Abstract
Despite the relative thinness of Rawls’s own explicit arguments in The Law of Peoples for treating peoples (or states—I use the terms interchangeably here) as foun-dational at the global level, alternative defenses of his position are available. I doubt, however, that any provides good reason to embrace Rawlsian statism rather than cosmopolitanism. A Law of Persons could ground a fair, cooperative global venture for mutual advantage (allowing for a suitably nuanced conception of what it might mean to talk about a society as a venture)— and might merit the loyalty of the world’s people even if it didn’t (Part II). Such a Law could achieve public justification and could, in any case, bind in the absence of the legitimacy conferred by such justification (Part III). States are not inescapable and basic features of the world scene that any account of global justice must treat as foundational (Part IV). The relativist dismissal of commitments to freedom and equality as contingent features of Western liberal thought need not count against cosmopolitan liberalism (Part V). There is good reason to affirm cosmopolitanism despite multiple objections (Part VI).
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Notes
See Véronique Zanetti, Global Justice: Is Interventionism Desirable?, in Global Justice 204, 209 (Thomas W. Pogge ed., 2001). Zanetti notes—see id. at 208—the idea that global society is not a cooperative venture for mutual advantage as one of the rationales invoked by Rawls for his refusal to endorse a cosmopolitan original position, but she doesn’t provide any textual support for the claim that Rawls says this explicitly.
Cf. Anthony D’Amato, International Law and Rawls’ Theory of Justice, 5 Denver J. Int’ll. 525 (1975).
Perhaps some such analysis lies behind some observations offered in (at least partial) explanation of Rawls’s preference for peoples over persons; see Lea Brilmayer, What Use Is John Rawls’ Theory of Justice to Public International Law?, 6 Int’l Legal Theory 36, 38 (2000). But this makes little sense as a basis for an account of justice.
A variety of ad hoc nongovernmental arrangements might obviously be embraced; see, e.g., Roger E. Rustad Jr., What Lessig (Almost) Gets, Kuro5Hin, Oct. 5, 2002, http://www.kuro5hin.org/story/2002/10/4/23856/9235 (arguing for an international treaty governing unsolicited bulk commercial email).
See Edward Foley, Human Rights Theory: The Elusive Quest for Global Justice, 66 Fordhaml. Rev. 249, 263 (1997)
cf. Joel P. Trachtman, The Law and Economics of Global Justice, 96 AM. J. Int’ll. 984, 991 (2002).
See Allen Buchanan, Rawls’s Law of Peoples: Rules for a Vanished Westphalian World, 110 Ethics 697 (2000).
Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L.J. 2599, 2603 (1997) (footnote omitted).
Joseph Heath, Immigration, Multiculturalism, and the Social Contract, 10 CAN. J.L. & Jurispedence 343, 347 (1997), argues that “even if social contract principles would recommend a system of global relations in which freedom of movement among nations was guaranteed, there is no reason to think that such principles should be respected by any state in the absence of an effective institutional structure that can provide reasonable guarantees of compliance among the others.” But of course they should be respected (i) because their moral appeal doesn’t depend on universal acceptance and (ii) because of the general advantages of open borders to societies with open borders.
Rawls, Theory, supra note 5 at 333; cf. Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311, 321 n. 40 (1996).
Id. at 98; cf. Jeremy Waldron, Redressing Historic Injustice, 52 Toronto L.J. 135, 138 n. 11 (2002).
See Leif Wenar, Why Rawls Is Not a Cosmopolitan Liberal, in Rawls’s Law of Peoples: A Realistic Utopia? 95, 102–4 (Rex Martin & David A. Reidy eds., 2006).
Cf. John Rawls, The Law of Peoples, in Collected Papers 529, 549–50 (Samuel Freeman ed., 1999).
See id. at 94–97; Rawls, Theory, supra note 5, at 332–35. John Simmons suggests that these sorts of Rawlsian duties can be cast as duties for liberal citizens; see A. John Simmons, Disobedience and Its Objects, 90 B.U.L. Rev. 1805, 1820–21 (2010).
See Thomas Nagel, The Problem of Global Justice, in Secular Philosophy and The Religious Temperament: Essays 2002–8 at 61 (2010)
Richard W. Miller, The Interests of the Governed and the Interests of Humanity: The Moral Importance of Borders, 90 B.U.L. REv. 1785, 1798–99 (2010). My focus is on the sort of argument someone taking a position like Nagel’s or Miller’s might offer, rather than on the specifics of Nagel’s or Miller’s own position.
See Robert Nisbet, The Pursuit of Equality, Public Interest, Spring 1974, at 103, reviewing John Rawls, A Theory of Justice (1971).
See, e.g., John M. Finnis, Reason, Revelation, Universality, and Particularity in Ethics, 53 Am. J. Juris. 23, 41 (2008); Miller, supra note 97, at 1791–92.
See Rawls, Law, supra note 11, at 62. Cf. Samuel Freeman, Frontiers of Justice: The Capabilities Approach vs. Contractarianism, 85 Tex. L. Rev. 385 (2006).
But cf. Fernando R. Tesón, The Rawlsian Theory of International Law, 9 Ethics & Int’l Aff. 79, 98 (1995). Being a relativist about justification need not, of course, make one a relativist about truth; see Jeffrey Stout, Ethics After Babel: The Languages of Morals and Their Discontents 24–28, 93–94, 244–55 (2d ed. 2001).
Id. at 19. Cf. Richard M. Rorty, Postmodern Bourgeois Liberalism, 80 J. PHIL. 583 (1983)
Richard M. Rorty, The Priority of Democracy to Philosophy, in Prospects for a Common Morality 254–78 (Gene Outka & John P. Reeder Jr. eds., 1993). Rawls is not incapable of giving aid and comfort to those who want to see his project in a way Rorty (in these essays) would find congenial; see, e.g., John Rawls, The Independence of Moral Theory, in Collectcted Paperss, supra note 59, at 286, 289–91.
There are good reasons for them not to do so. See, e.g., Gary Chartier, Righting Narrative: Robert Chang, Poststructuralism, and the Possibility of Critique, 7 Asian Pac. Am. L.J. 105, 118–21 (2001).
See Martin S. Flaherty, Rights, Reality, and Utopia, 72 Fordhaml. Rev. 1789 (2004).
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© 2014 Gary Chartier
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Chartier, G. (2014). Challenging the Global Primacy of Peoples. In: Radicalizing Rawls. Philosophy, Public Policy, and Transnational Law. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137382979_4
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