In a posting a couple of days ago I set out questions for how non-ideal theory might be considered in the context of the Law of Peoples. Now I want to begin to probe this discussion further through greater attention to the text of the work. The first topic Rawls turns to in his discussion of non-ideal theory in this work concerns the right to war. Given that the conditions of non-ideal theory include consideration of states that are actively refusing compliance with the demands of ideal theory it is not surprising that Rawls begins his account of non-ideal theory here.
The first point of some interest to note is that Rawls does nuance his discussion of "outlaw states" somewhat when he begins this part of his account. "Outlaw states", in their active rejection of the conditions of ideal theory, might be thought to be actively aggressive in their foreign policy. However, Rawls' account of these states does not classify all such as having such an aggressive intent. They can be termed "outlaw states" under another type of description, namely, because they adopt state policies that involve violation of at least some of their own citizens' human rights (what Rawls refers to here is the situation of "minorities"). Due to these policies they put themselves in defiance of the conditions of ideal theory (notably, in opposition to the equality of rights) and this opens them up to potential intervention by other states, even if they are not aggressive towards these other states.
So one type of right to war could involve protection of universal conditions of human rights. This is so even though the state acted against may have made no specific move against the well-ordered society that decides to intervene. This significant modification of the general international convention preventing aggressive warfare already points in the direction of what has come to be known as the "right to protect", a residue of the ambitious project of "liberal interventionism".
Despite this modification of the general view adopted by international lawyers Rawls is in accord with the position generally recognised by the latter in rejecting any claim to war purely on the basis of a state's self-interest (which would allow aggressive war per se, not merely one advanced in protection of human rights). Well-ordered peoples, working in accord with principles of ideal theory, will therefore not engage in war with each other since they will have no aggressive intent towards each other and will not engage in suppression of the human rights of their own citizens. This being so, there will only be rights of war for such states with regard to "outlaw states".
There will, though, be a right to war in self-defence though Rawls differentiates the grounds for appeal to such a right between the different kinds of "well-ordered" societies his ideal theory recognises. Liberal societies engage in self-defense with the primary aim of defending and preserving basic freedoms. In such societies there exist institutions that are reflexively justified: that is, citizens are publicly and consciously informed by them in their actions and affirm them in their dealings with one another. So, when such societies affirm a right to war exists this will be done in ways that meet tests akin to those of Kant's affirmative principle of publicity discussed in Perpetual Peace.
Decent societies are subtly different since they would act in such a way that they would show respect for others even whilst being governed by comprehensive views. Rawls is less clear about the nature of their consultation hierarchy but I will venture for now that it fits more the negative publicity test of Perpetual Peace. Benevolent absolutisms are also described as including respect for human rights but as having no consultation process. In this respect these societies deny, in fact, a basic right, the right to have included a respect for the provision that laws enacted should be seen to relate to the potential of universal consent. Or this is how Kant would have seen it!
This is only the first part of the discussion of non-ideal theory with regard to war. Rawls goes on later to discuss conduct within war, as well as the right to declare war but I'll leave this for a later posting.