Wagner Artur de Oliveira Cabral

THE RAWLSIAN LAW OF PEOPLES AND THE COSMOPOLITIST CRITIQUE

Paper presenting a brief summary of graduate thesis O Direito dos Povos de John
Rawls e a Crtica Cosmopolitista presented before Universidade Federal de Minas
Gerais (UFMG) as a final requirement for the title of Master of Laws.
Wagner Artur de Oliveira Cabral is a Bachelor in Law from Universidade Federal do Rio
Grande do Norte (UFRN) and Master of Laws from Universidade Federal de Minas
Gerais (UFMG). Has served as professor in UFMG from 2009 to 2011, teaching
Philosophy of Law, Legal Psychology and Ethics and Politics. Currently teaches
Environmental Law at the Fundao Educacional Vale do Jequitinhonha (FEVALE).
Full resum can be found at http://lattes.cnpq.br/7188431619135054.

THE RAWLSIAN LAW OF PEOPLES AND THE COSMOPOLITIST CRITIQUE 1

Wagner Artur de Oliveira Cabral2

INTRODUCTION

This paper3 aims to present an introduction to the theory laid by John Rawls on
international governance. It has been commonly deemed as his incursion in the field of
International Law, but that, as I will try to point out, it is not an adequate description.
Ralws Law of Peoples does not present aset of rules governing the relations among
states, but, in a different mindset, those regarding the commitments peoples4 liberal
above all should partake.
On the other hand, I should also try to summarize some of the criticism this
theory has received, especially from those scholars who defend the idea of
Cosmopolitism. The reason for the selection of these specific thinkers is that they
advocate a much broader role for the human person, as a single entity or citizen, than
rawlsian Law of Peoples or even regular traditional International Law theory does. It
1

This paper is a summary of the main points covered by the authors graduate thesis, presented in
August 2011, at Universidade Federal de Minas Gerais. It certainly would not be possible without the
funding from the Conselho Nacional de Desenvolvimento Cientfico e Tecnolgico (CNPQ). It was written
for appreciation at the Imagining Global Governance Change and Continuity conference, held by
Basillie School of International Affairs, Octover 20 to 22, 2011 at Waterloo, Ontario, Canada. I would like
to thank this institution especially Mr. Ricardo Trajan for their continuous support.
2
The author is graduate in Law by the Universidade Federal de Minas Gerais (UFMG) and undergraduate
from the Universidade Federal do Rio Grande do Norte (UFRN). Currently teaches Law at Fundao
Educacional do Vale do Jequitinhonha (FEVALE).
3
I would like to thank all the help and comments from Agatha Brando, especially all revisions regarding
the use of the English language.
4
The traditional post-Westfalian International Law approach its centered in the norms and actions
between Nation-states, while the human person is left without any legal personality per se, but seen as
a member or its collectivity.

seems to me that they are three points in the same scale. What varies is the role
attributed to both the state and the individual in each case, and it focus on the person,
community or state.
After presenting the fundamentals of the rawlsian theory, I shall point some of
its alleged shortcomings5, and conclude it with a brief remark about the need of
reengineering the infrastructure of International Law.

JOHN RAWLS, A CUNNING MAN

John Bordley Rawls (1921-2002) was an American law professor, teaching in

great institutions such as MIT and Harvard. Rawls had a deep interest in Ethics, Kant
and J. S. Mills Utilitarianism (Pogge 2007, 10). His magnum opus is somehow a medley
of these passions. Gazing upon modern moral philosophy, Rawls describes himself as
facing a quagmire: is that possible to avoid both the utilitarianism whose
consequences are frequently unbearable and intuitionism which lack of systematic
thinking impairs any real contribution to the consolidation of an alternative? At one
corner, a school of thinking fueled by some of the most remarkable philosophers of
our age, such as David Hume, Adam Smith, Jeremy Bentham or Mill himself. On the
other side, many proponents that, even with some apparent reasonableness, are
5

I will mention, in this paper, for the sake of space, only the works of Charles Beitz, Seyla Benhabib and
Thomas Pogge. But the underlying research that supplies this paper could not have been done without
the recourse to authors like: Kwame Anthony Appiah, Hannah Arendt, Andr Bergen, Antnio Augusto
Canado Trindade, Will Kymlicka, Josu Emlio Mller, Phillip Petit, Luiz Paulo Rouanet, Michael Sandel,
W. M. Sibley, Peter Singer, Kok-Chor Tan, among several others. I am profoundly grateful for their work
and inspiration. Whether I have or not made them justice, it is clear that those are the giants in whose
shoulders I have stood.

rendered unverifiable, due their unclear premises. Rawls argues that, in order to
adequately deny Utilitarianism, a theory with the same power and eloquence is
needed. A theory which would needed to be strongly rooted in clear arguments and
affirmations. That was the ambitious objective of his most famous work, A Theory of
Justice.
In his massive6 book, Rawls defends that life in society must be seen as a
cooperative arrangement among citizens seen as free and equal, from one generation
to the next (Rawls 2001, 5)7. To achieve such aims, it is necessary to establish some
egalitarian principles of justice that can build a fair Basic Structure of the society.
Having this background justice being adequately set, than every member of the society
would be free to follow their personal life project at it seem fit.
The model of egalitarian justice envisaged by Rawls if mainly worried about the
danger of arbitrariness. Each uneven treatment must to be rationally grounded,
exposed in its motivations and benefits to those involved in the collective
arrangement. And more: every each one of any social distinctions that result in a
situation of inequality distinction which, being subject of rational justification, is not
held as arbitrary must always work in favor of those who need the most, the least
advantaged members of our society (Rawls 2001, 57). It makes no sense, to Rawls, to
think of a collective system designed to restrict its profits to only a few of its members.
It is a matter of simple logic, that those involved in the arrangement should benefit
from it.

The original edition ran well over 500 pages.

Rawls argues that Justice is the first virtue of social institutions, as truth is of systems of thought.
(Rawls 1999, 3)
7

There is a complex practical situation that arises from that question. Being a
system with presumed stability and continuity, there is a heavy burden over the
arrangement inflicted by sheer injustice (Rawls 2001, 8).
A clearly unfair social structure is not only morally questionable, but, in fact,
hard to keep it from crumbling apart. Unless there is any ulterior widely accepted
justification for the injustice, strong enough to sew a new layer of social cohesiveness
through the collective notion of the importance of this social contract, there is no
proof that such arrangements will be kept at least without coercion. Even coercion
have limits: history is full of those that, even before the most authoritarian societies,
chose to rebel before injustice.
Rawls affirms the importance of the construction of political values of justice,
values which are rooted not only in the tradition of political culture, but in practice,
through democratic action. These values are not metaphysic in their source, but are
set on the common congregation of opinions and decisions over the sphere of the
political. Those specific beliefs that build our individuality like creed, ideology of
personal philosophy should be kept, but in a domain that is separate from the political,
in a private level (Rawls 2001, 21).
This separate political sphere is what guarantees that every man or woman is
free to maintain his or her beliefs, casting any judgment or opinion. That nothing a
citizen can say or do is able to change the fact that the social life is mandatory: it is a
collective arrangement that you enter upon your birth and leave at the moment of
your death. In the in-between of those two points you are, in present democracy,

preserved from the destruction of your civic persona8. Inasmuch as how offensive,
derisive our unpopular your opinions or actions may be, you will always be a citizen
even when, in the case of a criminal condemnation, you face any penalty. There will be
a criminal citizen, facing the burdens of his social duties, having by his side his legal
rights.
As long as there is this social minimum, this sphere where the citizens are
recognized as free and equal, and there is a fair society set according to principles of
justice, designed in order to minimize overall inequalities, there will be social justice in
Rawlsian terms. If not a completely just society, at least a well ordered one.
To assess the correct set of principles necessary for a society to be considered
well ordered, Rawls developed a device of representation called Original Position
(Rawls 2001, 14). It is an intellectual exercise aimed to avoid our natural prejudices and
conceptions that are bound to our cultural and educational background. In the Original
Position the parties of the social agreement are behind a Veil of Ignorance and each
one have no further detail of their part on society, as of any distinctive detail such as
skin color, wealth, education, etc. While completely unaware of such traits, the
objective is that the parties strive to reach the better solution for everyone, since one
could be allocated, theoretically, in any role of the society. Thus, by trying to achieve
the best result for himself, the party of the Original Position is also pushing for the best
result for everyone else as well.

Like Socrates, who was offered the option to symbolically die as a citizen and be separated from the
polis, or the Jews that during the Nazism were disqualified as human beings, having a legal status (with
consequent rights) more related to property than personality.

From this experiment Rawls derives two principles of justice. They are
presented (Rawls 2001, 42,43) as follows9:
(a) Each person has the same indefeasible claim to a fully adequate
scheme of equal basic liberties, which scheme is compatible with
the same scheme of liberties for all; and
(b) Social and economic inequalities are to satisfy to conditions: first,
they are to be attached to offices and positions open to all under
conditions of fair equality of opportunity; and second, they are to
be to the greatest benefit of the least advantaged members of
the society (the difference principle).
The first principle basically defines a common set of basic liberties as complete
as possible. The second is divided in two: the first part regards open access to public
offices preventing any kind of static caste-like society to exist and the following
ensures that every difference and inequality in society should always work for the
good of those in the most fragile situation. The society described by John Rawls is
similar to a chain, having citizens free and equal connected into a web of social
relations. As weaker any link get, the weaker is the chain as a whole. A strong society is
one where everyone is respected in its freedoms, but is also freed from need 10.

PEOPLES, NOT NATIONS

9

These principles have several different wordings in different books, since Rawls was used to frequently
reassessing and improving his own work. I am currently enunciating those as last presented, in the most
recent version.
10
Franklin Delano Roosevelts Four Freedoms speech is a memorable defense of this holistic freedom
approach.

It took about three decades for Rawls to sketch the layout of how the
international society would be seen under his theory. He originally warned that his
theory of justice was not designed to relate to any kind of configuration of
international affairs, only the situation of a state and its citizens. Amidst much
anticipation, his contribution in this area was only published in 2002, a small book
originally thought as a chapter of Justice as Fairness a restatement, but who grew too
much, and was published independently named as Law of Peoples.
The Law of Peoples is set according to the standards of the A Theory of Justice.
Recall that a society is a juxtaposition of citizens reciprocally seen as free and equal, in
a scheme of cooperation that lasts from one generation to the next. The international
society, in its turn, is a composition of peoples. Peoples are collectives bound by a
common moral character and divided in the following categories: there are two wellordered peoples, the Liberal peoples and Decent peoples. Liberal peoples are those
organizes following those standards defined in the theory of justice and Decent
peoples are those who, while short from being strictly democratic, do possess some
kind of consultation hierarchy and respect for some of the basic Human Rights.
Apart from these two, there are also the Outlaw states, Burdened societies, and
Benevolent absolutisms. Outlaw states have belligerent behavior, frequently harassing
other states and even their own nationals. Burdened societies are under great distress
by any background factor, such as widespread famine or disease, and, thus, incapable
of sustaining an appropriate well-ordered society. Benevolent absolutisms are those
governments that, whilst monarchic, or despotic, still keep some limited respect for
8

Human Rights, despite the lack of consultation hierarchy that would configure them as
a Decent people.
These peoples are the citizens in Rawls Law of Peoples international arena,
coexisting in the same physical world and being subject to some of the same global
problems. Then there is also the question of how exactly they should relate to each
other. Rawls theory is admittedly a liberal one, drafted for liberal peoples and devoted
to find a rational way to deal with other peoples in a clear and rational way, restricting
the importance of Human Rights to the domain of practicality. What does it mean to
demand a paladin behavior from other countries if their adherence to our western
ethos on the issue is unlikely? Then probably would be better if, even though they are
not liberal, they at least fulfill some standards of accountability, representation and
protection of the human being. These are the so-called Decent peoples. They exist as
sort of a complimentary rhetorical figure: they are what else can be deemed
acceptable by the liberal societies. The other peoples must be dealt with in their own
way, specific to their case. The part of the theory where Rawls explains the usual
setting of his Law of Peoples is the Ideal theory. The part where he leads with those
peoples who have not reached a status of a well-organized yet is the Non-Ideal theory.
Hypothetically, after some time the Non-Ideal theory would no longer be necessary,
since, with the due assistance from other peoples, they would all become, at least,
Decent Peoples.
The design of the international society under the Law of Peoples pretty much
mimics the one that happens in the national sphere. Rawls actually describes it as a
double-phased Original Position. At the first stage, there is the Original Position that
9

happens inside the national state. There the parties would choose several principles of
justice and features that would define the society as being free and fair. But then
comes the second part: there things move a little differently. The parties at the second
Original Position then are representatives of the peoples, who are asked to choose and
to define principles among a fixed list of eight, listed (Rawls 2002, 37) as follow:
1. Peoples are free and independent, and their freedom and
independence are to be respected by other peoples.
2. Peoples are to observe treaties and undertakings.
3. Peoples are equal and are parties to the agreements that bind
them.
4. Peoples are to observe a duty of non-intervention.
5. Peoples have the right of self-defense but no right to instigate war
for reasons other than self-defense.
6. Peoples are to honor Human Rights.
7. Peoples are to observe certain specified restriction in the conduct
of war.
8. Peoples have a duty to assist other peoples living under
unfavorable conditions that prevent their having a just or decent
political and social regime.
These are the fundamentals of the Law of the Peoples. It can be easily assessed
that is a basic set of rules for a somehow organized world. It is organized, though,
around the symbolic figure of the people. Peoples should refrain from waging war,
honor Human Rights, and even offer some occasional assistance. All the
10

argumentation laid before regarding the necessity of the public sphere as a way to
safeguard every citizens existence as a free en equal is then put aside. And that
characteristic is one of the most problematic in this aspect of rawlsian theory.
When one understands the role that the state has as a tool for the
empowerment of the individual, allowing, through the public sphere, its existence and
flourishing, it is clear that the usual understanding of the International Law is
unsuitable at least. The conception of the state as a sovereign entity that relates to
other sovereign entities in the same fashion as individuals do is anachronistic (Ferrajoli
2007). It belongs in a world of kings and absolutist powers isolated not only
geographically, but, most importantly, culturally. Such profound abyss among nations
has been reduced by centuries of trade, information and people flux.
There is no reason to believe that a world grounded in peoples, instead of
states, would be any better. Rawls grounds his preference by declaring that, unlike
states, peoples have moral affinities. Not led by the raison dtat11, but capable of
sympathy, and are more likely to establish emotional connections with other peoples
(Rawls 2002, 28). But if the goal is to establish some kind of similarity that goes beyond
foreign policy, maybe we should go all the way, and start seeing the global reality as a
collectivity of persons, subject to several different contingencies. The present state of
affairs against which Rawls presents his theory is that the international society is
akin to a Hobbesian world, where States fight for survival in the Natural State.
However, the United Nations and its Charter have already placed a milestone towards
something different, a real world order, similar to Kants Perpetual Peace. The notion
11

Rawls alludes to Thucydides and the conception of power at that time. There he demonstrates
amazement before the quote that precedes this paper.

11

of unlimited sovereignty is a remnant from the ancien rgime of international affairs. It

needs to be discussed, as Rawls painstakingly did, but maybe on a more progressive
manner.
It seems clear that the duty of the State towards its citizens has changed, but
the question raised is of if a duty towards nationals of other sovereignties have arisen.
Did the international society evolved into a true cosmos polis, a city of the world?

COSMOPOLITANISM: A WORLD WIDE BROTHERHOOD

An alternative to both the traditional thinking and rawlsian peoples-oriented

idea is that presented by cosmopolitanism. This view is derived from the idea that the
basic component of the international order, just as it is in the national order, should be
the human person, the citizen. That same citizen that is the basis of the polis should
also be the measure of the cosmos. As pointed out by Charles Beitz (Beitz 2000, 688):
At the deepest level, cosmopolitan liberalism regards the social
world as composed of persons, not collectivities like societies or
peoples, and insists that principles for the relations of societies should
be based on a consideration of the fundamental interests of persons.
The term cosmopolitanism is of wide significance. The etymological meaning
aside, it has several meanings. Seyla Benhabib defines the main academic branches
discussing this concept as three (Benhabib 2006, 17-18). The first understands
cosmopolitanism as the moral attitude to hold the so-called love for humanity
12

before love for the country. Another interpretation is that of perceiving the human
nature as too complex to be reduced to the concepts of frontiers and nation-state. The
last one is that which sees cosmopolitanism as a complementation of the Critical
Theory, aiming to elaborate a philosophical basis to analyze discourse beyond the
national boundaries. Behabib herself defends a modified version of the third branch
(Benhabib 2006, 18):
Every person, and every moral agent, who has interests and whom
my actions and the consequences of my actions can impact and affect
in some manner or another is potentially moral conversation partner
with me: I have a moral obligation to justify my actions with reasons
to this individual or to the representatives of this being. I respect the
moral worth of the other by recognizing that I must provide him or
her with a justification for my actions. We are all potential
participants in such conversations of justifications.
The historically developed affirmations of the Human Rights, the prohibition of
the recourse to the force and the developing doctrine Responsibility to Protect (R2P)
of humanitarian intervention are example of an evolution that the concept of state
sovereignty has been subject of. The westphalian idea of an unabridged power has
mutated into something of a chained Leviathan, tied both internally due the
constitutional constraints and internationally because of the obligations arisen
from the Charter of the United Nations and its possible consequences.
It seems that the contemporary role of cosmopolitism is connected to the
examination of the limits of the possible in this conjunction of elements traditionally
13

considered to be of strong opposition. The elements of the human person, the

international order and the State in whichever model or version it may suit best must be equated in one single normative proposition.
Following that idea, the Law of Peoples proposed by John Rawls is a great
intellectual exercise, probably more useful today than classic studies such as Kants
Perpetual Peace. It is more complete and it deals with several questions that were not
even plausible at the 18th century while Kant was still being intrigued by the French
Revolution. This pale blue dot we see today through the lenses of your space
telescopes and that have witnessed global wars and the atomic threat has much more
possibilities and challenges that law must bear in conscience.
But, as I have already repeatedly stated, his works has many shortcomings. The
separation in different peoples is arbitrary to say the least, let alone unfeasible in the
real world. He defends some degree of international toleration with Human Rights
abuse that would sound atrocious if suggested as a standard in domestic affairs (Pogge
2001, 247). He fails to define clear criteria for humanitarian intervention and
completely overlooks the debate on international economic justice (Pogge 2001, 253).
It is a liberal proposition that sometimes is afraid of condemning Human Rights
violations and in other occasions has a lukewarm stance supporting tyrannies.
Nevertheless, it is an interesting starting point for research. As stated by
Thomas Pogge (Pogge 2001, 253):
The Law of Peoples cannot match the great strengths of A
Theory of Justice the very elaborate, precise and rigorous statement
of its central argument and its sophisticated treatment of economic
14

justice. Still, the new work provides a modestly progressive

articulation of general views about international justice that are
widely held among political scientists, economists and the general
public. It is extremely useful to have a detailed, sophisticated,
authoritative defence that gives these popular views some depth and
unity, and allows their systematic comparison to more cosmopolitan
alternatives.
Much on the current debate on international for a should convey the question:
What is right on an global scale? How can we define it, beyond the procedural
answer The right is what the law says. International Law, with its virtues and flaws,
has been a product of its time, a time of reducing wars and increasing flux of goods
and people. A different time needs different answers, and before different answers be
delivered we need essentially different questions. Scholars such as Immanuel Kant or
John Rawls have been through great lengths to pave the way that leads to many new
doubts. Contemporary thinkers such as the cosmopolitists present new answers. This
is a debate essential to the development of international law on the XXI century.

REFERENCES

Beitz, Charles. "Rawls' law of peoples." Ethics 110, no. 04 (July 2000): 669-696.
Benhabib, Seyla. Another Cosmopolitanism. New York: Oxford, 2006.

15

Buchanan, Allan. "Rawls Law of Peoples: Rule for a Vanished Westphalian World."
Ethics, July 2000: 697-721.
Ferrajoli, Luigi. A soberania no mundo moderno. So Paulo: Martins Fontes, 2007.
Freeman, Samuel. Rawls. Abingdon: Routledge, 2007.
Kant, Immanuel. A Paz Perptua. Um Projecto Filosfico. Traduzido por Artur Moro.
Covilh: Universidade de Beira Interior, 2008.
Pogge, Thomas. John Rawls his life and theory of justice. New York: Oxford, 2007.
Pogge, Thomas. "Rawls on International Justice." The Philosophical Quarterly 51, no.
203 (April 2001): 246-253.
Rawls, John Bordley. A Theory of Justice Original edition. Cambridge: Harvard, 2005.
. A Theory of Justice - revised edition. Cambridge: Harvard Press, 1999.
. Justice as Fairness - a restatement. Cambridge: Harvard Press, 2001.
. Law of Peoples. Cambridge: Harvard Press, 2002.
. Political Liberalism. New York: Columbia Press, 2005.
Vita, lvaro de. A justia igualitria e seus crticos. So Paulo: Martins Fontes, 2007.
. O liberalismo igualitrio Sociedade democrtica e justia internacional. So Paulo:
Martins Fontes, 2008.

16