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The Law of Peoples. by John Rawls. Cambridge, London: Harvard University Press, 1999

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The Law of Peoples. by John Rawls. Cambridge, London: Harvard University Press, 1999 University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2001 The Law of Peoples. By John Rawls. Cambridge, London: Harvard University Press, 1999. (Book Review) Patrick O. Gudridge University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the International Law Commons Recommended Citation Patrick O. Gudridge, The Law of Peoples. By John Rawls. Cambridge, London: Harvard University Press, 1999. (Book Review), 95 Am. J. Int'l L. 714 (2001). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE AMERICANJOURNAL OF INTERNATIONAL LAW [Vol. 95 over certainty and judicial enforceability. Al- In the meantime, the ASIL is to be congratu- though he concludes that the ultimate effective- lated for bringing together such a stellar panel of ness of nonbinding norms is still uncertain, Kiss, scholars for this significant venture. With the too-like most of the other contributors-defends nucleus in place, perhaps the first step has now their widespread use as tools in the increasingly been taken toward the assembly of a larger complicated tasks of norm setting and standard scholarly community interested in contributing setting for the world community. to the development of a new and much needed The final chapter of Commitment and Compli- field of study. ance-Edith Brown Weiss's "Understanding Com- DOUGLAS M.JOHNSTON pliance with Soft Law"-begins by stressing the Faculty of Law (Emeritus) need to categorize instruments, both binding University of Victoria, Canada and nonbinding in their form and content, in light of the purposes to be served. This categori- zation would serve, in turn, as a means of gaining The Law of Peoples. By John Rawls. Cambridge, a better, more sophisticated understanding of London: Harvard University Press, 1999. Pp. patterns of compliance and noncompliance. (As viii, 199. Index. $23.95, £16.50, cloth; $16.95, an application of this kind of "functionalist £11.50, paper. theory," the present reviewer's own taxonomic work on negotiated instruments has since been John Rawls, arguably the most important politi- published.") But the further development of cal philosopher writing in the last half century, functionalist taxonomies is only one of several contends in The Law of Peoples that many widely tasks that need to be addressed by an equivalent accepted principles of international law coexist group of scholars working along the cross-disci- easily with a distinctively liberal conception of plinary, multisectoral, and transgenerational right and wrong governmental action in inter- lines of the present volume and its seminal proj- national settings. He suggests that, for states ect. Because of the fundamental and global im- organized in light of liberal premises, their do- plications of such scholarship, it is surely impor- mestic constitutions and modes of public dis- tant to move to the next stage by involving more course oblige, in effect, adherence to a range of scholars from non-Western cultures. Moreover, international norms. Other states, because they the challenge to legal orthodoxy inherent in this reflect "decent hierarchical" assumptions, are kind of scholarship seems to call for a richer similarly constrained. Rawls also argues that "out- blend of social and behavioral scientists-in law states"-states not meeting his definitions of addition to lawyers and political scientists. And "liberal" or "decent"-may be properly subject to the growing importance of nonstate institutions international sanctions for their entirely domes- in the promotion, negotiation, interpretation, tic misconduct. War against "outlaw states" may monitoring, and application of transnational well be just; war against "liberal" or "decent' states only by nongovernmental commitments-not cannot be. States in which liberal developments institutions, but by corporations, as documented are frustrated by adverse economic circum- it by many of the volume's authors-makes stances are owed a "duty of assistance."' of non- essential to involve a larger number The Law of Peoples might someday be grouped participants and observers in future ' academic with writings of Grotius and Kant. This review is of this collaborative sort. Indeed, it projects not the place to explore that possibility? Rawls might be suggested that the "infinite variety" of international law2 reflected in the ever increas- analysis, Rawls inter- diversity of negotiated instruments" would 'Along the way, illustrating his ing jects sharp comments on a surprisingly ide range of be best explored through the development of a topics; for example, conventional and atomic bombing new cross-disciplinaryfield of studies designed to of cities by the United States and Great Britain in World encompass all facets of these phenomena: the War II, the terms within which the Holocaust is relevant for international political theory, and the role of reli- making and maintenance of treaty commitments, gion in the governments of Islamic-majority populations. or "treaty studies." 2See RicHARD TUCK,THE RIGHTs OFWARAND PEACE: POLITICAL THOUGHT AND THE INTERNATIONAL ORDER 2 Johnston, supra note 8. [Editor's note: The book FROM GROTIUS TO KANT (1999). is reviewed2 by Robert E. Dalton, 94 AJIL 204 (2000).] ' For discussions of The Law of Peoples from the per- ' Richard R. Baxter, InternationalLawin 'HerInfinite spective of present-day political philosophy, see Charles Variety,' 29 INT'L & COM. L.Q. 549 (1980). Beitz, Rawls' Law of Peoples, 110 ETHICS 669 (2000); nAnthonyAust, The TheoryandPracticeofInformallnter- Allen Buchanan, Rawls'Law of Peoples:Rules for a Van- nationallnstruments,35 INT'L& CoMp. L.Q. 787 (1986). ished Westphalian World, 110 ETHICS 697 (2000); 2001] BOOK REVIEWS AND NOTES draws upon a vocabulary that, initially anyway, is "modus vivendi, a stable balance of forces only for not especially technical; but he puts seemingly the time being" (p. 45). This educational exer- common terms to use in notably dense and intri- cise augments the analytical construction that is cate ways. The impact of The Law of Peoples out- the distinctive contribution of The Law of Peoples side the precincts of political philosophy will (the reason why support is needed will become depend, to a large extent, upon whether readers apparent later). Two devices, in particular, are find this process of analytical elaboration persua- prominent parts of this construction. sive. Students of international law, in particular, The first is suggested by the book's title. Rawls should regard the Rawlsian analysis as at least distinguishes between governments of states and provocative. It deploys a strikingly limited con- the populations residentwithin state boundaries. ception of international law, seemingly grudging He contends that populaions--"peoples"-and in its account of international human rights and not governments should be treated as fundamen- international organizations, but shows that con- tal entities. But this assertion is carefully limited. ception to possess surprising and strong origins. Rawls does not espouse any strong notion of I will suggest at the close of this review that it is "nationality"--that is, treat particular peoples as relatively easy to fit additional international law in some single important respect homogenous. nearby (as it were) the international law norms He supposes not only that state boundaries are that Rawls singles out, and in the process buttress arbitrary, but that individuals within borders may Rawls's own construction, as well. be diverse in all kinds of ways-religiously, eth- The book has two large parts: "The Law of nically, ideologically, and so on. Rawls believes, Peoples" and "The Idea of Public Reason Revis- even so, that governments may be meaningfully 4 ited." The first part itself repeatedly subdivides. categorized on the basis of how they ordinarily Rawls begins with "Ideal Theory," considering deal with resident populations (which is what he only relations as among liberal peoples and means, methodologically, by the priority of governments; he then extends discussion to peoples versus governments). cover nonliberal, "decent hierarchical" peoples Liberal states are those that treat resident pop- and governments. He next explores "Nonideal ulations as liberal peoples-as populations of Theory," discussing, inter alia, the requirements equally worthy individuals. Such states also treat for just war and the obligations that liberal and the well-being of the population in general as the decent hierarchical states owe "burdened socie- ultimate preoccupation of government; identify ties." The discussion of public reason in the some set of individual interests shared by all (or second large part of the book is complementary. almost all) residents as open only to limited gov- It generalizes, explores further, and defends key ernmental regulation; and tie identification of presuppositions of the argument of the firstpart. ultimately responsible government officers to But it does not add new matter particular to the some direct or indirect process of popular selec- discussion of international norms. tion. Other states are decently hierarchical.
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