Reconstructing Rawls: On The Nature Of a Truly Decent Hierarchical Society

 In the Law of Peoples, John Rawls intends to construct a Society of Peoples based on mutual cooperation and tolerance.  Rawls attempts to accomplish this by adapting a procedure he laid out in A Theory of Justice.  The intranational conception of a social contract theory is extended to the international community, where free and equal peoples, in an initial position of equality, choose certain principles of justice and establish the fair terms of cooperation to regulate their dealings with one another.  Thus, developed from a liberal idea of justice, the Law of Peoples-- “the particular political principles for regulating the mutual political relations between peoples,” ^[1] would be adopted, Rawls claims, by liberal and non-liberal, but decent, peoples alike. ^[2]   Although the process by which decent illiberal peoples consent to the Law of Peoples takes a different form than the process that liberal peoples employ, each is regarded as an equal member in good standing in the Society of Peoples. ^[3]   Good standing in the Society of Peoples entails that each member will be tolerated and free from any sanctions or military intervention from the others. 

Rawls has drawn much criticism for the process by which a decent hierarchical society is admitted into the Society of Peoples.  The criteria for which a non-liberal society is considered decent, in particular, comes under heavy fire as critics claim that the criteria is insufficient to ensure certain human rights for its members that must be honored as a qualification to accepting the Law of Peoples. ^[4]   I share the concern of Rawls’s critics that his decency criteria are too lax, and possibly could allow for rights violations within these decent societies.  If certain essential rights are withheld from the members of a decent hierarchical society, it is fair to ask why such peoples are considered to be in  good standing in the Society of Peoples in the same way that liberal societies or other decent peoples that do not violate rights are. 

In the course of what follows, I intend to amend Rawls’s decency criteria, on matters that affect the consultation process ^[5] in particular, and also to separate the requisite conditions for a decent illiberal peoples to be tolerated from the requisite conditions for a decent illiberal peoples to be considered in good standing in the Society of Peoples. ^[6]   Amending the decency criteria in this way will ensure that certain rights violations will be less likely to occur within Rawls’s decent hierarchical societies.  Separating the notion of toleration from that of being considered a member in good standing in the Society of Peoples provides for a liberal or decent society to publicly criticize, through the use of public reason, a decent hierarchical society’s “good standing” for any rights violations that may still occur after the decency criteria are amended.  Liberal societies would still tolerate such a society, keeping far from sanctioning the illiberal society, yet they would then have means to express discontent with that society’s policies.

Constructing Rawls: The Notion Of A Decent Hierarchical Society

In The Law of Peoples, after Rawls formulates a Law of Peoples that proves acceptable to liberal societies, he proceeds with step two of ideal theory, which envisions a decent, though not liberal, society that accepts the same Law of Peoples as liberals do, and thus is recognized as a bona fide member of the Society of Peoples and tolerated in that sense. ^[7]   Rawls’s decency criteria establish the minimum conditions necessary for a decent hierarchical society (DHS) to be in good standing in a reasonable Society of Peoples.  The first criterion is that the society must be non-aggressive.  The society understands that, although its religious or comprehensive doctrine influences governmental policy, the society must deal with other peoples as free and equal members of the Society of Peoples.  This means that the society must abide by fair terms of cooperation achieved through peaceful means, and if it seeks wider influence, the society must proceed with due respect for the independence of other members, including the respect for their religious and civic liberties.

The second criterion has three parts.  “The first part is that a decent hierarchical people’s system of law, in accordance with its common good idea of justice, secures for all members of the people what have come to be called human rights.”  These are: “the right to life (to the means of subsistence and security); to liberty (to freedom from slavery... and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality... (that is, that similar cases be treated similarly).” ^[8]   Rawls identifies these rights with articles 3-18 in the Universal Declaration of Human Rights (LP, 80 n. 23), and states that by defining human rights in this way, they are not strictly “politically parochial.”  In other words, this conception of human rights, which Rawls refers to as human rights proper, can be accepted by an illiberal society and would not be rejected for being particularly Western or liberal.

The second part of this criterion requires that the system of law of a DHS imposes bona fide moral duties and obligations on all of its members.  The persons in this society are decent and rational, and recognizing that these duties and obligations accord with their common good conception of justice, they will not view their duties and obligations as mere commands or to have been imposed by force.  Rawls claims that as responsible and cooperating members of their respective groups, the individuals will act in accordance with the moral duties and obligations of these groups.

The final part of the second criterion demands that “there must be a sincere and not unreasonable belief on the part of judges and other officials who administer the legal system that the law is indeed guided by a common good idea of justice.” ^[9]   Recall that in the first criterion, Rawls said that the law, in accordance with the common good idea of justice, secures human rights proper for persons in a DHS.  Thus, it would be unreasonable for the judges and other administrators to believe that the law is guided by the common good idea of justice when the very rights that the common good idea of justice are supposed to protect, are in fact violated.  The sincerity on the part of the judges and other officials is displayed through their good faith and willingness to publicly defend their policies and actions when criticism is raised by the groups of the society through the decent consultation hierarchy.

“In the common good idea of justice,” Rawls says, “the pursuit of this common aim [that which the society as a whole tries to achieve for itself or its members] is to be encouraged, but is not to be maximized in and of itself, but rather maximized consistent with the restrictions specified by honoring the steps in the consultation procedure, which provides the institutional basis for protecting the rights and duties of the members of the people” (LP, 71).  This common good idea of justice guides the law to protect the rights of the members of the people, which requires that a decent consultation hierarchy is established in order that the voice of the members in the groups can be justly heard.    

It is interesting to note here that the governmental structure of a DHS may assume several different institutional forms, both religious and secular, and that “all persons in a decent hierarchical society are not regarded as free and equal citizens, nor as separate individuals deserving equal representation.” ^[10]   The individuals in this society, primarily and also in a political sense, are seen as members of different groups, which are represented by a body of their members in a decent consultation hierarchy.  A decent consultation hierarchy is the process by which the dissent of representatives of the members of a group is heard.  Rawls says that at some point in the consultation process, the representative(s) of groups in the DHS have a right to politically dissent (LP, 72).  Then the judges and other officials must consider the dissent seriously and make a consciencious reply.  This is necessary because the third part of the second criterion requires that judges and officials have a sincere belief that the common good idea of justice is being followed, and this is not possible if they do not respect the possibility of dissent.  In fact, the “procedure of consultation must be arranged to stop all such violations.” ^[11]   Rawls states that, if both of the decency criteria are met, in accordance with what was said above about the decent hierarchical society’s consultation process, “those societies would be regarded by liberal people, on reflection, as bona fide members of a reasonable Society of Peoples.  That is what I [Rawls] mean by toleration” (LP, 84).

 

Deconstructing Rawls: Objections To The Decent Hierarchical Society

In The Law of Peoples, Rawls presents a picture of what a decent hierarchical society could look like.  He describes a hypothetical society, Kazanistan, which, he avers, is not aggressive, respects human rights proper, and has a consultation process guided by the common good idea of justice.  ^[12] This decent hierarchical society also has a state religion, Islam, and only Muslims are permitted to hold upper political offices.  Kazanistan, as Rawls envisions it, fulfills the decency criteria, and thus should be recognized as a good standing member of the Society of Peoples. 

Religious Toleration

In a place like Kazanistan, with not only no separation between church and state, but also that must impose duties and obligations on its members, the duties and obligations imposed will probably take the form of the governing body’s religious duties and obligations.  Rawls will allow this, so long as the government’s religious doctrine is not fully unreasonable.  In other words, it “must admit a sufficient measure of liberty of conscience and freedom of religion and thought, even if these freedoms are not as extensive nor as equal for all members of the decent society as they are in liberal societies.” ^[13]   Thus, mandatory state religious holidays, restrictions on the way that clothing can be worn and other such duties, could be imposed on the citizens, and would be in accordance with Rawls’s notion of religious toleration within a decent hierarchical society, so long “no religion be persecuted or denied civic and social conditions permitting its practice in peace and without fear.” ^[14]  

Let us suppose that the Islamic Law of Kazanistan requires that individuals do not work on certain day, women and men are required to dress a certain way, and the state has a religious holiday that, say, requires fasting during a specified period for the purpose of spiritual enlightenment.  As a member of Kazanistan, who does not subscribe to Islam, I would feel that my religious beliefs were not being sincerely tolerated by the decent hierarchical society of which I was a member.  Although my comprehensive doctrine does not mandate abstinence from the state proscribed customs, I do not follow their beliefs and would thus consider duties and obligations such as these imposed on me by force, not in bona fide. ^[15]   The “sufficient measure” of religious toleration that a DHS’s state religion must allow should be broad enough not to impose duties that members would object to.  My beliefs do not tell me that I have to work each day, but if I were not allowed to do certain tasks on the day proscribed as “holy” by the society’s religion, I would then be barred from fully exercising my religious practices.  Furthermore, although being required to fast for “moral enlightenment” wouldn’t specifically contradict the tenets of my religion, it would hinder me from doing activities that I would normally do in accordance with my religious freedoms, such as having a “Thanksgiving” meal, for example.  Duties and obligations such as these do seem to deny, or at least limit, the civic and social conditions in which I can maintain my own religious beliefs. 

The main problem with the power of state religion is that it can impose duties and obligations that restrict the limit of toleration that I would receive.  Since I am not a Muslim, I would not want to fast nor take a day off from work due to a state holiday, but under Rawls’s current construction of Kazanistan, I would be required to do so by law.  A liberal society such as the United States has state holidays for which governmental offices and other businesses close down, but citizens do not have to close their business, though they may choose to if their religious beliefs lead them to. ^[16]   Kazanistan does not seem to be very religiously tolerant in this sense, more so that Islamic custom and practices will pervade into every members life, imposed on them by the governmental body.  Rawls retorts that my religion is not persecuted or prevented from operating without fear, and hence has a “sufficient measure” of religious toleration.  Nevertheless, Rawls misses the point of the objection.  It is not that the state persecutes my religious ideas per se, but rather that the state religion could impose duties and obligations that my religion does not call for, thus compelling  me to fulfill religious duties and obligations, which could considerably differ from my religious doctrine and practices, hence limiting my ability to faithfully carry out my own religious duties and obligations.  Rawls does say that the religious freedoms need not be equal for all members of the decent society (LP, 74), yet “depending on what the state religion mandates, life in a hierarchical regime could be rather limiting and perhaps even barely tolerable for nonmembers of the state religion even if the government treats them with formal equality, respects their basic human rights [human rights proper], and protects them from persecution.” ^[17]    Freedom from persecution does not entail that a group will receive “sufficient” toleration comporting with a decent society’s common good idea of justice. 

The argument above can be illustrated with the following example.   There is a custom of observance in Iran to mourn those who died in the martyrdom of Imam Husayn. Husayn is the grandson of Prophet Muhammad who became an important figure to Shiite Muslims by fighting the Sunni Muslims and perishing in the battle.  The observance takes place during Muharram, and for a month the mourners march through towns and cities performing rituals and reciting chants.  There seems to be no reason why Kazanistan could not have a custom similar to Muharram and require all members to cooperate in the event.  For Rawls, this may not oppress, say, a Christian’s religious freedom for he or she is not compelled to break any of his or her religious tenets, such as worshipping other idols, yet he or she would be compelled to take part in a long-lasting processional in memory of a martyr, Imam Muharram.  Although I am not aware of anything in the Christian faith that prevents the martyrdom of persons other than Jesus, it does not seem that a Christian would feel right about observing another figure in that way, especially when the martyr is the grandson of Muhammad, whom Muslims claim to be the final prophet. ^[18]   In that example, the Christian would be held to take part in a ritual that indirectly pays homage to a religious figure (Muhammad) that does not enter into the Christian doctrine. ^[19]   Moreover, human rights proper does not contain the freedom of assembly.  Without such a freedom, a religious group could have difficulty meeting with the body of its members, there could be limits on the size of the gathering or it could be banned entirely.  Without the freedom to peacefully assemble, the religious are severely restricted in their religious practices.  Thus, to ensure a “sufficient measure” of religious toleration, it seems that the non-Muslim members of a people need the freedom to assemble and practice their views, and also should be able to challenge the legitimacy of any religious duties and obligations imposed on them.

 Women’s Rights

In a society that does not consider all of its members free and equal persons, nor that they deserve equal representation as separate individuals, different groups could be placed into subordinate roles .  This fact is shown in the subjugation of women by many present day hierarchical Muslim nations. ^[20]   Kazanistan could follow Iranian law, requiring all women to observe hejab, the Islamic dress code mandating that women wear veils and cover their curves.  This sets women off as a separate class, implying that women need to be covered because they are seductive, dangerous, and corrupt.  This and other such restrictions on women would be permitted as long as, (1) the judges and other officials sincerely believe in the inferiority of women, (2) women have an opportunity to be heard at some point in the consultation process, and (3) the law is guided by the common good idea of justice. ^[21]

Rawls tries to ensure the strength of the second criterion by suggesting that a decent society should “arrange that a majority of the members of the bodies representing the (previously) oppressed be chosen from among those whose rights have been violated” (LP, 75), but he does not anticipate the arguments for the other two criteria that would allow unfair treatment of women, thus his reply is lacking.  A sincere belief in the law is all that is required of judges and other officials, and if they thought that women are inferior, they could make and decide on laws that are not in a woman’s favor.  The third criterion is the one that could save Rawls, however.  If the law is indeed guided by the common good idea of justice, then egregious human rights violations could not occur.  If there was any dissension towards the government’s right policy, the representatives of the oppressed groups could use the consultation process to have their grievances heard and rectified.              Ideally, a judgment from a just consultation hierarchy would justify what inequalities are permitted to persist between men and women, or any groups, because a just consultation hierarchy makes judgments in accordance with the members’ common good idea of justice.  If the decent hierarchical society has a corrupt consultation process, however, rights violations could occur and would not be redressed in a manner congruent with the common good idea of justice.  A liberal society could discover corruption among judges or other officials, but a liberal society has legal measures to deal with such an occurrence, Kazanistan’s system of law does not.

Consultation Hierarchy

The third criterion above would allow inequalities between the sexes, or between any groups for that matter, to exist, if and only if such inequalities could be taken through a just consultation process and found not to deviate from the common good idea of justice.  There is something, however, that I see lacking in the decency criteria which could allow for Kazanistan’s consultation hierarchy to not deal fairly with all the claims put before it.  If this happens to be the case, Kazanistan’s common good idea of justice would not be common nor just, and different groups, such as women, could find their rights to be very narrow in scope.  Consider also that members of Kazanistan do not have full freedom of expression. ^[22]   This happens to weaken the argument that the consultation process ensures the human rights of the persons in a decent hierarchical society because without freedom of speech, people may not even be able to raise a voice for the consultation process to hear.

Without freedom of speech, the groups do not have the right to freely discuss their dissents with one another.  If groups of women wanted to meet with groups of non-Muslims to discuss their respective dissents with government policy, in order to possibly have their representatives take collective action in the consultation process, they could be arrested, for they do not have that right.  The lack of a non-state newspaper would also inhibit the parties from having their dissents shared with the public at large.  Rawls does say that the consultation process must seriously consider and respond to dissents, but when the government presents the dispute to the public, there is no mechanism to ensure that it will accurately report the group’s grievance and the hierarchy’s bona fide reply.  The dissenting groups do not have the right of free speech and would therefore be unable to publicly challenge the truth of the governmental report. 

Suppose, for example, that a non-Muslim group of builders wanted to challenge the denial of their building permit.  They claim a similar permit was given to a group of Muslim builders for the same sort of project and so are apparently being discriminated against for being non-Muslims.  The consultation hierarchy of Kazanistan could dismiss this dispute with little effort and a feeble response.  The consultation hierarchy, in the state-run newspaper, could deny the builder’s allegations and fabricate any sort of reasons for the permit denial.  The groups are free to continue their protests until they are satisfied with the response, but this just sends them back through the system that dismissed their claim in the first place.  Any grievance with the government raised by a small group could be shrugged off easily enough, but collective action by the representatives to different oppressed groups, secured through free exchange of thought and alliance, would be hard to silence.

 In “The Rawlsian Theory of International Law,” Fernando R. Teson notes a striking inconsistency in the function of the consultation hierarchy.  He writes, “if the undemocratic hierarchical society implements a system of consultation, then it is natural to recognize the freedom to question whether or not that system has been fairly implemented” (LP, 95).  If Teson is right, the consultation hierarchy is prima facie unjust since there is no mechanism to ensure the fairness or effectiveness of the process-- a mechanism such as free speech, so that public opinion can be voiced not just to the government, but to anyone who might share their cause or agree with their arguments.  Allen Buchanan expands on the notion that dissents are ineffective in the current construction of a Rawlsian decent society.  He thinks that Rawls calls this process a hierarchy because the dissenters are not allowed to address the officials higher-up in the program, and it is consultational because the dissenters are merely consulted on matters, there are no institutionally recognized powers for them to try to influence social policy. ^[23]   Imagine a university where groups of students are consulted on university policy. ^[24]   They must follow the order of the hierarchy when bringing up matters and they do not have freedom of speech.  The students thus cannot share their grievances with other student groups nor will their case necessarily get very far, to a high-up official, in the consultation process.  Had the students the right to free speech, they could possibly find support from other groups, by holding rallies or by writing into the school newspaper, who may collaborate with the first group to have their mutual concerns addressed.  This form of cooperation characterizes what political dissent is all about-- advancing one’s claim and finding support for that position, in order to change social policy.  As it stands, the student group may petition the consultation process and will be consulted at some time in the process, but if their petition fails to achieve its intended results, the group is at a loss to find support from other groups within the university.  This is a problem that can arise in Kazanistan, and if the groups are not allowed to challenge the very structure that is supposed to grant them their rights, then they have no one to whom to appeal if they think that the consultation process is not upholding the common good idea of justice.   

Another question that begs to be answered is whether Liberal societies should settle for tolerating a decent hierarchical society with a decent consultation hierarchy when the liberal peoples are not even assured that groups within the decent society have a fair process of consultation in accordance with their common good conception of justice, which could rectify the injustices illustrated in the examples above.  Rawls says that if the consultation process is fair, and the society is non-aggressive, and also supports human rights proper, then a liberal society would consider the decent people a good-standing member in the Society of Peoples.  A liberal society cannot be ensured that the consultation process is fair, however, unless there is some modicum of freedom of expression that would allow groups to publicly express their grievances.  When it is just the group and the consultation hierarchy, the group is powerless to the will of the process.

Reconstructing Rawls: Bringing The Decent Hierarchical Society Up To Code

In the Law of Peoples, John Rawls says that “the reader has to judge whether a decent people, as given by the two criteria, is to be tolerated and accepted as a member in good standing of the Society of Peoples” (67).  We have analyzed Rawls’s example of a decent hierarchical society, and found that Kazanistan has a corrupt consultation hierarchy, which shapes the basic structure of society, and also lacks certain basic human rights in its package of human rights proper, such as freedom of speech and assembly, that are necessary to prevent the oppression of different groups.  If we look at Kazanistan in light of Rawls’s quote above, a distinction begs to emerge.  Rawls believes that Kazanistan is a decent society, but if we judge it by Rawls’s two criteria, we see that the criteria are necessary, but not sufficient, to ensure that Kazanistan does not discriminate against the builders or university students that I mentioned in my examples.  Although these types of rights violations occur, they are not serious enough to warrant sanctions or military intervention, so Kazanistan should be tolerated in that respect, but it should not be considered a member in good standing of the Society of Peoples.  If we divorce the notion of being a good standing member from the idea of being tolerated, we can maintain a distinction between members that actually are in good standing in the Society of Peoples, liberal societies or truly decent hierarchical societies, and those societies that still need to make improvements in their consultation process or with religious toleration.  Teson remarks that “the upshot is that we don’t need to call an authoritarian regime “legitimate,” “reasonable,” or a “member in good standing” in order to conclude that it would be unjustified and unwise to eliminate the regime by force” (98).  He suggests further that the best way for a liberal society to influence a decent hierarchical is to use “moral persuasion” and “diplomatic pressure” in order to incline a DHS more towards  democratic change (97).  Since it seems that Kazanistan is tolerable in the sense that forceful intervention is not called for, diplomatic pressure should not be used.  Moral persuasion, on the other hand, could be a very effective tool to influence  the society’s governmental policy. 

Rawls tells us that two main ideas motivate the Law of Peoples (6-7).  The first is that human history has shown what horror may come when great injustices are permitted. The second is that such atrocities can be eliminated if there are just social policies and institutions.  If the people of Kazanistan were admitted into the Society of Peoples and proclaimed to be a member in good standing, they would lack any motivation to try to become more liberal and eliminate the possible injustices that women, or the builders or university students in my examples, could bear.  Kazanistan would already be free from sanctions, and other members of the Society of Peoples (SOP) are not permitted to publicly criticize it so there is no compelling reason for that society to become more liberal.  Thus, without some method other than sanctions to demonstrate disapproval, Rawls must admit not-so-decent hierarchical regimes into the SOP with nothing to differentiate them from the members who promote much greater liberty among their persons.  This should not be acceptable to truly decent regimes, who, although they are not liberal, would like to have themselves seen by the other members as more democratic than a society with human rights violations.  If we permit different levels of the standing of a member of the SOP, we can say that Kazanistan is, say, a level such-and-such member of the Society of Peoples, and that another society which: (1) fulfills Rawls’s decency criteria, in addition to promoting freedom of expression and also a truly “sufficient measure” of  religious toleration, as well as (2) maintaining a just consultation hierarchy, is a member in full standing of the Society of Peoples. ^[25]

With this division in grades of standing, higher standing members of the SOP could express disapproval of the internal conduct of members not in full standing.  The members not in full-standing would be tolerated just the same, i.e. free from sanctions or military intervention from the others, now however, they can be held accountable for any policies that do not comport with the Law of Peoples.  Rawls says that, since liberal and decent societies both accept the same Law of Peoples, “political debate among peoples concerning their mutual relations should be expressed in terms of the content and principles of that law” (LP, 85).  By using public reason, full standing members can discuss, in a public forum, member conduct that they do not feel is in compliance with the tenets of the Law of Peoples.  “A citizen engages in public reason, then, when he or she deliberates within a framework of what he or she sincerely regards as the most reasonable political conception of justice, a conception that expresses political values that others, as free and equal citizens might also reasonably be expected to endorse.” ^[26]   The public reason of a society is shown if we substitute “people” for citizen, and “it” for the pronouns he and she in the quote listed above.  Under this framework, a liberal society could criticize Kazanistan if the liberal society deliberates in accordance with its common good idea of justice, and argues from a position that other members in the SOP could reasonably agree to.  Thus if a member made public a criticism charging that the consultation hierarchy of Kazanistan arbitrarily dismisses claims that groups put before it by right, the criticizing member could claim that Kazanistan must clean up its consultation process, in order to ensure fairness to the groups, before that member recognizes Kazanistan as being in full standing in the SOP. 

The use of public reason is the only way in which a liberal or decent society can influence the social policy of one of its associates.  Public criticism is also a much less serious penalty than sanctions are.  Kazanistan may or may not heed the criticism that others issue and then may or may not proceed to become more liberal; the fact remains, however, that it is unlikely that a decent hierarchical regime with some human rights violations, or an unjust consultation process, will try to reform its ways under Rawls’s Law of Peoples.  With good standing awarded to non-aggressive societies that fulfill the decency criteria, but only respect human rights proper, there is no incentive for the society to become more liberal, for it has already achieved the maximum amount of benefit possible from the SOP.  Thus, in order to ensure compliance with the Law of Peoples or effect any change in a decent hierarchical society, toleration and full standing membership in the Society of Peoples must have different standards.  Toleration, in the form of freedom from sanctions or intervention, should be granted to all non-aggressive peoples who also meet Rawls’s decency criteria.  The criteria for full standing membership, however, should require that the decent society: (1) meets Rawls’s decency criteria including the essential package of human rights, and (2) has a just consultation hierarchy in accordance with its common good idea of justice.

Recall Rawls’s two ideas that motivate the Law of Peoples, the first, the horrors of human history-- can be prevented through the second, just institutions.  We have seen a few types of injustices that could occur in Kazanistan due to its unjust consultation hierarchy and partial respect for the essential package of human rights.  Delimiting the conditions for full membership into the Society of Peoples shows us whether Kazanistan is the type of society that Rawls wants to specify as a bona fide member of the SOP, and to be tolerated in that sense.  If freedom of expression is honored by a decent people, their consultation process will be just.  The representatives of the various groups would be allowed to share information with other groups which would allow for the common good idea of justice truly to be common.  Groups of women could meet to discuss their opinion of their treatment.  They could decide on common grievances and present them to the consultation body.  The consultation body, as required, would hear the dissent and make a consciencious reply.  If the consultation body treated the groups unfairly in any way, their maltreatment can be displayed in non-governmentally-controlled newspapers.  Suppose that a group of women expresses discontent with a law requiring full coverage of the female body except for the eyes.  If the consultation hierarchy simply dismissed their claim as not supported by the common good conception of justice, the group could discuss their opinion on the matter with other groups .  If the consensus is that most groups do not favor the law, the alliance of groups could have considerable support and leverage to change social policies that allow some groups to be placed into subordinate roles or treated unfairly.

In addition, the freedom to speak and to publish a group’s opinion will make it more likely that the basic structure of the consultation hierarchy is just.  As stated in the previous example, if a group thinks that the consultation process is unjust, with free speech the group can challenge the process, and the consultation hierarchy will have to prove to the public at large, that the law is indeed guided by the common good idea of justice.  If the consultation body is unable to justify a certain policy decision to the dissenters and any other group that may support the dissenters, other peoples in the Society of Peoples may challenge the good standing of that regime.  The oppressed group, unfortunately, may not immediately have their grievance fairly addressed, but moral persuasion from full standing members of the SOP is intended to influence these decent societies in that way.

Freedom of expression would allow religious toleration to flourish.  Religious groups would be free to assemble, speak and produce pamphlets expounding their doctrine.  The sufficient measure of religious toleration is in place when the above freedoms are granted; otherwise, a non-Islamic religion in Kazanistan can have serious barriers to practicing its faith.  Freedom of expression is not the only essential to religious toleration though; a just decent consultation hierarchy is also necessary.  Then, a group that does not want to take part in the state’s religious duties and obligations could petition the consultation body to that effect.  If the law requiring persons to observe Muharram is not in accordance with Kazanistan’s common good idea of justice, the group would not be compelled to take part in the ritual.  If a judgment denying the non-Muslim’s dissent is given by a just consultation hierarchy, acting in full accord with the common good idea of justice, however, then the group is bound to fulfill such a duty or obligation.  To ensure that a religious group’s “sufficient measure” of toleration is indeed sufficient, the group must be vested with free speech and be able to have its claims fairly judged by a decent consultation hierarchy.

To establish Rawls’s idea of international cooperation, by means of the Law of Peoples, it is necessary to take two steps.  The first requires that the toleration of a DHS and the granting of full standing into the Society of Peoples have different criteria.  This serves two purposes.  Not only do peoples in the SOP then have means to differentiate between a truly decent hierarchical society and one that violates its member’s rights, while only upholding the very minimum conception of human rights allowed, the peoples can publicly criticize the society for its rights violations.  This provides motivation for a society like Kazanistan to become a full standing member.  If the members of the Society of Peoples are allowed to criticize not-so-decent members, the not-so-decent members, it seems, would want to make their policies more just so they are no longer criticized for them.  Surely a DHS would not like other societies criticizing it, but the alternative is that Kazanistan is granted good standing when it is not in as good of a standing as decent societies, who respect the essential package of human rights.  It is important to have this distinction, as the use of public reason is the only way to influence such another society’s policies, without reverting to intervention or sanctions.  Without this mechanism, Rawls will have a hard time ensuring that the rights he wants for the members of peoples in the SOP, are respected. 

The next step to repairing a Rawlsian decent hierarchical society is to require that a member in full standing of the SOP honor the essential package of human rights.  When groups in a DHS have freedom of expression, the groups can ensure the fairness of  the consultation process by the methods stated above.  The essential package of human rights is not as egalitarian as the United States’ Bill of Rights, but it does provide institutional support for the rights of dissenters in the consultation process, through the power of dissension and the promise that the consultation body acts in accordance with the people’s common good idea of justice.  This new package of human rights also ensures a sufficient measure of religious toleration by allowing religious groups to freely assemble and discuss their views. 

By taking the two steps which resulted in the revision of both the decency criteria and the standing of decent peoples, a decent hierarchical society is less likely to violate its members’ human rights, as the consultation hierarchy will rectify any such violations.  And if any rights violations do happen to occur, members of the SOP can use public reason to attempt to influence the decent society to become even more decent, in the hope that all societies can accept the Law of Peoples, and eventually become full standing members in the Society of Peoples.

Works Cited

Buchanan, Allen.  “Justice, Legitimacy, and Human Rights,” The Idea of a Political Liberalism.  Eds. Victoria Davison & Clark Wolf.  (Oxford: Rowman & Littlefield Publishers, 2000).  pp. 73-89.

Naticchia, Chris.  “Human Rights, Liberalism, and Rawls’s Law of Peoples,” Social Theory and Practice, Vol. 24, No. 3.  pp. 345-374.

Rawls, John.  The Law of Peoples:  with The Idea of Public Reason revisited, (Cambridge: Harvard University Press, 1999), pp. 3-1

Teson, Fernando R.  “The Rawlsian Theory of International Justice,” Ethics and International Affairs.  Vol. 9, 1995.  pp. 79-99.