Rawls on Human Rights: A Review Essay

In this essay, I first evaluate the conceptual analysis of human rights by Wilfried Hinsch and Markus Stepanians. Next I criticize Allen Buchanan’s claim that Rawls did not address basic human interests/capabilities theories of human nature. I argue Buchanan is doubly mistaken when he claims that John Rawls sought to avoid such theories because they are comprehensive doctrines. Then I evaluate David Reidy’s defense of Rawls, while questioning his efforts to show how Rawls’s list of human rights could be expanded. Finally, I accept James Nickel’s argument that Rawls has tied human rights too closely to intervention on their behalf. However, I reject his, and by implication Rawls’s, refusal to accept a two-tiered approach to human rights.     

Environmental Refugees: What Rights? Which Duties?

It is estimated that there could be 200 million‘environmental refugees’ by the middle of this century. One major environmental cause of population displacement is likely to be global climate change. As the situation is likely to become more pressing, it is vital to consider now the rights of environmental refugees and the duties of the rest of the world. However, this is not an issue that has been addressed in mainstream theories of global justice. This paper considers the potential of two leading liberal theories of international justice to address the particular issues raised by the plight of potential and actual environmental refugees. I argue that neither John Rawls’s ‘Law of Peoples’ approach nor Charles Beitz’s `cosmopolitanism' is capable of providing an adequate account of justice in this context. Beitz’s theory does have some advantages over Rawls’s approach but it fails to take proper account of the attachment that some people have to their own ‘home’. This revised version was published online in July 2006 with corrections to the Cover Date.     

Interpreting Rawls: An Essay on Audard,Freeman, and Pogge

This review essay on three recent books on John Rawls’s theory of justice, by Catherine Audard, Samuel Freeman, and Thomas Pogge, describes the great boon they offer serious students of Rawls. They form a united front in firmly and definitively rebuffing Robert Nozick’s libertarian critique, Michael Sandel’s communitarian critique, and more generally critiques of “neutralist liberalism,” as well as in affirming the basic unity of Rawls’s position. At a deeper level, however, they diverge, and in ways that, this essay suggests, go astray on subtle questions of interpretation: Freeman overemphasizes reciprocity, Pogge miscasts Rawls as a consequentialist, and Audard exaggerates the Kantian aspect of Rawls’s core, continuing commitment to “doctrinal autonomy.”     

AN ENGAGED BUDDHIST RESPONSE TO JOHN RAWLS'S THE LAW OF PEOPLES

In The Law of Peoples, John Rawls proposes a set of principles for international relations, his “Law of Peoples.” He calls this Law a “realistic utopia,” and invites consideration of this Law from the perspectives of non‐Western cultures. This paper considers Rawls's Law from the perspective of Engaged Buddhism, the contemporary form of socially and politically activist Buddhism. We find that Engaged Buddhists would be largely in sympathy with Rawls's proposals. There are differences, however: Rawls builds his view from the idea of independent nation–states, while the Buddhists see the world more in terms of a single humankind, the members being highly interdependent with one another, and also with the physical world. The Buddhists would also push harder than Rawls for global structures building multilateralism, restrict more severely justifications for war and behavior in war, stress economic justice more heavily, and insist on all the human rights in the Universal Declaration of Human Rights.     

Rawls and Rousseau: <Emphasis Type="Italic">Amour-Propre</Emphasis> and the Strains of Commitment

In this paper I try to illuminate the Rawlsian architectonic through an interpretation of what Rawls’ Lectures on the History of Political Philosophy say about Rousseau. I argue that Rawls’ emphasis there when discussing Rousseau on interpreting amour-propre so as to make it compatible with a life in at least some societies draws attention to, and helps explicate, an analogous feature of his own work, the strains of commitment broadly conceived. Both are centrally connected with protecting a sense of self which is vital for one’s own agency. This allows us to appreciate better than much of the literature presently does the requirement for Rawls that justice and the good are congruent, that a society of justice does not disfigure citizens’ ability to live out lives relatively unmarked by relations of domination. Some comments on G. A. Cohen’s critiques of Rawls are made.     

Principles for The Law of Peoples

In The Law of Peoples John Rawls gives a list of eight principles for the law of peoples. I argue that the force of the principles depends in large part upon their being lexically ordered, and I attempt such an ordering. However, the lexically ordered list makes it clear that the duty of non-intervention obtains only after the duty to honor human rights is satisfied. Also, I point to certain “practical” difficulties with intervention on behalf of human rights. Rawls writes that additional principles are needed, and I make two suggestions. I conclude that the problems arising from intervention and the need for additional principles show that the “second Original Position” is like the first Original Position: both involve, Rawls notwithstanding, the selection and ordering of principles of justice.     

Rawls and the Problem of Honour

In this paper, I consider the difficult relationship between Rawls, religion and the values that religious believers might consider important in order to lead the good life. Contrary to many of Rawls’ defenders, I argue that at least some of the values that religious citizens are likely to hold cannot be accounted for under Rawls’ theory or under his conception of the good life. I argue that the model of goods which Rawls takes to be part of a thin theory of the good is tied to his belief that under the Original Position justice can be derived from calculations of self-interest alone. To perform my critique, I consider the paradigmatic case of honour in so-called traditional societies. I argue that the way Rawls thematizes primary goods in A Theory of Justice, including concepts like esteem, cannot account for the way honour manifests itself inside traditional communities. I conclude the paper by considering how Rawls might be able to defend his theory against my objection, by considering the relationship between Rawls’ theory, and the rationalization and secularization of society.     

GLOBAL JUSTICE AFTER THE FALL Christian Realism and the "Law of Peoples"

In The Law of Peoples John Rawls casts his proposals as an argument against what he calls “political realism.” Here, I contend that a certain version of “Christian political realism” survives Rawls's polemic against political realism sans phrase and that Rawls overstates his case against political realism writ large. Specifically, I argue that Rawls's dismissal of “empirical political realism” is underdetermined by the evidence he marshals in support of the dismissal and that his rejection of “normative political realism” is in tension with his own normative concessions to political reality as expressed in The Law of Peoples. That is, I contend that Rawls, himself, needs some form of political realism to render persuasive the full range of normative claims constituting the argument of that work.     

The amplification of reason,or the recuperation of imagination: Peter Weir's Dead Poets Society

Abstract

The principal aim of this article is to focus on the problem of the applicability of Rawls’s ideas to the growing interest in developing what might now well be called a “global bioethics”. The specific focus is the question whether Rawls’s later work helps us to develop principles of distributive justice for such an alleged global bioethics, drawing on and critically evaluating Alan Buchanan’s critical discussion of Rawls’s The Law of Peoples. The main tenets of Rawls’s theory of justice, particularly as it concerns health care as one of our “primary needs”, are discussed, drawing on the work of Norman Daniels. Secondly, an argument for the necessity of a global approach to biomedical ethics in view of the need for a more equitable provision of health care between developed and developing worlds is developed. Thirdly, the main tenets of Rawls’s The Law of Peoples, the book in which Rawls extrapolated the implications of his theory of justice to the sphere of just international law, are discussed. Allen Buchanan’s criticisms of this Rawlsian enterprise are critically reviewed. On the basis of this discussion, two additional Principles of Global Distributive Justice (PGDJ) are formulated. The first principle is: “Justice in international relations requires that the burden of catastrophic events be distributed equitably between affected and unaffected peoples”. The implications of this principle are discussed, and complemented with an extended definition of the concept of “catastrophe”. Drawing on each component of that definition, the author then illustrates how the HIV/AIDS pandemic is the best current example of an international catastrophe, and how that calls for the implementation of the formulated principle. Then follows the formulation of the second principle for distributive justice for the law of peoples. This principle is: “Justice requires that efforts at an equitable distribution of burdens at the level of international relations be met with policies from the beneficiaries that, as far as possible, sustain the benefits attained from these efforts”. The author ends by showing how this principle is being neglected by the denialism of, for example, the South African policy-makers’ lack of a responsible response to the HIV/AIDS pandemic over the past decade, and by making suggestions how this denial and neglect might be rectified in the area of the provision of antiretroviral drugs to prevent mother-to-child transmission of HIV.     

Replies

John Fischer challenges me to defend my arguments regarding the badness of death; I sharpen my position, but make some concessions, discussing the possibility of postmortem harm. In response to John Deigh, I defend the account of disgust given in Hiding from Humanity, together with the research of Paul Rozin that I follow there. I discuss Patrick Devlin’s conservative position, agree that we need to object to its emphasis on solidarity, not only to its emphasis on disgust, and argue that Deigh’s statement of Devlin’s position is too kind to Devlin. In response to Henry Richardson, I summarize my reasons for thinking that the classical social contract tradition cannot handle well the problems posed by the issue of justice for people with disabilities, and that even Rawls’s position requires major modification if it is to do so. I explore differences between Richardson’s position and my own on the issues of self-respect, liberty, and primary goods.     

Reciprocity and Reasonable Disagreement: From Liberal to Democratic Legitimacy

At the center of Rawls’s work post-1980 is the question of how legitimate coercive state action is possible in a liberal democracy under conditions of reasonable disagreement. And at the heart of Rawls’s answer to this question is his liberal principle of legitimacy. In this paper I argue that once we attend carefully to the depth and range of reasonable disagreement, Rawls’s liberal principle of legitimacy turns out to be either wildly utopian or simply toothless, depending on how one reads the ideal of reciprocity it is meant to embody. To remedy this defect in Rawls’s theory, I␣undertake to develop the outlines of a democratic conception of legitimacy, drawing first on Rawls’s generic conception of legitimacy in The Law of Peoples and second on a revised understanding of reciprocity between free and equal citizens. On this revised understanding, what free and equal citizens owe one another is not reciprocity in judgment, but reciprocity of interests. David A. Reidy, J.D. (Indiana University-Bloomington), Ph.D. (Philosophy, University of Kansas) is Assistant Professor of Philosophy at the University of Tennessee. He works in political philosophy and philosophy of law. He has published essays in journals such as Political Theory, Journal of Social Philosophy, Res Publica, Southern Journal of Philosophy, Public Affairs Quarterly, Polis, Journal of Value Inquiry, Kantian Review, Economics and Philosophy, Legal Studies Forum, as well as in various anthologies. He is the co-editor (with Mortimer Sellers) of Universal Human Rights: Moral Order in a Divided World (Rowman and Littlefield, 2005) and (with Rex Martin) of A Realistic Utopia: Essays on Rawls’s ‘The Law of Peoples’ (Blackwell, forthcoming 2005).     

Rawls on Liberty and Domination

One of the central elements of John Rawls’ argument in support of his two principles of justice is the intuitive normative ideal of citizens as free and equal. But taken in isolation, the claim that citizens are to be treated as free and equal is extremely indeterminate, and has virtually no clear implications for policy. In order to remedy this, the two principles of justice, together with the stipulation that citizens have basic interests in developing their moral capacities and pursuing their conceptions of the good life, are meant to provide a more precise interpretation of what is involved in treating citizens as free and equal. Rawls’ critics, however, have argued that satisfying the two principles of justice is not the most appropriate or plausible way to respect the status of citizens as free and equal. In relation to this debate, the present paper has two aims. The first is to examine Rawls’ account of the type of freedom that a just society must guarantee equally to its citizens. I will argue that those who think of Rawls as a theorist of freedom as non-interference are mistaken, because his notion of liberty resembles in important respects the republican notion of freedom as non-domination. Second, I will consider the extent to which Rawls’ principles of justice successfully protect the freedom as non-domination of all citizens so as to effectively treat them as free and equal.     

Two Senses of Justice: Confucianism,Rawls, and Comparative Political Philosophy

This paper argues that a comparative study of the idea of a sense of justice in the work of John Rawls and the early Chinese philosopher Kongzi is mutually beneficial to our understanding of the thought of both figures. It also aims to provide an example of the relevance of moral psychology for basic questions in political philosophy. The paper offers an analysis of Rawls’s account of a sense of justice and its place within his theory of justice, focusing on the features of this capacity and how it develops. It then provides an account of the sense of justice in Kongzi’s thought as it is seen in the Analects. Finally, it shows how examining the similarities and differences between the two accounts can deepen our understanding of both views, as well as our appreciation for the importance of understanding how a sense of justice develops.     

Research ethics and the principle of Justice as Fairness – A restatement

In my recent article, I addressed the question of whether a potential categorical exclusion of decisionally impaired patients from non-therapeutic medical research would be inaccordance with the Principle of Justice as Fairness. I came to the conclusion that a categorical exclusion of decisionally impaired persons from relevant research projects may collide with Rawls’s understanding of Justice as Fairness. Derek Bell has criticized my paper by denying that it is legitimate to apply Rawls to this bioethical problem. In my restatement I try to show that an extrapolation of John Rawls’s thought to such bioethical cases is possible, because Rawls himself has written that his orientation towards decisionally non-impaired persons is an idealized situation that allows extrapolations. In a second part I try to show that Bell hasroughly misunderstood my concept of “presumed consent” which I make a prerequisite for the legitimisation of research on decisionally impaired persons. In using advance consent as a proposal for resolving the problem, Bell has indirectly confirmed my approach because he is using a similar construct of consent, which operates with similar hypotheses and probabilities of error. I see here no categorical difference between Bell’s conclusion and my discussion. Thus, Bell’s reply does not represent a refutation of my thoughts, but rather it is a para phrased confirmation of my central theses. I conclude by showing the relevance of Rawls, pointing out that the discussion between Bell and me illustrates how Rawls’s concept of reflective equilibrium is an appropriate approach to finding a solution to this bioethical problem. This revised version was published online in June 2006 with corrections to the Cover Date.     

Dewey and Rawls on Education

In this paper I compare the roles that the explicit and implicit educational theories of John Dewey and John Rawls play in their political works to show that Rawls’s approach is skeletal and inappropriate for defenders of democracy. I also uphold Dewey’s belief that education is valuable in itself, not only derivatively, contra Rawls. Next, I address worries for any educational theory concerning problems of distributive justice. Finally, I defend Dewey’s commitment to democracy as a consequence of the demands of productive public inquiry and education.

A Rawlsian Case for Economic Nationalism: Globalisation and Distributional Autonomy in the Law of Peoples

John Rawls’ resistance to any kind of global egalitarian principle has seemed strange and unconvincing to many commentators, including those generally supportive of Rawls’ project. His rejection of a global egalitarian principle seems to rely on an assumption that states are economically bounded and separate from one another, which is not an accurate portrayal of economic relations among states in our globalised world. In this article, I examine the implications of the domestic theory of justice as fairness to argue that Rawls has good reason to insist on economically bounded states. I argue that certain central features of the contemporary global economy, particularly the free movement of capital across borders, undermine the distributional autonomy required for states to realise Rawls’ principles of justice, and the domestic theory thus requires a certain degree of economic separation among states prior to the convening of the international original position. Given this, I defend Rawls’ reluctance to endorse a global egalitarian principle and defend a policy regime of international capital controls, to restore distributional autonomy and make the realisation of the principles of justice as fairness possible.     

Rawls and Research on Cognitively Impaired Patients: A Reply to Maio

In his paper, “The Relevance of Rawls’ Principle of Justice for Research on Cognitively Impaired Patients” (Theoretical Medicine and Bioethics 23 (2002):45–53), Giovanni Maio has developed athought-provoking argument for the permissibility of non-therapeutic research on cognitively impaired patients. Maio argues that his conclusion follows from the acceptance of John Rawls’s principles of justice, specifically, Rawls’s “liberty principle” Maio has misinterpreted Rawls’s “libertyprinciple” – correctly interpreted it does notsupport non-therapeutic research on cognitivelyimpaired patients. Three other ‘Rawlsian’ arguments are suggested by Maio’s discussion –two “self-respect” arguments and a “presumed consent” argument – but none of them are convincing. However, an alternative argument developed from Rawls’s discussion of “justice in health care” in his most recent book, Justice as Fairness: A Restatement, may justify certain kinds of non-therapeutic research on some cognitively impaired patients in special circumstances. We should not expect anything more permissive from a liberal theory of justice. This revised version was published online in June 2006 with corrections to the Cover Date.     

Overlapping Consensus or Marketplace of Religions? Rawls and Smith

In this paper, I examine the claim that Rawls’s overlapping consensus is too narrow to allow most mainstream religions’ participation in political discourse. I do so by asking whether religious exclusion is a consequence of belief or action, using conversion as a paradigm case. After concluding that this objection to Rawls is, in fact, defensible, and that the overlapping consensus excludes both religious belief and action, I examine an alternative approach to managing religious pluralism as presented by Adam Smith. I show that Smith’s so-called “marketplace of religions” assumes and encourages religious conversion. I then offer objections to Smith’s approach from Rawls’s point of view, concluding that, while Rawls cannot adequately respond to the Smithian challenge, in the end the two positions are complimentary.     

Rawlsian social-contract theory and the severely disabled

Martha Nussbaum has powerfully argued in Frontiers ofJustice and elsewhere that John Rawls’s sort of social-contract theory cannot usefully be deployed to deal with issues pertaining to justice for the disabled. To counter this claim, this article deploys Rawls’s sort of social-contract theory in order to deal with issues pertaining to justice for the disabled—or, since, as Nussbaum stresses, we all have some degree of disability—for the severely disabled. In this way, rather than questioning one by one Nussbaum’s interpretive claims about Rawls’s view, one can simply see how the Rawlsian framework can work in application to this issue. Following Rawls’s lead, the paper utilizes the idealized “initial choice situation” as an analytic and comparative device for examining alternative principles of justice, developing three different interpretations of the initial choice situation that each correspond to a different set of principles that apply to people of all levels of disability. One of these sets of principles is a simple extension of Rawls’s, one is very close to what Nussbaum herself recommends, and the third is a kind of hybrid. In this way, it is shown not only that Rawls’s social-contract device can usefully be applied to these issues, but also that it is helpful for exploring the deep commitments underlying each of these competing sets of principles. This extension to Rawls’s device clearly departs to some extent from his intentions; but the paper argues that the ideal of reciprocity, which might be thought to pose the biggest obstacle to applying his social-contract device to issues pertaining to the severely disabled (those who are not capable of being cooperative members of society), is not an independently essential commitment of his mature social-contract view, central though it was to Rawls’s thought in the 1950s.     

Rawls and Ricoeur: Converging Notions of Empowerment to Justice

Empowerment is a key word in Catherine Audard’s new book on Rawls and a central characteristic of Rawls’ approach to justice. A very different “hermeneutic” approach to justice is presented by Paul Ricoeur, the French philosopher and theologian who, against the background of his own work, examined Rawls’ views in several publications. This essay compares the two views and defends the proposition that empowerment is the common denominator. The author suggests that Rawls would not have objected to including some of Ricoeur’s ideas in the past-principle stage of his Theory.