Rawls, like Habermas, has an essentially Kantian approach to the issue of rights. He
takes the autonomy of the individual human being as his starting premise, meaning at
once its capacity and need for freedom, reason and self-realization. What he calls
“substantial definitions of the good” must be left to the individual, and all we can
establish as universal are the necessary preconditions for each individual to achieve
this. Habermas sums it up eminently, when he writes that: (Habermas quote!)
Building again on the Kantian idea of establishing common guidelines by reference to
a logical principle, he introduces the concept of an ideal situation, removed from our
concrete situation by being secluded beyond a veil of ignorance. The principles of
ethics, Rawls argues, are those that individuals could agree to in this situation, i.e.
those that could be established as universal maxims, by individuals reasoning not on
the basis of their individual preferences or needs, but on the basis of the basic needs
of mutually beneficial human interaction. It is, therefore, a type of transcendental
social contract that Rawls wishes to establish.
Like his predecessor, Kant, the principles that Rawls arrives at have been perhaps
even more controversial than his means of arriving at them. Many thinkers will accept
at least the general premises of Rawls argument, but refute its conclusion in leading to
the two principles that Rawls believes would result from the ideal situation
considerations: The liberal principle and the distributive principle.
Neither of these establish specific rights as such, but we get somewhat closer to a
rephrasing of the principles in the form of rights in his work on international justice,
“The Law of Peoples”. This is a theory that I shall return to later, and expend some
energy in criticising on several points. But for now I wish merely to outline the
conclusions about which rights Rawls himself takes to be the final result of his
theory.
The premise of Rawls’s argument is the presupposition of the possibility of a public
reason, and the implications that follow from this.
1.1
Habermas and the federal proceduralism
1.1.1
Discourse-ethics – in 3 (not-so-) easy steps
A central feature of normativity for Habermas, part of his Kantian legacy, is the
concept of the rational subject as autonomous in the sense that the individual is selflegislative. This means that it is not only the object of the laws set down by reason,
but also the author of these laws, instituting them through the use of and in
correspondence with reason. This, however, is not unproblematic given the fact that
we can no longer subscribe to the extensive anthropology of Enlightenment
philosophy with its belief that it was possible to define substantial conceptions of the
good life that were preferable on the basis of reason: “[Kant] tacitly assumes that in
making moral judgments each individual can project himself sufficiently into the
situation of everyone else through his own imagination. But when the participants
can no longer rely on a transcendental preunderstanding grounded in more or less
homogenous conditions of life and interests, the moral point of view can only be
realized under conditions of communication that ensure that everyone tests the
acceptability of a norm, implemented in a general practice, also from the perspective
of his own understanding of himself and of the world. In this way the categorical
imperative receives a discourse-theoretical interpretation in which its place is taken by
the discourse principle (D), according to which only those norms can claim validity
that could meet with the agreement of all those concerned in their capacity as
participants in a practical discourse.” (Inclusion, 33f)
The normative challenge that Habermas rises to meet is thus that the parties in a
given situation must be able to assume the perspective of the universal, rather than
their own or any given preference with respect to conceptions of the good,
disregarding their own preferences and values. But rather than attempting to realize
this abstractly as a transcendental challenge, Habermas insists on relocating the issue
into the concrete context of the lifeworlds at stake: Normativity becomes the
obligation to pursue the construction of mutually agreeable values and regulations of
cooperation through rational dialogue. The dissolution of difference in favour of a
universal homogenous rational norm is abandoned in favour of the establishment of
a common understanding that can provide the basis of peaceful and prosperous
coexistence under terms defined by the parties in question. The Discourse principle
itself is defined as: “(D) Only those norms can claim validity that could meet with the
acceptance of all concerned in practical discourse.” (Inclusion, 41) And is to be
supplemented by the principle of universalizability: “(U) A norm is valid when the
foreseeable consequences and side effects of its general observance for the interests
and value-orientations of each individual could be jointly accepted by all concerned
without coercion.” (Inclusion, 42)
These two, and the derivable requirements for the dialogue that makes such discourse
possible, enjoy special status accordingly. Thus, in a sort of post-metaphysical
transcendental analysis, Habermas designates the principles that make the use of
public autonomy possible to be natural rights, as only the application of and respect
for these, makes the rational discourse and communal self-legislation of individuals
possible. This ties the normative issues to a wider theory of the just social order,
bringing Habermas’ work into close correlation with that of John Rawls, and thus it is
not surprising that Habermas has commented extensively on what he perceives as the
strengths and weaknesses of Rawls’ approach.
1.1.2 Habermas on Rawls
In both Habermas’ and Rawls’ political philosophy, the fundamental legitimacy of a
societal order relies on its allowing the individual to exercise autonomy, both in the
sense of freedom from oppression, unjust imprisonment, etc., and the freedom to
exercise its capacity for regulating the direction of its own life-path and the shape and
development of the community in which the individual lives. The freedoms entailed
are thus by no means to be understood in the narrow negative sense, as freedom
from the illegitimate interference with the personal liberty of the individual, but
should, on the contrary, be understood as realizing autonomy only once the
individual is granted an actual possibility of taking part in setting the direction of its
own life as part of a community of similarly endowed individuals.
Habermas succinctly sums up Rawls’ approach: “In his Theory of Justice, Rawls
developed the idea of a “well-ordered” society under the conditions of modern life.
This is a system that makes possible the just cooperation of free and equal citizens.
The basic institutions of such a society must be set up according to a scheme that
deserves the rationally motivated assent of all citizens because it can be grounded in
justice as fairness. In grounding the two highest principles of justice, Rawls follows
the social-contract model. He proposes a procedure that can be understood as
explicating the point of view for an impartial judgment of morally substantive
questions of political justice. In the “original position” the parties involved in the
process of justification are subject to precisely those restrictions (including, inter alia,
equality, independence, and ignorance of one’s own position in a future society) that
guarantee that all arrangements grounded in purposive-rational considerations are at
the same time in the interest of all parties, and hence can be accepted as right or just
in the normative sense. (Habermas, 2004, 57f)
But exactly because Habermas remains sceptical of the possibility of generating
substantial universal norms, capable of guiding our social orders irrespective of the
variations of the lifeworlds involved, he cannot accept Rawls’ suggestion of using an
original position. In a related passage on the difficulties of combining universal
norms with multicultural contexts, he comments that: “For any attempt to project a
universally binding collective good on which the solidarity of all human beings –
including future generations – could be founded runs up against a dilemma: a
substantive conception that is still sufficiently informative entails an intolerable form
of paternalism (at least with regard to the happiness of future generations); but an
empty conception that abstracts from all local contexts undermines the concept of
the good.” (Inclusion, 28)
Thus, for Habermas, the solution is not one to be reached once-and-for-all by
philosophers using any specific set of guidelines, but the determination of a
procedure that when applied in real-life contexts will generate justified solutions for
the parties involved. Contrary to Rawls, it is not sufficient that norms are constructed
on the basis of principles of reason, whether in the shape of transcendental laws or
original-position contracts, that make them principally universal. It is rather necessary
that they are constructed in a process which ensures that the relevant parties can
access a universalizable (in the context of the relevant parties) agreement. This selflegislation in action, however, presupposes the reasonable, or in Habermas’ terms
“herredømme-fri” (English-term!) debate, where, in true dialogical fashion, it is
possible for the involved individuals to develop their own perceptions through the
meeting with ”the other”. A central characteristic of the just social order is therefore
that it is one wherein: ”[Citizens] suppose that their political opinions may be revised
by discussion with other citizens.” (reference: Inclusion!)
1.1.3 Citizenship and the inclusion of the other
The problem that has received the majority of Habermas’ attention in the discussion
of citizenship has been the question of what role national patriotism and cultural
heteronomy should play in the forming of legitimate groups, especially in relation to
the discussion of multiculturalist societies in Europe and the challenges they face. His
position on this is reasonably clear: Lacking an ontological grounding (e.g. in the
form of the substantial concept of culture, or the entity of the nation) there are no
justifiable principles for inclusion/exclusion on the basis of nationality and
culture: ”Equal respect for everyone is not limited to those who are like us; it extends
to the person of the other in his or her otherness. And solidarity with the other as
one of us refers to the flexible “we” of a community that resists all substantive
determinations and extends its permeable boundaries ever further. This moral
community constitutes itself solely by way of the negative idea of abolishing
discrimination and harm and of extending relations of mutual recognition to include
marginalized men and women. The community thus constructively outlined is not a
collective that would force its homogenized members to affirm its distinctiveness.
Here inclusion does not imply locking members into a community that closes itself
off from others. The “inclusion of the other” means rather that the boundaries of the
community are open for all, also and most especially for those who are strangers to
one another and want to remain strangers.”1
As such, discourse-ethics makes strong claims on states as regards policies of
immigration and integration, although it is tempered with realist perspectives of the
necessity to moderate such claims so as not to overburden European states with
economic and socio-cultural challenges.2 (reference/quote: End of Multiculturalismessay!) However, it is both possible to generalize from this more limited scope of
attention to the more extensive problems at hand, as well as to find occasions where
Habermas himself addresses these issues: “From the fact that persons can only be
individuated through socialization it follows that moral concern is owed equally to
persons both as irreplaceable individuals and as members of the community, and
hence it connects justice with solidarity. Equal treatment means equal treatment of
unequals who are nonetheless aware of their interdependence. Moral universalism
must not take into account the aspect of equality – the fact that persons as such are
equal to all other persons – at the expense of the aspect of individuality – the fact that
as individuals they are at the same time absolutely different from all others.”
(Inclusion, 40)
1.1.4 Habermas’ critique
As mentioned earlier, Rawls’s attempt to construct universal principles for a just
society moves analytically from a series of transcendental premises across a choice-
1
Habermas, ”Inclusion”, Preface p.xxxvf
2
Reference: Habermas in section 2 on multiculturalism – is there going to be one? If so, how to delimit it in
relation to this section? Perhaps a section on multiculturalist societies, with each of the relevant actors, instead?
theoretical scenario to the shaping of a concrete normative ethics. Jürgen Habermas,
while sympathetic to much of the Rawlsian approach, questions in particular the last
two elements of the argument. First by criticizing the constitutive traits of the choicetheoretical scenario, i.e. Rawls’s original position, and secondly by illustrating the
untenable consequences for the normative level if the argument is carried through, i.e.
a reductio ad absurdum of the implementation in a normative ethics.
The first point of contention focuses on whether it is possible to construct an original
position that is at once abstract enough to be serviceable as a universalizable
foundation, and at the same time substantial enough to be capable of producing
solutions to the questions it needs to address. There is a difficult balancing act,
embodied in the concept of the veil of ignorance, between the two requirements of
the position, which may be principally impossible to resolve. At the same time he
questions the application of the principle of fairness in Rawls’s theory, the liberal
conception of equality, and the reduction that Rawls submits it to, in order to
accommodate the requirements of neutrality and universality in practice. Finally,
Rawls seems to privilege the one half of the concept of autonomy which concerns the
duty to live according to principles of reason at the expense of the other half which
concerns the duty to be the author of self-legislation in accordance with reason. This
has the unacceptable consequence that the rights established in the original position
acquire an undesirable precedence as compared with the democratic process of
legitimation which must constitute and reproduce them in the specific context.
1.1.5 Rawls’s definition of peoples
Rawls seems to base his conception of peoples on ”a common understanding of the
good”. But this seems to lead him into difficulties. Traditional definitions of peoples
would not support this definition – it does not cohere with nationhood, language or
culture. It seems rather to define peoples as political entities, which seems to lead to
the odd conclusion that most democratic states hold not one, but several peoples
(distinguished by their conviction of the differing programmes for “the good” framed
by political parties), and that these owe each other no considerations of justice
beyond those that obtain between peoples. There seems no obvious way to reconcile
the two so as to reach Rawls’ assumption that the nation-state can provide the basic
foundation of global justice. Peoples, quite simply, will not correlate with states, if we
follow the way that Rawls attempts to delineate them.
Definition of liberal peoples: ”Liberal peoples have three basic features: a reasonably
just constitutional democratic government that serves their fundamental interests;
citizens united by what Mill called ”common sympathies”; and finally, a moral
nature.” (s.23) Peoples are not sovereign! (s.25)
The most serious problem for Rawls then becomes the complete indifference to the
problem of properly, or fairly we might say, constituting the peoples that he believes
his theory should operate with. It is obvious that such traits as national associations
must belong to the group of features that the individuals in the original position leave
behind the veil of ignorance. As such, one might expect a discussion of how these
participants would decide to legitimately constitute themselves as peoples to be a
crucial element of their deliberations. But this is not the case. Rather, peoples are
considered a sort of pseudo-ontological entity, given in the world behind the veil of
ignorance with the same obviousness as gender or race, i.e. categories which it may be
quite possible to discuss the fair relations between and internal identity of, but not the
fundamental division into.
An indication of how such peoples would properly be constituted is contained in the
description of their difference as defined by their varying substantial conceptions of
the good life. Accordingly, we might consider the viability of this as a criterion.
Initially, it will fit well with the general choice-theoretical and contractualist character
of Rawls’s thinking: liberalism establishes a series of principles to which all
communities must adhere, but the individuals are then granted freedom to organize
themselves around their varying conceptions of the good life – English with English,
Catholic with Catholic, and Social-Democrat with Social-Democrat…or what? As
indicated, rather than resolving the question it seems to open up another line of
questions that Rawls’s theory is ill prepared to deal with. One central among them
might be the rights of the emigrant: we saw in chapter 2 that the rights to movement
and citizenship are among those most severely constrained in the UN conventions,
but how would Rawls’s theory deal with the question of exclusion? The emigrant who
publicly denounces her former association and the attached conception of the good
life in favour of adopting another conception is, theoretically speaking, already a
member of the relevant community in virtue solely of this ideological shift. But so
loose a structure of political association is likely an unacceptable consequence for
Rawls.
The central problem in this connection, however, is not the more or less serious
difficulties that Rawls’s specific ideas of how to arrive at the ethical principles or their
content may be afflicted with, but the fact that it contains a weakly supported and
possibly contradictory limitation of responsibilities in the form of Rawls’s definition
of relevant communities. The constitution of such communities seems to be
considered a given before the introduction of the veil, as the question of how to
compose them never enters the original position, or is perhaps simply considered a
fact beyond the reach of the principles that can be considered there, on a par e.g. with
gender.3 The community is then at once a type of a priori, and an empirical problem
which is relegated to the substantial conception of the definition of a good life.
On the concrete level communities (or ”peoples” in Rawls’s terminology) are
organized around such substantial conceptions of the good life, but on a basis of
3
And we should be cautious, perhaps, to assume that even a category such as gender could not be submitted to
consideration. By this I do not mean, of course, debating the principles that should obtain for relations
between the sexes, but rather the much more fundamental question of whether distinguishing along sexual lines
is relevant in the first place. Certainly, we can imagine some queer-theorists questioning this premise.
reasonable preconditions. To the extent that rights are attached to the universalizable
foundation for reasonable peoples, rights however are common all human beings,
and a common obligation for those communities which are reasonable according to
Rawls’s definition. How then to justify limiting responsibility? Or, to put it more
succinctly: what is the disanalogy property that obtains to prevent such universal
rights from creating universal duties, and why is it morally relevant in Rawls’s theory?
There seem to be two general possibilities: either to reduce duties to those that
concern strictly negative rights, by somehow arguing that these would be the
principles chosen in the original position. This possibility suffers from a combination
of the flaw that Rawls’s does not, in fact, argue along these lines, and that any attempt
to do so would run into the difficulties I described in chapter 3. Or to define a
legitimate limit to the group of individuals to which duties are owed on a principle
level, and in accordance with the fundamental normative principles that Rawls
believes obtain.
1.1.6 Caney’s comments on Rawls’s definition of peoples
Rawls, in his internationalist theory, is concerned not with states but with peoples. He
considers the most important difference between the two to be the formal difference
that peoples do not have sovereignty, they cannot wage war or monopolize the
legitimate use of violence internally, like states. But in addition to this, peoples are
entities that morals can be applied to, unlike states. In this sense, he is a limited realist,
acknowledging that states act according to rationality, but insisting that peoples can
follow moral motives in their collective actions. (Is this a Hegelian type distinction
between state and society?) There are problems with both distinctions: the first both
runs contrary to common definitions of political regimes and is inconsistently applied
by Rawls (check reference in Rawls, p.3 and 23ff). The second is that according to
Caney Rawls’ theory that it is logically impossible for a state to be “reasonable”
(capable of acting morally) is implausible (hmmmmm…) (Caney, 2006, p.11f)
1.1.7 Disanalogy: Rawls justice of peoples
“…his claim is that egalitarian liberal principles should apply within the confines of a
liberal democratic society but should not govern global politics: rather, we should
think of the latter in terms of the principles that liberal ‘peoples’ and decent wellordered societies can share. […] On a cosmopolitan view, there should be
redistribution from the wealthier society to the poorer one because that would further
improve the condition of the least well-off person within the world. But, says Rawls,
this is not appropriate. There is no case for global redistribution because what
matters is justice within societies and not furthering the standard of living of
individual persons.” (Caney, 2006, p.272) The theory is subject to the same two flaws
of needing to justify the special character of “peoples” as opposed to other types of
communities, and of needing to justify why the concern for justice within a society
should overrule the rights of individuals: “First, we might ask why ‘peoples’ occupy
this special position in his theory in contrast with every other social
organization…Second, we might question whether it is coherent to care about intrasocietal justice independently of, and rather than, ‘the well-being of individuals’. Can
we plausibly say that we are concerned only with internal justice, that it has intrinsic
value?” (Caney, 2006, p.272) Finally, the Rawlsian idea of “peoples” suffers from the
same lack of justification independent of individuals as states did above: “One way of
making sense of Rawl’s claim that what matters is justice within each people is that it
articulates the value of the independence of peoples. […] However, unless we justify
the importance of self-determination in terms of its impact on individuals (i.e. their
interest in belonging to an independent political community) then it is utterly bizarre
to hold that ‘peoples’ should have this moral standing.” (Caney, 2006, p.273)
On Kant:
Although the duties generated by the moral imperatives will generate correlated rights,
the logic is not immediately transferable to the rights that individuals have with
respect to the state. This should be apparent once we consider that duties precede
rights in Kant’s ethics, not the other way around, and that states are not entities
subject to the same principles of reason that should lead human beings to construct
laws for their actions.
The rights that obtain between individuals are hence very different from those that
obtain between individual and state. But, it is important to keep separate things
separate here, in a way that Kant, regrettably, does not: although the distinction
between individual-individual rights and state-individual rights follows from the
Kantian foundation of ethics, it is not immediately apparent that this should translate
into a limitation of the individual-individual rights along citizenship-lines. Further
arguments are needed to supplement this conclusion. We’ll return to the various
attempts of liberal thinkers to provide these in section XXX.
Note that the distinction of negative duties of ethics and positive duties of citizenship
is subject to all of those problems I have addressed in chapter 3, including the
difficulty both of properly distinguishing them and justifying a moral difference
between them.
Rawls’s anthropology:
An anthropology of rational (plans for life, as well as liberalism, i.e. freedom to
change these), reasonable (sociable, willing to reason why they act as they do, and be
responsible, as well as to take into consideration the reasons of others) and equal
human beings.
On Kant’s imperatives:
But having established this, we need to distinguish between the two kinds of
imperatives: hypothetical and categorical. Hypothetical imperatives are conditional,
following the formula of “if you want X, then do Y”; they are then subjective and
apply universally only to the extent that an X can be identified which happens to be
universal. Categorical imperatives, on the other hand, are unconditional, in that the
action is an end in itself; they follow the formula “if you want Y then do Y”. And the
only principles capable of satisfying this formula are, as we have seen, those of
practical reason when acting in accord with the autonomy of the will.
At first glance, this might seem to justify some limitations: if the theory of justice is
not a truly comprehensive normative theory, but only the rational arrangement of
institutions for a number of normative positions within an overlapping consensus,
then the principles need not, perhaps, to be extended universally?
1.1.8 On Rawls’s five societies
“Rawls’s argument rests on a typology of five different types of society. There are,
first, liberal societies: these are committed to individual rights, they prioritize these
over the public good, and they ensure that all have some economic resources. In
addition to this: they have a specific political constitution; their members share a
common political culture; and they have a ‘moral nature’, by which is meant that they
respect the autonomy of other political communities. A second type of society is
what Rawls terms ‘decent peoples’. He concentrates on one particular type of decent
society which he refers to as a ‘decent hierarchical society’. These are not aggressive.
Furthermore, they affirm some human rights; their members are conceived of as
capable of bearing duties; and their legal officials believe that the law embodies a
commitment to a ‘common good idea of justice’. As a corollary of these last three
features, Rawls says that such societies may be said to have a ‘decent consultation
hierarchy’. Third, there are what Rawls terms ‘outlaw states’, which are aggressive
toward other political communities and treat their own members despotically. Fourth,
there are societies burdened by unfavourable conditions’: these are societies that are
prevented from being decent by unpropitious cultural and/or economic conditions.
Finally, there are ‘benevolent absolutisms’. These comply with some fundamental
rights. Unlike decent hierarchical societies, however, the political structure contains
no procedures for consulting the people.” (Caney, 2006, p.79)
“Third, and related to this, Rawls’s account is rather ad hoc. Why, a critic might ask,
are some rights protected (such as the right not to be enslaved) but other are not? On
what basis can one draw the line between those we think essential and those that we
value for ourselves but do not think should be regarded as essential? […] Rawls does
address this issue. He argues that a society can be ‘decent’ only if it can accurately be
described as a ‘system of social cooperation’…[…] Whilst this does supply a criterion,
it runs into two problems. The first is that it is not clear why the ideal of cooperation
should play this role. […] The second problem is that the concept is too thin and
meager in its content to play the role that Rawls wants it to.” (Caney, 2006, p.81f)
Five points of critique against Rawls: (Quote)
1) Rawls’s use of peoples is morally questionable because peoples are never
homogeneous and hence what peoples may agree to may include policies that
are unfair to individuals and minorities.
2) Rawls’s argument fails to derive human rights because the two societies he
endorses are pre-programmed to endorse human rights.
3) Rawls’s position is ad hoc: he accepts some basic rights but not others and it is
not clear on what basis he does so. His theory thus violates the criterion of
determinacy.
4) There is an incoherence in his thought for the arguments he gives for civil and
political liberties entail that there should be global civil and political liberties.
His theory thus violates the criterion of domestic-compatibility.
5) There is an additional incoherence in his thought for he rejects some
proposed human rights that are a precondition of other human rights that he
affirms. His theory thus violates the criterion of coherence. (Caney, 2006, p.126f)
a. The public sphere - Institutional schemes as limits of duties
“According to an institutional conception, to postulate a right is to say that an
institutional scheme should secure this right for its members. The duty to protect a
person’s rights falls on the fellow members of his or her institutional scheme.
According to an interactional view, by contrast, a person’s rights generate duties on
all other persons and not simply on those who belong to that person’s institutional
scheme(s). The key difference between the interactional and the institutional
approach is that the latter, as its name suggests, attributes moral significance to
institutions and the membership of institutions.” (Caney, 2006, p.64)
Cosmopolitanists can affirm institutionalism and argue for the existence of global
interdependence (globalization), or they can simply deny it and argue for
interactionist approaches instead: “For those termed ‘institutionalists’ the domestic
claims apply globally, and the scope claims are sustained, because justice pertains to
systems of interdependence and there is global interdependence. […] For
‘interactionists’, by contrast, the domestic claims apply globally simply because there
are normative rationales for global principles of justice – rationales which are not
reliant on any empirical claims about the nature and extent of economic or political
globalization.” (Caney, 2006, p.268)(Cf. also p.105ff – in-depth discussion of
institutional schemes in the context of distributive justice) Interactionists in fact deny
the moral relevance of institutional schemes.
Versus institutionalism:
3) A second way to reinforce the argument for institutionalism is to shift attention to
the relation of duty-bearers to cooperative schemes. There might be duties that one
can only have as a member of an institutional scheme, e.g. the negative duty not to
uphold it if it is unfair. Blablablablablba (Caney, 2006, p.113)
This seems entirely confused: first it presupposes the positive-negative distinction,
with all the problems this entails (cf. Caney, p.114). Second, it begs the question, by
assuming that this is a duty that only obtains for members of the scheme, and not
those outside it. And thirdly, there is no reason to assume that only negative duties
would obtain?
i. On institutions and cosmopolitan duties (distributive
justice):
“…any complete account of distributive justice must explain who is duty bound to
ensure that people receive their entitlements. But, the argument continues,
cosmopolitan theories based on persons’ rights do not, and maybe cannot, provide
such an account. If an inhabitant of Bihar, say, has a right to food whose duty is it to
ensure that she receives her due? Nonetheless rights-based accounts have a
reasonable response for they may reply along the following lines. For people to
receive their entitlements it is important that there be political institutions in place
whose role it is to protect peoples’s rights. We can, then, infer from this what our
duties are, namely we have duties to support those institutional arrangements that
would best protect people’s rights.” (Caney, 2006, p.121) It is important to note here
that Caney seems to ignore the extent to which duties can still apply at the individual
level. While it is true that he is speaking in the context of distributive justice, and the
issue of that on a global scale is one that is most likely to be solved by resorting to
institutions, this does not preclude individual responsibility or duties beyond that of
simply supporting the correct institutional scheme.
That leads to the cosmopolitan principle, as a logical extension: “If one thinks, as
egalitarian liberals do, that it is unjust if persons fare worse because of their class or
ethnic identity one should surely also think that it is unjust if persons fare worse
because of their nationality. The logic underpinning equality of opportunity entails
that it should be globalized.” (Caney, 2006, p.123)
1.1.9 Presupposing liberalism
“…a second problem with Rawls’s defence of his preferred human rights is that these
societies are defined as ones committed to human rights: in effect, then, Rawls’s
argument claims that human rights should apply globally because some societies
(those committed to human rights) can agree on such a principle. […] The other
three types of regime are thereby disallowed from participation in any of the
contracts. This presupposes that they are illegitimate but this is what is at stake.”
(Caney, 2006, p.81)
1.1.10 Lack of coherence between domestic and global theory
“If one thinks, as [Rawls] does, that persons’ civil and political liberties should not
depend on their class or their ethnicity how can one attribute such importance to
their nationality? And if one grounds, as he does, his domestic theory by invoking
persons’ moral powers and interests in pursuing a conception of the good and in
rationally forming and in rationally forming and revising it, how can one hold firmly
to it when making domestic principles of justice but disregard it altogether when
dealing with foreign persons? […] One cannot coherently affirm Rawls’s domestic
theory and adhere to his international theory.” (Caney, 2006, p.82)
1.1.11 Minimal conception of rights
“This second internal critique maintains that one cannot coherently both embrace the
rights that Rawls does embrace and also reject some of the rights that Rawls rejects.
[…] …we can see that implicit in Rawls’s position is the assumption that there is no
logical- or empirical- or normative- or incompleteness-derived interconnections between his
preferred set of human rights and those rights that he rejects. […] The claim is not
that Rawls rejects a holistic approach for he may well accept one and think his set of
rights hang well together. The objection rather is that they do not and hence it is
mistaken to build some rights into The Law of Peoples and to reject others that are
corollaries of the former rights.” (Caney, 2006, p.82f)
“The final objection is an external critique. The objection is simply that [Rawls’]
account of rights is unduly minimal and acquiesces in injustice. To see this consider
what it would prohibit and what it would allow. […] …if we think that it is wrong to
deprive persons in our society of the right to vote because we think that ‘all persons
have a right to determine the law of their country’ or that ‘inclusive democracies
produce better decisions’ then we must abandon Rawls’s account of human rights.
Similarly, if we think that persons have a right to engage in sexual acts with other
consenting adults and we do so for deontological reasons (such as that all persons are
ends in themselves) or for consequentialist reasons (such as that each person knows
best what is in her own interests) then, again, we must reject Rawls’s account of basic
rights for being too low.” (Caney, 2006, p.84)
1.1.12 Internal inconsistency:
Rawls argues on the one hand that peoples would not choose a cosmopolitan scheme
in the original position, and on the other hand that implementing one would be a
violation of their autonomy, i.e. the right to self-determination. There are problems
with both accounts, however. The problems with the first are that there are good
indications that peoples, in a Rawlsian original position, would in fact choose a
cosmopolitan scheme: “…why should we assume that liberal and decent societies
have no interest whatsoever in having more resources rather than less? Why, in
particular, would members of liberal societies want more primary goods in the
domestic contract but not want more primary goods in the international contract?
[…] First, Rawls says that the parties wish to preserve their equal standing: however,
[…] given that genuine independence requires material wealth the parties can argue
that political equality and independence require redistribution. Second, Rawls says
that the parties wish to protect their self-respect: again, however, this can justify
global redistribution for […] international inequalities can corrode self-respect.
Consider, finally, Rawls’s account of stability. He maintains that the parties will be
concerned about stability and that this will be secured only if the societies in the
Society of Peoples each enjoys ‘success’ where success includes ‘the decent economic
well-being of all its people’. Again, however, given this, the parties will ensure that
distributive principles are in place so that no society is disaffected with the Society of
Peoples because of its low (absolute or relative) standard of living.” (Caney, 2006,
p.128)
The reciprocity argument “maintains that persons who engage in a system of
cooperation acquire special rights to the goods produced by that cooperation and
have entitlements to these goods that non-participants lack”, (Caney, 2006, p.134)
adding to this that the nation or state constitutes the relevant scheme of cooperation.
Hence, follow limited duties. One obvious objection is that this argument would
seem to deny that we have duties towards those that cannot participate in cooperative
schemes, i.e. the needy and helpless such as infants and persons with strongly
disabling handicaps. While this in itself does not, of course, prove the argument
wrong, it is such an extreme consequence of it that it does make one suspicious that
somewhere it must have gone astray: surely, it cannot be the case that nobody holds
any duties towards infants?