Asger Sørensen: “The Law of Peoples in the Age of Empire: The Post-Modern Resurgence of the...

JOURNAL OF THE PHILOSOPHY OF INTERNATIONAL LAW (2015) Volume 6, Issue 1

THE LAW OF PEOPLES IN THE AGE OF EMPIRE: THE POSTMODERN RESURGENCE OF THE IDEOLOGY OF JUST WAR Asger Sørensen* Abstract

The basic claim is that the principles John Rawls presents in The Law of Peoples will make more wars legitimate and, therefore, tend to lead to more wars. First, I provide an analysis of Rawls’ discussion of just war as it is presented in A Theory of Justice with a particular focus on his discussion of individual civil disobedience. Then, the political international law presented in The Law of Peoples is described, in which the normative weight is now placed on a collective unit; and this shifts the discussion significantly, since Rawls accepts the idea of just wars and attacks on civilians. The analysis in Empire by Michael Hardt and Antonio Negri of the changes in sovereignty in the postmodern world is presented as a reasonable proposal for a diagnosis of the times, including the material developments closely connected thereto. On this basis, Rawls’ international law may also be criticised for functioning as ideological support to an all-too-high degree for increased global inequality with respect to economic goods and political power.

INTRODUCTION John Rawls’ book on international law, The Law of Peoples, received a mixed reception. Many commentators were and remain very critical of the work, albeit for different reasons. Some focus on economic justice, a position encapsulated by Thomas Pogge and Allen Buchanan, who both criticise the fact that no attempt was made by Rawls to use his original and ambitious theory of justice normatively at the international level. Others focus on the normative foreign policy principles that 1

1* Associate Professor, Philosophy of Education, School of Education, Aarhus University, Tuborgvej 164, DK-2400 Copenhagen NW, Denmark. Email: [email protected]. ** The author wishes to make the following acknowledgements: Thanks for comments, critique and corrections to the participants at the workshop on just war at the 22nd World Congress of Internationale Vereinigung für Rechts- und Sozialphilosophie (IVR), Granada, Spain, May 2005, organized by Ib Martin Jarvad, at which I presented the first draft of the present argument. Thanks for the same to the participants at the Nordic Summer University (NSU) seminar on Rawls’ political philosophy at the Copenhagen Business School, Denmark, Sept. the same year, organized by Mogens Chrom Jacobsen, at the session on philosophy of law at the 22nd World Congress of Philosophy, Seoul, Korea, July-Aug. 2008, and at the Seminar on Human Rights and Dirty War, arranged by NSU and European Humanities University in Vilnius, Lithuania, March 2015, where I presented various parts of the argument. Thanks also to the anonymous referees of the Journal of the Philosophy of International Law. Thanks finally to Russel Dee for translating an early version of the argument and for the final language revision. The first draft was published as a working paper (Asger Sørensen, The Law of People under the Empire, WP 5/2005 (Copenhagen: Copenhagen Business School, 2005)), later a version was published in Danish (Asger Sørensen, “Folkenes lov i Imperiets tidsalder – John Rawls om retfærdig krig” in M C. Jacobsen, S F Midtgaard & A Sørensen (eds), John Rawls’ politiske filosofi (Malmö: NSU

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Rawls puts forward. Along this spectrum, Rawls is criticised primarily by cosmopolitan internationalists but also by so-called political realists. Among the former, apart from Pogge whom I have dealt with elsewhere, prominent examples 2

are Charles R. Beitz and Leif Wenar. As Alan Thomas and James Gledhill relate, 3

basic realist critiques of the alleged universalism and moralism of Political Liberalism in Rawls’ Law of Peoples can be found in the work of Bernard Williams and Raymond Geuss. 4

Decisive for the discussion of realism and idealism in international law is, I would claim, a deeply controversial aspect of Rawls’ theory of international law – namely, his support for the pre-modern idea of just war. This issue is touched upon several places in an anthology by Rex Martin and David A. Reidy dedicated to The Law of Peoples. However, as they note, an important gap in the discussion of Rawls’ Law of Peoples remains, since precisely this question has not been the subject of a sustained and systematic consideration. It is this question that this article seeks to 5

address, ie, a theme in Rawls’ work that remains largely neglected in academic discussions.

Regardless of this specific focus, however, any assessment of Rawls’ international law requires a clarification of some more general issues. ‘International law’ or ‘the law of nations’ is the traditional term for the normative principles by which jurists and diplomats have sought to regulate international relations. Most important have been the principles for relations between states that were supposed to help prevent wars or, if that failed, to regulate these wars. This framework, for example, encompasses conventions on diplomatic rights, procedures for the resolution of disputes, and rules for the treatment of prisoners of war and other related regulatory frameworks.

International law is a part of our conception of law in general. Therefore, as law, it can be assessed in relation to ideal principles of natural law or in relation to current positive law – that is, actual, generally-accepted legal principles. In the first case, the principles of international law are to be compared to the most fundamental debates in ethics, political philosophy, and legal philosophy. But what perspective is most

Press, 2009) 271-92) and also a draft of the analysis of Rawls (Asger Sørensen, ‘From Below to Above. Rawls on Just War’ in Myung-Hyun Lee (ed) Proceedings of the XXII World Congress of Philosophy (WCP 2008 Proceedings), Vol. 40 (Philosophy of Law) (Philosophy Documentation Center, 2012) 169-75). See eg Thomas, ‘Rawls on International Justice’ (2001) 51(203) The Philosophical Quarterly 246-53;

Thomas Pogge, ‘Do Rawls’s Two Theories of Justice Fit Together? ‘in Rex Martin and David A Reidy (eds), Rawls’s Law of Peoples. A Realistic Utopia? (Oxford: Blackwell, 2006) 206-25; Allan Buchanan, ‘Rawls's Law of Peoples: Rules for a Vanished Westphalian World’ (2000) 110(4) Ethics 697-721. 2 See Asger Sørensen, ‘Cosmopolitanism – Not a ‘Major Ideology’, But Still an Ideology’ (forthcoming) 0(0) Philosophy and Social Criticism, 1–25 (online prepublication). 3 See eg Charles R Beitz, ‘Rawlss Law of Peoples’ (2000) 110(4) Ethics 669-696; Leif Wenar, ‘Why Rawls is not a Cosmopolitan Egalitarian’ in Martin and Reidy (n 1) 95-113. 4 See James Gledhill, ‘Rawls and Realism’ (2012) 3 Social Theory and Practice, 55–82; Alan Thomas, ‘Rawls and Political Realism: Realistic Utopianism or Judgement in Bad Faith?’ (forthcoming) 0(0) European Journal of Political Theory 1–21 (online prepublication). 5 See Rex Martin and David A Reidy, ‘Introduction’ in Martin and Reidy (n 1) 3-18, 12.

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appropriate to a discussion of international law – the ethical or the political? Or is there no difference? In the latter case, the claim is that actual legal principles must play the decisive role; and, therefore, it becomes relevant that international law, like other laws and institutions in general, develops historically. Any given example of a valid international law, therefore, must be able to be assessed as more or less appropriate not simply in relation to normative principles but also in relation to its time. However, this raises additional questions. For what does it even mean that international law is ‘appropriate’ in this context? And what characteristic of the relevant ‘time’ would be appropriate to choose for this purpose?

If we begin in reverse, one may advance as a criterion from this last question that we should use a diagnosis of our times that is global in its aims and scope, is generally recognised, and includes substantial reflections on the historical development of law and, preferably, international law. In this regard, a modern classic comes to mind – namely, Empire by Michael Hardt and Antonio Negri from 2000. The analysis provided by Hardt and Negri has been much debated. It has been 6

translated into a variety of languages and is still today – I would claim – one of the most comprehensive diagnoses of our contemporary world. On this basis, I have decided to narrow down the questions stated above to a single question on the extent to which Rawls’ international law is appropriate, if the world today is somewhat like the world described by Hardt and Negri.

The question that persists is the clarification of what is meant by ‘appropriate’ in this context. It is clear that an appropriate international law must be relevant in the sense that its principles must address the problems that are actually found. That is, there is a pragmatic or empirical aspect to being appropriate. But that is not all, because one can relate differently in a normative sense to the same empirical fact or problem; and, therefore, it is important to ask whether international law is only appropriate if it accepts the current world order or whether it may also be appropriate if it criticises that order? And in relation to this last question, I firmly stand in the affirmative.

It is appropriate for international law to criticise the current state of things – indeed, I would be very suspicious of any system of international law that refrained from being critical in this sense. International law must normatively determine general principles, and it would be strange if this did not mean a critique of actual circumstances or, at least, an evaluation. Actual circumstances, simply as particulars, must at the very least be considered as incomplete realisations of ideal possibilities. The problem with Rawls’ theory of international law, however, is precisely this – that is, it apparently does not provide sufficiently good reasons for criticising current circumstances, and this becomes especially clear when one focuses on the resuscitated debate about just war. Whereas, in A Theory of Justice, Rawls is especially concerned with the ethical critique of war as such, he is, by contrast, concerned in The Law of Peoples with how one can justify war politically. It may be that he himself does not believe this shift in perspective is crucial, or it may be that he

6 See eg Paul A Passavant, ‘Introduction: Postmodern Republicanism’ in Paul A Passavant and Jodi Dean (eds), Empire’s New Clothes (New York and London: Routledge, 2004), 1-20, 1-5.

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simply does not notice it. Whichever it is, I believe that this in itself provides a good reason to be sceptical of his mature theory of international law.

In A Theory of Justice, Rawls provides some indications of how his general principles for Justice as Fairness, as the program is often called, might find a use in international law, and The Law of Peoples is presented as a development of these tendencies. However, The Law of Peoples is also presented as a part of the 7

programme for Political Liberalism – namely, as the principles that should guide foreign policy for a liberal people (LP 82). Rawls apparently does not see that this might be a source of tension. However, Rawls himself stressed that one of the decisive shifts that has happened between A Theory of Justice and Political Liberalism is that, in the former, he did not distinguish between political and comprehensive doctrines, and this meant that he did not clearly distinguish between ethics and politics. 8

If The Law of Peoples is identified in some form as a component of Political Liberalism in this limited sense while his early discussion of international law finds itself within a more comprehensive liberal perspective, then one must expect the two discussions to be somewhat different, and so they are. My position, which I elaborate as the discussion unfolds, is to argue that these two points of view are actually so different that they challenge each other and that, therefore, it is doubtful whether Rawls can maintain both at the same time – that is, whether The Law of Peoples can be both faithful to the comprehensive doctrine in A Theory of Justice and a part of a political liberalism in the more limited sense. In this regard, I will claim that a more widespread dissemination of Rawls’ principles of international law will not contribute positively to a more peaceful world. To the contrary, there is good reason to believe that it will lead to more war. My analysis in this regard will be based on the dimensions I outline below.

First, I present an analysis of Rawls’ discussion of just war as it is presented in A Theory of Justice with a particular focus on a discussion of individual civil disobedience. Second, the political international law presented in The Law of Peoples in which the normative weight is now placed on a collective unit represents a significant shift in the discussion, since Rawls now accepts the idea of just wars and attacks on civilians. Third, the analysis by Hardt and Negri of changes in sovereignty in the postmodern world is presented as a reasonable proposal for a diagnosis of the times, including material developments closely connected thereto. On this basis, Rawls’ international law can be criticised for functioning as ideological support to an all-too-high degree for increased global inequality with respect to economic goods and political power. Essentially, Rawlsian principles will make more wars legitimate and, therefore, will tend to lead to more wars.

1. Civil Disobedience and Just War

7 See John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999) 4 [hereinafter referred to in the text as LP]. 8 See John Rawls, Political Liberalism (paperback ed., New York: Columbia University Press, 1996) xvii [hereinafter referred to in the text as PL].

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In A Theory of Justice, the question of just war is discussed from a classic perspective for philosophical ethics. Here, the question turns on the extent to which an individual can justify his or her actions when they conflict with ordinary, recognised political requirements of loyalty by society’s state authorities – that is, the legitimacy of civil disobedience. This problem becomes most pressing in situations of conflict in which one may inquire into whether it is permissible to refuse to participate in war at all and whether it is permissible to refuse to carry out specific actions in a war – that is, as a soldier. This problem was particularly pressing for Rawls as an American around 1970. The US was at war in Vietnam, and protests against this war were growing all over the world, even as conscientious objector movements were burgeoning not only in the US but throughout the rest of the Western world.

In traditional international law, these two problematic areas fall under two different headings in the discussion of just war – namely the doctrines of jus ad bellum and jus in bello, respectively, which encompass justice to engage in war and 9

justice during war – when you have the right to go to war and what you have the right to do in war. Under the first heading, for example, one finds the principle that warfare can only be justified when it is for defence, not attack. Therefore, despite a generally-recognised duty to submit to military conscription, one may as a citizen refuse to participate in an expansionist and aggressive war. Under the second heading, one finds principles for what is right and reasonable in the conduct of war itself – for example, principles for the protection of non-belligerent civilians or, as mentioned, the reasonable treatment of prisoners of war and the wounded.

If we take at a look at the second heading, then Rawls refers here simply to recognised principles of traditional international law that make it legitimate for a soldier to act in accordance with his ‘natural duty’ – that is, his conscience – and not his ‘duty to obey’. One may refuse to obey a military order on grounds of conscience, and this Rawls backs up normatively with his Theory of Justice. However, he does not elaborate on whether there are instances in which one not only can but also should refuse to obey an order.

When it comes to refusing military service and, thus, participation in war at all, Rawls is more nuanced. On the one hand, he believes that military service may be compulsory when it comes to defending freedom, regardless of where it is threatened (TJ 334 (§ 58)) – that is, not only in the US but, by implication, also in Korea, Vietnam or Iraq. In this way, Rawls apparently sides with the official Cold War rhetoric of the time, which announced the ideals of freedom together with a strategy to fight Communism wherever it might appear, claiming thus to prevent a so-called ‘domino effect’. On the other hand, however, Rawls stresses that, if the goals of the 10

9 See John Rawls, A Theory of Justice (revised ed., Cambridge, Mass.: Harvard University Press, 1999b) 331 (§ 58) [hereinafter referred to in the text as TJ]. 10 See eg Noam Chomsky Amerikas krig mod Asien [America’s War against Asia] (Copenhagen: Gyldendal, 1971) 29-30; Preben Dollerup and Ebbe Reich Vietnam krigen i perspektiv [The Vietnam War in Perspective] (Copenhagen: Rhodos, 1966) 197-202.

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war are economic advantage or national power that limits the freedom of other people, a citizen has the right to refuse military service. It is also emphasized here that there may be cases in which it is ‘a duty and not just a right to refuse’, that is, if the goals of a conflict are dubious. Rawls, thus, does not advocate general pacifism but ‘a discriminating, conscientious refusal to engage in war in certain circumstances’. Rawls considers universal pacifism as something beyond our ordinary earthly realm. The most important thing for Rawls in this context is that, given ‘the often predatory aims of state power’ (TJ 335 (§ 58)), a conscientious practise of civil disobedience with respect to participating in military service may help make unjust wars impossible.

In both of the two dimensions identified above, Rawls refers to ordinary international law. He apparently thinks that the principles of international law as well as a country’s foreign policy can somehow be justified with reference to Justice as Fairness, which, as mentioned, did not originally distinguish between ethics and politics. The idea must have been that one can consider states to be actors in the original position, where they would rationally choose the right principles of international law if they were behind the veil of ignorance in its more specific meaning. What is decisive in the argument above, however, is clearly not the state perspective; the primary parties in Rawls’ argument are the soldier and the citizen. It is their rational self-interest expressed via the principles of Justice as Fairness that makes the justification acceptable and legitimate, not the state. Sovereignty is, thus, clearly localised in a people considered as a gathering of rational and reasonable individuals, which means that political legitimacy comes from below and, therefore, that a state, given its ‘often predatory aims’, has neither sovereignty nor legitimacy in itself.

2. The Law of a Well-Ordered People

This classic liberal suspicion of state power is much less pronounced in the political doctrine described in Political Liberalism and The Law of Peoples. For the late Rawls, liberalism as a political doctrine means, in particular, tolerance of other reasonable comprehensive doctrines and the development of an overlapping consensus about such doctrines (PL 13-15, 60-61). Rawls is still suspicious of states 11

but considers them to be necessary to maintain communities that share a comprehensive doctrine (PL 37). Gone, however, is any talk of a duty in certain instances to refuse to obey state authorities of which so much was made in A Theory of Justice. Apparently, Rawls has taken on the collective perspective of a communitarian; and, as a consequence, public matters are no longer considered from below as a threat but from above as a possibility. From the clear individualistic and anti-authoritarian normative perspective in the original comprehensive liberal

11 See also Mogens Chrom Jacobsen and Asger Sørensen, ’Indledning’ [Introduction] and ’Efterskrift’ [Postscript] in John Rawls, En teori om retfærdighed [A Theory of Justice] (Frederiksberg: Det lille forlag, 2005) 9-15 and 551-68, 565-67.

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doctrine, a political doctrine is developed from a perspective in which normativity is founded collectively in the alleged interest of the community. As I have argued elsewhere, liberalism is always at odds with politics. Rawls’ move is, therefore, a 12

decisive move, even though he still calls his position liberalism. The critical ethical and social perspective has thus been changed into the classical affirmative perspective of political philosophy in which a government under the cover of a ‘we’ defines what is best for ‘us’, ie, where the actual rulers determine which ideas should be the ruling ideas for the ruled.

It is, however, not entirely clear which collective unit Rawls considers to be the normative starting point and ideal for this sort of Political Liberalism. As mentioned, the state does not have independent value for Rawls – rather, the contrary, but still it appears to be necessary for the maintenance of communities. In The Law of Peoples, the ‘people’ is clearly the fundamental political entity, but there is virtually no mention of a ‘people’ in the earlier books. In A Theory of Justice, there is no clear distinction between state and nation, but this distinction is made utterly explicit in The Law of Peoples (LP 25), and it is apparently from the now acceptable idea of the nation that Rawls develops the concept of a people that is united as a cultural unit by common sympathies. As Seyla Benhabib remarks, ‘Rawls's vision of peoplehood slides over into nationalism,’ although it does not accept the nation-state. For 13

Rawls, a people in this sense clearly has a government, and governments have power. This power is to be limited by the power of the people, which must be exercised in accordance with the principles of The Law of Peoples (LP 26). These principles are to guide international relations, and they must do so regardless of whether a people are united in a state or not. In sum, the basic political entity that must be taken into account both in national and international law is the people and their government, not the state.

Buchanan thinks that Rawls ‘courts confusion’ by using the ‘dangerously ambiguous’ term ‘people’ instead of ‘states’ and, for the sake of his own argument, simply interprets ‘peoples’ as meaning ‘states’. Philip Pettit, however, has observed 14

that Rawls apparently balks at speaking of a ‘people’ in relation to a non-well-ordered society; instead, he talks about ‘countries’, ‘states’ or just ‘society’. Undoubtedly, the reason is that, for Rawls, a people is not just a numerical gathering of individuals being governed but a group or a community that has collective moral motives and obligations even as they can be proud of their history and achievements (LP 17, 44, 62). Therefore, for Rawls, there are only two types of peoples – namely, ‘liberal 15

people’, who have a ‘democratic constitution’ within a ‘liberal society’, and ‘decent hierarchical people’, who have a ‘decent consultation hierarchy’ with the people in their ‘decent hierarchical society’. Both types of people belong to the category of

12 See Asger Sørensen, ’Approaching Political Philosophy through the Critique of Liberalism’ (2014) 6(3) Acta politologica. 264-78. 13 Seyla Benhabib, ‘The Law of Peoples, Distributive Justice, and Migrations’ (2004) 72(5) Fordham Law Review 1761-87, 1767. 14 Buchanan (n 1) 699-700. 15 See Philip Pettit, ‘Rawls’s People’ in Martin and Reidy (n 1) 38-55, 42.

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‘well-ordered peoples’, since they respect the basic human rights that are necessary for any system of social cooperation. Well-ordered’ must, thus, mean ‘well-governed’, and the rights just mentioned are, therefore, not the rights implied by liberal, democratic freedom. Still, in their respect for basic rights, both types of peoples are distinguished from ‘outlaw states’, which are, for that reason, intolerable to a well-ordered people.

The fundamental normative entity for the older Rawls is the people. It is from the people that sovereignty and legitimacy are can be drawn. Like country, state, society, and community, however, a people are still a collective unit. The foundation is no longer a gathering of liberal individuals with natural rights and duties qua human beings, who in certain instances may place themselves in opposition to the collective and its interpretation of what are the legitimate requirements. As Pogge puts it, liberalism loses the fundamental idea that society’s institutions should be assessed in relation to individual interests. Even though Rawls distinguishes 16

conceptually between state and people, both designate holistic collective units; and, since he makes this sort of collective unit into the normative fundament for the ideal society, he apparently makes himself blind to the possible conflicts between part and whole, individual and people. Specifically in relation to The Law of Peoples, Buchanan notes that Rawls has no conceptual tools for handling intrastate conflicts between groups with different conceptions of good and justice and that the interests of individual and minorities are utterly disregarded. As Benhabib adds, we ‘have to 17

assume that there may be ‘common sympathies’ and ‘communities of shared moral sense’ that may not overlap with the boundaries of peoplehood.’ 18

The crucial point is that there has been an important change in the basis of normative justification in Rawls’ liberalism. His original starting point was an individual who tries to enter into the best possible contract with other individuals in order to limit the possibilities for the misuse of state power. The final result, however, is a number of principles for political liberalism that the ideal government is expected to be able to choose with respect to fashioning the best possible society for citizens. Gone is the classic liberal suspicion of power as such expressed in A Theory of Justice, and Rawls’ mature idea of liberalism as a political doctrine is, thus, very different from liberalism as a comprehensive doctrine; in fact, the latter doctrine is, I would claim, close to what is criticised as libertarianism in Political Liberalism (PL lviii). But these shifts in Rawls’ thinking are only implicit, when he relates The Law of Peoples to his earlier works; therefore, they often go unnoticed. As mentioned before, he apparently believes that his principles of international law can without contradiction be part of both the comprehensive and the merely political doctrine, but this, I will argue, is not possible.

3. The People’s Just War

16 See Pogge, ‘Rawls on International Justice’ (n 1) 247. 17 See Buchanan (n 1) 698, 721. 18 Benhabib (n 13) 1770.

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The basic ‘law of peoples’, according to Rawls, is an ‘ideal theory’; but, since

circumstances in the real world are far from ideal, a well-ordered people need a ‘non-ideal theory’ to guide them in the treatment of a non-well-ordered people (LP 26). This non-ideal theory must consider what policies and actions are politically possible and can be justified morally, and it is in this connection that Rawls discusses the issue of just war. This quiet shift from a comprehensive to a political doctrine is supplemented with a slide from an ‘ideal’ doctrine to a ‘realistic’ one; and, together, these two movements lay the ground for Rawls’ final considerations with respect to the possibility of a just war.

Once again, as a starting point, Rawls is relatively traditional in his fundamental convictions. It is often said that democracies do not go to war with each other, and this is generalized as a normative point in Rawls as: well-ordered people do not go to war with each other. In addition, he maintains that democracies are not expansionist but only defend their security interests (LP 94). Moreover, in his general recommendations for international law, Rawls pretty much follows well-known principles – namely, generally accepted international law; and, as Pettit emphasises, the point is probably that Rawls conceives of international law as an elaboration of the normative implications in ideas that are already widespread in international culture. At least, this would be quite an uncontroversial way to pursue practical 19

philosophy. When it comes to jus ad bellum, however, there is at least one very controversial

point – namely, the justification of war itself. Rawls finds military interventions permissible in two types of cases. First and foremost, interventions are allowed ‘only against non-well-ordered states whose expansionist aims threaten the security and free institutions of well-ordered regimes and bring about the war’ (LP 94), and this may – in the worst case – justify preventative attacks. Next, interventions are not only acceptable but something that should take place when gross violations of human rights occur and the states in question do not react to other sanctions. In this case, intervention is not only a right for a well-ordered people but may be an outright duty (LP 94).

Rawls is careful to distinguish between outlaw states and the people, who must suffer from oppression by lawless power and who, therefore, are not, strictly speaking, a people. Those to whom The Law of Peoples is directed as a set of normative principles, however, are a people. The addressee and possible agent is not the group of human beings being oppressed themselves but the well-ordered people who are witnesses to the oppression of such human beings in a non-well-ordered society. Just as Rawls does not provide backing for civil disobedience in Political Liberalism, nothing is mentioned in The Law of Peoples about the right of these human beings to overturn their own government under certain circumstances as it is specified, for example, in the American Declaration of Independence. Instead, it is made a duty for a well-ordered people to intervene in non-well-ordered outlaw states when these states violate basic human rights, as they are understood by Rawls.

19 See Pettit (n 15) 53.

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As Perry Anderson puts it, Rawls’ principles of just war almost seem to give a

‘blank check’ to military intervention, and one instinctively comes to think of how 20

this can legitimate US foreign policy. As Anderson emphasises, the idea that democracies do not wage war against each other seems somewhat naive when one acknowledges the innumerable military encroachments of which the US has been guilty throughout history. The fact is, however, that Rawls only gives well-ordered 21

peoples this right of intervention, and it may very well be that Rawls does not consider the US a well-ordered society. At any rate, we know from his lectures published under the title Justice as Fairness that he does not consider the US to be a real democracy, but, to the contrary, a corrupt society in which political influence is 22

something that can be bought (JF 37-38), and Anderson’s critique and those like it 23

may, thus, be due to a misunderstanding. Still, this does not relieve Rawls of any responsibility in this connection. First of

all, such layers of benevolent interpretation do not reveal themselves simply from a reading of his primary works. Only if one brings his published lecture notes, ie, Justice as Fairness, into the interpretation can one be led to such encouraging conclusions. Second, in his choice of words and formulations, he was indeed very close to the official politics and rhetoric of the White House at that time: when Bush spoke of ‘rogue states’, Rawls employed ‘outlaw states’; as Bush argued for intervening in Iraq to create a democracy, Rawls could supply legitimacy by arguing for a duty to intervene on behalf of human rights; and whereas traditional just war theory, as Anne Norton emphasises, would preclude unprovoked attacks, Rawls’ 24

just war theory apparently also admitted the legitimacy of those pre-emptive strikes that Bush approved.

All this easily gives rise to uncertainty about Rawls’ actual political stand. Rawls’ point may be (cf. Pettit’s emphasis above) that there is always in the actually existing legal and political rhetoric an unrealized potential for reason that it is philosophy’s task to highlight. If this is correct, one can say that Rawls’ mode of expressing himself in his major works is consistent with his explicit understanding of the task of philosophy. As Anderson mentions, Rawls further believes that philosophy must contribute to reconciliation with society, where one learns to let reason calm one’s anger and frustration. Nevertheless, one may ask with Anderson: Must such anger 25

always be calmed? Couldn’t it be justified? When it comes to how one should wage war, ie, jus in bello, Rawls is also

controversial. In relation to ordinary and generally recognized international law, he believes that there may actually be cases in which mass destruction of civilian targets,

20 Perry Anderson, ‘Arms and Rights. Rawls, Habermas and Bobbio in an Age of War’ (2005) 31 (Jan.-Feb.) New Left Review 5-40, 23. 21 Ibid. 31. 22 See John Rawls, Justice as Fairness (Cambridge, Mass.: Harvard University Press, 2001) 101 [hereinafter referred to in the text as JF]; Anderson, ibid 37-38. 23 Anderson (n 20) 39. 24 Anne Norton, Leo Strauss and the Politics of American Empire (New Haven & London: Yale University Press, 2004) 143-44. 25 See Anderson (n 20) 38-39.

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including the killing of non-belligerents, can be justified. Rawls believes that, in wars of well-ordered peoples against non-well-ordered states, cases of ‘supreme emergency exemption’ may arise, and he has confidence that a ‘statesman’ will be able to decide on these exceptions (LP 98-100). He admits that it will be difficult to decide when such a situation actually exists and that there are many examples of a lack of the art of statecraft. For example, he stresses that there was never such a situation for the US with respect to Japan during World War II. Therefore, the American bombing of Japanese cities, including the dropping of two atomic bombs, he does not consider justified.

Referring again to Anderson, the overall picture of Rawls’ international law is that international relations are and should be asymmetrical, ie, that states should no longer be parties with equal rights as is the case, for example, in the United Nations (UN). Highest are liberal, democratic peoples, then decent hierarchical peoples (the model is clearly Muslim states), and they are both well-ordered peoples; a 26

non-well-ordered society has no people and is apparently, therefore, completely outside the law. As Pogge emphasizes, we are very far from the original position in A Theory of Justice. There, it was a matter of normatively and operationally 27

neutralizing actual inequality; here, it is almost the opposite that is being argued for. One of the parties is assumed to know perfectly well that he or she represents a well-ordered people, who for that sole reason have all rights; and, on this normative foundation, any existing recognition of equality – institutionalised, for example, in the UN and affiliated organizations such as the Food and Agricultural Organisation (FAO), World Health Organisation (WHO), United Nations Economic, Social and Cultural Organisation (UNESCO) and United Nations Children's Fund (UNICEF) – may be rejected unilaterally as unfounded.

By definition, a people are well-ordered; and, therefore, human beings in a non-well-ordered society are not a people. For the same reason, it is only the former who have a right and, sometimes, a duty to teach the latter a lesson of what is right and wrong. In extreme cases, waging an unprovoked preventative war and conducting massacres of civilians can be legitimate, albeit only for well-ordered peoples against non-well-ordered states. As mentioned, Rawls appears to be in line with the rhetoric of the White House in the days of the younger Bush – namely, by stamping certain states as pariah and outlaw. Indeed, Anderson even believes that 28

Rawls can be read to surpass the White House. Therefore, there is reason to suspect 29

Rawls’ international law of being appropriate in an inappropriate way. This is the basis of my assertion in the introduction of this article that Rawls’ principles fit all too well with the inequality in the hegemonic world order in which power is decisive and not law. The point is that The Law of Peoples may legitimise a political order in which small (in principle) sovereign states are actually powerless against the

26 See ibid. 23. 27 See Pogge, ‘Rawls on International Justice’ (n 1) 247-48. 28 See eg John Yoo, ‘International Law and the War in Iraq’ (2003) 97 (3, July) The American Journal of International Law 563-76, 565-67; 575-76. 29 See Anderson (n 20) 23.

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combination of market logic, transnational companies, and the interests of political superpowers – ie, the global order that is also known by the name of Empire.

4. From International Law to Holy War

For Hardt and Negri, the resurrection of the discussion on just war, which we have just seen exemplified in Rawls’ Law of Peoples, is connected with current ideological changes in the concept of sovereignty that, in turn, are connected to material changes in the way things are produced and distributed. Taking the conception of just war seriously is simply a part of the political ideology under the Empire. The Empire is the designation for the political world order that arises in a world dominated by a postmodern, globalised market economy. The Empire, thus, threatens ideologically to undermine one of the 20th century’s greatest civilisational achievements – namely, the consensus in international law to condemn military aggression regardless of the reason. This prohibition against aggression, combined with the acceptance of the idea of national sovereignty, limited the idea of just war merely to defence of oneself or one’s allies against attack. In short: For one nation to attack another is simply wrong and, if this way of thinking is accepted by all parties, war cannot arise.

However, as Rawls, among others, makes clear, respect for the sovereignty of other nations means that one can do nothing for those individual human beings who are so unlucky as to be subjected to the regime of a non-well-ordered state. Modern international law, as it is determined by the UN Charter, recognises the sovereignty and inviolability of states (Article 2). At the same time, the very purpose of the UN is to maintain peace, and this is to be done by encouraging respect of human rights (Article 1). One can say that, whereas the UN has had a certain success in prohibiting and preventing wars with reference to the first principle, it has not been fortunate to the same degree in limiting oppression and exploitation within a state’s internationally-recognised borders. Or, at least, so it can be argued, and it is precisely this latter issue that Rawls tries to put right. The problem is that this probably leads to unwanted consequences for the former. The point is that the active endeavour of defending freedom and human rights all over the world might very well lead to the violation of national sovereignty, and such violations may easily lead to wars that break down the social order that is necessary to secure human rights legally and politically. Iraq, Libya and Syria provide the most recent examples. The modern idea of just war, thus, apparently has some destructive consequences, if pursued in the way we have seen so far.

Here, it may be helpful to consider how we actually got rid of the idea of just war in the first place. Martti Koskenniemi has analysed Carl Schmitt’s account of how European international law was established in the 18th and 19th centuries, which helped civilise the conduct of war. In the international law of those days, a system was established based on the recognition of sovereign states, and the idea of just or

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holy war was transformed into a demand for formal legality in the conduct of war. 30

The idea was a system that secured internal order through absolute state sovereignty in which absolute internal sovereignty implied absolute external independence. Sovereignty was in this system the highest, legally independent, non-derived power. 31

Admiration for this system provides Schmitt with a penetrating vision into the fact that, in the international order following the Second World War, there is both a moralisation and universalisation of international law, since the UN, as mentioned, not only recognises states but also universal human rights. Koskenniemi believes that US foreign policy may be seen as far more developed in this direction than Europe’s. As a consequence, there is a conflict between the US ‘moral Empire’, whose classical liberalism merges legal universalism and free market ideology, and traditional European international law, which is based on the mutual recognition of sovereign states. The US is, thus, ahead of Europe politically; and, as I will emphasize below, 32

Hardt and Negri also believe that the model of the emerging world order, the Empire, must be found in the fundamental constitutional principles of US policy.

International law is distinguished from all other law by not being able to refer to a specific superior authority that enforces the law. As Hardt and Negri affirm, the legitimacy of international law rests exclusively on general recognition and consensus, and it has never been and can never be stronger than this consensus, 33

which is always threatened by Realpolitik, economic interests, and ideological forces. So, international law has not been able and will never be able to eradicate war as such, just as law in general does not eradicate crime. However, with reference to international law, institutions have been created, such as the International Court of Justice and the International Criminal Court, that have the mandate to adjudicate and condemn violations of international law, which happened, for example, after the US mining of Nicaraguan harbours. Under the institutional protection of the UN, international law has, thus, painstakingly developed institutions to prevent wars as well as war crimes. What worries Hardt and Negri is that the recent resurgence of the idea of a just war involves a ‘banalization’ of both war in itself and of the enemy. If war may again be considered simply as useful for realising absolute ethical ideals such as peace and order in the world, then war as such will become an ethically acceptable instrument (E 12-13). The result is that we are regressing back to the traditional conception of holy war, which in modern times was largely marginalised in political and legal discourse by states—the primary actors in international law

Holy war is war that is legitimate with reference to an ideal world order. With global market capitalism, it is for the first time possible to speak of a possible universal political order in an empirical sense. This dawning order is what Hardt and Negri call the Empire, and it is with normative reference to this order that one may

30 See Martti Koskenniemi, ‘International Law as Political Theology: How to Read Nomos der Erde?’ (2004) 11(4) Constellations 492-511, 496-98. 31 See ibid. 499. 32 See ibid. 505-06. 33 See Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000) 18 [hereinafter referred to in the text as E].

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once again speak of just war – namely, as a defence of universal human rights. The Empire is characterised by the fact that the fundamental normative unit is no longer the state but the people. This is what we see in Rawls’ international law, which recognises individuals and peoples but not states. Hardt and Negri show that this ideological development has been underway for a long time. One of its champions was Hans Kelsen, who argued as early as around the First World War that the nation-state was a hindrance to the realisation of the idea of justice. Kelsen supported the idea of a world state and, later, the formation of the UN. According to Hardt and Negri, one may to a large extent consider the UN’s policies and actions as governed by the conception of this ‘fantastic utopia’ (E 6). In the UN, one can see the origin of the Empire as a legal order; on this basis, Hardt and Negri analyse the constitutional ideas of law and legitimacy, which they believe arise in the development of the Empire as a new global legal order.

5. Empire and Imperialism

Empire is a global political-legal order; and this means, in part, that, by definition, it aims at order – that is, securing peace and stability – and, in part, that, as a global order, it cannot recognise any other sovereign, legitimate order. It is, thus, a comprehensive order; and, in this sense, it is totalitarian. In this sort of order, wars are precluded by definition, since wars are fought between mutually recognised sovereign entities: instead, there can be unrest or civil wars within Empire; interventions may take place, police actions may be executed (E 189). All such events are considered from Empire’s perspective to be exceptions, and such events are described as necessary interventions that only take place in extraordinary situations. What is normal and what is an exception, however, depends on the power to define the normal and the deviant, on the definition of the rights of the police, and on the possibility of using a sufficiently large police power. Together, the defining power and the material power constitute the imperial model for legitimate authority (E 17). In this regard, Hardt and Negri emphasise that Empire is not only about the emergence of a new empire – now just with the US as the absolute global superpower. It is about a redefinition of the concept of sovereignty, which is closely connected to current material developments – that is, the development of a global market economy. This development not only affects relationships between nation-states but also the internal development of law in individual nation-states. In this process of development, classical imperialism is only one step on the way toward the realisation of the Empire’s global sovereignty.

At the material level, Hardt and Negri argue that there is an intrinsic connection between capitalism and expansion, which means that capitalism inevitably leads to imperialism (E 221). Following Marx, they claim that surplus value, which is extracted from exploitative production, must be realised through consumption; but, when productivity increases, the purchasing power of the local working class is reduced, and this makes necessary an expansion of the market (E 224). The process of realisation shows that capitalism needs something outside itself but also that this

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outside is internalised through the process of capitalisation – that is, through the constant opening of renewed primitive accumulation in non-capitalist environments, in new territories, new social forms, cultures, productive processes, etc. This accumulation brings capitalism’s outside inside, which makes further expansion necessary. These two processes – the realisation of value and the capitalisation of what is not yet valorised –undermine each other (E 227). This is precisely why Rosa Luxemburg, Hilferding, Lenin and other Marxist thinkers believed that imperialism had to be the final stage of capitalism.

Hardt and Negri direct our attention to Lenin’s critique of the imperialist mode of exploitation, which tends toward the creation of monopolies and, thus, undermines competition and prevents the development of capitalism through a complete realisation of the world market. According to Lenin, in order to be able to grow further and, thus, survive, capitalism had to overcome the imperialist stage and break down the barriers between capitalism’s inside and outside (E 234). It is precisely this that, according to Hardt and Negri, occurs with capitalism at this stage when the Empire arises and nation-states begin to decay (E 236). The premise is based on Lenin’s position that the political significance of imperialism is the export of class struggle and civil war in order to preserve order and sovereignty at home (E 232). As capitalism internalises what is outside, class struggle can no longer be exported, and a modern New Deal capitalism with its high production and massive consumption develops instead. This order, with reference to Foucault, is often called a ‘disciplinary society’, which is, in reality, a factory-society (E 243).

As Hardt and Negri emphasize, modernisation is primarily industrialisation (E 280). Nevertheless, modern society creates far more freedom for workers than traditional society and, thus, lays the foundation for a new desire for a more fundamental liberation (E 252). However, the disciplinary society can neither satisfy this desire for liberation nor control the desire itself (E 256), and social struggles for liberation lead to increased costs of reproduction (E 273). This said, a change also happens in the nature of work itself. The model of work is no longer material production but immaterial information processing and affective or caring labour (E 293). In this situation, capitalism simply adapts to these new forms of labour, reproduction and consumption. Capitalism no longer looks at what is outside but exploits its own domain; its expansion is intensive rather than extensive (E 272), and the subsuming of labour under capital is real rather than simply formal (E 255). Thus transformed, capitalism today appears to be as healthy as ever, since it once again has its robust accumulation (E 270).

Consequently, for Hardt and Negri, it is important to underline that Empire is not the imperialist order in a world dominated by the US military. It is the political and legal order for capitalism beyond the limitations of imperialism, but one can see this order’s realisation of imperial sovereignty exemplified in US constitutional history (E 168). In the US Constitution, freedom is made sovereign, and sovereignty is defined as radically democratic with an open and constant process of expansion. US sovereignty is localised spatially but is always in the process of overstepping its boundaries, since it liberates the desire for free activity beyond any restriction.

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Sovereignty in this sense does not presuppose scarcity, as the traditional European form of sovereignty does (E 169). This American form of sovereignty anticipates imperial sovereignty in which space is always open (E 167) and which, in reality, does not presuppose any spatial location at all (E 190).

The power in the new global order, as argued by Hardt and Negri, does not have a particular centre of power, only a ‘control centre’ that coordinates interventions. Imperial sovereignty cannot be defined with the help of a boundary between an outer and an inner. Equally, it is not defined by a people in a traditional sense; such a people are spatially localised (E 194). In contrast, the historical subject of Empire, the so-called ‘multitude’ is everywhere, both inside and outside. War is nothing special that needs to be declared in Empire’s world order but something banal that is defined as an intervention and is considered as a police action within Empire. Interventions against terrorists and to protect human rights can happen anywhere; and, in the US, the separation between the CIA and the FBI – that is, between the externally-directed secret service and the internally-directed federal police – becomes ever less clear (E 189).

6. The Law Of Peoples and Empire Promoting this idea of Empire as being only governed by ‘control centres’, Hardt and Negri have been criticized for not recognizing the constitutive importance of certain nation states – in particular, the US – for the international and transnational realm, thereby naturalising the idea of the world market, rendering it more rather than less powerful and, thus, downplaying the constitutive importance of national legislation. 34

This, of course, points to other political possibilities for resisting the emergence of an order like that of Empire. Still, I find that Empire is the best overall comprehensive diagnosis of the contemporary economic, political and legal order in the world and the societal development that has brought us here. Thus, the question remains whether Rawls’ international law is appropriate in relation to a world so described. And one must say that, yes, it actually is in many ways.

Jean-Joseph Goux has argued that postmodern capitalism can be described as an economy of abundance in which desire is indeterminate and shaped by the possibilities for satisfaction. In the same vein, Hardt and Negri note that desire may 35

be developed and change objects; and, of course, this has significance for what can be considered as worthy of desire in an ideal sense. What is important, however, is the very plasticity of desire, which they consider as virtually without limits. It is on this plasticity that they base their utopian hopes. Desire can, thus, be developed creatively, so life can be enjoyed and reproduced in one and the same movement

34 See eg Ruth Buchanan and Sundhya Pahuja, ‘Legal Imperialism: Empire’s Invisible Hand?’ in Passavant and Dean (n 6) 73-93, 74-77; Mark Laffey and Jutta Weldes, ‘Representing the International’ in Passavant and Dean (n 6) 121-42, 133-36. 35 See Jean-Joseph Goux, ‘General Economics and Postmodern Capitalism’ (1990) 78 Yale French Studies 206-24, 210-12; see also Asger Sørensen, ‘On a Universal Scale. Economy in Bataille’s General Economy’ (2012) 38(2) Philosophy of Social Criticism, 169-97, 188-89.

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without contradictions (E 349). Desire is always directed towards goods; but, if desire is plastic in this very strong sense, then it cannot support the idea of one universally applicable and valid good – and then one cannot, within Empire, distinguish clearly between ‘primary social goods’ and other goods, ie, the distinction that is basic to Justice as Fairness.

This means that the older Rawls cannot maintain the distinction between political and comprehensive doctrines in which the latter must be precluded from political discussions. Rawls’ ideal of the political, thus, becomes unclear, and I suspect that is precisely the reason it can be made legitimate within his international law argumentation to use political power in a way that contributes to the further development of Empire. In real life, powerful states can define other states as outlaws, the situation as an exception, and their own political leaders as statesmen, using Rawls’ terminology, thereby providing rhetorical and ideological support for an increased use of power that is apparently legitimate.

Hardt and Negri describe the change from an international law in which states are the fundamental normative entity to an international law in which both individual human beings and their rights as human beings are decisive. Rawls’ Law of Peoples can, thus, be read as such a manifesto for protecting human rights universally. The problem is that this shift does not necessarily mean greater freedom for the individual citizen either in the states of well-ordered peoples or in other states. One problem was the destruction of institutions caused by the just war, but even where peace is supposed to prevail, Rawls’ ideas are counterproductive. Rawls recognises both liberal democracy and hierarchy as well-ordered and legitimate political structures. He apparently does not find it important that hierarchy may foster even more layers between various societal groups and within the groups. As Endre Begby has argued, ‘particular individuals can be doubly disenfranchised: first, in being a member of a non-privileged group; second, in being a non-privileged member of such a group.’ 36

Even more disturbing is the fact that Rawls does not provide any reason to suspect that a view of a state as outlaw or a collection of people as non-well-ordered could be due to a mistake, ideological blindness, mass-media hysteria or government propaganda. Combined with Rawls’ deficient view of the possible conflict between the individual and the collective, this means that, in practice, he provides ideological support to the powerbrokers in states with an allegedly well-ordered people – that is, it becomes their – ‘our’ – interpretation of human rights that is decisive, not the interpretations of individual citizens. The drift from A Theory of Justice to The Law of Peoples – from ‘A’ to ‘The’ – is, I would claim, a decisive step towards an authoritarian paradigm in politics. In summary one might say that, in A Theory of Justice, backing is given to the individual who refuses to carry out illegitimate actions in war. In The Law of Peoples, on the other hand, it is a well-ordered people’s duty to initiate a war if it is deemed necessary to protect human rights as such. The first perspective is comprehensive, moral, individual, and peace-loving; the second is

36 Endre Begby, ‘Rawlsian Compromises in Peacebuilding? Response to Agafonow’ (2010) 2(2) Public Reason 51-59, 57.

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political, collective, and belligerent. The first is seen from the viewpoint of an ordinary member of society, the second from the viewpoint of those governing. But by speaking about a people instead of, for example, states, nations or governments, this otherwise clear contrast becomes conflated.

The short answer to the question formulated in the introduction of the present article is that the suspicion was justified. Rawls’ international law suits the current world order, as determined by Hardt and Negri, surprisingly well. Rawls’ international law is appropriate in an inappropriate way, since his law of peoples can function as an ideology for Empire, which veils existing global injustice and its increase. However, the matter is not concluded this simply. Hardt and Negri have a philosophy of history, in which Empire is a necessary stage through which we must pass in order to achieve communism. From this perspective, Rawls’ ideology plays a positive role, since it provides ideological backing to a further development of Empire. But if one is sceptical of this sort of philosophy of history, as I am, the 37

human costs of realising Rawls’ international law, ie The Law of Peoples as part of Empire becomes too difficult to ignore. CONCLUSION

Rawls’ Law of Peoples cannot be considered as progress for international law – rather, the contrary. Some may find this critique exaggerated and polemical; but, as Anderson remarks, it is clear that the point of view and presuppositions in Rawls’ political liberalism is American, as are his concepts, which provide possible 38

ideological backing for various types of political rhetoric that have been used by various American governments to justify military intervention. This may be an unfortunate result of his philosophical method, but that does not relieve him of responsibility for the ideological implications of the normative principles he proposes. Rawls puts his faith in the same conceptual instruments as the American neoconservatives who were ideologically responsible for the invasions of Afghanistan and Iraq, and this should make one suspicious of the framework as such.

Like the neoconservatives, Rawls praises the statesman as the solution to the most pressing paradoxes and dilemmas, and the examples of statesmen that Rawls emphasises are precisely those that the neoconservatives would choose – first and foremost, as Norton relates, the American president Abraham Lincoln (LP 97), 39

whose heroic status, according to Anderson, may indeed be doubted. Moreover, 40

Rawls provides normative backing for the idea of the supreme emergency exemption,

37 See Asger Sørensen, ‘The Inner Experience of Living Matter. Bataille and Dialectics’ (2007) 33(2) Philosophy and Social Criticism 597-615., 615; ‘Det onde mellem ontologi og indre erfaring – Georges Bataille’ [The Evil between Ontohology and Inner Experience],(2003) 24(1) Psyke & Logos 361-89, 376-77; ’At tage fat om ondets rod. Batailles radikale civilisationskritik’ [Grapping it by the Roots. Bataille’s Radical Critique of Civilisation] in René Rasmussen and Asger Sørensen (eds) Excesser – om Georges Bataille [Excesses – on Georges Bataille] (Århus: Modtryk, 1994) 179-201, 196-99. 38 See Anderson (n 20) 12-13. 39 See Norton (n 24) 127-29. 40 See Anderson (n 20) 13-14.

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which abrogates all decency, and this puts him on a par with Schmitt, who, like the so-called realists, stressed the necessity of recognising a state of exception in these circumstances (E 16-17). In contrast to Schmitt, however, Rawls does not recognise the inviolability of national sovereignty; and, with his human rights universalism, therefore, Rawls tends to be able to find even more possible exceptions in which it would be legitimate to invalidate ordinary international law. Therefore, an expansion of Rawls’ normative international law principles may ultimately lead to more war in the world. The Law of Peoples has clearly given too much credit to Empire.

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