 Contractualism (Rawls)

 The ‘domestic’ use of the contract: political theorists such as Hobbes, Locke,
Rousseau and Rawls were concerned with the relationship of the individual
to the state.
 Defenders of the historical contract do not claim that there was actually an
agreement to enter the state – they claim simply that it was imaginable –.
 There is not a single‘moment’ of agreement, for the ratification of a
convention can take place over decades. Furthermore, there has never been
an international agreement to create a single state; such an agreement would
constitute the dissolution of all existing states.
 There is a considerable body of international law, such as commercial law,
which states respect without recourse to a global enforcement agency.
 For a more significant deficiency is the absence of a body capable of
interpreting, and indeed determining, the law.
 In practice, the United Nations effectively ‘contracts out’ the interpretation
of human rights to bodies such as the European Court of Human Rights.
 States will not then be able to violate human rights on grounds of
disagreement about their interpretation, and will have incentives – such as
the desire for reputation – to respect them.
 The Law of Peoples (1999) - John Rawls
 The underlying aim of that book is to outline the just foreign policy of a
liberal society
 Rawls makes a distinction between four types of society or ‘people’:
o liberal societies
o decent non-liberal societies
o outlaw states
o burdened societies
 Rawls applies the idea of the original position and the veil of ignorance
developed in his theory of domestic justice to international law
 Liberal societies agree among themselves on a ‘law of peoples’, and then
decent societies endorse those same principles.
 The law of peoples consists of eight principles:
o Mutual recognition of each people’s independence;
o Honouring of agreements;
o Legal equality of peoples;
o Duty of non-intervention;
o Right to self-defence;
o Respect for human rights;
o Respect for the rules of war;
 o Duty to assist peoples living under conditions that prevent them from
becoming just (liberal) or decent societies.
 Rawls argues that a decent society is peaceful in that it pursues its interests
through trade and diplomacy. The domestic laws of such a society are
guided by a‘common good conception of justice’.
 The common good conception of justice entails respect for human rights,
including the right to life, liberty (freedom from slavery and forced labour),
personal property and equality before the law.
 Human rights fulfil three roles’
o They are a necessary condition of a regime’s legitimacy;
o They determine the limits of sovereignty – the law of people prohibits
intervention in the affairs of another state except when that state is
violating human rights;
o They set a limit on the pluralism among peoples.
 Rational Entailment (Habermas)
 The ‘rational entailment’ argument identifies certain conditions for the
existence of social order and from those conditions maintains that there are
certain standards of treatment which all societies should respect. The
argument can take two forms.
o The empirical version observes actual societies and claims that the
long-term survival of a society depends on the recognition of human
rights.
o The logical version does not deny that social life is possible without
human rights, but rather that a human rights-violating society cannot
justify its own political and legal organisation without falling into
contradiction.
 Jurgen Habermas offers the best contemporary statement of logical
entailment.
 If we define ‘culture’ as the ‘taken-for-granted horizon of expectations’, then
under conditions of modernity culture is ‘threatened’ by rationalisation.
 Many theorists are pessimistic about the consequences of modernity
 Habermas argues that the emphasis on instrumentalisation – or what he calls
‘systemic rationality’ – ignores the positive achievements of modernity,
expressed in ‘communicative rationality’ (Habermas, 1984: 8–22).
 People engage in speech acts: person A promises to meet person B on
Thursday, requests B stop smoking, confesses to find B’s actions distasteful,
and predicts it will rain.
 The validity claims are implicit in all human action, that is, they are
universal.
  The validity claims are abstract from everyday life, and so to redeem them
requires appeal to a stock of culturally specific values.
 Maintain that politics is a dialogue, in which people bring to bear their
different cultural perspectives, such that what emerges from the dialogue is
something pluralistic yet coherent.
 There is a tradition in anglophone legal and political theory of conceiving of
the state as grounded in the protection of individual ‘private’ rights.
 Hobbes is the locus classicus of this conception of individual–state relations.
 Private rights entail the assertion of personal autonomy, but they ignore the
other half of the concept of autonomy – public autonomy:

From a normative point of view, the integrity of the individual legal person
cannot be guaranteed without protecting the intersubjectively shared experiences
and life contexts in which the person has been socialized and has formed his or her
identity. The identity of the individual is interwoven with collective identities and
can be stabilized only in a cultural network that cannot be appropriated as private
property any more than the mother tongue itself can be.
(Habermas, 1994: 129)