This thesis discusses John Rawls's The Law of Peoples (1999) in light of two main questions. These questions are:
(1)Can the conception of human rights Rawls adopts in the Law of Peoples be plausibly defended?
(2)Bearing in mind the criticisms of Rawls’s conception of human rights identified in the treatment of question (1), how can the Law of Peoples be adjusted in a way that affords added normative force to the idea of positive duties across societies?
Question (1) is approached by discussing three interpretations of Rawls’s justification for his narrow conception of human rights. The argumentation proceeds in the following manner: Firstly I argue that the fact that some peoples or persons have distorted conceptions about morality is not a compelling reason to exclude certain rights from the human rights principle. This argument is in line with common liberal criticisms of Rawls, presented by for instance Allen Buchanan (2006). Furthermore I argue that the fact that the dominant groupings within a society reject important liberal rights is not a convincing argument for the claim there is internal political legitimacy in decent societies.
Secondly I discuss Samuel Freeman’s (2006b) proposed justification of Rawls’s list of human rights. Freeman argues that the representatives for liberal peoples in the original position should be modelled as exclusively self-interested. From this he argues that they would endorse the same list of human rights presented by Rawls. I claim that this argument fails at three levels. 1. It is in fact unclear that such representatives would endorse Rawls’s list of human rights. 2. Freeman’s justification for the human rights principle is unappealingly instrumental. 3. To model the representatives of liberal peoples as uninterested in the human rights situation in other societies is implausible. Furthermore, it seems to contradict what Rawls himself writes.
Third I discuss David A. Reidy’s (2006) proposed justification of Rawls’s list of human rights. Rawls’s list of human rights only contains those rights he believes are internationally enforceable. As such they challenge the self-determination of states that do not respect them. Reidy argues that it would be unreasonable of liberal peoples to agree to a list of internationally enforceable human rights that allows coercive liberalization of certain well-ordered non-liberal peoples. Although this argument is associated with certain problems, I claim that it provides a plausible defence of Rawls’s list of human rights. However, it opens up a new discussion on whether the role of human rights in a theory of international justice should be to specify when it in principle is legitimate to apply forceful intervention. Upon addressing this discussion I argue that the Law of Peoples allows room for a contemporary understanding of the role of human rights. Furthermore I argue that since the Law of Peoples is a theory that deals with the question of recognitional legitimacy and not internal political legitimacy, Rawls does not confound justification and enforcement issues, nor ideal and non-ideal theory. Rather, it is his critics that confound domestic and international theory. Even so, I acknowledge that if Rawls included a larger scope of measures aimed at achieving justice in international relations to the theory, he could have included a more comprehensive list of human rights. Furthermore I argue that Rawls’s theory would benefit from such an adjustment.
Question (2) is approached first by an argument that it is possible to reconcile the Law of Peoples with certain aspects of liberal cosmopolitanism. Here, I argue that it is possible to combine two key liberal cosmopolitan beliefs with the Law of Peoples. These are: 1. For internal political legitimacy to be present in any polity it needs to be organized as a liberal democracy. 2. An overarching goal for the foreign policy of a liberal state should be to work towards the democratization and liberalization of all presently non-liberal states. After this argument is established I propose a theory of international justice that builds on Rawls’s, yet involves certain adjustments. This theory affords added normative force to the idea of positive duties across borders as well as universal human rights. The argument proceeds by applying Rawls’s first-level original position in all the domestic societies in the world and additionally by populating the second-level original position with representatives for all these societies. These representatives then choose the principles of international justice. The idea of popular sovereignty inherent in the use of social contracts helps conceptualize the representatives in this second-level original position. I argue that if Rawls is correct in his analysis, the representatives in my version will choose the same principles as those Rawls argues in favor of. However there will also be certain subtle, yet nonetheless important differences. I think it is necessary to adjust Rawls’s theory, because I do not believe that the duty of assistance in fact follows from his approach.