and the international minimum, 62, 76, 84, 85, 122, 131, 164, 184 and mutual affinity/caring, 39, 170, 175, 214 the possibility of, 212 as a realistic utopia, 162, 167–170 and reciprocity, 39, 51, 67 and redistribution, 23, 29, 37, 44, 50, 51, 55, 85, 108, 173–6 short definition of, 3 stability of, 72, 170, 193, 224 and toleration, 20, 21, 23, 167, 176–8, 192–3, 196, 216 sovereignty, 184 cosmopolitan view on, 60, 214 F.H. Hinsley on, 219 idea of, 62 Jackson on, 106, 109–10, 219 negative, 109–10 positive, 77, 106, 109–10, 112, 125, 205 stability, and justice, 169, 172, 189, 209 of justice as fairness, 30 and the Law of Peoples, 61, 164, 168, 169, 174, 189, 190, 192, 207 of a society, 123, 145 of the Society of Peoples, 51, 161, 166, 170, 172, 178 state building, and civil society, 143–44 as democracy building, 177 vs economic development, 130, 132–4, 175, 222 Fukuyama on, 141–3 project of, 4, 5, 76, 156, 210, 221 and Rawls’ duty of assistance, 65, 128, 130, 155, 210 study of/literature on, 128, 136, 140, 147, 155, 172, 177, 205, 207, 209, 211, 224 and systems analysis, 148–153 and taxation, 147 and wealth redistribution, 144–147 see also state capability state capability, 75, 143, 201 building, 5, 59, 120, 127, 140, 144, 146, 147, 177, 201, 206 and colonial rule, 137 as a concept vs economic development, 66, 132–3

241

as a concept vs state capacity, 125, 156, 221 as the freedom of peoples, 4, 77, 211 the idea of, 4, 156 level of, as the aim of the duty of assistance, 66, 120, 154, 189, 196, 207 perspectives on, 206–7, 211 as political autonomy, 63 as positive sovereignty/freedom, 77, 106, 109, 110–11, 205 Rawls’ view on, 207–208 state failure, causes of, 141, 145, 153 mono-causal explanation, 128, 133, 140, 154, 206 multi-causal explanation, 78, 140, 141, 154 statesmen, 171, 172 statism, Rawls’, 21 thin, 22 statist, Rawls’ approach, 15, 18, 21, 62 world, 188 status quo, 2, 7, 65, 67 Stiglitz, Joseph, 151–3, 171, 206, 222 structural adjustment, 146 system-level analysis, 141, 148–153, 155, 206–207, 211 Tan, Kok-Chor, 14, 23, 24–6, 29–30, 180, 187, 191, 202, 213, 225 Justice without Borders, 187 Tasoulias, John, 69–71 Teson, Fernando, 213 A Theory of Justice, 1, 10, 15, 36, 48, 68, 71, 90, 101, 189, 196, 217 extension of, by cosmopolitans, 15–16 and the law of nations, 15, 16, 31 in relation to LP, 3, 4–6, 8 13, 16, 21, 28, 34, 36, 50, 196 in relation to PL, 22, 24–26, 30–31, 196 toleration, idea of, 6, 17, 18, 21, 24, 61–2, 160, 161, 162, 166, 168, 191, 192, 194, 209, 210–11 of individuals, 20, 192, 213 in international society, 4, 20, 21, 22, 29, 61–2, 166, 167, 191, 192, 194

242

Index

toleration – continued of non-liberal ideas and/or practices, 10, 18, 19, 28, 191 of non-liberal societes, 4, 9, 13, 14, 17, 18, 20, 21, 132, 165, 177, 180, 185, 190–4, 198–200, 201, 208 pragmatism of, 166, 185, 193 tension with duty of assistance, 2, 4, 132, 162, 175–8, 198–200, 201, 207 transcendental idealism, 11, 91, 92, 93–4, 195–7 Trade Related Aspects of Property Rights (TRIPs), 152, 181, 222 United States of America, 151 utilitarianism, 13, 95–96 Van de Walle, Nicholas, 145, 146, 221 the veil of ignorance, 10, 46–7, 55 international, 11, 15, 27, 88, 172 Vincent, R.J., 187, 225 Von Einsiedel, Sebastian, 140–1, 146, 147, 148, 149, 154, 155 Washington Consensus, 67, 212 weak states, 5, 78, 147, 153, 155, 207, 210, 215, 218 wealth, relationship with domestic institutions, 15, 49–50, 55, 59, 63, 64, 66, 67, 75, 82, 123, 135, 144–7, 173 wealth transfers, as development aid, 135, 136, 140, 142, 144–7, 152, 173

as inappropriate in Rawls’ ideal theory, 35, 37, 44–5, 50–2, 58, 76, 108, 181, 203 as part of the duty of assistance, 65, 69, 75, 146, 173–5, 181 well-ordered, concept of, 45, 49, 50, 55, 58, 59–60, 63, 64, 66, 73, 74, 75, 83, 120, 123, 203, 210 international society, 168 society/societies, 60, 63, 64, 65, 66, 74, 83, 86, 131, 133, 156, 173, 175, 176, 215 well-ordered peoples, 3, 7, 11, 13, 34, 35, 41, 50, 56, 58, 59–60, 61, 63, 66, 72–3, 74, 82, 83, 86, 165, 169, 171, 172, 173, 174, 197 society of, 58, 59, 61, 63, 169 well-orderedness, standard of, 55, 57, 59–60, 63, 64, 69, 71, 73 Wenar, Leif, 20, 29 Westphalian world view, 31, 171, 188 Wheeler, Nicholas J., 224 Wollstonecraft, Mary, 92 worth of liberty, 96, 111, 116, 117–19, 218 worthwhile lives, 49, 52, 53, 60, 63, 70–1, 131, 132, 167, 181, 183, 184–5, 188–90, 196, 199, 200, 215 Yemen, 148 Zaum, Dominik, 210