Rights, Reality, and Utopia
Rights, Reality, and Utopia
Martin S. Flaherty 0 1
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1 Fordham University School of Law
The topic of John Rawls and international law brings together two
of the more hopeful developments of the past, benighted century. As
witness this symposium, no modern philosopher has more powerfully
advanced the idea of political justice, or done so with a greater global
impact, than John Rawls.! James Fleming nicely articulated the
common wisdom in stating that Rawls's work "inspire[d] people to
believe that we can reason and make arguments about justice rather
than merely express our subjective opinions."2 Arguably, as Rawls
does in thought, so too the modern international human rights
movement does in action.
Out of the Holocaust came a revolution through which people
rather than nation-states became the subject of international law,
through which civil, political, social, and economic rights took their
place alongside such traditional topics as fishing rights and diplomatic
immunity, and through which abuse and privation in South Africa,
Rhodesia, the Soviet Union, Northern Ireland, China, and the United
States became the objects of legitimate global pressure. Thanks in no
small part to this movement, our time has become, as Louis Henkin
famously proclaimed, the Age of Rights.'
It continues to puzzle, therefore, that Rawls and international
human rights-two phenomena with such an apparent affinity-have
had little to do with one another. In the main, the international
human rights movement simply does not make much of Rawls,
certainly not to the degree he is utilized in domestic discourse, both in
* Visiting Professor, Program in Law and Public Affairs, Woodrow Wilson School of
Public and International Affairs, Princeton University; Professor of Law &
CoDirector, Joseph R. Crowley Program in International Human Rights, Fordham Law
School. I would like to thank Chris Eisgruber, Larry Heifer, Steven Macedo, and
William Michael Treanor for valuable ideas and discussions. My thanks as well to
Starling Marshall for research assistance.
1. Steven J. Macedo, What Self-Governing Peoples Owe to One Another:
Universalism, Diversity, and The Law of Peoples, 72 Fordham L. Rev. 1721, 1722
(2004) (commenting that Rawls is the most important liberal philosopher since John
2. James E. Fleming, Opening Remarks at the Rawls and the Law Symposium
(Nov. 7-8, 2003) (transcript on file with the Fordham Law Review).
3. Louis Henkin, The Age of Rights 1 (1990).
the United States and elsewhere. In part the disassociation must have
something to do with the human rights movement's de facto
pragmatism. "International human rights," as Henkin observed,
"derive from natural rights theories and systems, harking back
through English, American, and French constitutionalism." 4 But in
part the gap between Rawls and international human rights has to do
with Rawlsian thought itself. With signal exceptions, chief among
them Thomas Pogge5 and Charles Beitz,6 Rawls's "domestic" theories
had not been extended to the international arena in any robust way,
including and especially by Rawls himself. More problematic still,
when Rawls did turn to the topic late in his career, human rights
veterans greeted the resulting The Law of Peoples7 mostly with
respectful disappointment. Among the work's chief problems, as
many in the human rights community saw it, was that Rawls had
effectively premised his analysis on the very notions of national
sovereignty that international human rights law by definition sought
All this was doubly puzzling given Rawls's self-proclaimed goals in
turning to international law. In The Law of Peoples, Rawls states near
the outset that "I begin and end with the idea of a realistic utopia."9
Rawls unpacks the trope, explaining that "political philosophy is
realistically utopian when it extends what are ordinarily thought to be
the limits of practicable political possibility and, in so doing, reconciles
us to our political and social condition." 10 Put another way, as is true
of the best of political philosophy, Rawls hoped to provide a theory
that would not simply justify the normatively attractive aspects of
current practice, but point the way toward further practices to which
we can aspire and have a plausible expectation of instituting. To
paraphrase Robert Browning, the reach of any theory of international
justice should (just) exceed our grasp, or what is a "realistic utopia"
for?11 To the rapidly evolving yet under-theorized human rights
movement, the promise of a theory that would consolidate near
revolutionary breakthroughs and offer a basis for still further progress
created high, but perhaps not unrealistic, expectations.
Assessment of The Law of Peoples in fairness begins with asking
how well the theory that Rawls offers measures up against his own
standard of presenting a realistic utopia. That task in turn requires far
4. See id. at 6.
5. Thomas W. Pogge, Realizing Rawls (1989).
6. Charles R. Beitz, Political Theory and International Relations (2d ed. 1999).
7. John Rawls, The Law of Peoples (1999).
8. Macedo, supra note 1, at 1724-25.
9. Rawls, The Law of Peoples, supranote 7, at 6.
10. Id. at 11.
11. Browning wrote, "a man's reach must exceed his grasp, or what's a heaven
for?" Robert Browning, Andrea del Sarto, in 2 The Oxford Anthology of English
Literature 1331 (Lionel Trilling & Harold Bloom eds., 1973).
greater attention than has ordinarily been accorded to the second
variable in the "Rawls and the Law" equation, here international
human rights law. What counts as sufficiently "utopian" sounds
primarily in political philosophy itself. What passes for "realistic,"
however, cannot be gauged without some notion of how far, and how
fast, principles of justice have already been translated into binding
norms across international borders. By establishing both obligatory
and aspirational norms through recognized systems of consent, 2
international human rights law almost by definition marks the current
"limits of practicable political possibility" beyond which a realistic
utopia should extend its reach.
Measured against this standard-offering a "realistic utopia" with
an eye toward international human rights law-The Law of Peoples
fares better than its initial reception might suggest, yet at the end of
the day proves to be inadequate nonetheless. The balance of this
essay explains the paradox. Part I considers key elements of Rawls's
approach, both by Rawls himself and as enhanced by Steven Macedo.
It argues that even though neither version adequately justifies
premising transnational obligations upon an idea of "peoples" rather
than people, Macedo's concept of self-government presents at least a
plausibly utopian justification, while his emphasis on the
preconditions of self-government tracks current international human
rights norms in strikingly realistic ways. Part I then considers why
even this enhanced account of Rawlsian thought remains insufficient.
Drawing upon the critiques offered by Seyla Benhabib and Thomas
Pogge, this part contends that the claims of self-governing peoples
should not outweigh the prior claims of individuals as a normative
matter, and have already too greatly eroded as a descriptive point of
international human rights. On both counts, I respectfully conclude,
The Law of Peoples approach remains insufficiently utopian and
I. RAWLS REVIVIFIED?
A. Rawls, Foreignand Domestic
Rawls goes nowhere near so far internationally as he does
domestically. The differences, moreover, become only more apparent
12. International law conventionally includes norms, applicable to both nations
and individuals, that range from "hard" law that is fully binding, such as treaties,
Security Council resolutions under chapter VII of the United Nations Charter, or
customary international law, to "soft" norms, that are hortatory but indicative of
international consensus, such as General Assembly resolutions or UN declarations.
Similarly, systems of consent range from ratification of treaties, to consistent practice
out of a sense of obligation in the case of customary international law, to votes cast in
the General Assembly. See Restatement (Third) of the Foreign Relations Law of the
United States § 102 (1987) [hereinafter Restatement III].
the greater the scrutiny. Among other things, critics immediately
commented upon the thinner prescription for basic liberties in The
Law of Peoples than in A Theory of Justice13 or PoliticalLiberalism.4
As recently as this present symposium volume, Thomas Pogge has
further pointed to the similarly thinner processes Rawls offers in the
international arena, a thinness that itself works to a correlatively
weaker conception of transnational justice.15
But by far the most salient difference between Rawls at home and
abroad, and from which the other divergences directly and indirectly
stem, follow from his starting premise that a theory of domestic justice
be based upon "people," or individuals, but that a theory of
international justice proceeds from a concept of "peoples." Seyla
Benhabib, also in this volume, provides a fresh critique of this premise
by focusing on Rawls's affirmative case for this move that implicitly
arises from his extended description of what constitutes a "people."16
Yet also worth considering is the negative case that The Law of
Peoples makes against commencing with an original position
comprised of individuals throughout the world just as the earlier
incarnation of the thought experiment looked to people within a
Rawls's case against commencing with individuals in the first
instance barely addresses utopian concerns because he barely
mounted a case. One might well have expected otherwise. As Rawls
himself acknowledged, thinkers including Pogge, Beitz, Brian Barty
and David Richards "[a]ll seem to have taken th[e] path" preferring
people to peoples. 7 Whatever its eclectic foundations, international
human rights law has made individuals its centerpiece for fifty years.
Yet The Law of Peoples rushes past the question of "why not
individuals?" and instead comes at the matter from nearly the other
end of the spectrum with what may be an ultimately unsuccessful
attempt to answer the query "why not nation-states?"
Altogether, the case against starting with individuals consists of a
footnote that references a paragraph, which in turn largely alludes to a
discussion of foreign policy that is at best oblique to the issue. The
footnote, which comes as Rawls first set the concept of peoples to
work, squarely flags the issue, asking: "Why does The Law of Peoples
use an original position at the second level that is fair to peoples and
not to individual persons?"18 For the principal explanation, Rawls
13. John Rawls, A Theory of Justice (rev. ed. 1999).
14. John Rawls, Political Liberalism (1993).
15. Thomas Pogge, The Incoherence Between Rawls's Theories of Justice, 72
Fordham L. Rev. 1739, 1739-40 (2004); see infra Part II.C.
16. Seyla Benhabib, The Law of Peoples, DistributiveJustice and Migrations, 72
Fordham L. Rev. 1761 (2004); see infra Part II.B.
17. Rawls, The Law of Peoples, supranote 7, at 82 n.28.
18. Id. at 17 n.9.
directs the reader well ahead to a general comments section. Here
Rawls again squarely presents the question, only to answer it with a
reference and summary of his argument rejecting a liberal people
adopting a foreign policy to pressure non-liberal yet decent societies
in a liberal direction. 9 Such a policy should be rejected, Rawls argues,
"since it amounts to saying that all persons [worldwide] are to have
the equal liberal rights of citizens in a constitutional democracy," and
because "this foreign policy simply assumes that only a liberal
democratic society can be acceptable."20 Rawls then concludes:
Without trying to work out a reasonable liberal Law of Peoples, we
cannot know that nonliberal societies cannot be acceptable. The
possibility of a global original position does not show that, and we
can't merely assume it.21
Yet The Law of Peoples appears open to the very criticism that it
advances. According to Rawls, the mere possibility of a global
original position does not provide a sufficient basis either to know or
to assume that illiberal societies cannot be acceptable. Absent such a
basis, he argues, we should attempt to work out a law of peoples in
order to determine whether such societies can pass muster. But this
logic cuts equally in the other direction. The mere possibility of a law
of peoples does not provide a sufficient basis either to know or
assume that illiberal societies can be acceptable. Absent such a basis,
why not attempt a theory premised upon individuals? The problem
with either stance is that it begs the question of what counts as
acceptable, because this is precisely what a liberal theory of
international law is supposed to provide. Starting along one path may
produce standards that indicate certain societies are acceptable;
starting down the other may produce standards that indicate the
opposite. The divergent conclusions, however, tell us nothing about
which path to take in the first place. Without more, Rawls no more
justifies his denial of a global original position than, on his account, its
supporters fail to account for their advocacy of it. And if indeed there
is no basis to be offered for taking the first step in one direction rather
than the other, at just this point the utopian goal of extending the
limits of practical possibility suggests a tiebreaker pointing to the
option that promises the more robust conception of justice.
In fairness, Rawls does gesture to a tiebreaker, though one that
sounds in the "realistic" more than the "utopian" and invites its own
set of questions. Having rejected a global original position based on
individuals, Rawls then asserts that, "The Law of Peoples proceeds
from the international political world as we see it," asserting further
that doing so ultimately permits us to examine questions of
19. See id. at 60-62.
20. Id. at 82-83.
21. Id. at 83.
international justice in "a reasonably realistic way. '22 Steven Macedo
therefore rightly worries that The Law of Peoples can be seen as "held
hostage to the brute facts of global diversity, 23 of a world that is
simply not ready for too robust a view of transnational rights.
This concern only grows given Rawls's understanding of that
reality. Throughout, the book operates almost entirely within the
classic post-Westphalian model of international law as it prevailed in
the middle of the last century. On this conception, international
law"the law of nations"-comprised the norms that regulated the conduct
of equal and sovereign nation-states as between one another, all but
to the exclusion of any rules concerning how nations dealt with
individuals within their borders. 24 Rawls reflects this understanding
most obviously by devoting an entire chapter to answer the question
"why peoples and not states," suggesting that even a nominal
departure from the nation-state model requires elaborate justification.
Not surprisingly, one of the only international law treatises cited is
JoofhthneBcrliaesrsliyc'svieTwh.e25Law of Nations, the classic mid-century exposition
Conversely, The Law of Peoples at best barely acknowledges the
"revolution" in international law wrought by the emergence of the
international human rights movement in the wake of the Holocaust
and related atrocities.26 As noted, the work lacks a considered
treatment addressing "why peoples and not individuals," still less one
comparable to the chapter justifying the apparent move away from
nation-states. And while Rawls does acknowledge the originally
aspirational Universal Declaration of Human Rights, 7 he barely
acknowledges the thick web of binding treaties, covenants,
conventions, customary international law, humanitarian law, and
enforcement mech2a8nisms that for half a century have eroded the "law
of nations" model.
In the end, or really, still at the beginning, Rawls's assumptions
about the brute durability of the nation-state/national peoples model
may or may not be sound. Yet, as with his decision to reject a global
original position based upon individuals, his implicit reliance on the
world's current harsh realities remain assumptions nonetheless.
B. Macedo, Self-Government, and the "Trojan Horse"
Though he might reject the observation, Steven Macedo defends
Rawls better than does Rawls. At the very threshold step where The
Law of Peoples is silent, Macedo offers an affirmative justification for
proceeding by way of peoples rather than individuals. As he puts it, "I
offer a moral defense for Rawls's conditional accommodation of
diversity among peoples: a defense that rests not on the fact of global
diversity but on the moral significance of collective self-governance."29
Conversely, and perhaps more directly, the concept of self-governing
peoples serves to account for "[w]hy [there is] no analog of the
domestic principle of justice that calls for the 'basic structure' of
international affairs to be arranged such that inequalities are to the
advantage of the least well-off [as individuals]."3
The moral significance of self-governance should not be mysterious,
Macedo elaborates, for reasons that sound in "common sense and
practice"-if not utopianism and reality.31 In moral terms, citizens of
self-governing nations "have powerful obligations of mutual concern
and respect to one another because the[ir common] political [and
legal] institutions.., determine patterns of opportunities and rewards
for all."32 Practically, such mutual obligations simply do not currently
hold true with regard to international society; and, at the very least,
are a long way off.
Self-governance on the national level, then, affords the missing
reason for proceeding with peoples rather than individuals. Some
mystery lingers nonetheless. Macedo could say more about exactly
why mutual obligations arise "because" of self-governance. This
conclusion appears to be a subset of, in Charles Beitz's words, "moral
ties [to those] with whom we share membership in a cooperative
scheme."33 That said, Macedo leaves no mystery regarding the mainly
practical reasons for privileging social cooperation on the formal,
national level. Here the key argument runs that the sovereign
nation29. Macedo, supranote 1, at 1723 (emphasis omitted).
30. Id. at 1727.
31. Id. at 1729.
32. Id. at 1730 (emphasis added).
33. Beitz, supranote 6, at 141. Beitz earlier explains:
[P]rinciples of justice determine a fair distribution of the benefits and
burdens produced by 'social cooperation.' If there were no such
'cooperation,' there would be no occasion for justice, since there would be
no joint product with respect to which conflicting claims might be pressed,
nor would there be any common institutions (e.g., enforceable property
rights) to which principles could apply.
Id. at 131.
state remains different, indeed unique. Only in nation-states have a
people ordinarily formed a union understood as perpetual, asserted
permanent control over a given territory, established a constitution
and a shared set of fundamental values, set up political institutions
empowered to make binding law, protect fundamental rights, and
maintain a monopoly over the legitimate use of force-all this and
much more. However much national sovereignty may have eroded in
recent decades, the emergence of meaningful world self-governance
At least two consequences follow, one well-known and the other
underappreciated. The first determines the threshold question of
whether to build a theory of transnational justice upon a foundation of
individuals rather than peoples. Given that an obligation arises from
the capacity for cooperation, and that the nation-state remains the
primary and qualitatively unique area for social cooperation, it follows
that a theory of justice governs individuals within a nation-state, and
nation-states relations with one another. Here the principal corollary,
which Macedo endorses, calls for a "'duty of assistance' to
"'burdened societies,'" but "no principle of distributive justice among
decent peoples,"35 nor anything like Rawls's "difference principle,"
according to which systemic sources of inequalities need to be justified
to the least well off.36
Yet Macedo's reliance on self-governance also prompts him to
emphasize, perhaps more clearly than Rawls, that a people qualifies as
the basic building block for transnational analysis only where
selfgovernance is genuine. As he puts it, "Decent and well-ordered
peoples qualify for full respect when they are genuinely collectively
self-governing. Their governing structures must provide inclusion and
voice for dissenters, minorities, and the most disadvantaged, and those
who wield power must be genuinely responsive to their voices."37 On
this view, a decent society may institute religious restrictions for
office, retain formal hierarchies, and eschew liberal democracy. They
must, nonetheless, abide by a fairly thick array of human rights
commonly classed as "negative," "first-generation," or "civil and
political."38 These rights include: the right to life, including
subsistence; liberty of religion and thought; personal property; formal
equality before the law; the rule of law; rights of dissent; and genuine,
transparent consultation of all groups within the society.
All this suggests that the "law of peoples," especially as enhanced
by Macedo, may counterintuitively amount to something of a Trojan
Horse. Though Macedo does not develop the connection, his reliance
34. Macedo, supra note 1, at 1729.
35. Id. at 1725.
36. Id. at 1722.
37. Id. at 1723.
38. Cf Henkin, supra note 3, at 43-48.
on self-governance helps account for Rawls's endorsement of
traditional civil and political rights. While some may have
independent purchase rights-such as freedom of thought-rights
such as adequate consultation, dissent, and rule of law, among others,
can be understood as predicates for any meaningful form of
selfgovernment.3 9 Especially when grounded in this way, Macedo
acknowledges that such first-generation human rights present a
stringent hurdle however much human rights advocates may view
them as inadequate. Following Rawls, Macedo points to the idealized
Muslim state of "Kazanistan," as the paradigmatic decent yet not
liberal society. A not unfair inference may be that in part the "law of
peoples" project rejected proceeding via individuals as a way to reach
out to potential candidates in the Muslim world and among
nonWestern nations more generally. If so, a signal irony of the stringency
that Macedo notes is that it remains an open question whether even
the most liberalizing Muslim state would qualify under the standards
the law of peoples sets forth.
Macedo's contribution may well put "the law of peoples" in its best
possible light. From the utopian perspective, self-governance not only
furnishes a reason to maintain a post-Westphalian approach, but also
a reason with genuine moral weight. Yet Macedo's defense of Rawls
fares even better with an eye toward global reality, though not for the
reasons that Macedo himself specifies. His account privileging
national sovereignty is ultimately unconvincing.4" Macedo's account
nonetheless tracks the current state of international human rights law
surprisingly well, especially given his implicit explanation of the extent
to which Rawls foregrounds one set of rights even as his theory
An enhanced law of peoples mirrors current international human
rights law first in its emphasis on civil and political rights. For better
or worse, human rights law comes closest to realizing its potential in
safeguarding rights in the kinds of negative liberties often associated,
directly or indirectly, as the predicates for meaningful
selfgovernment. The usual list overlaps neatly with the rights that Rawls
and Macedo identify: life, freedom from torture, equality before the
law, privacy, personal property, freedom of thought, belief, religion,
and expression, and some form of access to government, among
39. Grounding negative rights as preconditions for self-government is a familiar
move in domestic constitutional theory. See James E. Fleming, Securing Deliberative
Autonomy, 48 Stan. L. Rev. 1 (1995).
40. See infra Part II.A.
41. Rawls, The Law of Peoples, supra note 7, at 79; Macedo, supra note 1, at 1733.
Rawls, as noted, specifically refers to the civil and political rights portion of the
Universal Declaration to describe the right to which he would hold decent societies
accountable. Rawls, The Law of Peoples, supranote 7, at 80 n.23.
International law favors these rights, moreover, in at least two
senses. First, they are "hard law." Not only are they safeguarded by a
web of multilateral treaties, those treaties typically assert that the
ratifying state "shall" both observe and promote the given rights.
Typical here is Article 2 of the International Covenant on Civil and
Political Rights, which provides that: "Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the
present Covenant .... And even when not recognized in binding
treaties, the shorter list of liberties well-settled in customary
international law and jus cogens are themselves all core negative
rights.43 Second, and in part as a result, the international legal
system's most successful enforcement mechanisms have been those
charged with the implementation of traditional first-generation
liberties. Representative here is the International Covenant on Civil
and Political Rights' (ICCPR) Human Rights Committee, which not
only clarifies general standards, but reviews individual applications.
Better still is the European Court of Human Rights, a body commonly
viewed as the most effective transnational human rights tribunal and
which, perhaps not coincidentally, enforces treaty obligations
primarily civil and political in character. The comparative efficacy of
such bodies in turn accounts for part of the emphasis that
nongovernmental organizations and international civil society tend to
concentrate on first-generation rights, arguably to a fault.
Contrast this picture with the conventional understanding of
redistributive rights, otherwise known as positive, second-generation,
social and economic rights. To begin with, they simply do not exist, at
least not as a transnational matter.' Instead, to the extent that the
international legal system does recognize rights to an adequate
standard of living, social security, education, employment, and health
care, it does so only within the nations that ratify the relevant treaties,
not between them. Even then, the obligations that a signatory state
undertakes are progressive and incremental. In these regards the
approach developed in the International Covenant on Social,
Economic and Cultural Rights has yet to be extended. As the classic
Article 2 formulation sets out:
Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization
42. International Covenant on Civil and Political Rights art. 2 (1966), reprintedin
Blackstone's, supranote 27, at 64-65.
43. See Restatement III, supra note 12, at § 702.
44. An arguable, and complex, exception may be the right to development.
of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.45
Not surprisingly, both the enforcement mechanisms, as well as
NonGovernmental Organization (NGO) scrutiny, remain notoriously
weak, even when compared to civil and political rights
implementation at its most problematic.
In these ways, Macedo's law of peoples supplements Rawls's The
Law of Peoples, and better approximates the goal of realistic utopia.
Self-governance offers an affirmative justification of retaining a
foundation of nation-states. The resulting emphasis on civil and
political liberties over social and economic rights reflects the reality of
contemporary international human rights law.
II. INSUFFICIENTLY UTOPIAN, INADEQUATELY REALISTIC
A. The Primacy of People
Though Macedo's supplementation is better than Rawls's theory, it
is not sufficient. More to the point, better does not surpass sufficient
in the sense that a realistic utopia should offer a goal that lies within
our reach, yet for the moment exceeds our grasp. On this, Rawls's
own yardstick, the "law of peoples" falls short even as enriched by
Consider first the central matter of commencing with peoples rather
than with people. As noted, Macedo makes explicit a moral principle
that Rawls at best assumes in extolling national self-governance. This
claim in turn rests on the premise that a genuinely self-governing
people represents a special case of the larger moral principle that
social obligation flows from social cooperation. Yet however utopian
such a foundation may be, it hardly seems to be the only one. At the
most fundamental level one might ask, with Beitz, whether there are
other bases for social obligation. As Richard Rorty has suggested, the
basic capacity for pain and sympathy common to individuals
regardless of borders points to a basis of obligation that has little to do
with national sovereignty." At the start of the day, the stereotypical
human rights advocate acts first out of a sense of duty to acknowledge
the afflicted, no matter how remote or quixotic the task of making a
difference might initially seem. To the extent this sort of impulse
accounts for moral obligation, there exists a fundamental alternative
on which to build a theory of transnational justice-an alternative that
45. International Covenant on Social, Economic and Cultural Rights art. 2 (1966),
reprintedin Blackstone's, supra note 27, at 82.
46. See Richard Rorty, Human Rights, Rationality, and Sentimentality, in On
Human Rights 111-34 (Stephen Shute & Susan Hurley eds., 1993); Beitz, supranote 6,
at 141 ("It is possible that other sorts of considerations might come into the
justification of moral principles.").
cuts dramatically in favor of looking to mutually sentient persons
rather than self-governing nations.
Yet the "law of peoples" faces more evident problems that sound in
current, fast-evolving realities. The developments speak directly to
the claim that sovereign nations are so distinct a form of social
organization that they differ in kind from all others, at least for the
purpose of underpinning a law of peoples. Macedo rightly implies
that the human rights movement tends to overemphasize the extent to
which the primacy of national sovereignty has been eroded. That said,
the process advances nonetheless, undermining any assertion on the
singularity of self-governing nations as both over-inclusive and
Singling out the nation-state is over-inclusive in the sense that it
subsumes smaller units of self-government within a country's
borders.47 Any number of associations entail social cooperation, or at
least the possibility of social cooperation, and with it the corollary of
obligation. The family, the co-op board, the school board, the
congregation, the professional association, not to mention city,
county, and state government, are just the more obvious. A number
of these, particularly state or provincial governments in devolved
federal systems, can make legitimate claims to classic aspects of
"sovereignty," such as monopoly power over force or the authority to
tax and redistribute wealth.4" Nor are self-governing sub-units merely
endangered curiosities, already having eroded in authority just as
nation-states themselves have begun to face the same process. As
scholars such as Peter Spiro have argued, national sovereignty has
eroded not just in the face of transnational organization, but also
because local units of self-government have attained renewed
importance both domestically and internationally.49
More to the point, Rawls, Macedo, and the "law of peoples,"
become ever more under-inclusive precisely because they refuse to
accord sufficient weight to transnational forms of self-governance
eroding national sovereignty from above. This process has proceeded
far enough along not only to have become a commonplace, but to
prompt a backlash on the streets from the left, and more sedate
47. This is an admittedly quirky use of the term "over-inclusive." But a more
literal application if anything challenges the presumption in favor of self-governing
nations to the extent that a large number are not self-governing. Despite Rawls's
preconditions, this seems to make it an odd unit to presume.
48. Cf Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) ("As every schoolchild
learns, our Constitution establishes a system of dual sovereignty between the States
and the Federal Government.").
49. See Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63
Ohio St. L.J. 649, 667-71, 717-25 (2002); see also Catherine Powell, Dialogic
Federalism: ConstitutionalPossibilitiesfor Incorporationof Human Rights Law in the
United States, 150 U. Pa. L. Rev. 245 (2001) (noting and advocating increasing
involvement of states and localities for providing additional democratic legitimacy for
United States adherence to international human rights norms).
objections from the right. At the U.N. level, chapter VII of the
Charter can and has mandated the use of military and economic
coercion." Just below that, global multilateral treaty systems have
what in many regards amounts to an effective power to compel: the
World Trade Organization (WTO) most obviously, but also the
International Monetary Fund (IMF), and the International Criminal
Court, among others.5 Even bodies such as the Human Rights
Committee under the ICCPR can wield significant persuasive
influence on states, both through the review of state reports and
individual applications.52 Add to these formal mechanisms the thick
web of organizations and NGOs that constitute what can now fairly be
termed international civil society.
Common to these and numerous, less glamorous bodies and
arrangements is the relocation of formal governance and informal
influence from the national to the transnational and global planes.
Among other consequences, this extension of social cooperation
beyond national borders undermines any theory that would privilege
those borders as analytically unique. The foregoing, to the contrary,
suggests that no unit, not even the nation-state, should be so
absolutely privileged as to constitute the foundation for a global
theory of justice that rests on the relationship between cooperation
and obligation. Because, increasingly, mechanisms for cooperation
are evolving in transnational fashion, it follows that the most
promising way forward is to begin with individuals posited in a global
original position. This approach, moreover, seems doubly appropriate
as such a device could, without inordinate difficulty, call upon
individuals behind the veil of ignorance to think in terms of at what
level-local, state, national, regional, international-to assign what
authority and in what degree.
To this tack comes an objection, here advanced by Macedo,53 that
reports of the diminution of national sovereignty are premature.
Ironically, the ultimate response comes from Rawls himself in
articulating his initial standard of theoretical review. Assuming the
relocation of power to both sub-units and especially "over-units," the
"law of peoples" will look less and less realistic over time. That
consequence, in turn, makes the theory here and now appear not to
do much more than extend the reach of principles of justice to those
already well within our grasp.
B. The Inadequacy of Peoples
Seyla Benhabib suggests that the problems with "peoples" do not
end here.54 Whereas The Law of Peoples most obviously may be
faulted for failing to make a case against starting with individuals,
Benhabib focuses on the affirmative case it makes for starting with
peoples. In this regard the justifications offered by Rawls differ from
the self-government argument put forward by Macedo, and with good
reason. As noted, Macedo offers self-governance precisely in
response to the question of why peoples rather than individuals.
Rawls himself, however, delineates the virtues of peoples to address
the more dated question of why peoples rather than nations. Both
Benhabib and Macedo treat Rawls's efforts on this point as ultimately
unsuccessful. The question, however, almost certainly led Rawls away
from the self-government justification-which nations and his version
of peoples implicitly share-to a people's more mystical attributes.
These attributes, originally offered in distinction to nations, Benhabib
takes also as Rawls's implicit justification to set aside individuals.
This move seems entirely fair, especially given The Law of Peoples'
failure to offer a case for peoples in relation to individuals. In
Benhabib's hands, it also makes Rawls's affirmative account of
peoples fair game.
For a liberal people in particular, this affirmative case emphasizes
three features: "[A] reasonabl[e] just constitutional democratic
government that serves [a people's] fundamental interests; citizens
united by what Mill called 'common sympathies'; and finally, a moral
nature."55 As Benhabib points out, this emphasis on commonality,
both in terms of sympathies and "a moral nature," do not require but
help explain Rawls's earlier postulate in Political Liberalism that "a
democratic society, like any political society, is to be viewed as a
complete and closed social system" entered only by birth and exited
only by death.56
These self-contained foundations result in restrictive legal
principles. As Benhabib emphasizes, Rawls would afford a people
extensive powers to restrict immigration. Such authority would be
conditioned on, but more apparently follow from, the need to protect
precisely the commonalities that set a people apart, the concern for
scarce resources, and be offset only by the "law of peoples[']"
somewhat cryptic "duties of well-ordered societies to those societies
54. Benhabib, supra note 16, at 2.
55. Rawls, The Law of Peoples supra note 7, at 23.
56. Rawls, Political Liberalism, supranote 14, at 40.
burdened by unfavorable conditions."57 As Benhabib does not
emphasize, no less striking are related rights that Rawls does not
address at all, including the right to emigrate, the right to seek asylum,
and the right to non-refoulement. None of these presumably have a
place in the "law of peoples," nor given Rawls's premises, is there
much reason to suppose that they would.
While Benhabib generally places The Law of Peoples assertions in
their worst possible light, her critique hits home nonetheless. Indeed
given Rawls's realistic utopian goals, that his claims can plausibly be
placed in such light may effectively be taken as one of her points.
More explicitly, Benhabib as an initial matter also faults Rawls for
mixing the real with the utopian in convoluted ways. As she puts it,
"difficulty arises from Rawls's stringing together normative
stipulations with sociological characteristics," a conflation that
"creates a series of problems that reverberate throughout the
subsequent argument.""8 Putting this criticism aside, Benhabib finds
more than enough problems when considering the normative and
Benhabib's most telling criticisms go to Rawls's stipulations that a
people reflect common sympathies and a moral nature, concepts
which she collapses without material harm to either one. This
emphasis on homogeneity, she notes, has the flavor of nineteenth
century nationalism,59 in much the same way as Rawls's affinity for the
"law of nations" framework. Several unfortunate features result.
Most importantly, the commonality requirement masks internal
power struggles along lines of class, race, gender, ethnicity, and
religion. Overlooked as well is the predicament of the losers in such
struggles, who contested the society's dominant ethos. Still another
fundamental problem involves Rawls's other precondition, the
contradiction between commonality and constitutional
democracyor for decent peoples, self-governance. Here, as Benhabib points out,
liberal and democratic norms depend on exactly the type of
contention and disunity that the commonality requirement
With democracy, however, Benhabib's critique runs into problems
of its own. Initially, she rightly points out that Rawls's precondition of
constitutional self-government in effect undermines his effort to
distinguish peoples from nations, praising him nonetheless for making
national sovereignty contingent on democracy, or at least adequate
consultation. Benhabib even so views this laudable effort as doomed
to failure because the acceptance of national sovereignty at the end of
the day means democratic preconditions inevitably must bow to the
57. Rawls, The Law of Peoples, supra note 7, at 39 n.48. See generally Benhabib,
58. Benhabib, supranote 16, at 7-8.
59. Id. at 13.
more entrenched principle of territorial control." Why this should be,
however, is unclear. Nothing conceptually forecloses the idea of
states that control territory but which are illegitimate. Thanks in part
to the human rights movement, moreover, recent history confirms this
theoretical possibility, as witness rogue regimes such as the Taliban or
the Republika Srpska.
Benhabib's principal critique, however, remains that Rawls's
requirements of commonality ultimately undermine the requirement
for constitutional self-government. Yet, just as insisting upon
homogeneity can undo democracy, so too can requiring democracy, or
a colorable stand-in, undo commonality. At just this point, Macedo's
elaboration of self-government and all the civil and political rights
that this entails provides a powerful reason to think that Rawls's
conception of common sympathies and a moral nature are too thin to
generate the problems about which Benhabib worries. To this,
however, Benhabib would have several responses, some already seen
elsewhere. A world of more pluralistic, robustly self-governing
peoples of this sort still would have very little to say about
crossborder social and economic obligations. It also would do little to
advance theory beyond current realities. The clincher, however, must
be the closed borders that are at the center of Benhabib's project.
That relatively closed borders appear as a corollary to Rawls's
definition of a people suggests that the virtues of commonality trump
those of self-government when these conflict. Put another way,
indifference to migration demonstrates that "the law of peoples" errs
on the side of too thick a conception of commonality, and too thin a
vision of meaningful self-government.
For all this, Benhabib takes The Law of Peoples to task even more
pointedly on sociological grounds. At numerous points Benhabib
rings changes on the stark theme that Rawls's vision of closed and
complete societies simply has no grounding in reality. Cross-border
migration has been a central feature of human history, in part,
because people leave one society and adopt another precisely to
further their conception of the good. Conversely, societies based
upon "common sympathies" cut across membership in a geographic
people, including churches, professions, and unions. Here Benhabib
might also have pointed out that modern international civil society,
including especially the international human rights movement,
provides a signal example. More specifically, Benhabib demonstrates
that Rawls's views on the effects of immigration on a society's
common values is woefully one-sided. For every new group that may
destabilize a society's common values-bracketing whether that is a
bad thing in itself-others come in and embrace, enrich, and
60. Id. at 7-8.
strengthen those values.61 Here, too, Benhabib might have added the
enormous debate concerning whether immigration in material terms
likewise drains a society's resources or instead replenishes them.
One additional, and large, reality check supporting Benhabib's
critique comes from international law. Far more than the ostensibly
utopian "law of peoples," human rights standards have long addressed
aspects of transnational migration. Among other things, the Universal
Declaration of Human Rights proclaims that "[e]veryone has the right
to leave any country, including his own,"'6 that "[elveryone has the
right to seek and to enjoy in other countries asylum from
persecution, 63 and that "[n]o one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality."'
More concretely, binding treaties have implemented at least some
of the Declaration's aspirations. The Convention Relating to the
Status of Refugees ("Refugee Convention"), in particular, defines
who shall qualify for political asylum65 and enjoins ratifying states to
accord consequent protections to bona fide applicants. Likewise, the
Refugee Convention further codifies the customary international law
principle of non-refoulement, whereby a nation to which a person has
fled from persecution may not under any circumstances return that
person to the country from which he or she has escaped.66 Ratifying
nations such as the United States, moreover, have ordinarily
attempted to implement the resulting obligations to realize their rights
in domestic law, at least on paper. This is not to say that the reality
falls well short of the ideal, especially post 9/11. It is to say, however,
that the existing international standards with regard to certain aspects
of cross-border movement go beyond the theoretical goals set out in
The Law of Peoples.
Benhabib herself alludes to the Refugee Convention, but as a
theorist she brings things full circle to political philosophy with an
appeal to Kant.67 As she points out, Kant-the father of modern
"cosmopolitan justice"" among other things-sketched aspects of
migration rights in his overall attempt to balance state sovereignty and
obligations to which states are accountable. 69 From this, Benhabib
notes, specifically springs a "temporary right of sojourn"
61. Id. at 13.
62. Universal Declaration of Human Rights art. 13(2) (1948), reprinted in
Blackstone's, supranote 27, at 23.
63. Id. art. 14(1).
64. Id. art. 15(2).
65. Convention Relating to the Status of Refugees art. 1 (1951), reprinted in
Blackstone's, supranote 27, at 31-32.
66. Id. art. 33(1).
67. Benhabib, supranote 16, at 30.
69. Id. at 28.
(Besuchsrecht) that approximates the principles of non-refoulement.70
In addition follows a related right of hospitality (Wirtbarkeit), which
means "the right not to be treated as an enemy in the land of
another," which anticipates the various duties on the fair treatment of
asylees under the Refugee Convention. 71 That said, Kant's
proscriptions do remain partial and tentative. Kant does, nonetheless,
go further than Rawls. Though The Law of Peoples does follow
"Kant's legacy" insofar as it conditions recognition of a people's
sovereignty on human rights and non-belligerence, "the more robust
Kantian vision of cosmopolitan justice which regards individuals as
moral agents in the international area to whom states owe obligations
of justice, and in the first place the obligation to respect cross-border
movements, is absent from Rawls's vision. ' 72 Through her "humble"
project, Benhabib has thus shown The Law of Peoples to appear dated
in its own time, after the post-Holocaust erosion of sovereignty was
well underway. She has also suggested additional ways in which its
framework was not sufficiently utopian, if not realistic, when the "law
of nations" was at its height.
C. Problems of Process
However much may be said on either side, the threshold
peopleversus-peoples problem hardly presents the only question. Thomas
Pogge here moves beyond the initial debate to consider what he views
as the procedural asymmetries between Rawls's domestic and
transnational theories. 73 These asymmetries Pogge deems both
understudied and even more important than Rawls's differential
treatment, foreign and domestic, of individuals.74 Such an assessment
is striking coming from someone acknowledged, by no less than
Benhabib and Rawls himself, as a founder of modern cosmopolitan
justice theory and so a more genuine claimant to Kant's legacy. This
is not to say Pogge resists noting his previous criticisms of the
subordination of individuals that The Law of Peoples premises.75
Here, however, Pogge turns his attention to what he argues is the next
For Pogge, that misstep lies in forsaking the domestic theory's
"three-tiered and institutional" procedures for the international
frameworks "two tiered and interactional" prescription.76 In Rawls's
domestic vision: (1) parties in the original position (2) select public
criterion of the two basic principles of social justice, which (3) informs
selection of actual basic structures in specific empirical contexts.7 7 By
contrast, his international theory calls for (1) parties in the original
position who (2) select the eight specific "laws of peoples."7 As
Pogge notes, the most obvious institutional consequence lies in the
great flexibility that the domestic scheme offers. 79 There, citizens may
respond to empirical changes by reorganizing basic structures and
institutions to maintain fidelity to such basic commitments as the
difference principle.8" The international "two-layer construction," he
points out, "provides no such flexibility."81
Not without some bows to global reality, Pogge questions the likely
substantive consequences of the resulting global "utopia" for the very
reasons that Rawls sought to head them off on the domestic front.
Lack of institutional flexibility, for example, increases the possibility
that parents will unjustly pass along the costs of their failure to save to
children in Rawls's international framework than in his domestic
one. 82 But by far the most troubling consequence that Pogge
highlights arises from the unequal bargaining position that countries
will inevitably have in directly working out transnational rules. As
Pogge remarks, Rawls rejects unmediated bargaining in the domestic
case unless the rules and institutions of the game prevent oligopoly
and insure some degree of fairness.83 Thanks to the two-tiered
process, the possibility of such protections does not obtain in the
international context. Predictably, rich countries will get richer
without benefit to poor nations, the poor will become more corrupt,
and their domestic governments will become less representative.84
Moving from the ideal-or more accurately, the probable
nonideal-to the real, the stark realities of the "actual world"
dramatically confirm Pogge's predictions. As he notes, under
onefifth of the globe lives in affluent societies, while the rest make do in
poor ones.86 These affluent societies control eighty-two percent of the
global product and have used their bargaining power to skew
international institutions and rules that do exist in their favor. 87 Not
surprisingly, the global income gap has increased. While just a bare,
initial sketch of the necessary empirical analysis, these figures further
work to belie the assumptions that lead Rawls to be blind to such
inequalities. Poor domestic governance alone would not seem to
81. Id. at 1746.
84. Id. at 1750.
account for them; still less would the idea that outside factors play no
In process as in substance, international law provides a further
reality check that goes considerably beyond The Law of Peoples.
Procedurally, the erosion of national sovereignty since the Second
World War has to a significant extent already yielded just the missing
"third-tier" on which Pogge focuses.
Here, consider only human rights law, the area in which sovereignty
is strongest. Virtually every multilateral treaty that deals with the
subject, including the U.N. Charter, creates a transnational body
meant to be charged with implementing the standards the parent
treaties set out amidst changing circumstances in the real world.
Despite important differences, human rights bodies that fit this bill to
a greater or lesser extent include: the Human Rights Commission
under the U.N. Charter,88 the Human Rights Committee under the
ICCPR,89 and the Committee on Social Economic and Cultural Rights
under the ICESCR, ° among others. Add to these global bodies more
effective regional institutions such as the European Court of Human
Rights91 and the Inter-American Court and Commission on Human
Rights. 2 Each of these brings together individuals from a range of
different nations for fixed terms, usually sitting in their capacity as
individuals. Again to varying degrees, they also fulfill the role of the
third tier in at least two respects. First, they apply the usually vague
standards, which nations have already agreed upon directly in a
context-specific manner through the review of periodic country
reports and through review of specific claims that the treaties have
been violated. Second, they clarify, adapt, and even extend these
standards through the mechanism of general comments.
Beyond human rights, moreover, the account becomes even thicker.
The WTO, North American Free Trade Alliance, the IMF, and
international arbitration agreements all establish institutional players
that replicate their human rights counterparts. The main difference is
that the bodies set up in these areas usually have far more clout,
formally and informally, than their human rights cousins. As
Laurence Helfer has pointed out, the global landscape is dense with
overlapping and competing "regimes" that possess the qualities of
Pogge's missing tier.93
Whatever their current deficiencies, these transnational institutions
provide powerful support for Pogge's critique. Their emergence
demonstrates that some version of the missing tier is actually feasible
without amounting to a straw man of world government. A fortiori,
their existence refutes the almost anti-utopian claim that well-ordered
peoples would see no reason to depart from the principle of sovereign
equality or to propose alternatives. To the extent that, say, the
ICCPR Human Rights Committee relocates national sovereignty by
legitimately considering a particular nation's domestic human rights
record, an alternative is already appearing.
That said, utopia-or at least the missing tier-has not realistically
arrived quite yet. In one sense, the foregoing array of transnational
bodies challenges Pogge's critique precisely because of their
vulnerability to capture by rich and powerful nations. As Pogge
himself stresses, this problem has been especially pronounced in areas
outside human rights narrowly defined, especially trade, finance,
copyright and the like.94 In these and related contexts, a formal
principle of sovereign equality paradoxically can work to safeguard
the majority of poor and developing societies on the basis of their
numbers. Simply put, any transnational rulemaking authority
premised on majority rule of its sovereign members can theoretically
better resist the influence of a minority of affluent ones. Wealthy
nations realize as much, privileging their position with such devices as
the veto in the Security Council or weighted voting in the WTO. It
was to counter imperial power that the great founding jurists of the
"law of nations" extolled sovereign equality in the first place. 95
Pogge's larger point prevails nonetheless. If third-tier transnational
bodies behave unjustly in certain contexts, the trick would be to
respond accordingly and reform them and related structural rules.
Sometimes that might entail paradoxical approaches such as retaining
aspects of sovereign equality. More often the task may require
relocating national sovereignty still further in ways that better take
into account the desires and interests of individuals regardless of by
which borders they find themselves encompassed. Either way, the
three-layer process provides the opportunity to respond with just the
flexibility that the two-layer model lacks. The Law of Peoples
notwithstanding, the thicker process predictably facilitates the pursuit
of justice in theory. As international law and relations indicate, the
world has already been groping toward such processes in fact.
From the viewpoint of a human rights advocate, this most recent
colloquy on The Law of Peoples confirms that Rawls's foray into
international justice deserves its disappointing reputation. Even when
fortified, the theory at the end of the day remains too tentative in its
conception of what may be, and too conservative in its assessment of
what might be.
Yet the current exchange also offers reasons to temper this
judgment as well. With a little help, the "law of peoples" approach
proves to be surprisingly utopian and realistic with regard to the most
traditional set of international human rights. And Rawls himself, in
his justly celebrated domestic theory, ironically provides many of the
most powerful bases for critiquing his international effort. In these
ways Rawls offers ways of thinking that transcend any particular work
and that assist us in extending our reach.
22. Id .
23. Macedo , supra note 1, at 1723.
24. Rawls , The Law of Peoples, supra note 7 , at 37 & n.42 ( citing J.L. Brierly , The Law of Nations: An Introduction to the Law of Peace (6th ed . 1963 )). Rawls also cites Terry Nardin's Law, Morality, and the Relations of States ( 1983 ). Id.
25. J.L. Brierly , The Law of Nations: An Introduction of the Law of Peace (6th ed . 1963 ) ; cf Terry Nardin, Law, Morality, and the Relations of States ( 1983 ).
26. See , e.g., Iris Chang , The Rape of Nanking ( 1997 ).
27. Universal Declaration of Human Rights pmbl . ( 1948 ), reprinted in Blackstone's International Human Rights Documents 22 (P .R. Ghandhi ed., 3d ed. 2002 ) [hereinafter Blackstone's] (stating that the declaration was meant as a "common standard of achievement" toward which nations were to "strive").
28. The two exceptions are references to the substance of the Convention Against Genocide and the Convention on the Elimination of Apartheid . Rawls, The Law of Peoples supra note 7 , at 80 n.23. For more on the emergence of human rights treaties, see Henkin , supra note 3 , at 16-17.
50. U.N. Charter arts. 39 - 42 , reprinted in Everyman's United Nations 561 (8th ed. 1968 ).
51. See Chantal Thomas, ConstitutionalChange and InternationalGovernment , 52 Hastings L.J. 1 , 14 - 15 ( 2000 ) ; Chantal Thomas, Does the "Good Governance Policy" of the International Financial Institutions Privilege Markets at the Expense of Democracy?,14 Conn . J. Int'l L . 551 , 553 & n. 12 ( 1999 ).
52. International Covenant on Civil and Political Rights art . 41 ( 1966 ) reprintedin Blackstone's, supra note 27 , at 73-74; see also Optional Protocol to the Covenant on Civil and Political Rights arts . 1- 6 ( 1966 ) reprintedin Blackstone's, supra note 27 , at 77-78.
53. Macedo , supra note 1, at 1729.
88. U.N. Charter art. 68 , reprinted in Everyman's United Nations 566 (8th ed. 1968 ).
89. International Covenant on Civil and Political Rights arts . 28 - 45 ( 1966 ), reprintedin Blackstone's, supranote 27 , at 70-75.
90. International Covenant on Economic, Social and Cultural Rights arts . 16 - 23 ( 1966 ), reprintedin Blackstone's, supranote 27 , at 85-87.
91. European Convention for the Protection of Human Rights arts 19- 51 ( 1966 ), reprinted in The Application of the European Convention on Human Rights 323 - 94 (J.E.S . Fawcett ed., 1987 ).
92. American Convention on Human Rights arts . 34 - 73 ( 1969 ), reprinted in Blackstone's, supra note 27 , at 337-44.
93. Laurence R. Heifer , Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 Yale J. Int'l L. (forthcoming 2004 ).
94. Pogge , supra note 15, at 1750.
95. Thomas H. Lee , International Law, International Relations Theory, and Preemptive War: The Vitality of Sovereign Equality in a Unipolar World , 67 J.L. & Contemporary Problems ( 2004 ) (forthcoming) (manuscript on file with Fordham Law Review , at 23 - 25 ).