On Rawls, Development and Global Justice

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

9

Conclusions

ix

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

32 On Rawls, Development and Global Justice

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

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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;

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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

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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

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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

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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