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date: 18 January 2018

International Ethics within the International Social Contract

Summary and Keywords

The social contract tradition derives its ethical force from the hypothetical agreement that parties would reach in an initial choice situation. This initial choice situation brings together a description of the circumstances of justice, various extra-contractarian moral assumptions, and an instrumental theory of rational choice. The circumstances of justice refer to the conditions that require principles of justice. These conditions include the existence of social cooperation along with moderate scarcity. In the absence of such conditions, principles of justice are either unnecessary or impossible to sustain. Social cooperation generates both benefits and burdens, and it is the allocation of those components of social cooperation that requires principles of justice. The application of the social contract to the domestic context dates back to the ancient Greeks, though their version of the contract was somewhat crude and rather one-sided in favor of state authority. Later versions of the social contract would oblige the state to provide much more to citizens in return for their allegiance. John Rawls is widely credited with resurrecting the social contract tradition in the twentieth century. His thought holds special significance for the international social contract, as he extends the contractual approach ethics into the international system where his predecessors declined to do so.

Keywords: social contract, international ethics, John Rawls, justice, social cooperation, state authority, international social contract

Introduction

The social contract invites us to think not about the principles that parties actually do accept, but about what principles of justice they would accept under a set of idealized conditions such as a hypothetical state of nature. Initially developed to apply to individuals within the context of a single society, the social contract can also yield important insights about justice in international society by pushing us to look past what states do accept to think about what they would accept in an initial choice situation free of the inequality and coercion that often characterize the international system. The principles yielded by applying this contractarian method play a role far more significant than the construction of a hypothetical utopia. As with any contract, each party entering into the agreement gives up something and gains something else. Individuals might give up some of the rights that they naturally possess in exchange for the protection of the newly formed government. These terms of this bargain provide a valuable measure for assessing the justness of our actually existing political institutions. The more closely these institutions resemble those that we would choose in the initial choice situation, the more just those institutions are. As the institutions deviate from this set of principles, so they are more unjust. The extension of the social contract tradition beyond the state, then, is an important tool for assessing the justice of the international system.

Early work in the social contract tradition casts doubt on the possibility of justice in the international system. These pioneering social contract theorists believed that individuals would choose to form a government and submit themselves to its authority in order to escape the perils of life outside a political community, but they doubted that states themselves would make a similar bargain. In the absence of an international social contract, justice between states would remain only a remote possibility. For early writers within the social contract tradition, the international system remains a state of nature not far removed from the state of war. Perhaps prompted by developments within the international system, including the ability of states to make and largely keep agreements, subsequent work within the social contract tradition holds out the possibility of applying the contractarian approach to the international system, even in the absence of a world state.

This essay begins with some considerations about the nature of the social contract approach, followed by an introduction to the social contract tradition by means of the early writers, particularly Hobbes, Locke, Rousseau, and Kant. These writers treated the international system as quite distinct from the domestic political system, with the result that the former remains a state of nature while the latter becomes an orderly civil society through individuals’ willingness to enter into a social contract. After considering the early development of this tradition, the essay turns to more recent work within the social contract tradition, particularly the work of John Rawls. Rawls’s work reinvigorated the social contract tradition and, for the first time, made a serious effort to extend the social contract beyond the borders of a single political community to the international system. The Law of Peoples, Rawls’s development of an international social contract, represents an important advance in the social contract tradition and its implications for international ethics. This extension has not been uncontroversial, and after discussing Rawls’s work, I turn to some criticisms of this particular extension of the social contract. Finally, I consider some general points about the social contract tradition and where this body of work appears to be headed.

The Social Contract as a Moral Tradition

Before exploring the work of particular writers who participate in the social contract tradition, the essay devotes some consideration to the elements of the social contract itself. The social contract tradition, as noted above, derives its ethical force from the hypothetical agreement that parties would reach in an initial choice situation. This initial choice situation “brings together a description of the circumstances of justice, various extra-contractarian moral assumptions, and an instrumental theory of rational choice” (Mapel 1992:186). The circumstances of justice refer to the conditions that require principles of justice (Mapel 1992:182). In the work of John Rawls, which is taken up below, these conditions include the existence of social cooperation along with moderate scarcity. In the absence of such conditions, principles of justice are either unnecessary or impossible to sustain. In the case of Rawls’s thought, social cooperation generates both benefits and burdens, and it is the allocation of those components of social cooperation that requires principles of justice.

Beyond these circumstances of justice, most contractarian thought also depends on assumptions that are not, strictly speaking, part of the contract itself. A common extra-contractarian assumption is the proposition that parties are equal even prior to entering into any social contract. For social contract theorists, the assumption of individual equality exists prior to the formation of the social contract and the terms of the contract cannot be overridden by its terms (Hayden 2002:13). These conditions do not derive from, but are instead prior to, the principles that form the social contract. This equality is not only prior to the contract, but an essential component of the initial choice situation in which parties deliberate about principles. Because of the need to incorporate such assumptions, Mapel correctly argues that there are very few purely contractual theories (1992:183). All of the social contract theories that I will take up in this chapter incorporate some assumptions that are external to the contract itself.

Within these parameters, parties to the social contract, whether they are understood as individuals in the domestic case or states in the international case, choose principles based on a rational choice mechanism. This assumption of rationality means that parties to the social contract, whether individuals or states, seek to maximize their share of social resources, including rights and liberties. They will select principles that will, they anticipate, secure them the largest possible share of such resources, though the importance of consent to the hypothetical contract means that others will expect a similarly large share of resources. This brings the idea of reciprocity into the social contract.

Classical Approaches to the Social Contract

The application of the social contract to the domestic context dates back to the ancient Greeks. In his depiction of Socrates’ trial and conviction, Plato outlines Socrates’ reasoning for complying with his death sentence rather than leaving Athens and going into exile. Chief among his reasons for respecting the decision of the Athenian senate was the existence of an implied contract between Socrates and the community. Having accepted the benefits of living in the community since he was born and, in fact, even before, Socrates expressed a sense of obligation to comply with the community’s laws. In the circumstances under consideration in The Apology, the application of these laws required Socrates’ execution for crimes that he did not commit. This early version of the social contract was somewhat crude and rather one-sided in favor of state authority. Later versions of the social contract would oblige the state to provide much more to citizens in return for their allegiance.

These more fully developed social contract models – that would follow this early beginning – place individuals in a hypothetical pre-contractual state of nature. In these formulations, the pre-contractual initial choice situation often contains key background conditions. The work of classical writers in the social contract tradition bears out this point. Hobbes’s state of nature is a war of all against all without even the possibility of law. Locke treats the state of nature as governed by the law of nature, but, in the absence of a sovereign, enforcement of that law is uneven (Locke 1988:271). Both Hobbes and Locke see the creation of a state as the way out of the problems that plague the state of nature. For Rousseau, on the contrary, the state of nature is an idyllic condition in which people live in peaceful solitude. Society, rather than improving the human condition, gives rise to inequality and corruption. These different views of the state of nature give rise to very different views of what people would accept under the terms of the social contract. Individuals would find the Hobbesian state of nature so awful that they would be willing to accept a Leviathan – a sovereign with nearly absolute authority – in order to escape the state of nature. Locke’s real concern, on the other hand, is not the disorder of the state of nature, but the potential tyranny of a state that has become too large and powerful to protect its citizens’ rights, which is the purpose for which it was established. Rousseau’s concerns would be rather different, since society, rather than the state of nature, poses the real hazard to the individuals who enter it. The real significance of the state of nature for international ethics is the fact that these three writers all treat the state itself as remaining in a state of nature vis-à-vis other states in the international system.

Hobbes offers a sharp description of the difference between domestic and international society. While Hobbes saw the state of nature as a thought experiment in the case of domestic society, he believed that the state of nature was an accurate description of life in the international system:

though there had never been any time, wherein particular men were in a condition of warre one against another; yet in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.

(Hobbes 1985:187)

Hobbes’s vivid and colorful description of the international system reflects the anarchy of the international system and the ensuing security threats. In the sense that the international system is a state of nature, Hobbes claimed that no law or morality could apply without an authority to enforce it. Because there is no central authority in the international system, Hobbes argues, nothing can properly be treated as just or unjust (Hobbes 1985:188). To the extent that Hobbes’s conception of equality does not apply at the international level, Charles Beitz contends that states find this pre-social condition more tolerable than would individuals (Beitz 1999:41). Moreover, as David Boucher notes, Hobbes offers two versions of the state of nature argument: one describing a hypothetical context, the other describing a historical pre-civil condition. Boucher argues that international relations more closely resembles the latter and, further, that both conceptions of the state of nature contain restrictions on the actions of parties within the state of nature (Boucher 1998:157). It is worth reiterating, though, that without an authority to enforce these restrictions, legality in Hobbes’s international state of nature remains fragile. On this particular question the differences between these traditions are not as pronounced as they are in other respects. Although each sees some possibility for international morality, all three of these social contract theorists share, to some degree, Hobbes’s view of the society of states as being distinct from the society of individuals.

Despite the fundamental disagreement between Locke and Hobbes over the existence of law in the state of nature and the content of the social contract, Locke’s views on international relations resemble Hobbes’s to a surprising degree. While Locke envisions individuals as entering into a civil society to escape the inconveniences of the state of nature, states do not strike the same bargain with one another as a way to escape the global state of nature. This means that the international system remains a state of nature governed only by the law of nature and marked by the absence of a central authority to enforce this law. Locke argues that once individuals band together in a Commonwealth, that community acts as a single body in a state of nature vis-à-vis other communities (Locke 1988:365). Like Hobbes, Locke even used the relations among sovereigns as evidence that the state of nature still existed if only in certain pockets (Locke 1988:276). The state of nature, though distinct from a state of war in Locke’s thought, had the potential to disintegrate into such a condition at any time. The state of nature is not completely lawless because the law of nature still applies. However, without the prospect of a sovereign authority at the international level, the problem of enforcing that natural law still obtains. For Locke, the “international condition is an anarchic state of nature, a troubled peace fraught with Inconveniences that could deteriorate into war through the combined effects of bias, partiality, and the absence of a regular and objective system of adjudication and enforcement” (Doyle 2008:661). In the absence of a governmental authority parties in the state of nature are subject to attack, and possibly destruction, at any time. It is in this condition that the international system remains.

Rousseau also expressed pessimism about the prospects for social cooperation and peace beyond the borders of the nation, in part because of his view of national communities as themselves self-interested and corrupt. This is, perhaps, less surprising given his treatment of the state of nature and his view of society as a corrupting force. In light of the problems inherent in principles of justice within the domestic context, Rousseau characterized principles of global justice as “nothing but chimeras even weaker than the law of nature. This latter at least speaks to the heart of individuals, whereas the right of nations, having no other guarantee than its utility to the one who submits to it, its decisions are respected only as long as self-interest confirms them” (Rousseau 1997b:163).

Rousseau argued that even the prospect of social cooperation dissipated across national borders. Rousseau does not see the state of war as natural, but instead attributes conflict in the international system to the drive of states to enlarge and aggrandize themselves (Rousseau 1997b:169). In his “Discourse on Inequality,” Rousseau employs the parable of the stag hunt to illustrate what he sees as the dim prospects for cooperation in the international system. In this parable, a cooperative venture to catch a stag disintegrates when one of its members “defects” from the cooperative scheme in the face of temptation: “if a hare happened to pass within the reach of one of them, we cannot doubt that he would have gone off in pursuit of it without scruple and, having caught his own prey, he would have cared very little about having caused his companions to lose theirs” (Rousseau 1997a:163). Rousseau treated the weaknesses and flaws of society as magnified at the international level. In Rousseau’s thought, “the state system makes an unprecedented level of organized violence possible and draws the individual into it” (Mapel 1992:189). There are also key differences between the individuals who inhabit the state and the states that inhabit the international system. Inequalities, which are naturally limited between individuals, are limitless between states (Boucher 1998:299). In addition, where individuals have a coherent system of values and purposes, Rousseau does not consider the state to possess anything approaching this unitary sense of purpose (Boucher 1998:299).

Among the classical social contract writers, Kant expresses perhaps the greatest degree of optimism about the international system. Kant held out hope for the possibility of international cooperation and the maintenance of peaceful relationships, but even he saw the two realms as inherently different from each other. The domestic and international political systems required very different principles of justice appropriate to the disparities between them. While Kant saw the possibility of peace among like-minded liberal states, he likewise believed that the international confederation of peoples he envisioned would and should lack the sovereign authority appropriate to domestic governance (Kant 1970:165). This rejection of a cosmopolitan institutional order stemmed from Kant’s fear that a world state would be either weak and ineffective or strong and tyrannical. He did not express similar fears about domestic governance. Put differently, the conditions that require the creation of a political community at the state level do not obtain at the global level, in which Kant argued that political life takes on a less cohesive and more violent character. This Kantian view of the international system influenced modern social contract work, particularly Rawls’s account of the international social contract.

The Rebirth of the Social Contract Tradition

Rawls is widely credited with resurrecting the social contract tradition in the twentieth century. Rawls’s thought holds special significance for the international social contract, as he extends the contractual approach ethics into the international system where his predecessors declined to do so. This extension of the social contract tradition into the international system draws on the method that Rawls applied in his treatment of the social contract in the domestic context. In A Theory of Justice, Rawls develops principles of justice to govern the major social institutions of a single society. Specifically, he argues, the principles of the social contract tradition apply to the institutions and their capacity to distribute rights and duties and divide the advantages that arise from social cooperation (Rawls 1999b:6). In order to derive principles of justice for these institutions, Rawls places parties representing relevant social positions in a hypothetical original position where, deprived of knowledge about themselves and the community in which they live, they consider an array of alternatives and ultimately select two liberal principles of Justice as Fairness. Rawls would apply a similar method at the international level, though the principles would vary significantly.

The original position is an initial choice situation that serves a function similar to the state of nature used by many of Rawls’s predecessors in the social contract tradition. Hobbes and Locke placed individuals in an imaginary state of nature from which they agree to form a government to remove themselves from their anarchical condition. Like their state of nature, Rawls’s original position is a hypothetical forum in which representatives form a social contract that will govern the political institutions of the society that they inhabit. As in the state of nature, individuals are in a position of equality and enter into the social contract as equals. In A Theory of Justice, Rawls uses the original position as a tool to model the ideal conditions under which individuals would enter into a social contract. If the conditions in the original position are fair, then the agreement yielded by the original position will also be fair (Rawls 1999b:11). The conditions include the conception of the parties as well as the information on which they can draw in making their choice. In the original position, individuals are placed on an equal footing and would select principles that are fair to all living in their society.

Parties in the original position do not represent actual individuals. Instead, parties in the original position represent significant social positions (Rawls 1999b:56). In keeping with the assumption of equality discussed above, parties are modeled as equal in the original position. In addition, the parties are modeled as mutually disinterested, meaning that they do not take an interest in each other’s pursuits, and rational, because they seek the most effective means to their given ends (Rawls 1999b:11). While Rawls’s model does not necessarily contemplate individuals as being opposed to one another, it does view them as being primarily interested in the achievement of their own ends rather than those of their compatriots. This individualism inspired criticism from communitarian critics such as Michael Sandel and Charles Taylor. The basis of their criticism was that individuals and their values could not be understood without reference to the communities within which they developed their values and ideas about justice. This position means, ultimately, that ideas of justice differ significantly from one community to the next, making a universal set of ethical principles an impossibility. Parties in the original position are stripped of more than their social ties. Through the use of the veil of ignorance, they are deprived of knowledge about their society, their position in it, and even their beliefs and values. To eliminate the possibility of bias entering into the selection of principles of justice, Rawls places parties in the original position behind a veil of ignorance. The veil of ignorance gives each party an incentive to be fair to society’s least advantaged: if she does not know her own position in society, any given individual could be among its least advantaged members, which possibly would give everyone a powerful motivation to be fair to those least advantaged. The least advantaged are those who are disadvantaged in their share of certain social goods including social class, native endowments, and fortune (Rawls and Kelly 2001:55). The veil of ignorance models conditions of fairness by depriving parties of knowledge about their own personal circumstances and the circumstances of the society within which they live. An individual behind the veil of ignorance does not know “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” (Rawls 1999b:118). In the original position, parties are also ignorant of their gender and their racial or ethnic identity (Rawls and Kelly 2001:15). Parties in the original position know that they may have a comprehensive idea of the good but do not know the content of that idea. They are deprived even of access to their own beliefs and values – in other words, their own good.

Justice as Fairness

In the absence of this type of particular information, parties select principles of justice that will allow them to achieve their goals, whatever those goals might be. Toward that end, they select principles that will allow them the greatest possible set of resources, rights, and liberties. In this manner, Rawls incorporates the rational decision-making mechanism typical of the social contract tradition. As rational maximizers, Rawls argues that the parties in the original position seek to develop principles of justice that will guarantee them the largest possible share of these social goods regardless of their particular position in their respective societies. Behind the veil of ignorance, Rawls contends, representatives will select principles to maximize their best-case share of social goods and to limit their worst-case share with what Rawls calls the “maximin” principle (Rawls 1999b:133). According to the maximin principle, those in the original position rank alternatives according to the worst possible outcome. In other words, without knowing their position in society, those in the original position choose principles that they would be willing to accept even in the worst case as one of the least advantaged in society by maximizing the minimum share that they would receive. Given the uncertainty and their risk averseness, Rawls believes that parties in the original position would adopt two lexically ordered principles that he calls Justice as Fairness.

First Principle

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.

Second Principle

Social and economic inequalities are to be arranged so that they are both:

  1. (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

  2. (b) attached to offices and positions open to all under conditions of fair equality of opportunity. (Rawls 1999b:266)

The terms of the first principle require that each citizen receive an equal share of these basic liberties. The lexical ordering of the principles means that the first principle must be satisfied before, and cannot be infringed upon by, the second principle. In addition to securing the inviolability of their rights and liberties, those in the original position will want to guarantee that they do not suffer as a result of economic inequalities within their society, particularly if they find themselves among the least advantaged in society. The second principle that parties would adopt, the difference principle, has strong egalitarian tendencies. If economic differences do not work to the advantage of all in society, then the parties would instead prefer an egalitarian distribution (Rawls 1999b:66). Any other social arrangement, which may benefit others in society, can only improve the expectations of the least advantaged, so they will never be worse off than they would be under an egalitarian distribution. The principles of Justice as Fairness are formulated for application to a single closed political community. A Theory of Justice devotes little attention to the question of the international system.

The Law of Peoples

In The Law of Peoples, Rawls extends a liberal conception of justice from a domestic society to the international system (Rawls 1999a:55). The liberal conception of justice Rawls discusses in this context is based on, but more general than, the two principles of Justice as Fairness. The liberal conceptions of justice Rawls describes in The Law of Peoples distinguish themselves by three 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 perfectionist values; and the third assures for all citizens the requisite primary goods to enable them to make intelligent and effective use of their freedoms.

(Rawls 1999a:14)

Justice as Fairness is one model of liberal justice – the most egalitarian – within the range of liberalisms that Rawls considers for the context of the international system (Rawls 1999a:14, n. 5). Not only is this broader conception of liberal justice more general than that found in A Theory of Justice, it allows for an accommodation of cultural diversity in The Law of Peoples that is absent from A Theory of Justice. This space for pluralism becomes important, as Rawls even incorporates societies organized around decent nonliberal conceptions of justice into the Society of Peoples as equal partners of liberal peoples.

In the first international original position, liberal peoples will seek to promote their reasonable interests and secure justice for all peoples. These interests underlie the principles that liberal peoples will select to govern their relations with each other and with other types of peoples. To derive these principles, Rawls again models representatives of liberal peoples behind a veil of ignorance (Rawls 1999a:32). The original position resembles the one that Rawls uses for the domestic context in A Theory of Justice, with a few key points of departure. However, because the interests of individuals have been accounted for at the domestic level, those in the original position act as representatives of peoples rather than individuals. The representatives of liberal peoples are

(1) reasonably and fairly situated as free and equal, and peoples are (2) modeled as rational. Also their representatives are (3) deliberating about the correct subject, in this case the content of the Law of Peoples. (Here we may view that law as governing the basic structure of the relations between peoples.) Moreover, (4) their deliberations proceed in terms of the right reasons (as restricted by a veil of ignorance). Finally, the selection of principles for the Law of Peoples is based (5) on a people’s fundamental interests, given in this case by a liberal conception of justice (already selected in the first [domestic] original position).

(Rawls 1999a:33)

Ultimately Rawls will employ the original position twice at the international level, once for liberal peoples, who select principles for their engagement with other members of the international community, and a second time for decent hierarchical peoples, who agree to abide by those same principles.

While the international original position resembled the original position from the domestic case, there are also some key points of departure, which reflect what Rawls sees as differences between the domestic and international contexts. There are three key differences between the domestic and international original positions. First, Rawls does not model all relevant social positions in the international case as he does in the domestic case. He models only the representatives of liberal peoples. Second, the role of comprehensive doctrines differs. In the domestic original position, parties know that they may have a comprehensive conception of the good but do not know their beliefs and values. While these individuals in the domestic original position lack knowledge of their conception of the good, liberal peoples lack, in Rawls’s view, the very comprehensive conception of the good itself (Rawls 1999a:47). Some of Rawls’s critics, including Thomas Nagel, reject his claims about the neutrality of liberalism. Nagel points out that Rawlsian liberalism contains a number of controversial elements, including its egalitarianism, its anti-perfectionism and its anti-meritocracy. Third, and perhaps most significantly, another crucial difference from Rawls’s use of the original position at the domestic level is the thickness of the veil of ignorance. While parties in the domestic original position have no knowledge of their beliefs or values, parties in the first use of the original position at the global level do possess the knowledge that they are acting on behalf of liberal peoples with reasonable fundamental interests (Rawls 1999a:33). Because they know that a certain level of wealth is required to establish liberal political institutions, they would know by implication that they would be well off compared to other societies.

Aside from these differences, other aspects of the international original position resemble the original position utilized in the domestic context. The veil of ignorance restricts parties in the original position from possessing and utilizing other types of knowledge. As in the domestic original position, representatives lack information about the peoples they represent. They do not know the size or population of their peoples, or their strength relative to other peoples or states (Rawls 1999a:32). Because they do know that they represent liberal peoples, they can infer that their society possesses favorable conditions that make liberal justice possible (Rawls 1999a:33). Beyond the limited but significant piece of knowledge that they represent liberal peoples, the parties possess no information about the peoples on whose behalf they are selecting principles of justice.

The choice to model only liberal peoples in the international original position shapes the principles that this original position yields. Representatives of liberal peoples, parties in the global original position select only from variations of liberal principles. This choice stands in stark contrast to the situation at the domestic level, where those in the original position selected from liberal and nonliberal alternatives. In this global original position, Rawls argues that the representatives of liberal peoples would select eight principles to govern their relations with each other and with communities lying outside the Society of Peoples:

  1. 1 Peoples are free and independent, and their freedom and independence are to be respected by other peoples.

  2. 2 Peoples are to observe treaties and undertakings.

  3. 3 Peoples are equal and are parties to agreements that bind them.

  4. 4 Peoples are to observe a duty of non-intervention.

  5. 5 Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense.

  6. 6 Peoples are to honor human rights.

  7. 7 Peoples are to observe certain specified restrictions in the conduct of war.

  8. 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. (Rawls 1999a:37)

The principles of the Law of Peoples bear a striking resemblance to the principles recognized in contemporary international law. While these principles are in some respects aspirational, in that states do not always comply, they tend more toward realism than utopia.

In addition to liberal peoples, the Society of Peoples includes decent hierarchical societies. A central tenet of Rawls’s vision of international justice, toleration requires liberal peoples to accept these decent, but nonliberal, peoples. By toleration, Rawls means more than simply refraining from sanctions. Instead, toleration requires that liberal peoples “recognize these nonliberal societies as equal participating members in good standing of the Society of Peoples, with certain rights and obligations, including the duty of civility requiring that they offer other peoples public reasons appropriate to the Society of Peoples for their actions” (Rawls 1999a:59). Just as a liberal society respects the comprehensive views of its citizens, Rawls argues, the Society of Peoples must respect, within reason, the comprehensive views of decent hierarchical societies. Still, the toleration extended by liberal states is not limitless. Rawls’s definition of a decent hierarchical society contains important limits on the toleration that liberal peoples are obligated to extend. Decent hierarchies are societies that secure some degree of justice for their members even though they lack democratic political institutions. First, decent hierarchical societies reject aggression as a means of advancing their comprehensive views, seeking to advance their legitimate ends solely through peaceful means. Second, decent hierarchical societies have a common good idea of justice that includes securing for their members human rights, including the rights to life, to liberty, to property, and to formal equality before the law (Rawls 1999a:65). This list of rights is deliberately thin, as it is intended to include only particularly urgent rights that are the subject of cross-cultural consensus. In addition to respecting human rights, the legal system of a decent hierarchical society imposes moral duties and obligations on all persons within the territory. Within this system, judges and other legal officials possess a sincere and reasonable belief that a common good idea of justice guides the society’s legal system (Rawls 1999a:66). Stephen Macedo notes that these communities “meet extensive criteria of inclusion, voice, and responsiveness that insure, in effect, that if these societies go wrong, the mistake is ‘theirs to make’” (2005:1733). Societies that do not satisfy these criteria fall outside the scope of decency and liberal peoples have no obligation to tolerate them.

Critics of the Law of Peoples

Even this limited obligation to tolerate illiberal people has subjected Rawls’s thought to criticism from those who would limit toleration to liberal peoples. Kok-Chor Tan presents an alternative vision of Rawlsian global justice in which only liberal societies that support individual rights are worthy of toleration and membership in cooperative institutions. While the neutrality of political liberalism may serve domestic society well, Tan argues that it is unsuitable for global society because it offers inadequate protection to those within nondemocratic societies. In place of Rawls’s political liberalism, which attempts to remain neutral among competing conceptions of the good, Tan proposes a comprehensive liberal alternative, which holds individual autonomy as its core value (Tan 2004:4).

Tan rejects the analogy between the individual within domestic society and the community for two reasons. First, he notes that the comprehensive doctrines permitted in domestic society represent moral, religious, and philosophical differences, but not political differences (Tan 2000:29). A competing political philosophy that threatened the liberal structure of society would not be reasonable and, therefore, not entitled to toleration. Liberalism is neutral ethically, but not politically. By contrast, the Law of Peoples tolerates societies based on nonliberal doctrines that deny the equality of all individuals. Tan notes that “Rawls would say that a liberal state should criticize a domestic comprehensive view that forbids its members from exercising their public rights (like the right to vote in public elections), [and] this same state should not criticize a [decent hierarchical society] that denies some of its citizens the same right” (Tan 2000:30). The apparent contradiction between the rights a liberal democracy guarantees its own citizens and the rights it permits other societies to deny its members inspired Tan’s critique of Rawls’s Law of Peoples.

Tan’s second, and related, criticism is that in domestic society, citizens have recourse to a democratic political system. In addition to being members of particular communities, or adherents of certain comprehensive doctrines, individuals are also citizens with all the rights that such a status entails upon them. Even if the group to which they belong is undemocratic or repressive, they can turn to the democratic institutions of society for relief. By contrast, those living in decent hierarchical societies lack this recourse and, likely, any recourse to an entity above their nondemocratic state (Tan 2000:35). Rawls allows for the right of emigration to another society in the Law of Peoples, but the option of permanently leaving one’s home seems inadequate when compared to the recourse that citizens have in the domestic sphere, where they enjoy an extensive set of rights and the means to protect those rights. In contrast, Tan’s comprehensive liberalism places fundamental importance on individual autonomy. While comprehensive liberals still value toleration, the importance of this value derives from individual autonomy (Tan 2000:51). In other words, toleration recognizes autonomous individuals’ freedom of conscience. Tan acknowledges that comprehensive liberalism would prove more controversial than political liberalism and those who adhere to nonliberal comprehensive doctrines may not support its values. However, Tan argues that comprehensive liberalism would form a more consistent basis for a global theory of justice than Rawls’s political liberalism, which leads to the double standard Tan rejects.

Tan’s comprehensive liberal theory refuses toleration to societies that restrict the autonomy of their citizens (Tan 2000:80). Comprehensive liberalism requires societies to accept the capacity of individuals to hold, question, and revise their ideas of the good life and provide them with the social and political conditions under which to do so (Tan 2000:81). Tan claims that within these requirements, societies can still organize themselves politically in a number of different ways. The potential for political diversity will, however, inevitably be smaller than what Rawls allows. Tan further contends that criticizing societies that do not satisfy these conditions will not undermine international stability, but will instead promote internal reform. More importantly, in Tan’s estimation, comprehensive liberalism applied globally would ensure that all individuals enjoy the same rights regardless of the society in which they live.

Martha Nussbaum makes a similar criticism that focuses on the subjugation of women. The problem highlighted by Nussbaum applies to any group disadvantaged by a comprehensive doctrine in a decent hierarchical society, but the problem appears with special force in the case of women. Men are more likely than women to have the protection of the law, to be free from violence, or to pursue an education or career (Nussbaum 2002:284). The Law of Peoples does little to protect women from these hazards, Nussbaum argues. For instance, Catholics living within a liberal democracy may not abridge women’s equal rights even though Catholic doctrine may hold that men and women are different (Nussbaum 2002:291). If they were to hold such a position, their doctrine would not be respected as reasonable and would be excluded from the overlapping consensus that sustains the liberal conception of justice around which society is organized. By contrast, in a decent hierarchical society organized around Catholicism as a comprehensive doctrine, women might lack the right to seek a divorce, be protected from marital rape, or terminate a pregnancy. Nevertheless, such a society might be tolerated as a member in good standing of the Society of Peoples (Nussbaum 2002:292). Nussbaum argues that this creates an unjustifiable double standard: if Catholics constitute a group within domestic society, they must abandon discriminatory practices for Catholicism to be considered a reasonable comprehensive doctrine, but if they form a majority then those same Catholics can build society around their comprehensive doctrine and institutionalize the misogynistic aspects of Catholic doctrine such as those that prevent women from being ordained as priests or prohibit the use of birth control. This double standard results from differences between the two understandings of toleration. While Rawls’s toleration in the domestic case is person-centered, toleration globally is group-centered (Nussbaum 2002:293).

Nussbaum levels several criticisms at Rawls’s toleration of decent hierarchical societies. First, the same groups receive different treatment depending on whether they form a group within domestic society or a group constituting a people. A group that would be considered unreasonable within a liberal domestic society is entitled to toleration if it is large enough to form a society and is willing to reject aggression and respect the relatively minimal list of internationally protected human rights. Conversely, such groups are, to some extent, allowed to discriminate in a decent hierarchical society but not in a liberal democracy that regards all citizens as free and equal. Second, hierarchy subordinates some groups within society and this treatment is unfair to those individuals. The basic structure in decent hierarchical societies does not adequately protect individuals. Inequality is inequality, Nussbaum argues, whether it exists within the confines of a liberal society or in a hierarchical society organized around a conception of the good. Third, the fact that these differences deal with the basic structure of society only exacerbates the problem. Without a basic structure that recognizes the rights of all members of society, the oppressed in a decent hierarchical society may be denied recourse that they would have in a perfectly just society. This makes inequality in hierarchical societies worse, not better, than in liberal societies. Finally, women in particular are the victims of such subordination, but their common interests are not recognized to the extent that they could constitute a people entitled to govern themselves.

In lieu of tolerating decent hierarchical societies, Nussbaum argues that liberal principles of justice should be applied globally. Only the application of these norms can protect human rights generally and address the specific problem of women’s rights. She discards Rawls’s concept of a people, contending that we should respect the state and its institutions because they represent the object of agreement for those individuals living within its borders. Except in extreme cases that require humanitarian intervention by outsiders, Nussbaum argues, we should respect states and their sovereignty (Nussbaum 2002:298). Of course there will be a gap between what is morally justifiable for all and what requires intervention, and in those cases Nussbaum advocates using treaties and aid to help those states implement liberal principles of justice and secure human rights for all within their borders. Nussbaum, then, rejects Rawls’s toleration of nonliberal peoples, as well as the idea that these nonliberal peoples should not be the target of criticism by liberal peoples.

Rawls acknowledges that decent hierarchical societies lack what he calls the perfect justice of liberal peoples. However, he argues that these societies are sufficiently just that they are tolerable by liberal peoples. To refuse toleration to these reasonable peoples would be itself illiberal. Just as

[w]e recognize that a liberal society is to respect its citizens’ comprehensive doctrines – religious, philosophical, and moral – provided that these doctrines are pursued in ways compatible with a reasonable political conception of justice and its public reason […] we say that, provided a nonliberal society’s basic institutions meet certain specified conditions of political right and justice and lead its people to honor a reasonable and just law for the Society of Peoples, a liberal people is to tolerate and accept that society.

(Rawls 1999a:59)

If liberal peoples refuse toleration to decent hierarchical societies, Rawls contends, they deny these societies their due measure of self-respect (Rawls 1999a:61). Every society possesses the capacity for internal reform and liberalization. While we may prefer a global society of liberal peoples, refusing toleration to decent hierarchical societies is not the most promising strategy for pursuing this goal (Rawls 1999a:122). Welcoming such societies into the wider Society of Peoples on an equal basis with liberal peoples encourages them to reform, while excluding them only fosters resentment and makes the prospect of internal liberal reform unlikely. Other types of communities, including outlaw states and burdened societies, cannot or will not comply with the principles of the Law of Peoples, and, as such, they fall outside the Society of Peoples and are not the objects of toleration.

Cosmopolitan Criticisms

Rawls’s Law of Peoples has been criticized by cosmopolitans who object to its statism. Despite his commitment to individualism in Justice as Fairness, Rawls’s conception of international justice has been statist from its earliest origins. In A Theory of Justice, Rawls envisioned the global original position as populated by representatives of nations rather than of individuals (Rawls 1999b:331). As in The Law of Peoples, this international original position would be secondary to the original position in which parties represent citizens. In his fuller development of international justice, Rawls replaced the familiar idea of nations with peoples. A liberal people possesses a reasonably just constitutional democracy, common sympathies, and a moral nature (Rawls 1999a:23). Rawls distinguishes peoples from states, as traditionally understood, by limiting their right to wage war or to commit abuses against their own citizens (Rawls 1999a:27). Rawls explicitly rejects cosmopolitan alternatives to his Law of Peoples, arguing that the interests of individuals have been taken into consideration in the domestic process (Rawls 1999a: 82–3). For liberal peoples with their democratic institutions, as well as decent hierarchical societies that possess decent consultation hierarchies, this is likely true. Those living in outlaw states and burdened societies will not, of course, have had their interests taken into account in the same way since their communities lack liberal or decent political institutions. This is not a problem for Rawls because he largely excludes these states and those living within them from the Law of Peoples. Despite Rawls’s attempts at distinguishing the two, peoples and states are both artificial collective entities that act on behalf of their members in international relations.

Rawls treats peoples in the international system as basically equivalent to individuals in domestic society. Just as individuals’ beliefs and ends deserve respect, peoples merit such respect from other peoples. In this respect, Rawls equates the existence of reasonable pluralism within domestic society with the diversity of reasonable peoples (Rawls 1999a:11). Just as citizens have a right to hold their reasonable comprehensive doctrines, so do decent peoples have the right to organize themselves around their cultural or philosophical traditions. Furthermore, Rawls contends, liberal peoples possess a moral nature. This means that reasonable liberal and decent peoples can offer to cooperate with one another on fair terms as reasonable citizens do within their own societies (Rawls 1999a:25). It is because he sees peoples and persons as analogous to one another that Rawls places representatives of peoples in the international original position.

Parties representing individuals and parties representing peoples do not correspond completely. Specifically, Rawls notes three points of discontinuity between the domestic and international original positions. First, liberal peoples are neutral among competing reasonable comprehensive doctrines, while individuals are not. Second, a citizen’s conception of the good will dictate her fundamental interests within her own society, while a liberal people’s political conception of justice serves this function at the international level. Finally, while individuals in the domestic original position choose from an array of possible principles, including utilitarianism, perfectionism, and intuitionism, parties representing peoples at the international level select only from formulations of the eight principles of the Law of Peoples (Rawls 1999a:40). While acknowledging these distinctions, Rawls sees peoples as capable of entering into a social contract of their own at the international level in the same way that persons do at the domestic level. Rawls treats peoples in the international original positions in a manner analogous to the way he treats persons in the domestic original position. While peoples may be quite different from one another in terms of capabilities or internal arrangements, they are modeled as equal to one another in the international original positions. This is especially controversial with respect to decent hierarchical societies, which don’t embrace equality in their internal arrangements. Rawls nevertheless defends treating these hierarchical societies as equal vis-à-vis liberal peoples, arguing that such equality is appropriate to the circumstances (1999a:69).

Rawls is far from alone in drawing an analogy between the individual and the state. In his early consideration of global justice, Charles Beitz noted “two analogies with the political theory of the state, namely, the analogy of states and persons, and the resulting analogy of nonintervention and equal liberty” (Beitz 1999:71). Although he later rejected the statism of Rawls’s conception of international justice in favor of liberal cosmopolitanism, Beitz’s earlier work justified state autonomy within certain limits. At the same time, Beitz was keenly aware of the limits of the individual–state analogy, observing that “states qua states do not think or will or act in pursuit of ends; only people (or perhaps sentient beings), alone or in groups, do these things. Unless some independent sense can be given to the idea of the state as a moral agent, this view cannot be very persuasive” (Beitz 1999:76). In other words, the aspects of individuals that give rise to their moral personality do not have obvious counterparts in states or peoples. The political conception of justice embraced by a people or, especially in the case of decent hierarchical peoples, the comprehensive doctrine around which society is organized may not reflect the beliefs or normative commitments of the persons within its borders. Moreover, as cosmopolitans argue, the fundamental interests of peoples and persons can significantly differ and even conflict. The limits of the individual–state analogy inspire cosmopolitan alternatives to statist conceptions of justice.

Cosmopolitans favor constructing international ethics around the individual rather than the state. In a work that predated Rawls’s own account of international justice, Thomas Pogge proposed a global original position in which all individuals would be represented for the purposes of selecting principles of both domestic and global justice. Perhaps because of his own faith in Rawlsian individualism, Pogge believed that an original position of individuals would best incorporate Rawls’s moral commitments as developed in A Theory of Justice. He argued against treating states like individuals, as this parallel “will not fit into a Rawlsian moral conception. In Pogge’s view, Rawlsian thought requires that “individual human persons, and they alone, are the ultimate units of moral concern” (Pogge 1989:252). Extrapolating from this individualism Pogge developed three possible versions of the global original position. Pogge proposed two derived from Rawls, R1 and R2, along with his own alternative, G:

“R1 – parties in the global session represent persons in the original position and, with a thick veil of ignorance, do not know details about their society or its composition” (Pogge 1989:242). In particular, they lack information about their own position in society, or their society’s position relative to other communities globally, focusing concerns about distributive justice on the least advantaged globally.

“R2 – parties represent states in the global original position, and these states’ interests lie in preserving their own just institutions” (Pogge 1989:243). This interpretation of the global original position is less likely to lead to global redistribution than is R1. Because this interpretation envisions parties representing states and selecting traditional principles of international law, it coincides most closely with both A Theory of Justice and The Law of Peoples.

“G – individual persons participate in a single original position for the selection of both domestic and global principles of justice” (Pogge 1989:247). Nationality would be treated as just one more contingency, like natural abilities, social class, race, or gender, to be hidden by a thick veil of ignorance. This is Pogge’s own preferred alternative and one that is, he contends, more compatible with Rawlsian moral commitments than R2.

Even under the first two readings, Pogge doubts that parties would select a traditional version of international law, as Rawls expected. Traditional principles of international law do not address distributive justice. Pogge argued that this lacuna would cause strain among societies and lead them to reject their agreements, undermining the stability of the international order. G, by contrast, would instead lead parties to adopt the two principles of Justice as Fairness globally.

In G, all individuals participate in a single global original position in which they choose principles of justice for their own society and beyond. This is in contrast to Rawls’s formulation in A Theory of Justice and The Law of Peoples, where the principles are chosen in separate original positions, and where principles for the single society take clear precedence over principles of international justice. By integrating these choices into a single original position, Pogge hopes that the choice of parties will yield a single set of seamless principles. Pogge hopes that integrating these choices into a single original position will lead to parties choosing a single set of seamless principles. Pogge believes that G offers several advantages over both R1 and R2. In G, parties’ nationality would be treated like race, gender, natural talent, or social class. Like these other traits, nationality is both morally arbitrary and a potential basis for inequality. Pogge argues that G also reflects our concern with inequality and coercive institutions, a concern that translates from domestic to global society. G takes account of, and remedies, inequalities among states as well as within them.

The single original position in G, Pogge argues, would result in parties selecting globalized versions of Rawls’s two principles of Justice as Fairness. The globalized version of the two principles would include a first principle, with a thin set of basic rights and liberties, and a second principle that, though less demanding than the difference principle, would require societies to arrange their internal practices so that the choices would be supported by most citizens and would be consistent with the rights of both citizens and outsiders (Pogge 1989:272). He notes that each society would be free to adopt more stringent requirements or more extensive lists of rights, but these principles would set out universal minimum standards beneath which societies could not fall, consistent with Pogge’s treatment of the individual as the ultimate unit of moral concern.

The Future of the Social Contract Tradition

The contractarian approaches to international ethics have so far focused on the state and the individual as the relevant parties to an international social contract. The statism is perhaps unsurprising given the broader discipline’s focus on the state as the dominant actor in the international system. Cosmopolitanism is a response to this statism that shifts the moral focus to the individual. Yet this focus on the state and the individual leaves out a range of other actors whose significance in the international system is growing. These non-state actors now perform many of the same functions as states have, meaning that they may also need to be taken into consideration by a contractarian model of international ethics.

While the state has been the dominant actor in the Westphalian international system, the state increasingly faces competition from other types of actors. Ferguson and Mansbach have described this system as “post-international.” They argue that the present system may more closely resemble the pre-Westphalian system than “the relatively brief era of interstate politics” (Ferguson and Mansbach 2004:63). This decentralization means that other actors now perform the functions that were closely associated with the state during the Westphalian era. These include not only economic and financial functions but also security functions and war-fighting. In Corporate Warriors, P.W. Singer (2003) argues that the emergence of private military firms has chipped away at the Westphalian state’s monopoly on the legitimate use of force. The privatization of security, with respect to both internal security and defense against outside threats, poses special challenges in terms of the social contract tradition. To the extent that the tradition treats security as a key inducement to enter into the social contract, the state’s outsourcing of these functions poses potential complications for the social contract. These complications stem from the fact that the state no longer directly provides the services for which citizens bargain in the context of the social contract. Instead, the services are provided on behalf of the state by private actors with which it has contracted. The decentralization of these functions means that actors aside from the state now provide goods that were once the subject of the social contract.

Even an international social contract that treats the state as the dominant actor in the international system may need to recognize that the state now operates alongside other actors that perform similar functions. Because of this increasingly privatized context within which the state now operates, the future of the social contract approach may lie in finding a way to account for this context within the contractual framework. While contractarian models of international ethics have so far focused on the state or the individual, there is no inherent connection between the idea of the social contract and the state. Instead, the analytical device of the social contract can shed light on the principles that parties would accept even within the political context that will succeed the state system.

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