Tuesday, 12 July 2016

85. because you need education. Political essay 5. The law of peoples.

I talk about Rawls' 'Veil of Ignorance' often when speaking about human rights and norms, and how we as a society are pretty shit at equality.

So I thought I'd speak a bit about Rawls here, and crucially, some of the flaws in his concept of 'The Law of Peoples.'

Unlike the 'Veil of Ignorance,' 'The Law of Peoples' actually sets out to talk about how enforcing rights in the world should work.
It's a big question, so I'm going to skip over indulging in that right now and save it for the essay bellow.
But what I will say is this;
A decent standard of universal rights is of paramount importance.
Couple this an emphasis of inclusivity and you have a good, basic standard of equality.

If you'd like to read more on my view of equality, then I suggest reading Rawls 'A Theory of Justice.'
I'll use Wikipedia to sum it up here for those who don't want to;

The "veil of ignorance", along with the original position, is a method of determining the morality of a certain issue (e.g., slavery) based upon the following thought experiment: parties to the original position know nothing about the particular abilities, tastes, and positions individuals will have within a social order. When such parties are selecting the principles for distribution of rights, positions, and resources in the society in which they will live, the veil of ignorance prevents them from knowing who will receive a given distribution of rights, positions, and resources in that society. For example, for a proposed society in which 50% of the population is kept in slavery, it follows that on entering the new society there is a 50% likelihood that the participant would be a slave. The idea is that parties subject to the veil of ignorance will make choices based upon moral considerations, since they will not be able to make choices based on self- or class-interest.
As John Rawls put it, "no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like."[1] The idea of the thought experiment is to render obsolete those personal considerations that are morally irrelevant to the justice or injustice of principles meant to allocate the benefits of social cooperation. The veil of ignorance is part of a long tradition of thinking in terms of a social contract. The writings of Immanuel Kant, Thomas Hobbes, John Locke, Jean Jacques Rousseau, and Thomas Jefferson offer examples of this tradition.

So why is this relevant now?
Well, put simply, if one were to make decisions, with concepts of Freedom (positive and negative), Equality and Rights in mind, from behind this veil, then intolerance and racial hatred should not exist.

Decent morality is not compatible with prejudice.
Equality is not compatible with prejudice.
Freedom is no compatible with prejudice.
Rights are not compatible with prejudice.

Decent morality is not compatible with wilful ignorance.
Equality is not compatible with

wilful ignorance.Freedom is no compatible with wilful ignorance.
Rights are not compatible with
wilful ignorance.

As we have concluded thus far, the Leave camp and UKIP mimic extreme right wing movements, and show Fascist tendencies.
This intolerant behavior is not compatible with Freedom and Equality.
If one were to approach the subject of impartially that the Veil of Ignorance grants, then it simply would not be acceptable.

The problem we face is that currently people don't behave/ think/ vote this way.
It's high time they did.

To what extent does Rawls’ proposal for a ‘Law of Peoples’ amount to a defence of basic human rights?

   In The Law of Peoples' John Rawls approaches the problematic issues of liberty and justice on a larger scale. Building on concepts formulated in previous works, Rawls attempts to establish a realistic conceptual standpoint in which Liberal democratic societies should approach various 'other' societies within the international community. The Law of peoples is inevitably a multifaceted and complex conceptual entity, and in following with his previous work, concerns itself somewhat with the issue of human rights. Indeed, it is this aspect of the 'law of peoples' that has caused conflict. Whilst in previous works Rawls has argued in favour for extensive protection of rights for liberal people, it is not the same case in 'The Law of Peoples.' Rawls puts forward a substantially weaker set of 'urgent' human rights, which he conceives as not only fundamental and necessary, but also; and somewhat importantly, reasonably acceptable to all societies, liberal or not.
   Rawls suggests that the 'Law of peoples' is an adequate concept for dealing with peoples, and indeed some suggest that in this regard the 'law of peoples' can seen as a concept that defends basic, or rather, urgent, human rights. However, there have been numerous criticisms of the law of peoples. Some argue that these 'urgent' rights are simply not demanding enough, as they are in fact less demanding than the already widely accepted universal declaration of human rights. Other go further in their criticisms, not just focusing on the lack of general rights, but also the lack of commitment to specific aspects of rights, such as the distinction between subsistence and adequacy.

   Rawls specifies these urgent rights when setting down his two criteria for decent hierarchical societies; "The first part is that a decent hierarchical people's system of law, in accordance with its common good idea of justice....secures for all members of the people what have come to be called human rights....Among these human rights are the right to life (to the means of subsistence and security); to liberty (freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly). Human rights, as such understood, cannot be rejected as peculiarly liberal or special to the western tradition. They are not politically parochial." (Rawls 1999; 6).
  Indeed, it would outwardly appear that Rawls "doctrine of human rights in [Law of Peoples] offers hope for more effective protection of human rights in all parts of the world, on the one hand by diminishing the right of states to violate human rights with impunity within their own boarders, and on the other by giving other states the right to intervene in their internal affairs if such violations continue to occur" (Macleod 2006; 138).
Many of the critics of the law of peoples support the ground on which Rawls makes his arguments and assumptions; supporting the proposition of the original position/veil of ignorance theory (Tasioulas 2005). It is with this minimal conception of 'urgent' human right where differences seem to occur.
 Indeed, on this point, Buchanan offers a scathing critique of Rawls underlying assumptions and arguments for this minimalist list of rights, arguing that it can result in;
  "a society in which there is a permanent racial, ethnic, religious, or gender underclass, hovering just above subsistence, systematically excluded from the more desirable economic positions, having grossly inferior property rights, lacking access to education and health services available to the dominant classes, unable to afford legal counsel and bereft of sophisticated due process protections available to others, would not be a society in which thus disadvantaged could comp[lain that their human rights were violated." (Buchanan 2006; 151).
    John Tasioulas' critique also looks into this problem of narrowness within the law of peoples. This is especially evident in Rawls' take on the 'right to life.' Tasioulas notes that Rawls' conception follows on from that of Shue's earlier work in what exactly 'subsistence' consists of. Shue argues that  this right secures access to "unpolluted air and water, adequate food, clothing and shelter, and a basic minimum of health care - thus enabling its holders to have what is needed for "a decent chance at a reasonably healthy and active life of more or less normal length, barring tragic intervention" (Tasioulas 2005, 16; Shue 1996, 23). Rawls' conception of what construes as the 'right to life' falls short of the pre-existing conception of what the 'right to life' is in international law; Tasioulas points out that "International lawyers standardly construe this as an entitlement to more than the means of subsistence." (Tasioulas 2005; 16). It is this commitment to a minimal conception of human rights that he argues shows the "inadequacy of a decent society on the score of welfare rights" he goes on to point out that "nothing in this definition prevents a decent society making lavish provision for the welfare of its members. But the concept of 'decency' is compatible with other, less attractive possibilities" (2005; 17). Indeed, this lack of fuller rights is again pointed out in regards to his definition of the 'freedom of conscience.' Tasioulas again argues that this conception is not sufficient; "A decent hierarchical society, on Rawls's account, must protect its members from religious persecution, but it need not grant them 'equal' freedom of religion. In particular, it is not prevented from establishing a state religion or excluding peoples from certain occupations on the ground of religious creed. Thus, the situation...sketched out would severely impair the ability of members of the minority to achieve an adequate living standards without unambiguously violating anything that Rawls would recognise as their human rights." (2005; 17).
   Indeed Tasioulas is not the only one to note that the law of peoples does not set a particularly high standard of human rights for a society of peoples to be branded 'decent.' M. Victoria Costa also argues that Rawls minimal conception of human rights is simply not enough.
   In a similar vein of argument as Tasioulas, Costa points out that Rawls 'urgent' human rights are considerably less demanding than the Universal declaration of Human rights (Costa 2006; 58). Costa acknowledges that Rawls purposely limits the scope of his conception of urgent human rights to achieve a decent level of legitimacy and tolerance of diverse cultures in an international community of peoples, however Costa argues that due to the fact that the rights represented within the universal declaration of human rights are "internationally acknowledged today, they are clearly candidates in the list of basic human rights, provided adequate political justification can be given for them" (2006; 58). In this regard, Costa see's little need for the narrow conception of rights in which Rawls commits to in the Law of peoples; "The universal declaration of human rights and the two subsequent covenants, both of which were the result of processes of international dialogue and both of which were endorsed by most countries of the world, testify to the wide acceptability of the idea of human rights. So too does the development of the current range of cooperative organizations designed to protect human rights all over the globe" (2006: 58-59).  Rawls often notes that this restricted list of rights in an effort to maintain tolerance and thus legitimacy in an international community, and Costa is not the only one who sees this as fundamentally flawed. Buchanan also argues similar point, from the basis that "there is nothing parochial about grounding human rights in basic human interests if, as seems clear enough, such interests exist" (Buchanan 2006; 159), he goes on to argue that;
   "if the goal is to be tolerant, there are many ways in which this can be achieved in the process of attempting to promulgate and institutionalize a theory of human rights that is grounded in assumptions about basic human interests or capabilities, without abandoning the whole enterprise. Tolerance can be given its due in many aspects of the institutionalized process of formulating human rights conventions and devising procedures to monitor compliance with their norms. For example, provision can be made, as it is in the current institutionalization of human rights, for ensuring that the various adjudication and compliance monitoring processes through which the content of human rights norms is specified and critically revised over time include inputs from a variety of cultural perspectives, under conditions of accurate information about what sorts of institutional arrangements are need to protect human beings basic interests" (2006; 159-160).   
  Thus it would appear that there is general consensus in the critique of Rawls's law of peoples. Firstly that there are underlying flaws and unanswered complexities that, once logically thought through, appear contradictory. These result in a minimalist, and generally pragmatic list of basic human rights (Macleod 2006). However, these flaws, once played out, reveal that it is entirely justifiable to enlarge this list of rights, and it is equally legitimate to enforce them. This is grounded upon the already, pre-existing 'consensus within the international community on human rights, embodied within already existing institutions such as the universal declaration of human rights. This is then should be the standard for which liberal peoples judge 'decent' peoples, and as such, inform their policy towards them.
   The manner in which these arguments are put forward is convincing in itself, not least because the need for pressing the issue of human rights is important. However, all these arguments are somewhat flawed in a similar, and somewhat obvious fashion. The work of David Reidy is useful in emphasising these issues. Indeed Reidy notes that "with respect to the content, nature and function, and justification of human rights, then, Rawls's position appears to be heterodox to some significant degree" (Reidy 2006;170), however, he argues that upon closer inspection. Rawls puts forward a far more robust defence of human rights that he is often given credit for. This argument is essentially broken down into two parts; misinterpreting, misreading or misunderstanding the language Rawls uses, and the current state of international law.
   To being with, that Rawls states that "Human rights set a necessary, though not sufficient, standard of decency of domestic and social intuitions" (Rawls 1999; 80). Reidy points out that it is in the section on human rights that Rawls "affairs as human rights, in the full and most fundamental sense of the term, the rights specified on articles 3-18 of the [universal declaration of human rights]. These include the central elements of due process and the rule of law.., the right to seek asylum..., the right to national identity..., and the right to freedom of movement" (Reidy 2006; 170). Indeed, Rawls's list of human rights is "rather more robust than many readers have been willing to acknowledge" (2006; 171).
   Despite this the law of peoples is certainly minimalist when compared to the universal declaration of human rights, as many liberal democratic rights are explicitly excluded. It is here where the role of pre-existing human rights entities comes into play. The most important observation that Reidy makes in this sense is that "strictly speaking, the [universal declaration of human rights] is not a legally binding document and all the parties signatory knew that when they signed." (2006; 172). This important distinction is one which Rawls makes, and which the critics have somehow failed to acknowledge. The Law of peoples on the other hand is significantly different to these pre-existing, non-binding and thus, apparitional standards. Rawls concern is with "those human rights binding on states regardless of and prior to any consent they may or may not give, human rights that must be secured for there to be anything like a morally acceptable international politics of human rights" (2006; 173).
   These points offer a convincing rebuttal to the critics of the Law of peoples in regards to the minimal list of human rights, and the legitimacy of intervention and enforcement. However there still exists the question of why liberal democracies states would not impose liberal democratic standards on 'decent non-liberal' peoples; indeed in building a universal set of human rights what would stop liberal peoples agreeing on "some general right to democratic political process, or to universal suffrage, or to non-discrimination in employment or eligibility to run for office?" (2006; 179). Again Reidy attempts to answer these criticisms. He points out that such standards, set a century ago, would exclude nations such as England and the U.S.A from a decent society of peoples, and thus loose the right of self determination and freedom from intervention (2006; 179 -180). Reidy argues that "given their own self-understanding, and with it the historical bases of their own amour proper, it would be unreasonable of liberal democratic peoples to authorize principles of international morality that permit the use of international force solely to secure the liberalization and democratization of such an apparently otherwise decent body politic" (2006; 180). In this light, the rights that would secure a state from intervention, and thus allow for self determination, are far more akin to those rights that Rawls sets out in a more 'charitable' reading of the Law of peoples.

   It would appear the that while the Law of peoples does not explicitly set out to defend human rights, the creation of a community of decent, well ordered peoples should, in theory, lead to an international community in which the most fundamental human rights are not only respected, but built upon. While there have been valuable critical accounts of the law of peoples; the arguments made, the clarity and the minimalist list of rights, it is clear that these have been rather misleading in their interpretations. It is certainly true that the law of peoples could function with a broader list of human rights, and still function in a similar way as the universal declaration of human rights, however that is not the principle aim of the law of peoples. Simply put then, the law of peoples aims to establish an international order, in which exists a list of basic human rights that "bind all states regardless of their consent" (2006; 185). In this regard then Rawls law of peoples, while not explicitly defending human rights, offers are more convincing and enforceable system to do so than the current system. Indeed, in his conclusion Reidy even goes as far as to state that  "if we conjoin Rawls's doctrine of basic human rights with the foregoing account of the politics of human rights, we see that Rawls has set out a powerful vision of how free peoples, following their own historical path and faithful to the limits of liberal conception of international right, might arrive at a world within which (at least generically) liberal democratic rights are universally recognised and enforced as human (though not basic human) rights" (2006; 186).


  • Buchanan, Allen (2006). 'Taking the Human out of Human Rights', In Rex Martin and David A. Reidy (Ed's), Rawls's Law of Peoples: A Realistic Utopia? , Blackwell: Oxford.
  • Costa, M. Victoria (2005). 'Human Rights and the Global Original Position Argument in The Law of Peoples', Journal of social philosophy, 36: 1,  p. 46-6.
  • Macleod, Alistair M. (2006). 'Rawls's Narrow Doctrine of Human Rights, In Rex Martin and David A. Reidy (Ed's), Rawls's Law of Peoples: A Realistic Utopia? , Blackwell: Oxford.
  • Rawls, John (1986). A Theory of Justice, Oxford University Press: Oxford.
  • Rawls, John (1999). The Law of Peoples with 'The Idea of Public Reason Revisited,' Harvard University Press: Massachusetts.
  • Reidy, David A. (2006). 'Political Authority and Human Rights', In Rex Martin and David A. Reidy (Ed's), Rawls's Law of Peoples: A Realistic Utopia? , Blackwell: Oxford.Tasioulas,
  •  John (2005). 'Global Justice Without End?', Metaphilosophy, 35:1/2.

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