John Rawls explained that what he meant by the term "law of peoples" (derived from the traditional ius gentium, and the phrase ius gentium intra se) refers to what the laws of all peoples have in common. An example would be the 'natural' law which recognized the rights of a master over a slave or the right of a father to put a disobedient son to death.
Rawls did not seem to understand that the primitive notions of Roman law had long been superseded. Ulrich Huber, in the seventeenth century, is generally credited with introducing the notion of 'comity of nations' .' Huber wrote that comitas gentium ("civility of nations") required the application of foreign law in certain cases because sovereigns "so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the powers or rights of such government or of their subjects."[12] Huber "believed that comity was a principle of international law" but also that "the decision to apply foreign law itself was left up to the state as an act of free will."'
Philosophers are too ignorant and stupid to contribute anything to a field where smart people study hard so as to make a lot of money resolving difficult legal cases.
In his book, Rawls says-
By the "Law of Peoples" I mean a particular political conception of right and justice that applies to the principles and norms of international law and practice.
Those principles and norms are similar to those which arise in maritime law. No 'political conception' applies. That is why the ideology of the lawyer or judge expert in such matters would be wholly irrelevant.
It is a different matter that an idiot could take the view that international maritime law equates Capitalism with piracy.
I shall use the term "Society of Peoples" to mean all those peoples who follow the ideals and principles of the Law of Peoples in their mutual relations.
There are none such. Rawls himself was a law abiding American citizen. He paid State and Federal taxes but omitted to remit any money whatsoever to foreign governments. Indeed, he even had a Savings Account on which he received interest in flagrant disregard to Sharia law regarding usury.
These peoples have their own internal governments, which may be constitutional liberal democratic or non-liberal but decent governments.
That is irrelevant. Reciprocity, on the other hand, matters.
In this book I consider how the content of the Law of Peoples might be developed out of a liberal idea of justice similar to, but more general than, the idea I called justice as fairness.
Which was neither fair nor 'operationalizable' by laying down criteria for justiciability. Instead it was the utterly foolish notion that people would respond to 'Knightian Uncertainty'- i.e. not knowing what the future might hold- not by buying insurance but by adopting a rule such that the worst off would have first claim to resources.
Rawls hadn't noticed that all affluent countries had adopted a 'Social Insurance' scheme to provide a 'safety net'. However, 'moral hazard' militated for keeping unemployment benefits down to a level which would not destroy work incentives.
This idea of justice is based on the familiar idea of the social contract,
International law is based on treaties which could be considered a type of incomplete contract.
and the procedure followed before the principles of right and justice are selected and agreed upon is in some ways the same in both the domestic and the international case.
Rawls must have noticed that the UN, or its predecessor, the League of Nations, had not followed any such procedure.
This monograph on the Law of Peoples is neither a treatise nor a textbook on international law. Rather, it is a work that focuses strictly on certain questions connected with whether a realistic Utopia is possible, and the conditions under which it might obtain.
The answer has to do with preference and endowment diversity. If these meet a 'Goldilocks condition' then the answer is yes. But this does not mean the thing is desirable. The fact is, preference and endowment diversity should increase so that there is more incentive for STEM subject research, better mechanism design, higher allocative and dynamic efficiency etc. There are all sorts of ways in which life could be better for everybody.
I begin and end with the idea of a realistic Utopia.
Perhaps, such a thing obtained when technology was stagnant and life was nasty, brutish, and short.
Political philosophy is realistically Utopian when it extends what are ordinarily thought of as the limits of practical political possibility.
Political possibilities are constrained by the economic production possibility frontier which, in turn, depends on Technology, mechanism design, etc. Utopias are stoooopid. People don't greatly care about the shite which exercises those who come up with them.
Our hope for the future of our society rests on the belief that the nature of the social world allows reasonably just constitutional democratic societies existing as members of the Society of Peoples.
No it doesn't. It rests on finding ways to reverse climate change and make 'green energy' cheap and ubiquitous. Also, what would be cool would be spaceships equipped with 'warp-drive' or which could 'jump into hyperspace'. Technology matters. Political Philosophy doesn't.
In such a social world peace and justice would be achieved between liberal and decent peoples both at home and abroad.
Only in the sense that Death would be abolished if everybody was very liberal and decent and was willing and able to live forever.
The idea of this society is realistically Utopian in that it depicts an achievable social world that combines political right and justice for all liberal and decent peoples in a Society of Peoples
Just as the idea that nobody will suffer death is 'realistically Utopian'. All we need is a bunch of peeps who are liberal and decent and unwilling or unable to die.
Rawls outlines his premises thus-
Following Rousseau's opening thought in The Social Contract, I shall assume that his phrase "men as they are" refers to persons' moral and psychological natures
why not their economic, political, racial, religious, regional, linguistic or ideological preferences? One may say there is an element of 'hysteresis' or 'uncorrelated asymmetry' here. In the former case, there is 'path dependence' whereas Rawls is assuming ergodicity- i.e. he is living in La La land. In the latter case, there are eusocial bourgeois strategies which reduce 'rent dissipation'. This means his analysis is sub-optimal. He is denying himself a better solution concept (introduced by John Maynard Smith). Moreover, he is ignoring the fact that resources are required to run Institutions.
One may defend Rawls by saying 'he invokes ceteris paribus. If other things were equal, then his analysis would be helpful'. The problem is that if people were as he assumes they are, then other things wouldn't be equal. They would be completely different.
and how that nature works within a framework of political and social institutions;
This is circular. Political and Social institutions work in ways dictated by the human beings running or financing them.
and that his phrase "laws as they might be" refers to laws as they should, or ought, to be.
Nobody knows what that might be. The fact is, the law is a service industry whose aim, as Hume said, is utility. It changes for the same reason that other service industries- e.g. Entertainment or Accountancy or Education- change. Competition between jurisdictions may militate for convergence in mission critical areas. But, equally, it may lead to 'monopolistic competition' with greater and greater product differentiation. This would result in competing 'Tiebout models' with different fiscal mixes and local laws and regulations. People could 'vote with their feet' and relocate to jurisdictions which suit them best.
I shall also assume that, if we grow up under a framework of reasonable and just political and social institutions, we shall affirm those institutions when we in our turn come of age,
Just as if grow up on a nice planet in a nice part of the Universe, when we grow up we often say to each other 'I affirm the Universe. It is so nice'. The fact is, we take stuff which works for granted. But we are happy to see them improved in various ways- e.g. made cheaper or become faster or more accurate in operation.
and they will endure over time.
evolve, not endure.
In this context, to say that human nature is good is to say that citizens who grow up under reasonable and just institutions—institutions that satisfy any of a family of reasonable liberal political conceptions of justice—will affirm those institutions and act to make sure their social world endures.
Rawls lived in a country which was ready willing and able to blow up the world. Thus it preserved its institutions though, no doubt, it changed them out of all recognition within the space of Rawl's own lifetime. Many other countries weren't so fortunate. They didn't have nukes. They didn't have a kick-ass army which could put down any domestic or external threat. Some were conquered or came under foreign domination. For one's 'social world to endure, you may have to bend your knee to a foreign tyrant or the domestic puppet he has installed. You may have to pay lip-service to an obnoxious ideology or religion. Such has it ever been. Freedom is a luxury which only those with unrivalled military and economic resources can be sure of retaining. But even then, the content of freedom will be 'essentially contested'.
As a consequence of focusing on the idea of a realistic Utopia,
this theory will have zero application to the real world
many of the immediate problems of contemporary foreign policy that trouble citizens and politicians will be left aside altogether or treated only briefly. I note three important examples: unjust war, immigration, and nuclear and other weapons of mass destruction.
In other words, Rawls will ignore the entire history of Humanity so as to talk ignorant bollocks.
The crucial fact for the problem of war is that constitutional democratic societies do not go to war with one another.
Yes they do- unless their Super-power hegemon stops them.
This is not because the citizenry of such societies is peculiarly just and good, but more simply because they have no cause to go to war with one another.
Sure, they do. It is a different matter that, if the result of the war is a foregone conclusion, no war occurs.
Compare democratic societies with the nation-states
there were no such things. There were Kingdoms or oligarchic Republics- e.g. Genoa, Venice, etc.
of the earlier modern period in Europe. England, France, Spain, Hapsburg Austria, Sweden, and others fought dynastic wars for territory, true religion, for power and glory, and a place in the sun.
Colonies?
These were wars of Monarchs and Royal Houses;
The Second World War wasn't.
the internal institutional structure of these societies made them inherently aggressive and hostile to other states.
No. Institutional structures were irrelevant. What mattered was the expected Cost vs the Benefit of military conflict. Where different parties had different Expectations, war was a 'discovery' process. One may say 'proxy wars' served the same purpose once 'Mutually Assured Destruction' was established.
The crucial fact of peace among democracies rests on the internal structure of democratic societies, which are not tempted to go to war except in selfdefense or in grave cases of intervention in unjust societies to protect human rights.
This is pure fantasy. It is like Amartya Sen saying 'there can be no famine in a democracy, though he himself came from a place where two big famines- 1943 & 1974- were exacerbated by corrupt elected politicians taking charge.
Any war could be said to be about 'human rights'. Perhaps Rawls was naive enough to think the Civil War really was about slavery.
What Democracy can do is greatly increase the power of the State to wage long 'total wars' of attrition. Monarchies went in for limited wars of short duration. War was merely an extension of diplomacy. What was new was the US- a democracy- adopting a doctrine of 'mutually assured destruction'. If the world had been blown up when I was young, the blame would have fallen on Wilsonian Democracy. It still may happen. Maybe multi-ethnic Empires and Monarchies weren't such a bad thing. The American Civil War was the first modern war. The two World Wars could bee thought of as European Civil wars.
Since constitutional democratic societies are safe from each other, peace reigns among them.
Sadly, the people of Vietnam, or more recently, Afghanistan, haven't been safe from 'constitutional democratic societies'. The War on Terror killed 1.3 million, mainly Muslim, people.
Concerning the second problem, immigration,
the US grabbed a big chunk of Mexico. When Rawls was a rising young academic, the US deported, under 'Operation Wetback' at least 300,000 people. The true figure may have been over a million.
I argue that an important role of government, however arbitrary a society's boundaries may appear from a historical point of view, is to be the effective agent of a people as they take responsibility for their territory and the size of their population, as well as for maintaining the land's environmental integrity.
This depends on the resources available to the government. Controlling migration costs money and requires considerable man-power.
Unless a definite agent is given responsibility for maintaining an asset and bears the responsibility and loss for not doing so, that asset tends to deteriorate.
Which is why a definite agent should be given responsibility for deporting aliens. Citizens should be sterilized or euthanized for Eugenic reasons.
On my account the role of the institution of property is to prevent this deterioration from occurring.
In which case, property title should be denied to those who, prima facie, lack the resources or intelligence to prevent such deterioration.
In the present case, the asset is the people's territory and its potential capacity to support them in perpetuity;
if the existing government can't seal the borders, perhaps the country should be conquered by someone who can. A constitutional democracy is welcome to declare itself the Protectorate of some foreign potentate.
and the agent is the people itself as politically organized.
If they get swamped by immigrants, it is their own fault.
The perpetuity condition is crucial. People must recognize that they cannot make up for failing to regulate their numbers or to care for their land by conquest in war, or by migrating into another people's territory without their consent.
Why? The Americans, who established a constitutional democracy 250 years ago, did no such thing. What is sauce for the goose is sauce for the gander. If immigration made the US largely White, yet more immigration may make it largely 'coloured'. Why should English rather than Spanish be the national language?
Still, it is good to know that Trump is the ideal Rawlsian Chief Executive. But we can't be sure he really will be able to arrest or reverse 'demographic change'.
There are numerous causes of immigration. I mention several and suggest
on the basis of ignorance and stupidity
that they would disappear in the Society of liberal and decent Peoples. One is the persecution of religious and ethnic minorities, the denial of their human rights.
decent people don't do such things. Also there would be no rape or murder or fat shaming or economic inequality or prejudice against people who awarded themselves a PhD in Fartology.
Another is political oppression of various forms,
like high taxes. There are plenty of tax exiles.
as when the members of the peasant classes are conscripted and hired out by monarchs as mercenaries in their dynastic wars for power and territory.
When did this last happen? The plain fact is, mercenaries can be hired directly.
Often people are simply fleeing from starvation, as in the Irish famine of the 1840s.
Irish immigration continued after the famine ended.
Yet famines are often themselves in large part caused by political failures and the absence of decent government.
No. Excess mortality from a food availability deficit can be mitigated by 'decent government'. But, a decent government- e.g. that of Finland in the 1860s may decide not to bother. Malthusian solutions for Malthusian problems may be endorsed by 'Constitutional Democracies'.
The last cause I mention is population pressure in the home territory, and among its complex of causes is the inequality and subjection of women.
Oh! That's why Europeans killed indigenous people and took over their territory! It was because their women were denied the vote.
Once that inequality and subjection are overcome, and women are granted equal political participation with men and assured education, these problems can be resolved.
In other words, once economic problems are solved, politics may become nicer because everything is becoming nicer.
Thus, religious freedom and liberty of conscience, political freedom and constitutional liberties, and equal justice for women are fundamental aspects of sound social policy for a realistic Utopia (see §15.3-4).
Which is why America was right to invade Afghanistan. It is now a Utopia for lesbians- right?
The problem of immigration is not, then, simply left aside, but is eliminated as a serious problem in a realistic Utopia.
Because all problems are eliminated by magic.
To be fair, the new mathematical Welfare Econ & Social Choice theory which Rawls was exposed to as a rising young academic was based on nothing but magic.
I shall only briefly mention the question of controlling nuclear weapons and other weapons of mass destruction. Among reasonably just liberal and decent peoples the control of such weapons would be relatively easy, since they could be effectively banned.
Thus, Rawls's own people weren't 'liberal and decent'. Truman used atom bombs against Japan. The country went on to develop H-bombs and to stockpile them while perfecting ballistic missile and other delivery system. Incidentally, in 1971, Nixon threatened to 'nuke Calcutta' at the time of the Bangladesh Liberation War.
These peoples have no reason for going to war with one another.
What reason did the US have for going to war in Indo-China?
Yet so long as there are outlaw states—as we suppose—some nuclear weapons need to be retained to keep those states at bay and to make sure they do not obtain and use those weapons against liberal or decent peoples.
So, this is just 'American Exceptionalism'. Whatever it does is 'liberal and decent'. Thankfully, killing enough G.Is is a way of persuading it to be less liberal and decent.
How best to do this belongs to expert knowledge, which philosophy doesn't possess.
Rawls didn't even possess common sense.
There remains, of course, the great moral question of whether, and in what circumstances, nuclear weapons can be used at all.
That isn't a moral question. It is a Game Theoretic question of an ideographic kind. Rawlsian rubbish would be irrelevant.
The Law of Peoples holds that decent nonliberal points of view exist, and that the question of how far nonliberal peoples are to be tolerated is an essential question of liberal foreign policy.
No. Foreign policy has to tolerate any regime which it can't coerce by military or economic means. Moreover, collective security may require alliances with ideological enemies. Stalin was an ally of Churchill & Roosevelt.
The basic idea is to follow Kant's lead as sketched by him in Perpetual Peace (1795) and his idea of foedus pacificum.
Why bother? The French Republic soon turned into an Empire. Napoleon installed his brothers as Kings of various States. Kant's 'philosophical sketch' amounts to saying 'everybody should be nice nice. Don't be nasty. Also, let us agree to forbid any sensible diplomatic and military arrangement likely to secure the 'balance of power' and thus preserve peace in Europe.
I interpret this idea to mean that we are to begin with the social contract idea of the liberal political conception of a constitutionally democratic regime and then extend it by introducing a second original position at the second level, so to speak, in which the representatives of liberal peoples make an agreement with other liberal peoples.
First everybody should become very nice. Then they should talk nicely to other nice nice people. After that, nastiness will cease to exist.
The problem is that Rawls's social contract is not 'incentive compatible'. The first country to adopt it is the first country to collapse. By contrast, the Leninist solution- 'Soviets' are formed in every town or district across the globe. These Soviets form a Socialist Union. The dictatorship of the proletariat is established. Class enemies are liquidated. Then, by some magic, Communism is achieved- i.e. scarcity ceases to exist. The State withers away. Everybody does some work just for the fun of it and gives away the product of their labour to anyone who needs it. This is the 'realistic Utopia' Rawls was trying to compete with. He failed. It is plausible that Communism can be achieved by killing anyone who doesn't get with the program. It is not plausible that Rawls Social Contract can be imposed non-coercively. The plain fact is, anyone can agree to anything but then decide not to abide by the agreement. If a contract can't be enforced, it is a dead letter.
Looking back at the Foreign Policy of senile Biden, we do find a Rawlsian emphasis on Democracy & Human Rights. But his 'summit for Democracy' was a miserable failure.
The Social Contract, if it is anything, is an incomplete contract of adhesion. If it is 'liberal'- i.e. permits free entry and, more importantly, exit- then its capacity to redistribute resources is severely limited. Moreover, as with any 'incomplete contract' (i.e. one which does not specify all possible states of the world because of Knightian Uncertainty) there has to be an adjustment of beneficial and control rights over the course of the contract. In other words, we can't predict the distributional consequences.
The wider problem is that of unanticipated 'exigent circumstances'. When these arise, ideology becomes irrelevant. Any type of regime can follow any type of policy. Political Philosophy is merely a dogma compatible with any type of praxis.
(i) There are two necessary conditions for a liberal conception of justice to be realistic.
There are no necessary or sufficient conditions for any robust coevolved process or mechanism. Anti-fragility entails multiple realizability.
The first is that it must rely on the actual laws of nature and achieve the kind of stability those laws allow for the right reasons.
We don't know the 'laws of nature' or what constitute 'right reasons'. We have better and better approximations for certain purposes.
It takes people as they are (by the laws of nature), and constitutional and civil laws as they might be, that is, as they would be in a reasonably just and well-ordered democratic society.
The Law is a service industry. Just as there is price and wage discrimination, so too is there service provision discrimination. This means, the thing is 'rationed' at the margin. Some get their full entitlement. Others get nothing.
Here I follow Rousseau's opening thought in The Social Contract:
My purpose is to consider if, in political society, there can be any legitimate and sure principle of government, taking men as they are and laws as they might be.
The answer was no. Principles don't matter. Practice does.
In this inquiry I shall try always to bring together what right permits with what interest requires so that justice and utility are in no way divided.
Hume took the opposite approach. Justice was merely a service industry aiming at utility- i.e. promoting mutually beneficial transactions and reducing uncertainty.
The second condition for a liberal political conception of justice to be realistic is that its first principles and precepts be workable and applicable to ongoing political and social arrangements.
There are infinitely many such principles and precepts. But they don't matter in the slightest.
Here an example may be helpful: consider primary goods (basic rights and liberties, opportunities, income and wealth, and the social bases of self-respect)
Nobody knows what they are. This is an 'intension' without a well-defined 'extension'. It means nothing.
as used in justice as fairness.
The thing has never been used. It isn't even theoretical. It is simply meaningless.
One of their main features is that they are workable. A citizen's share of these goods is openly observable and makes possible the required comparisons between citizens (so-called interpersonal comparisons).
Try taking away the share of the majority of the citizens so as to benefit the 'worst off' and you will have a Revolution. What you can have is a corrupt nomenklatura living large while pretending to care deeply for the toiling masses.
This can be done without appealing to such unworkable ideas as a people's overall utility, or to Sen's basic capabilities for various functionings (as he calls them).
It is costly to discover what people have and impossible to discover what their capabilities or functionings might be. A healthy young man who has just been given a clean bill of health by medical experts might still keel over dead. The autopsy might discover that he lacked some specific 'functioning' of an arcane type.
2. Stability for the right reasons means stability brought about by citizens acting correctly according to the appropriate principles of their sense of justice, which they have acquired by growing up under and participating in just institutions.
In other words, only if there already is an ideal society will you have the sort of ideal citizens which permit an ideal society to function. Thus, there can never be such an ideal society because the egg can't come before the chicken which lays it.
It doesn't follow, however, that Sen's idea of basic capabilities is not important here;
Since it is meaningless, it fits well with Rawls's meaningless shite.
and indeed, the contrary is the case. His thought is that society must look to the distribution of citizens' effective basic freedoms, as these are more fundamental for their lives than what they possess in primary goods, since citizens have different capabilities and skills in using those goods to achieve desirable ways of living their lives.
The silly man had read somewhere that some people have slower or faster metabolisms and this may alter how much food they need. What he didn't get is that ad hoc or discretionary adjustments can and are made.
The reply from the side of primary goods is to grant this claim—indeed, any use of primary goods must make certain simplifying assumptions about citizens' capabilities—but also to answer that to apply the idea of effective basic capabilities without those or similar assumptions calls for more information than political society can conceivably acquire and sensibly apply.
There is not just a 'Preference Revelation' problem. People simply won't truthfully report their assets or capabilities if this gives rise to a higher tax burden. Instead, everybody with money or influence will have a Doctor's note declaring them to be hopelessly disabled.
Instead, by embedding primary goods into the specification of the principles of justice and ordering the basic structure of society accordingly, we may come as close as we can in practice to a just distribution of Sen's effective freedoms.
Who will supply all these 'primary goods'? Nobody. What is the incentive? It is a different matter that there may be a Ministry of primary goods with plenty of well paid bureaucrats which does not itself produce any 'primary goods'. No doubt, Professors might be given cosy little sinecures on QUANGOs set up by such Ministries but that doesn't actually help poor people.
There is a family of reasonable liberal conceptions of justice,
'Social Justice' not the stuff Law courts concern themselves with.
each of which has the following three characteristic principles: the first enumerates basic rights and liberties of the kind familiar from a constitutional regime;
Rights and liberties are Hohfeldian incidents. They are meaningless unless they are linked to incentive compatible remedies under a bond of law. The King may say 'I care deeply about the poor. That is why I've decided to attend a Conference in Monte Carlo about Social Justice. I will be taking with me a large delegation of concubines. To save money on airfare, I will buy a couple of super yachts for the return journey'.
the second assigns these rights, liberties, and opportunities a special priority,
Though, attending conferences in Monte Carlo must be given even more special priority
especially with respect to the claims of the general good and perfectionism values; and the third assures for all citizens the requisite primary goods to enable them to make intelligent and effective use of their freedoms.
Everybody should be given a flying saucer so as to make effective use of their freedom to explore distant galaxies. But, what is even more important is that death should be abolished. The best freedom of all is that of never having to die.
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