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Three: An Enforcement-Centered Approach to Human Rights, with Special Reference to John Rawls
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Three AN ENFORCEMENT-CENTERED APPROACH TO HUMAN RIGHTS, WITH SPECIAL REFERENCE TO JOHN RAWLS What if we were to justify a doctrine of universal human rights according to the political role they were to play in the international arena and not on any account of inherent human dignity or worth? We would presumably evade the need to identify the dignity- or worthmaking feature common to all human beings, bypass seemingly intractable philosophical or religious debates about why each human being merits our respect, and thereby provide a minimalist response to the maximalist challenge to human rights justification. And what if the primary function of human rights were to govern relations between political communities by setting the limits of tolerable pluralism so that a state’s systematic failure to secure them would be sufficient to warrant diplomatic censure, economic sanctions, or even military intervention in extreme cases by others? Those who were intent on preserving a strong sense of state sovereignty would have strong incentives to avoid proliferating the range of goods or liberties that would be counted as genuine human rights. They would most likely even seek to curtail the existing catalog of internationally recognized human rights so that a state’s refusal or inability to provide certain benefits, such as “periodic holidays with pay” or free and compulsory primary education, would not automatically give license to outsiders to intervene in their internal affairs (Art. 24, 26, UDHR). John Rawls, who is widely regarded as the most important political philosopher of the latter half of the twentieth century, offers 57 an account of human rights that essentially adopts this scenario. Although he is best known for developing principles of justice for a (single) liberal democratic society, his account of justice between and among peoples is more relevant for our purposes. Rawls’s toleration of a type of nonliberal society that he calls “decent” leads him to reject an articulation of human rights that would be “peculiarly liberal or special to the Western tradition” (1999b, 65). As a result, only a subset of the various liberties and entitlements that are recognized today in core international human rights instruments meet his criteria for “human rights proper.” An encounter with Rawls’s work compels us to ask whether human rights must not only be justified on minimalist grounds to secure their universal validity but also have its list of provisions abridged for the same. While selective retrieval of Rawls’s work is possible and will be pursued in subsequent chapters, I suggest here that his positive answers to those questions, together with his systematic privileging of the interests of “peoples” over “persons,” betray the central insights of the human rights revolution of the twentieth century and beyond in ways that impair the overall attractiveness of his account. A PRIMER ON RAWLS’S CONCEPTION OF GLOBAL JUSTICE The central problematic of Rawls’s Law of Peoples is how to extend his social-contract inspired idea of “justice as fairness” for one constitutional democracy to cover international principles of justice for the world of nations. In comparative fashion to the difficulty discussed in his earlier Political Liberalism, the sheer diversity of cultures and traditions of thought complicates the search for and public justification of such principles. Rawls’s ideal of “public reason ” and its concomitant “criterion of reciprocity” require that we reason collectively “from premises we accept and think others could reasonably accept to conclusions we think they could also reasonably accept” (1999d, 155; see also 1999b, 14, 121–22; and 2001, 27). 58 An Enforcement-Centered Approach, with Special Reference to John Rawls [44.221.45.48] Project MUSE (2024-03-29 12:20 GMT) Following Immanuel Kant’s lead in “Perpetual Peace” (1795), Rawls does not aim to construct a world-state to satisfy the demands of global justice but rather a more modest federation of peaceful nations that is governed by its own “Law of Peoples,” or political principles of international law and practice that are to regulate relations among societies (1999b, 3n1,10, 36; 2001, 13). Although he employs his familiar devices of the “original position” and the “veil of ignorance” to determine their content, it is surprisingly entire peoples and not individual persons who become his basic units of legal and moral concern.1 This is why it is peoples and not persons who are modeled as free and equal parties behind the veil.2 Rawls further presumes that liberal peoples would not push to globalize...