The right of peoples and justice beyond borders

In the spring of 1969 John Rawls taught a philosophy course at Harvard entitled "The Problems of War" in which he dealt with issues of jus ad bellum and jus in bello with particular reference to the US involvement in the Vietnam War. Shortly afterwards, the course was cancelled due to a student strike. This small episode has much to teach us. First, that it is always necessary to dialogue with the future, which, whether conservatives like it or not, is represented by the young students and not themselves. The second theme is the role that political philosophy must play in clarifying complicated issues such as war, the right to defence, the proportionality of response, the protection of civilians, to name but a few. In the face of today's wars, where is this thinking? Rawls addressed these issues in his 1969 course. How relevant would his considerations be today, in the face of the invasion of Ukraine and with respect to Israel's disproportionate reaction to the abominable Hamas attack? Clearly the question is rhetorical and the answer is 'very much'.

By 'Peoples' Law', Rawls writes, I mean a particular political conception of law and justice that applies to the principles and norms of international law and practice. By 'peoples' societies' I mean all those peoples who in their mutual relations follow the ideals and principles of peoples' law. These peoples have their own internal governments, which may be constitutional liberal democratic or non-liberal but decent governments. In this book I deal with how the content of The Law of Peoples could be developed from a liberal idea of justice similar to, but more general than, the idea I have called justice as fairness'. This is how The Law of Peoples, the third and last book written by John Rawls and published in 1993, opens. It contains his attempt to apply the theory of justice, the great theme of his life, beyond national borders, to the coexistence of peoples in a perspective that would become known as the theory of global justice. Rawls was not the first to inaugurate this line of thought and to make the demands of a morality that has become capable of transcending geographical distances and cultural, political, social and economic differences go beyond state borders. It was Peter Singer, an Australian philosopher who is now a professor at Princeton, who first posed the problem when a new sensitivity began to mature in the 1970s and dramatic events such as the famines that struck Bangladesh in 1971 and again in 1974, which killed more than a million people, were no longer considered just as problems within a country, but as phenomena that called the entire international community into question. Many have since wondered what Rawlsian justice theory had to say about these issues. Charles Beitz, Brian Barry, Henry Shue and Rawls' pupil, Thomas Pogge have greatly contributed to developing some of the hints found in A Theory of Justice by transposing them to a global plane and bringing Rawlsian liberal egalitarianism into the arena of relations between states. With The Right of Peoples Rawls himself finally has his say on the matter, in the first person.

The structure of his argumentation is ideally similar to the contractualist one we find in The Theory, where however now, in the original position, we no longer find the representatives of the citizens, but those of the individual peoples coming together in search of an agreement on the principles to underpin their relations. The differences between peoples, however, are perhaps even more pronounced than those between individuals, which is why it is a colossal challenge to extend the liberal principles of coexistence, tolerance and justice to the international level. The reasoning begins with the description of the 'society of peoples', those peoples, that is, who are willing to give themselves and respect principles of law after having negotiated and voluntarily subscribed to them. In this sense, five different types can be identified: liberal peoples, democratic and respectful of human rights and the rights of other peoples; then the 'decent' peoples (decent), which provide for forms of popular participation and consultation, but which in other respects cannot be defined as fully liberal even if they respect human rights and are not aggressive towards other peoples. Then there are societies characterised by benevolent absolutisms.

These are like 'decent' societies but with reduced democratic participation in political decisions. Then we have the 'disadvantaged' peoples (burdened societies). Peoples that struggle to structure themselves in a democratic and liberal manner due to severe economic underdevelopment. Lastly, we find the 'outlawed' peoples, i.e. those who do not respect human rights at home and are aggressive towards other peoples. Of all these, it is the liberal and decent peoples (also called 'well-ordered peoples') who are called upon to form the 'society of peoples', to generate the 'law of peoples' and to live by its rules. These 'well-ordered peoples', as Rawls defines them, also have a duty of care towards disadvantaged societies so that they in turn can develop liberal-democratic or at least decent institutions. They have, finally, the legitimate right to defend themselves by proportionate means against any aggression by outlaw states.

Rawls analyses the relations between the members of the society of peoples in what he calls the 'ideal theory' while the relations between them and other states - absolutist, disadvantaged and outlawed - are the subject of the 'non-ideal' part of the theory. Three different areas of application of the principles of justice can thus be identified: that relating to the basic national structure, that of relations between well-ordered societies, and the general international one, in which all peoples, regardless of their connotation, must maintain mutual relations. Liberal and decent peoples negotiate in their original position under conditions of freedom, equality and reciprocity, wanting to remain independent over time and promoting self-respect. Under these conditions, as Rawls shows, eight principles of international justice would emerge from the negotiation process: the freedom and independence of peoples, respect for treaties, equality between peoples, the duty of non-intervention with respect to the internal affairs of other peoples, the right of self-defence, respect for human rights, restrictions in the way war is conducted, and finally the duty of care towards those peoples who, due to unfavourable conditions, are unable to be part of the society of peoples. This list is not meant to be exhaustive; rather, it indicates a kind of 'international moral constitution' as Sebastiano Maffettone defines it (Introduction to Rawls, Laterza, 2010).