Rawls, Non-Ideal Theory and War (II)

The last posting on this topic began by looking at Rawls' general discussion of the distinction between "outlaw states", "decent societies" and liberal societies where the last two have some adherence to the "law of peoples" whilst the first named are not in compliance with it. The result of this includes a sense in which the latter two have some rights against the first named to intervene so that Rawls does include an expansion of right of intervention beyond simply responding to aggression. However, whilst this is so, the nature of right within war has not yet been discussed and it is to this which I now intend to turn.


The notion of "right in war" or jus in bello is given quite an extended treatment by Rawls, so extended, in fact, that I will treat it over more than one posting. It is discussed by him as part of "just war doctrine". Three "familiar" principles are used to set the discussion up, namely, (i) that its aim should be a "just and lasting peace", (ii) that it should occur for "well-ordered" peoples only against peoples that are not "well-ordered", (iii) that is is necessary to distinguish between an "outlaw" state's leaders, its soldiers and its population.


To an extent, as he confesses, Rawls here is following the analysis of Michael Walzer, not least with regard to the third provision. The point that is being made with regard to the population at large, is that the general population of such states is, by necessity, not included in the considerations of the leaders and that such states, effectively, lack any sense of "public sphere". They are private enterprises run for the benefit of the rulers and have no mechanism for consultation of the public and so the public has no say in the war and cannot be held to account for the fact that it has broken out. A consequence of this, not discussed by Rawls here, is that the population of such an "outlaw state" is, therefore, in a state of nature with regard to its rulers (or, as Ripstein has taught, there is here a state of barbarism).


The consequence Rawls himself draws is a different one, since he is focused rather on the circumstances in which the third guideline can be said not to have been followed and thus in which "well-ordered" states acted in a way that was not just. Circumstances he points to of this sort included the atomic bombing of Hiroshima and Nagasaki and the fire-bombing of Tokyo in 1945. (Interestingly, in pointing to these examples, Rawls reveals something about an American perspective. In the UK, it would be much commoner to cite the bombing of Dresden but this is not in Rawls' mind.)


The guideline on action in relation to the general population effects also the response of "well-ordered" peoples to the military of "outlaw" states. If the general population is outside the sphere of consideration of the rulers in such states, is it different for the military, especially considering that the military is often the institution that is most important in such states? In mitigation, if conscription is a tool used by such states and the general population is thereby introduced into the military, there is a consideration for taking the military to be partly exonerated from creation of the conditions that led to war. However, Rawls also introduces another consideration that is more wide-ranging when he refers to the "indoctrination" to which the military may have been subjected. In this case Rawls points to the military code that prevented Japanese soldiers surrendering.


This point about "indoctrination" is much more difficult than the one about the general population. It is true that an essentially private venture being at issue with the "outlaw states" that they must have some means of persuading others to support them in their actions and that this will require the rulers to develop means of action that are not based only on physical power. But Rawls provides here no theory of the nature of such "indoctrination" or its types. This indicates a serious question about the nature of the generality of such a description. The question concerns whether there are different types of "indoctrination" which produce different kinds of regimes and this question cuts to the nature of the distinction between "decent" peoples and "outlaw" states. But perhaps this point would require more extended analysis on another occasion. A more important point, in specific reference to consideration of the effect of such "indoctrination", concerns how the well-ordered state should act. Rawls' own example leads him to confessing that confronted with soldiers of a certain type it may necessarily occur that normal rules suffer some kind of suspension (so the US soldiers here rarely took prisoners). Is this the correct conduct or is it merely forced upon the "well-ordered" state?


A fourth provision states that "well-ordered" peoples must respect, as much as they can, the human rights of civilians and soldiers of the enemy. This point seems to curtail the exceptions that might arise from the third and provide some kind of guard-rail around it but, again, there seems no systematic reflection here on the relations between these points.


The fifth provision states that well-ordered peoples should, by actions and statements during the war foreshadow the nature of the peace aimed for after it. The "content" of this provision, other than the point aimed at in the reference to "human rights" in the fourth is, to say the least, unclear. The final, sixth, provision, restricts the scope of means-ends reasoning in reference to the norms already established.


In discussing the fourth and fifth provisions Rawls introduces the "ideal of the statesman" and this will be returned to in the next posting on this topic.

Rawls, Non-Ideal Theory and International Relations

In yesterday's posting the topic of the relationship between ideal and non-ideal theory for John Rawls reached the point of intersection with his view of international relations as expressed in his book The Law of Peoples. In this work, one of Rawls last publications, he describes two forms of society that match the generic conditions of non-ideal theory. On the one hand, there are "burdened societies" that are the victim of historical contingencies and as a result of these we would expect that their application of the conditions of ideal theory is partial and compromised. On the other hand, there are societies that deliberately and consciously work against the conditions of ideal theory and these latter are termed "outlaw states". This opens out the question of how states that approximate more closely to the conditions of ideal theory should deal with states in the two positions that are decidedly non-ideal.


At the opening of the discussion of non-ideal theory in the Law of Peoples Rawls describes the need for "policies and courses of action" that are are "morally permissible and politically possible as well as likely to be effective". There are here three distinct requirements that could in principle be independently detailed and related to each other. Rawls does not specify either how these notions are to be understood or how the relationship between them should be guided which ensures that there is rather ample space left here for "intuition". Nor does Rawls discuss whether we should aim in dealing with these requirements at conditions that follow some general rule that is independent of them all whether that rule be one of some general maxim of efficiency or expediency or utility.  There is, however, some guidance in the pages of Theory since in section 46 of it Rawls gives two priority rules, one that that has been discussed previously to the effect that liberty has priority over the second principle of equality and the other that states justice has priority over efficiency and welfare. This second rule addresses our query here in stating that the principle of equality is prior to any principle of efficiency (including utility). 


The notion of "moral permissibility" listed at the opening of the discussion of non-ideal theory in the Law of Peoples is not further specified there. Back in Theory we note in section 19 a discussion of what Rawls terms "natural duties" and it might be reasonable to assume that these would form part of the guidance for what is "morally permissible". Included there under the heading of "natural duties" we find duties of mutual aid (pertinent with regard to "burdened societies"), duties of non-maleficence and duties of beneficence. Here Rawls also specifically wrote that such duties should be recognised in the conduct of states.


With regard to the question of "political possibility" and "likely effectiveness" there are further questions. Firstly, what is politically possible may be what is possible within certain societies in relation to others. So, despite being well-ordered, some societies might manifest more or less tendencies amongst their citizens to either help other societies or engage in confrontation with them. This may make some actions more or less "politically possible". Similarly, what is "effective" may not be what is most "possible". And, what is understood to be "effective" could be either measures that remove specific injustices or the overall group of injustices. Removal of some specific injustices might be more "politically possible" and yet have little overall effect on the general conditions of injustice. Presumably the best outcome (though this involves some notion of optimality) would be to remove the general conditions of injustice but this might well not only lead to some specific injustices being unaddressed but could even lead to circumstances that perpetuated these specific injustices.


These problems point up matters that need to be considered when reading through the discussion of non-ideal theory in the Law of Peoples in more detail as I intend to do on a future occasion.

Rawls on Ideal and Non-Ideal Theory (III)

In my last posting on this topic I discussed the way in which Rawls' lexical priority of principles was meant to limit the role of intuition in non-ideal theory. Non-ideal theory is meant to deal with conditions of non-compliance and Rawls discusses two types of way this is meant to work. On the one hand, there are natural limitations and historical contingencies. On the other hand, there need to be principles for how to "meet" injustice. If we relate the principle of liberty to principles of non-compliance, for example, we can see one of the "permanent" conditions of human life concerns the need for order and this need limits, in certain respects, the application of the principle of liberty. The "meeting" of injustice has to be assessed by, for example, considering the ways in which liberty has to deal with those who lack tolerance and in regard to them we have to draw lines that show ways in which tolerance gets limited. However the degrees of limitation of this principle of liberty are quite different to the degrees of limitation of Rawls' second principle (concerning equality) given the lexical priority of this principle over the second principle.


Rawls' discussion of historical contingencies is, however, only really appropriately part of non-ideal theory in certain respects since he makes clear that paternalistic principles (such as apply in treatment of children) are really not based on departures from ideal principles but rather on applications of them to special circumstances. By contrast, in section 26 of Theory he points to cases in which "social circumstances do not allow the effective establishment" of basic rights such as are given in the two principles. In those cases there is a sense in which they are limited by serious historical contingencies which can even effect the degree to which the principle of liberty is given appliance. (Though this has to be "essential" to changing the "conditions of civilization".) Interestingly, there is also mention in section 11 of Theory of something called the "general conception" of justice and there it is stated that the two principles are special cases of this more general conception. Rawls gives there a formulation of this general conception:

All social values--liberty and opportunity, income and wealth, and the social bases of self-respect--are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage.

This formula even leads Rawls in section 11 to describe injustice in the most general way he gives, namely as "inequalities that are not to the benefit of all". If there is such a general conception, then what role does it play in relation to "historical contingencies" by contrast to the specific principles on the one hand and reference to non-compliance notions on the other? Rawls appears to give no specific answer to this question although we might expect that the more general principle would have to guide how we limited the specific principles especially given the lexical priority of the first of the special principles over the second.


When Rawls comes to international theory in the Law of Peoples the distinction between the two elements of non-ideal theory produces a clearer division than we appear to reach in Theory alone though the divisions of the Law of Peoples have problems of their own. Included within "ideal theory" here are the "decent peoples" that are not liberal democratic societies since the nature of the law set out in ideal theory here is meant to be one that such peoples could agree to, in line with the divergence from the strict conditions of compliance that were laid out in Theory but later somewhat attenuated in Political Liberalism. As the latter lays out a notion of a society that does not meet the strict conditions of Theory due to Rawls' intervening abandonment of the notion of "comprehensive views" so the Law of Peoples operates with a notion of ideal theory that can allow the "decent peoples" to be included within the ambit of ideal theory. Questions about that will have to wait until a different time though.


The more important point for today's posting is that the province of non-ideal theory is more sharply presented in the Law of Peoples than in Theory. Now Rawls describes non-ideal theory in such a way that its two elements relate to two different kinds of society. The society that has the unfavourable conditions referred to in Theory is now described as a "burdened society" whilst the one that outright refuses to relate to the principles of well-ordered societies are now termed "outlaw states". This division resumes the distinction from Theory and now requires the conditions of non-ideal theory to be laid out in a more determinate way in reference to more fully-rounded conceptions of the societies that operate in accordance with its two parts. However, if we apply to the former the reasoning that Rawls used with regard to the general conditions of divergence from ideal theory in Theory then it should follow that departure from conditions of ideal theory in the cases of "burdened societies" are not necessarily in themselves unjust. This raises some interesting questions with regard to how the conduct of those societies would have to assessed on Rawls' model and what is meant by describing their conditions in relation to the "general" conception of justice. I will subsequently return to these questions as we begin to look in more detail at how this distinction between ideal and non-ideal theory is meant to work in Rawls' theory of international relations.

Rawls on Ideal and Non-Ideal Theory (II)

In my previous posting on this topic I began the process of examining how Rawls describes the distinction between ideal and non-ideal theory noting how the distinction arose initially in A Theory of Justice and how it was subsequently amplified in The Law of Peoples. I mentioned in this posting the latitude given to intuition by Rawls, a latitude that has something to do with Rawls complicated (and relatively under-explored) relationship with Henry Sigdwick. However, whilst this topic would itself be worth considerable discussion I propose now to look at the way in which this distinction is related by Rawls to his lexical ranking of principles. 


Before looking at the question of lexical ranking, however, it is as well to remember the basis of non-ideal theory. If ideal theory is defined by Rawls as concerned with conditions of strict compliance then, naturally enough, non-ideal theory looks at non-compliance in certain respects but there are two kinds of non-compliance defined. One concerns "natural limitations and historical contingencies", the other how to "meet" injustice. Our duty is to remove, as far as possible, conditions of injustice but this is where intuition has a role. The lexical ordering of principles defines a way in which such intuitive judgment is guided. When this is done a further methodological device is invoked by Rawls in section 39 of Theory: that of the "representative equal citizen" (or, as he was once termed in British jurisprudence, "the man on the Clapham omnibus"). The reason for invocation of the notion of this representative is to apply the idea of the "common interest" where the common interest is a means of describing conditions that are to the advantage of all.


When this notion is applied to Rawls' general principles of justice some interesting results emerge with regard to how non-ideal theory is envisaged. So, for example, if we connect these notions to the general principle of liberty, then, states Rawls, there are ways that this principle can be legitimately restricted. So freedom of thought has to be exercised in a sense that is consistent with public order and this relationship is one that is part of what Rawls terms "the permanent conditions of human life" so this balance is one that is part of the area of non-ideal theory that concerns natural limitations. By contrast, if we look at other restrictions on liberty we can see how those connect with the other element of non-ideal theory. One way the principle of liberty gets restricted concerns the degree of tolerance given to those who lack tolerance themselves. This is part not of adjustment to natural limitations but instead to the principles for "meeting" injustice, or, as Rawls also describes this part, to the "partial compliance" part of non-ideal theory.


After outlining the relationship of non-ideal theory to the principle of liberty Rawls next turns to how it relates to the principle of equality. The restriction of application of the principle of equality occurs when unequal situations are allowed to arise and governed by some kind of rule. In some situations, for example, as envisaged in part by Kant in the Doctrine of Right, a division is allowed between active and passive citizens with the former having a larger role granted to them in public life than the latter. This inequality is not one that leads to systematic devaluation of those in the passive class since, as in Kant's own case, it can be fitted with a general argument against serfdom and slavery. Since the latter are ruled out on some appeal to the basic condition of liberty there is some sense in which this basic condition can be defended even though the application of it in principle permits unequal standing of citizens. So, in some sense, Kant gave priority to liberty over equality in relation to the standing of citizens (as well as in other respects) and Rawls agrees with this asserting the lexical priority of liberty over equality.


Rawls' own two principles are stated in section 11 of Theory and are worth citing:

First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all.

When they are laid out it is evident that, whilst the principle of the lexical priority of liberty is similar in Theory to the one provided in the Doctrine of Right that the application of it is different. The second part of Rawls' second principle makes clear that the inequality permitted is not one of distinction between active and passive citizens since there should be a basis for anyone being able to hold any position. (It would be worth, on a different occasion, looking at the problems Kant would have with a similar declaration despite being often close to it.)

The second part of the second principle is often described as an "equal opportunity" principle whilst the first part is the Difference Principle. The second principle is lexically derivative of the first principle but, whilst both can be restricted, the ground of the restriction must be one that can be generally justified to and for those who are disadvantaged by its application. The point of including the discussion of the lexical priority of the principles is made clearer by Rawls in his late piece Justice as Fairness: A Restatement. In this late work Rawls suggests that the idea of the well-ordered society described in ideal theory should be able to provide guidelines for non-ideal theory including the problem of how to "deal with" ( or "meet" as he put in Theory) injustice. This requires, as we have uncovered, indicating the way in which injustice arises "naturally" in some sense as opposed to how it is part of real non-compliance. But this further needs to be understood by means of the lexical priority of the principles of justice since otherwise the degree of the real non-compliance would be entirely left to intuition. With the lexical priority added this intuitive element begins to be governed by a specific type of rule. In some subsequent postings I'll begin to probe the implications of these conceptions for how non-ideal theory gets laid out by Rawls.

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Rawls on Ideal and Non-Ideal Theory (I)

A great deal has been written about John Rawls' work The Law of Peoples and much of what has been written is very critical. What I would like to begin focusing on is the account of non-ideal theory given there. However, in order to get focused on the view of non-ideal theory within it, it is first necessary to look at some of the ways Rawls distinguishes between ideal and non-ideal theory.


The distinction itself is not new to The Law of Peoples as it was earlier discussed in A Theory of Justice. As was clear from Theory one of the points of the distinction is to reflect what the earlier work termed "natural limitations" although a further point concerns what Rawls calls "partial compliance". This second component of the notion of non-ideal theory is relatively easy to contrast with ideal theory since ideal theory supposes "strict compliance" with the standards of justice. Ideal theory assumes, that is, that we have a perfectly just basic structure and so, by contrast, non-ideal theory will be working with an imperfect situation where the basic structure is only partially congruent with the standards of justice. However, this situation of partial compliance means that in non-ideal theory we are dealing with the existence, in some degree, of injustice and are trying in such a case to work out principles for how to, as Rawls puts this, "meet" such injustice. (Section 39 of Theory.)


One of the peculiarities about the distinction as set out in Theory is the degree of allowance made there to intuition as Rawls simply states that the degree of departure from the standards of justice in the case of non-ideal theory is left to this. We also clearly require more to be said about what Rawls terms "the basic structure", a topic that threatens in itself to require major exegetical and philosophical work. Rather than undertake this here I would simply refer to the basic definition in section 2 of Theory: "the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation". The "major social institutions" are there understood to include laws governing free thought and conscience, markets, private property in the means of production and the monogamous family. Much could be said both about the definition and what Rawls fits under it but, for the time being, I will leave this topic.


More important at this stage is to indicate the ways in which the distinction between ideal and non-ideal theory seems to alter when we reach The Law of Peoples. There was, in Theory, acknowledgment of the notion of an international version of the original position (discussed in section 58). There we discovered that the basic principle of such a position between nations was equality. From the notion of the equality of all parties we arrived at the consequence of self-determination, right of self-defense against attack and the need for treaties to be kept.


However, at the opening of The Law of Peoples, Rawls now lists 5 types of domestic society and then proceeds to describe the distinction between ideal and non-ideal theory in relation to these types. Ideal theory is now complicated as it is split into 2 distinct parts at the international level. The first part concerns the society of liberal democratic peoples whilst the second part extends the contractualist apparatus to societies of a different sort, societies that have "good standing" but which are not democratic. These second types of society are termed by Rawls "decent" societies and a lot has been written concerning the view he presents of them. The key initial point is the view that the "decent" societies are capable of agreeing to the same law of peoples as the liberal democratic societies.


Having thus expanded the notion of ideal theory Rawls then turns to characterising non-ideal theory in terms that still follow the outline of Theory as one part of it concerns "conditions of noncompliance" and concerns what Rawls views as "outlaw states" whilst the other part deals only with unfavourable conditions or what he terms "burdened societies". Future postings will begin the process of working through how the account of ideal theory at the international level incorporates a division that was not given previously and how the distinction between two kinds of non-ideal conditions relates to the ideal theory.