2 Discourse ethics, democracy, and international law: toward a globalization of practical reason

American Journal of Economics and Sociology, The, Jan, 2007 by Karl-Otto Apel

This is certainly plausible, especially in the present world situation. (Rawls himself, in his 1999 book, takes the fictive example of an Islamic society called Kazanistan.) But what about the case in which a non-liberal-democratic people is aggressive not against other peoples but only against its own members, say, by suppressing "human rights"?

This case in fact constitutes the crucial problem for Rawls's conception of the law of peoples, and his treatment of it is not quite coherent, either in the first essay or even in the later book version. In order to understand Rawls's difficulties with the problem of balancing the concern of defending "human rights" with the concern of international toleration, I think it is necessary to return once more to his methodological approach.

Since Rawls cannot take recourse to a transcendental approach that would provide a moral foundation for "human rights," and thus for the law of a liberal-democratic state as well as for international law, he is compelled to find another, more restricted means of extending his early "theory of justice." This theory that, according to Rawls, was constructed for "a hypothetically closed and self-sufficient liberal democratic society," had to be extended in such a way "as to cover a society's relations with other societies to yield a reasonable law of peoples." (31)

His answer to this problem is a conception of analogy between the just relationship of "free and equal citizens" in a liberal democracy and the just relationship of free and equal peoples on the level of international law. Thus the subjects of a just relationship are no longer persons as citizens but as "peoples." This step, I think, is deeply problematic, since by its logical structure it does not lead in the direction of a law of "cosmopolitan citizens" (Weltburgerrecht), but rather in the direction of a law of sovereign states, as it was developed in the modern era in tension with the concern for "human rights." But this is precisely what Rawls wants to avoid, especially in his book version, where he distances himself from the whole European tradition of sovereignty and the raison d'etat that was developed since Bodin and the Thirty Years' War. Rawls wants to overcome this tradition and the pertinent doctrine of the jus ad bellum in favor of "human rights." For this reason, he even prefers the term "law of peoples" to the possible alternative term "international law of constitutional states." (By contrast, Habermas in Between Facts and Norms" wants to eliminate the ethno-ethical dimension from Rousseau's conception of "people's sovereignty" in order to keep open the universalistic dimension of democratic legislation against the danger of nationalism. (32))

But Rawls, as far as I can tell, cannot make his tendency for strengthening the case of human rights compatible with the logical structure of his conceptual analogy (i.e., the analogy between the just relationship of "free and equal citizens" in a liberal democracy and the just relationship of "free and equal peoples" on the level of international law). Instead, the internal contradiction between the two conceptions becomes visible in many places. For example, in his earlier essay version of "The Law of Peoples," Rawls expresses the intuition that the "system of law" that is valid in a "non-liberal-democratic" society must "meet the essentials of legitimacy in the eyes of its own people." (33) But this intuition, insofar as it is plausible as a universalistic human right of citizens in all states, obviously does not follow from the conception of analogy. It rather takes recourse, even on the level of the law of peoples, to the more foundational level of the votes of single citizens. Taken seriously, it would be a piece of a "cosmopolitan law of citizens" rather than an element of a law of "free and equal peoples."