A Response to Rawls’ The Law of Peoples-Political Philosphy-Assignment, Exercises of Political Philosophy

Download A Response to Rawls’ The Law of Peoples-Political Philosphy-Assignment and more Exercises Political Philosophy in PDF only on Docsity!

Liberalism and Democracy: A Response to

Rawls’ The Law of Peoples

Class 12

This paper has two goals. First, to show, contrary to the narrative in John Rawls’ The Law of Peoples , that it is only logical to derive fundamental rights at the level of individuals rather than at the level of groups. Second, to determine whether democracy or liberal rights should be fundamental rights for all people in a just global normative order given that rights are derived at the individual level. Along the lines of Rawls’ calls for mutual respect between just and decent peoples, even if a powerful argument exists in favor of democracy or liberalism, the conclusion will aim to answer whether other societal forms should be tolerated.

Rawls’ The Law of Peoples : A First Encounter

John Rawls describes the reasoning behind his Society of Peoples thusly, “This account of the Law of Peoples conceives of liberal democratic peoples (and decent peoples) as the actors in the Society of Peoples, just as citizens are the actors in domestic society”^1. Here Rawls assumes that rights in the international system are derived differently than they are in domestic society. Specifically, rights are derived on the level of peoples internationally and on the individual level domestically. This is Rawls’ attempt at conceiving of a just international order. As Rachel Brown asserts, “To focus on peoples rather than on states enables Rawls to begin a response to certain theories of international relations, namely those that emphasize the ‘non-moral’ characteristics of states as presenting a barrier to relations of justice between them”^2. So, for instance, Rawls does not endow peoples with the “traditional sovereignty” of states thus freeing

promote justice^5. Thus, promotion of state rights, in Beitz’s view, is a means to an end. That is, state rights are only necessary as a means to achieving individual rights. Beitz quotes Michael Walzer’s assertion that, “the rights of states rest on the consent of their members”^6. If the role of states is to promote the well- being of individuals, then there exists a powerful logic for deriving rights on the state level since the individual gains his resources and rights as part of the state. But giving a state or a group rights does not necessarily ensure that those rights will trickle down to all individuals, indeed they may be captured and controlled by political elites. This gets us to the first problem with deriving rights at the group level, which is that basing the derivation of rights at the level of the group can very easily lead to cooptation by elites. In Benedict Anderson’s Imagined Communities , nationalism is first created through the establishment of Creole nations, but then becomes a model called “official nationalism” that political elites use to concretize their zones of control and justify their rule. In Anderson’s words, “official nationalism [is] an anticipatory strategy adopted by dominant groups which are threatened with marginalization or exclusion from an emerging nationally-imagined community”^7. Deriving rights at the group level in the age of nationalism has thus been a tool for controlling the masses. The easiest way to forge a group has frequently been to point to the existence of an “other” group and to label them an “enemy.” This comes to the second problem with deriving rights at the group level: the over- politicization of identity.

The second problem with defining fundamental rights at the group level is that it leads to the over-politicization of identity. That is, when deriving rights at the group level, a group is more likely to use its communal identity for the purposes that Rawls warns against in his definition of peoples, such as the attainment of empire, relative economic gain or national pride. The use of group identity as a tool for achieving economic, territorial or political gain I call the politicization of identity. A certain level of identity politicization may be necessary simply in order to define a group. However, in my estimation, deriving fundamental rights at the group level leads to over-politicization of group identity as under such a system groups must compete with one another for goods and resources, and thus must explicate claims of desert regarding these substances. The following deleterious effects can be caused by over-politicization of identity: the potential creation of an “other” group, spurious group formation, and, most importantly, particularistic nationalism and group competition over resources. These factors all have the potential to yield racism, violence and resource inequality. First, the over-politicization of identity can easily lead to the creation of an “other” group and thus to an increase in human suffering. Most germanely, politically charged group identity could lead to ethnic conflict. As the former Bosnian President Alija Izetbegovic stated, “will we accept peace at any price in Bosnia, bend our heads once and for all, because of peace accept an inferior position for the next fifteen years, or shall we say, we want sovereignty, risking a conflict”^8. Since in the example, the right to self-determination is derived at the group level, groups must define themselves and reify their differences, thus creating an “other” group, in order to stake claims to this right.

to understand” it^11. Jackson says that groups like the Tukanoans end up learning to use culture as a “commodity”^12. It is true that groups that are in need do exist and that, in many instances, it is most efficient for these groups to request aid at the group level. However, by deriving rights at the group level, spurious groups may form simply to obtain the rights that come with being a group. In and of itself this is not a bad outcome, however, these groups may strategically essentialize in order to prove their status as a “people,” which in some instances may require them to define themselves against others. This could easily lead to conflict. Finally, Thomas Pogge points to the fact that overly particularistic nationalism not only leads to chauvinism and racism, but also to unjustifiable “human misery and premature deaths”^13. Pogge’s most powerful argument in supporting the latter point is that particularistic nationalist groups have incentives to only (or almost only) care about themselves in terms of resource extraction and economic gain. When rights are derived at the group level, the rights of certain people are undermined simply because of their group affiliation—deserved or not. Deriving rights at the group level leads to group competition which in the least leads to minor economic or political inequality and at most to violence. Strategic essentialism and an emphasis on group affiliation as the basis for achieving fundamental rights can thus lead to unequal resource distribution and, consequently, human misery. By contrast, if rights were derived at the individual level, groups would not have to compete or prove their “groupness” in order to obtain rights. This circumvents the problem of group creation simply for obtaining fundamental rights and minimizes the

amount of politically charged groups that will be created, thus limiting the incidence of violent conflict. The problem described here is one that is prevalent today in international politics since in order for a “people” to gain certain rights it must form a state. The most prominent example is the creation of the Jewish State on the grounds that without it the Jewish people may cease to exist. Michael Ignatieff’s assertion that, “nationalism solves the human rights problems of the victorious national groups while producing new victim groups, whose human rights situation is made worse” holds here^14. Still, an end to deriving rights at the group level will most probably not lead to an end to violent conflict. There will surely still be reasons for people to form groups and for people to disagree. It is not the act of group formation that is troublesome here, rather it is the type of groups, in my jargon: over-politicized ones, which form under a system wherein groups are the fundamental derivers of rights. By establishing fundamental rights at the individual level, then, the incidence of over- politicized group formation will be minimized since individuals will have less incentive to form such groups because their rights as individuals are assured. The incidences of war and resource inequality will thus be limited. This leads to the third problem with basing rights at the group level, which is that of minority rights. As Onora O’Neill writes, “if identities matter, minority identities matter”^15. This points to the arbitrary nature of deriving rights at the group level. It is unclear how minority identities are dealt with in Rawls’ decent societies. Rawls writes that, “all persons in a decent hierarchical society are not regarded as free and equal citizens, nor as

was expressed in the payment of the poll tax and obedience to a series of restrictions defined in detail by the holy law”^20.

Though the dhimma system was meant on one level to protect non-Islamic minorities, it is clear that the dhimma were treated as inferiors. According to Mordechai Ha-Cohen, a prominent Libyan Jew who lived in the late nineteenth and early twentieth centuries, “The Muhammadans of the villages [did] not have religious hatred toward the Jews, but, nevertheless [were] very proud. They [would] not allow a Jew to pass in front of them, mounted on an animal, nor [would] they permit him to carry a weapon”^21. Though these slights are minor, they establish a hierarchical order within a society that, as Brown posits, could easily prove humiliating to the minority or disenfranchised group^22. For example, Bernard Lewis notes that under the dhimma order, “Christians and Jews were to wear special emblems on their clothes. This, incidentally, is the origin of the yellow badge, which was first introduced by a caliph in Baghdad in the ninth century and spread into Western lands in later medieval times”^23. The fact that this yellow badge was used as a way of singling out Jews for humiliation and oppression in Hitler’s Germany illustrates how the establishment of a group’s status as second-class citizens can quickly regress into scapegoating and mass violence. Therefore, the very fashioning of the group as the fundamental deriver of rights could lead to pushing people outside the sphere of rights that group-members acquire.

Thus, deriving rights at the group level potentially limits the amount of people that can justifiably stake a claim to these rights. This can lead to societal structures that justify discrimination on grounds of membership, tradition, or other like reasons. Thus, the rights of a woman, resident alien, etc. might be explicated to be justifiably less than those of the requisite citizen since those persons do not fulfill the notions of the group regarding who deserves rights. In such a system, Rawls’ Society of Peoples for instance, the greatest slight to a person may be banishment. Further, even if these hierarchical structures are agreed to, they could also lead to conflict and resource inequality. For one, say there is a drought in a decent society wherein Muslims are the superior group and Jews the inferior. If Jews may not hold political office, then resources may go predominantly to Muslims in times of crisis in order to please the people that “really matter.” Thus, Jews in such a situation are forced to starve or rebel. Indeed, no less a source than the caliph ‘Umar I declares in justifying a poll tax against the dhimma class that, “the Muslims of our day will eat [from the work of] these people as long as they live, and when we and they die, our sons will eat [from] their sons forever”^24. Further, proof is the fact that Muslims’ attitudes and behavior toward their “subject communities” worsened whenever the status of Muslims worsened economically or politically^25. Thus, in practice, a system wherein one group is privileged over another can easily lead to inequality in a variety of public spheres. It can further lead to violence, discrimination and even genocide practiced against the subject group since the society is based on a philosophy that one group is superior to the other.

One may argue that individuals are “nothing” without societies since they cannot live in a vacuum. As O’Neill mentions, “such arguments are typically strengthened by pointing out that a feeling of affiliation to nations or communities is not a mere matter of preference, but the basis of the very sense of self and identity of the persons so linked”^29. However, in my estimation, the meaning and identity that one can derive from a group is inversely related to the level to which that person is forced to be in said group. For example, religion can provide powerful meaning in a person’s life. However, if one is forced to sit in church every Sunday simply because one “has to,” the meaning that can be derived from such a situation is markedly reduced. One may counter that simply by going church, forced or not, one will eventually learn the truth and that a person does not always enjoy or find meaning in activities the first time he partakes of them. However, one can only begin to find meaning in a life situation when he chooses to accept it^30. Lest this dialogue go too far, let it be underlined that what is being proposed here is not akin to the end of societies but rather the end of fundamental human rights being derived at the group level. Nevertheless, I do not think that a strong empirical case can be made that countries in today’s world that derive rights at the group level have, on the whole, more robust civil societies or that the people in those societies live more meaningful lives. Now that the arguments against deriving rights at the group level have been established, the discussion turns to what rights individuals should have. Specifically, in a just global normative order, should individuals have a right to democracy? I will begin this discussion by defining democracy before turning to the heart of the argument. The

first step in the argument will be to ascertain whether there is a sufficient enough logic or reasoning for establishing an individual’s right to democracy based on the problems with deriving rights on the group level enumerated above. The second step will be to face Rawls’ argument about the need for a mutual respect between liberal and decent peoples to see if it holds in this case.

Should there be an individual right to democracy?

To begin a discussion on whether individuals should have a fundamental right to democracy in a just global normative order, the definition of democracy must be established. Though there exists wide disagreement on what electoral systems best provide for democracy^31 , the actual rules of democratic systems are secondary to the argument here. It is important, instead, to focus on what rights democracy provides for individuals and whether it is moral to forward these rights to all people. One point that most experts on democratic electoral systems do not disagree on is that democracy needs to include universal suffrage. It is true that this is a relatively new idea, even in the United States, but without universal suffrage then some individuals are left out of the electorate and thus we return to the problem of minority rights. Further, suffrage must include some level of free speech in order for elections to run effectively.

individual level. Universal suffrage provides individuals with the right to choose their rulers, but there is no guarantee implied in it that: a) their choice will be a substantive one, b) that their rulers will not opt to undermine their rights, and c) that the ruler they vote for will be the one that ultimately wins. Thus, it should be added that a democracy is a system whereby individuals are ordained with universal suffrage and wherein elections contain multiple parties. Further, free speech, and by proxy a free press, should be ensured so that elections are substantive and transparent. Even this broader definition of democracy, however, does not necessarily provide for minority rights. Thus, we must turn to the tenets of liberalism to safeguard the rights of the individual. A second encounter with Rawls will parse out whether in order to be just in the global normative order I am describing societies must be both liberal and democratic, or simply democratic.

Rawls’ The Law of Peoples : Decent versus Liberal Peoples

John Rawls defines two societal forms that he sees as just namely, decent and liberal societies. In the second part of his ideal theory in The Law of Peoples , Rawls states that though “liberal constitutional democracy is, in fact, superior to other forms of society,” it is important that the relationship between decent and liberal peoples be characterized by mutual respect. In rebuttal to arguments that emphasize the fundamental importance of liberal rights, Rawls asserts that, “a liberal people should have confidence in their convictions and suppose that a decent society, when offered due respect by liberal

(^33) Even in proportional representation systems, coalitions form that forward the rights of certain groups over others.

16

peoples, may be more likely, over time, to recognize the advantages of liberal institutions and take steps toward becoming more liberal on its own”^34. In essence Rawls is stating that even if we find decent societies to be unjust by liberal standards, their societies look enough like liberal societies to necessitate mutual respect between the two groups. Even if we reject this argument, Rawls would counter that in the least, decent societies should be respected because respecting them is the quickest route to getting decent societies to see the virtues of liberalism. Closer scrutiny of these assertions requires a definition of decent societies. Rawls characterizes decent peoples as those whose societal structures include decent consultation hierarchies that allow for a right to dissent. The decent consultation hierarchy is to be informed by a “common good idea of justice.” Further, though people in decent hierarchical societies “are not regarded as free and equal citizens, nor as separate individuals deserving of equal representation,... they are seen as decent and rational and as capable of moral learning as recognized in their society”^35. Rawls is careful to note that though people in decent societies have a right to voice dissent, they do not have complete freedom of speech. In decent societies, dissent “is permissible provided it stays within the basic framework of the common good idea of justice”^36. He further requires that decent societies “admit a sufficient measure of liberty of conscience and freedom of religion and thought.” But, Rawls allows the established religion to be privileged above others in decent societies as long as other religions are tolerated^37. Thus, decent hierarchical societies look a lot like the Muslim dhimma system described above

(^3435) Rawls, John, The Law of Peoples , pg. 62 36 Rawls, John,Rawls, John,^ The Law of PeoplesThe Law of Peoples , pg. 71, pg. 72 (^37) Rawls, John, The Law of Peoples , pg. 74

17

people equally but do not actually believe in the equality of individuals. In my mind, then, decent societies are ones that have been coopted by relatively benevolent elites^40. This follows the argument for providing all people in a democratic society, the right to vote. One can point to “virtual representation,” as the British did regarding the American colonies, all she wants but a system such as a decent hierarchical society where one is considered but not truly represented is endemically faulty. The structure of the household with a husband at the top who takes the wife’s views into consideration but ultimately makes decisions on his own could only be reasonably believed to be justly arranged if we attribute certain qualities to each gender. The assumptions underlying such a system would have to be either structural or qualitative. Examples of qualitative arguments using the household analogy are: a) that men are better at making decisions (because they are smarter, less emotional, etc.), or b) that men are fit for certain roles and women for others. Qualitative arguments point to biological or a priori differences between people to rationalize a hierarchical system. Structural arguments, on the other hand, include: that having a hierarchical structure in place maximizes efficiency. Structural arguments focus on the efficiency or tradition or economical sense, etc. of the structure that is in place, rather than focusing on the differences between individuals. Qualitative arguments are especially pernicious, even if they are meant to be benign, since they can quickly regress into discrimination and oppression. Since all people are equally capable given right opportunity, they should be allowed access to societal institutions on an equal basis. The qualitative rationale for rigid hierarchical structures

(^40) These elites are benevolent compared to those of less just societal forms described in Rawls’ The Law of Peoples 63). : outlaw states, societies burdened by unfavorable conditions and benevolent absolutisms (Rawls

19

unduly limits the opportunities for an individual’s personal advancement, be it psychologically, professionally or otherwise. Structural arguments are more malleable since at their most benign they just assume that certain structures are more efficient. Within all societies there exist varying degrees of hierarchy, but the efficiency or traditional nature of hierarchical arrangements does not justify the establishment of an inferior group. Regardless of the rationale, it is clear that the establishment of a hierarchical societal structure can lead to myriad problems. The nature of such hierarchies in practice normally leads to some degree of oppression of the minority or disenfranchised group. Further, by deriving rights at the group level, among other potential problems, individuals are not judged by who they are but by what they are, group identities may be over- politicized in order to show that they deserve certain rights, elites may coopt the rights of individuals, and minorities may be disenfranchised. Still, John Rawls believes that decent societies should be tolerated because they are non-aggressive, bestow their people with the powers of consent and dissent and because they protect human rights. Above I make clear the weaknesses in a system that allows for consent and dissent without universal suffrage. Namely, such a system may purport to give individual’s rights, but ultimately it does not. Following Brown’s arguments and the example of virtual representation, even though these second-class citizens have some rights in decent consultation hierarchies, ultimately they only have the right to be heard, but not to be listened to. Decent societies, then, provide only weak rights for individuals and it is unclear whether these rights would provide for sufficient human rights protections.