Notes:

I am indebted to many people for helping me with this lecture. I have indicated specific debts in notes to the text. More general debts I should like to acknowledge are to Ronald Dworkin and Thomas Nagel for discussions about my earlier attempts to consider the law of peoples at their seminars at New York University in the fall of 1990 and 1991; to T. M. Scanlon and Joshua Cohen for valuable criticism and comments; to Michael Doyle and Philip Soper for instructive correspondence; and as always to Burton Dreben. I am especially indebted to Erin Kelly, who has read all the drafts of this lecture and proposed many improvements, most of which I have adopted. Her criticisms and suggestions have been essential in my getting right, as I hope, the line of reasoning in part IV.

Footnotes:

1. The name "law of peoples" derives from the traditional ius gentium, and the way I use it is closest to its meaning in the phrase "ius gentium intra se" (laws of peoples among themselves). In this meaning it refers to what the laws of all peoples had in common. See R. J. Vincent, Human Rights and International Relations (Cambridge, England: Cambridge University Press, 1986), 27. Taking these laws to be a core paired with principles of justice applying to the laws of peoples everywhere gives a meaning related to my use of the law of peoples.

2. A political conception of justice has the following three features: (1) it is framed to apply to basic political, economic, and social institutions; in the case of domestic society, to its basic structure, in the present case to the law and practices of the society of political peoples; (2) it is presented independently of any particular comprehensive religious, philosophical, or moral doctrine, and though it may be derived from or related to several such doctrines, it is not worked out in that way; (3) its content is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of a liberal society. See my Political Liberalism (New York: Columbia University Press, 1993), 11-15.

3. In this and the next two paragraphs I draw on the first section of "Basic Structure as Subject" (1978), reprinted in Political Liberalism.

4. For a detailed example of how this is done in the case of the four-stage sequence of original position, constitutional convention, the legislature, and the courts, see A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 195-201. A briefer statement is found in "Basic Liberties and Their Priority" (1982), reprinted in Political Liberalism.

5. By peoples I mean persons and their dependents seen as a corporate body and as organized by their political institutions, which establish the powers of government. In democratic societies persons will be citizens, while in hierarchical and other societies they will be members.

6. See Theory, 378ff., where this process is very briefly described.

7. It would be unfair to Clausewitz not to add that for him the state’s interests can include regulative moral aims of whatever kind, and thus the aims of war may be to defend democratic societies against tyrannical regimes, somewhat as in World War II. For him the aims of politics are not part of the theory of war, although they are ever present and may properly affect the conduct of war. On this, see the instructive remarks of Peter Paret, "Clausewitz," in Peter Paret, ed., The Makers of Modern Strategy (Princeton, N.J.: Princeton University Press, 1986), 209-213. The view in my text characterizes the raison d’etat as pursued by Frederick the Great. Or so Gerhard Ritter says in Frederick the Great, trans. Peter Paret (Berkeley: California University Press, 1968). See chap. 10, and the statement on p. 197.

8. These powers Charles Beitz characterizes as belonging to what he calls the morality of states in pt. II of his Political Theory and International Relations (Princeton, N.J.: Princeton University Press, 1980). They depend, he argues, on a mistaken analogy between individuals and states.

9. Stanley Hoffman, Janus and Minerva (Boulder, Colo. and London: Westview Press, 1987), 374.

10. Note: "You and I" are "here and now" citizens of the same liberal democratic society and we are working out the liberal conception of justice in question.

11. In this case "you and I" are citizens of liberal democratic societies but not of the same one.

12. Kant says at Ak: VIII:367: "The idea of international law presupposes the separate existence of independent neighboring states. Although this condition is itself a state of war (unless federative union prevents the outbreak of hostilities), this is rationally preferable to the amalgamation of states under one superior power, as this would end in one universal monarchy, and laws always lose in vigor what government gains in extent; hence a condition of soulless despotism falls into anarchy after stifling seeds of good." This attitude to universal monarchy was shared by other writers of the eighteenth century. See, for example, Hume’s "Of the Balance of Power" (1752). F. H. Hinsley, Power and the Pursuit of Peace (Cambridge, England: Cambridge University Press, 1966), 162ff., also mentions Montesquieu, Voltaire, and Gibbon. Hinsley also has an instructive discussion of Kant’s ideas in chap. 4. See also Patrick Riley, Kant’s Political Philosophy (Towanda, Pa.: Rowman and Littlefield, 1983), chaps. 5 and 6. Thomas Nagel, in his Equality and Partiality (New York: Oxford University Press, 1991 ), 169 ff., 174, gives strong reasons supporting the same conclusion.

13. See Terry Nardin, Law, Moraltiy and the Relations of States (Princeton, N.J.: Princeton University Press, 1983), 269 ff., who stresses this point.

14. A clear example regarding secession is whether the South had a right to secede from 1860 to 1861. By this test it had no such right, since it seceded to perpetuate its domestic institution of slavery. This is as severe a violation of human rights as any, and it extended to nearly half the population.

15. By basic needs I mean roughly those that must be met if citizens are to be in a position to take advantage of the rights, liberties, and opportunities of their society. They include economic means as well as institutional rights and freedoms.

16. From the fact that boundaries are historically arbitrary it does not follow that their role in the law of peoples cannot be justified. To wit: that the boundaries between the several states of the United States are historically arbitrary does not argue to the elimination of our federal system, one way or the other. To fix on their arbitrariness is to fix on the wrong thing. The right question concerns the political values served by the several states in a federal system as compared with the values served by a central system. The answer is given by states’ function and role: by the political values they serve as subunits, and whether their boundaries can be, or need to be, redrawn, and much else.

17. This remark implies that a people has at least a qualified right to limit immigration. I leave aside here what these qualifications might be.

18. See "The Domain of the Political and Overlapping Consensus," New York University Law School Review 64 (1989): 245, sec. VII.

19. See Jack S. Levy, "Domestic Politics and War," an essay in Robert Rotberg and Theodore Rabb, eds., The Origin and Prevention of Major Wars (Cambridge, England: Cambridge University Press, 1989), 87. Levy refers to several historical studies that have confirmed the finding of Small and Singer in the Jerusalem Journal of International Relations, vol. 1, 1976, mentioned in note 21 below.

20. See Doyle’s two-part article, "Kant, Liberal Legacies, and Foreign Affairs," Philosophy and Public Affairs 12 (1983): 205, 323. A survey of the evidence is in the first part, 206-32. Doyle says: "These conventions (those based on the international implications of liberal principles and institutions) of mutual respect have formed a cooperative foundation for relations among liberal democracies of a remarkably effective kind. Even though liberal states have become involved in numerous wars with nonliberal states, constitutionally secure Iiberal states have yet to engage in war with one another. (Italicized in the original.) No one should argue that such wars are impossible; but preliminary evidence does appear to indicate... a significant predisposition against warfare between liberal states" (213).

21. See Levy, "Domestic Politics," 88. In these studies most definitions of democracy are comparable to that of Small and Singer as listed by Levy in a footnote: (1) regular elections and the participation of opposition parties, (2) at least 10 percent of the adult population being able to vote for a (3) parliament that either controlled or shared parity with the executive branch (ibid., 88). Our definition of a liberal democratic regime goes well beyond this definition.

22. On this see Alan Gilbert, "Power-Rivalry Motivated Democracy," Political Theory 20 (1992): 681, and esp. 684 ff.

23. Here I draw upon Philip Soper’s A Theory of Law (Cambridge, Mass.: Harvard University Press, 1984), esp. 125-47. Soper holds that a system of law, as distinct from a system of mere commands coercively enforced, must be such as to give rise, as I have indicated, to moral duties and obligations on all members of society, and judges and other officials must sincerely and reasonably believe that the law is guided by a common good conception of justice. The content of a common good conception of justice is such as to impose morally binding obligations on all members of society. I mention some of the details of Soper’s view here, but I do so rather freely and not with the intent of explaining his thought. As the text shows, my aim is to indicate a conception of justice that, while not a liberal conception, still has features that give to societies regulated accordingly the moral standing required to be members of a political society adhering to a reasonable law of peoples. However, we must be careful in understanding this second requirement. For Soper it is part of the definition of a system of law. It is a requirement which a scheme of rules must satisfy to be a system of law properly thus called. See chap. 4, 91-100. I don’t follow Soper in this respect; nor do I reject this idea either, as Soper makes a strong case for it. Rather, it is put aside and the requirement is adopted as a substantive moral principle explicable as part of the law of peoples worked up from a liberal conception of justice. The reason for doing this is to avoid the long debated jurisprudential problem of the definition of law. Also, I don’t want to have to argue that the antebellum South, say, didn’t have a system of law. I am indebted to Samuel Freeman for valuable discussion of these points.

24. Soper, A Theory of Law, 112, 118,

25. Ibid., 141.

26. Henry Shue, Basic Rights: Substance, Affluence, and U.S. Foreign Policy (Princeton, N.J.: Princeton University Press, 1980). Shue, p. 23, and Vincent, Human Rights, interpret subsistence as including certain minimum economic security, and both hold that subsistence rights are basic. One must agree with this since the reasonable and rational exercise of all liberties, of whatever kind, as well as the intelligent use of property, always implies having certain general all-purpose economic means.

27. On the rules of natural justice, see H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press), 156 ff.

28. One might raise the question here as to why religious or philosophical doctrines that deny full and equal liberty of conscience are not unreasonable. I did not say, however, that they are reasonable, but rather that they are not unreasonable. One should allow, I think, a space between the reasonable or the fully reasonable, which requires full and equal liberty of conscience, and the unreasonable, which denies it entirely. Traditional doctrines that allow a measure of liberty of conscience but do not allow it fully are views that lie in that space and are not unreasonable. On this see my Political Liberalism, Lecture II, sec. 3.

29. On the importance of this, see Judith Shklar’s Ordinary Vices (Cambridge, Mass.: Harvard University Press, 1984), in which she presents what she calls the "liberalism of fear." See especially the introduction and chaps. 1 and 6. She once called this kind of liberalism that of "permanent minorities." See her Legalism (Cambridge, Mass.: Harvard University Press, 1963), 224.

30. Subject to certain qualifications, liberal societies must also allow for this right.

31. These are not political conceptions of justice in my sense; see note 2 above.

32. Here "you and I" are members of hierarchical societies but again not the same one.

33. Here I am indebted to Lea Brilmayer of New York University for pointing out to me that in my sketch of the law of peoples (October 1990) I failed to state these conditions satisfactorily.

34. Brian Barry, in his splendid Theories of Justice (Berkeley: University of California Press, 1989), discusses the merits of doing this. See 183-89 ff. Along the way he raises serious objections to what he takes to be my view of the principles of distributive justice for the law of peoples. I do not discuss these important criticisms here, but I do mention questions related to them hereafter.

35. We can go on to third and later stages once we think of groups of societies joining together into regional associations or federations of some kind, such as the European Community, or a commonwealth of the republics in the former Soviet Union. It is natural to envisage future world society as in good part comprised of such federations together with certain institutions, such as the United Nations, capable of speaking for all the societies of the world.

36. Justice as fairness is such an idea. For our purposes other more general liberal ideas of justice fit the same description. Their lacking the three egalitarian elements of justice as fairness noted in the first paragraph of part 3 does not affect this.

37. There are, however, some differences. The three requirements of legitimacy discussed in this section are to be seen as necessary conditions for a society to be a member in good standing of a reasonable society of peoples; and many religious and philosophical doctrines with their different conceptions of justice may lead to institutions satisfying these conditions. In specifying a reasonable law of peoples, societies with such institutions are viewed as well ordered. However, those requirements do not specify a political conception of justice in my sense (see note 2 above). For one thing, I supose that a society’s common good conception of justice is understood as part of its comprehensive religious or philosophical doctrine. Nor have I suggested that such a conception of justice is constructivist, and I assume it is not. Whether the three requirements for legitimacy can themselves be constructed within a social contract view is another question. I leave it open here. The point, though, is that none of these differences affect the claim in the text that in both domains the ideals and principles of justice are justified in the same way.