Abstract
A cosmopolitan approach to global justice of the kind I have sought to begin elaborating here offers a distinctive perspective on human rights, toleration, and the use of force. The heart of a Law of Persons embraced by cosmopolitan deliberators would be a substantial array of human rights protections, including safeguards for “liberal” human rights—the Rawlsian equal basic liberties, several further guarantees, and a general presumption of liberty (Part II). These protections would likely impose more extensive limits on the use of force than Rawls’s Law of Peoples (Part III). Thus, they would constrain the methods liberals could reasonably use to influence the behavior of nonliberals—precluding sanctions and military interventions—even as they also clearly limited liberal tolerance of nonliberal societies (Part IV). A Law of Persons would exhibit significant similarities with, but also significant differences from, a Rawlsian Law of Peoples (Part V).
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Notes
Samuel Freeman, The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice, in Justice and Global Politics 29, 38 (Ellen Frankel Paul, Fred D. Miller Jr. & Jeffrey Paul eds., 2006).
John RawlS, The Law of Peoples, in Collected Papers 529, 554–55 (Samuel Freeman ed., 1999).
See, e.g., James W. Nickel, Are Human Rights Mainly Implemented by Intervention?, in Rawls’s Law of Peoples: A Realistic Utopia? at 263 (Rex Martin & David A. Reidy eds., 2006).
Cf. David Luban, A Theory of Crimes against Humanity, 29 YaLe J. Int’ll. 85 (2004).
There is also a plausible case to be made that globally (but also, surely, domestically) specific “prohibitions on theft and fraud, provisions for enforcing contracts,” and other protections for voluntary exchange might be embraced in an original position not unlike Rawls’s; see Leif Wenar, Contractualism and Global Economic Justice, in GloBAl JusticE 76, 89 (Thomas W. Pogge ed., 2001). Wenar’s focus is on a global original position in which people are represented as consumers, producers, and owners, and he envisions a range of other, more specific, economic regulations that might also be endorsed. It is plausible to think that a number of the constraints Wenar contemplates might be embraced as natural duties in a Rawlsian original position; even though people in such an original position would surely think of themselves in more than narrowly economic terms, they would recognize the centrality of economic interactions to the achievement of their other goals and might well proceed accordingly.
Cf. Howard F. Chang, The Economics of International Labor Migration and the Case for Global Distributive Justice in Liberal Political Theory, 41 Cornell Int’L L.J. 1, 20–24 (2008) (responding to Rawlsian and related worries about open immigration policies
Fernando R. Tesôn, Brain Drain, 45 San Diego L. Rev. 899 (2008)
Michelle A. Mckinley, Conviviality, Cosmopolitan Citizenship, and Hospitality, 5 UNbouNd 55, 64–68 (2009).
See John M. Finnis, Reason, Revelation, Universality, and Particularity in Ethics, 53 Am. J. Juris. 23, 42–45 (2008).
Richard W. Miller, The Interests of the Governed and the Interests of Humanity: The Moral Importance of Borders, 90 B.U.L. Rev. 1785, 1801 n. 35 (2010).
Contra Leif Wenar, Why Rawls Is Not a Cosmopolitan Liberal, in RAwLs’s LAw oF PeopLes: A ReAListic UtopiA? 95, 109 (Rex Martin & David A. Reidy eds., 2006); cf. id. at 113 n.42. Wenar apparently expects the reader to regard the US government’s invasion of Iraq as obviously appropriate, so that a principle that ruled it out, or that precluded actions reasonably undertaken in connection with it, would seem uncontroversially mistaken.
Darrell Cole, 09.11.01: Death before Dishonor or Dishonor before Death: Christian Just War, Terrorism, and Supreme Emergency, 16 Notre DAme J.L. Ethics & Pub. PoL’y 81, 93–98 (2002)
cf. David S. Koller, The Moral Imperative: Toward a Human Rights-Based Law of War, 46 Harv. Int’L L.J. 231 (2005).
Even if tactical nuclear weapons proved easier to deliver or less costly than conventional weapons, it seems clear that individual deliberators would not regard these considerations as at least ordinarily justifying their use, given the risks their employment could pose to noncombatants. Cf. Lionel K. McPherson, Excessive Force in War: A “Golden Rule” Test, 7 Theoretical Inq. L. 81 (2006).
Alec Walen, The Significance of Rawls’s Law of Peoples, 6 Int’l Legal Theory 51, 53 (2000).
Cf. Thomas W. Pogge, Rawls on International Justice, 51 PhiL. Q. 246, 248 (2001).
David Schmidtz, Separateness, Suffering, and Moral Theory, in Person, PoLis, Planet: EssAys in AppLied Philosophy 145 (2008)
Neera K. Badhwar, International Aid: When Giving Becomes a Vice, in Justice and Global PoLitics 69 (Ellen Frankel Paul, Fred D. Miller Jr. & Jeffrey Paul eds., 2006).
This is likely to be particularly true with respect to the interests of women; cf. Catherine Powell, Lifting Our Veil of Ignorance: Culture, Constitutionalism, and Women’s Human Rights in Post-September 11 America, 57 Hastings L.J. 331 (2005).
Which is not to say that this is an option Rawls would necessarily endorse; see, e.g., A. John Simmons, Disobedience and Its Objects, 90 B.U.L. REv. 1805, 1827 n.103 (2010).
Of course, nonliberals might offer incentives to liberals to encourage them to adopt their ways of life; see Mortimer Sellers, The Law of Peoples, 6 Int’l LegaL Theory 44, 48–49 (2000).
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© 2014 Gary Chartier
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Chartier, G. (2014). Defining and Implementing a Law of Persons. In: Radicalizing Rawls. Philosophy, Public Policy, and Transnational Law. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137382979_5
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