Patrick Hayden, “John Rawls: Towards a Just World Order.” University of Wales Press, Cardiff,
2002.  211 pages.  Paper.

Reviewed by David A. Reidy, J.D., Ph.D., Dept. of Philosophy, University of Tennessee, USA.

    Patrick Hayden attempts in this, his second, book to develop a Rawlsian, if not exactly
Rawls’s, theory of human rights.  The attempt is well-motivated insofar as Rawls’s theory of
human rights, introduced only in his later work on international justice, is seriously
underdeveloped and in real need of being fleshed out and, then, critically examined.
    Hayden’s central thesis is that if we take seriously the normative foundations of the
theory of justice Rawls sets out in his 1971 classic, A Theory of Justice (TJ), and his 1993
reworking of that theory, Political Liberalism (PL), we will theorize human rights as among the
terms of an agreement to govern the relations between all persons living on Earth regardless of
their political membership or citizenship.  This agreement we will theorize as arrived at by
rational agents representing individual human persons behind an appropriate veil of ignorance in
a global original position.  In this way, Hayden argues, we can connect the moral core of Rawls’s
political philosophy with a doctrine of universal human rights robustly liberal and democratic in
content and rooted in an ideal of all persons as free and equal and possessed of an inherent
dignity.  Hayden’s effort is, in spirit and substance, akin to earlier efforts by Charles Beitz,
Thomas Pogge, Kok-Chor Tan, Darrel Moellendorf and others to generate a liberal individualist
and egalitarian cosmopolitanism from Rawlsian starting points.
    This thesis is interesting on its own, of course.  But it is made more interesting by the fact
that in his later work on international justice Rawls explicitly rejected the sort of view it marks as
Rawlsian.  In his 1999 The Law of Peoples (LP), Rawls argued for a theory of international
justice less cosmopolitan and egalitarian, and a conception of universal human rights less
robustly liberal and democratic in content, than that characterized by Hayden and others as
genuinely Rawlsian.  To be sure, neither Rawls’s internationalist morality in general (his “law of
peoples”), nor his doctrine of human rights in particular, is without teeth.  But neither lives up to
the liberal individualist and egalitarian cosmopolitanism that Hayden and others expected Rawls
to deliver.   
    The reader who feels betrayed must, or should, confront the possibility that his dashed
expectations, his unrealized hopes, rest on a misunderstanding.  But this is serious and high risk
intellectual work.  I assume Hayden undertook this work.  Unhappily his book bears too little
evidence of it.  He attributes Rawls’s failure to deliver the expected liberal individualist and
egalitarian cosmopolitanism to, inter alia, a misunderstanding of the moral core of his own
political philosophy and his falling prey to the false charms of a realist stance toward
international affairs.  That Rawls explicitly disavows realism in international relations and argues
that the moral core of his political philosophy, the ideal of reciprocity, precludes a conception of
human rights more robustly liberal and democratic in content apparently seems to Hayden to be
beside the point.  In any event, he undertakes a sympathetic reconstruction of neither Rawls’s
position nor his arguments for it.  Indeed, those familiar with Rawls’s work and Rawls
scholarship more generally will find a good deal of Hayden’s work engaged with a strawman
Rawls.
    For example, Hayden mischaracterizes Rawls’s position on international relations as
essentially realism with a human face.  In LP Rawls approaches issues of international justice
from the point of view of a just and stable liberal democratic people concerned to identify the
moral principles to which its foreign policy ought to conform.  He distinguishes a people from a
mere state precisely to signal the distance between his moral internationalism and international
realism.  A state is a mere agent, rational but not necessarily reasonable.  But a people is a
corporate moral agent, both rational and reasonable, and thus entitled to justice in its relations
with other moral agents and obligated to give justice in turn.  
    Because liberal democratic peoples understand justice as reciprocity, they are obligated to
act in their foreign relations (typically, but not exclusively, through the states that act as their
agents) on principles other peoples could reasonably affirm from a common moral point of view.
Further, because liberal democratic peoples often regard themselves as having existed as
corporate moral agents prior to their becoming liberal and democratic, they recognize that the
internal conditions any body politic must meet to take on moral status as a people fall short of
those it must meet to live up to the demands of liberal democratic justice.  That is, from their
own history (as well as world history) they recognize the possibility of nonliberal and
nondemocratic (but nevertheless morally decent, constitutional, republican or consultative, and
well-ordered) peoples to whom they would owe, and from whom they may claim, justice (if any
such peoples indeed exist).  Rawls’s law of peoples extends to nonliberal and nondemocratic but
otherwise decent peoples not for the realist reason that they have and act through states, but
rather because they are, like liberal democratic peoples themselves, bodies politic possessed of
the moral capacities essential to corporate personhood.  Whether those capacities are exercised
through the institution of the modern state or some other institutional arrangement is beside the
point.  Indeed, one of the advantages of Rawls’s approach is that it extends the law of peoples or
international morality to the relations between institutionally distinct and semi-autonomous
peoples within a multinational state as well as to stateless indigenous peoples.
    Hayden also mischaracterizes Rawls conception of human rights as relativist.  In LP
Rawls draws on two international original position arguments.  In the first, agents represent only
liberal democratic peoples.  In the second, they represent only other decent, well-ordered peoples.
On Rawls’s view, both arguments yield the same principles of international justice, a fact of
moral significance since it means that liberal democratic peoples may regard the principles of
international justice as a (constructivist) expression of nothing more than their own self-
understanding and at the same time enforce them against nonliberal and nondemocratic peoples
without violating the demands of reciprocity.  But Hayden maintains that agents representing
liberal democratic peoples only and agents representing nonliberal and nondemocratic but
otherwise decent peoples only would never agree to the same list of human rights.  Therefore, he
concludes, human rights must be relative on Rawls’s account.
    But this is just wrong.  Hayden assumes what Rawls never says – namely, that agents
representing liberal democratic peoples will agree to regard the full range of liberal democratic
rights as universal human rights as a matter of first principles of international morality.  He
assumes this, apparently, because he confuses what real existing liberal democratic peoples might
be willing to agree to as a matter of real historical voluntary political undertaking through treaty-
making and the like with what agents representing liberal democratic peoples will agree to in an
ahistorical international original position entered for the purposes of identifying first principles of
international morality.  As a matter of international morality, Rawls argues, universal human
rights are those that must be secured within any body politic for it to constitute itself as a genuine
scheme of social cooperation between persons and to enjoy the moral status of corporate
personhood.  They include subsistence and security rights, due process and rule of law rights,
basic liberty rights, some political participation rights, and rights to hold personal or
nonproductive property.  They do not include the full set of liberal democratic civil or
constitutional rights, since these depend on a particular and historically contingent understanding
of social cooperation as between free and equal individual persons taken apart from any
antecedent group memberships.  Neither agents representing liberal democratic peoples nor those
representing other decent peoples will commit themselves as a matter of first principles of
international morality to the full range of liberal and democratic rights as universal human rights;
to do so would be to sacrifice the moral interest in self-determination of the peoples they
represent for no good reason.  To put it otherwise, agents representing self-sufficient and
independent corporate moral agents will agree to treat as first  principles of international morality
those human rights upon which their moral interest in self-determination is predicated.  They will
thereby leave themselves morally free to build upon that foundation through a politics of mutual
respect and voluntary undertaking.
    Hayden misses his mark in many other ways as well.  One final example will have to
suffice to drive the point home.  Rawls claims that peoples are self-sufficient and independent
and he sets up his international original position arguments so that they model this fact.  Hayden
objects on the ground that as a matter of descriptive fact no people today exists apart from vast
networks of interdependency.  An appropriate international original position argument ought to
model this fact, Hayden insists.  Hayden is, of course, correct about the descriptive facts.  And
Rawls never suggests otherwise.  And that is because Rawls’s point is conceptual.  Rawls’s point
is just that qua corporate moral agents peoples are self-sufficient and independent.  Their moral
capacities and institutional embodiment are products of the internal arrangements of their parts,
not of necessary external relations with other peoples.  Since Rawls aims through his
international original position arguments to generate principles of international morality out of a
constructivist procedure rooted in the self-understanding of peoples as corporate moral agents,  it
is the conceptual, not the descriptive, claim that matters.
    Rawls’s principles of international justice track the (to some extent still emerging) post-
World War II settlement in international law.  They include long recognized norms regarding
nonintervention and the keeping of treaties, but also more recently recognized norms limiting
wars to those fought in self-defense, requiring domestic compliance with basic human rights, and
imposing on all peoples a duty (of justice) to assist societies unable because of unfavorable
conditions to constitute themselves as decent or liberal and democratic well-ordered peoples.
What Rawls’s principles don’t require, and this is what ultimately disappoints Hayden, is that the
world be organized so that all peoples are constituted as liberal democracies and the global
economy fulfills some internationalized or globalized version of Rawls’s famous “difference
principle.”
    Here it is important to emphasize that Rawls expresses no distaste for a world within
which all bodies politic are liberal and democratic and global economic relations conform to one
or another difference principle.  And nothing he says blocks or calls into question the desirability
of a world governed by a robustly liberal and democratic regime of positive international human
rights law arrived at through treaty and long customary practice.  Rawls simply insists that the
first principles of international morality do not themselves demand the world Hayden and others
(myself included) desire.  Instead, the first principles of international morality require only the
conditions under which well-ordered peoples engaged in a peaceful politics of mutual respect
might together bring about such a world through their voluntary undertakings.  They mark the
conditions that must be met if liberal democracy is to be realized globally within and from a
common human reason and thus to qualify as a genuine product of human freedom.  That is the
core of Rawls’s political philosophy, and to that Rawls remained faithful to the end.


Reidy replies to Hayden’s reply to Reidy’s review.  (The Reidy/Hayden exchange is to appear as such in Kantian Review)

Patrick Hayden continues to insist (on his pg. 3) that Rawls endorses two distinct lists of human
rights, one for liberal democratic peoples and one for other decent peoples.  Patrick cites pgs. 68
and 78-80 of LoP.  However, nothing on those pages or elsewhere in LoP warrants Patrick's
claim.  What Rawls says on those pages is that human rights properly speaking are a proper
subset of liberal democratic constitutional rights which may be regarded from the point of view
of decent peoples as setting out the rights and responsibilities of persons within their
associationist form of social cooperation.  There is no suggestion there or anywhere else that
human rights are relative.  The only possible remarks Professor Hayden may have in mind are in
Footnote 23, page 80.  There Rawls affirms i) the generally accepted view that certain items
listed on the UDHR (such as the right to social security or paid holidays) cannot be basic human
rights properly speaking since they presuppose certain rather specific and not themselves
necessary institutional contexts (an industrial market economy, for example); and ii) the slightly
more controversial view that items such as Article 1 of the UDHR express liberal aspirations
rather than any determinate and proper human right.  This latter and arguably more controversial
result follows, of course, not from any anti-universalism or retreat from objectivity in Rawls's
view, but rather from his constructivist methodology and commitment to the universality of the
moral ideal of reciprocity (together these function to root the content of human rights in the
self-understanding common to all non-aggressive well-ordered peoples).  Rawls's conception of
human rights may be too thin to suit Professor Hayden's moral intuitions.  It is certainly thinner
than the conception of human rights that liberal democratic peoples may reasonably hope to
establish as globally binding under international law through the voluntary treaty undertaking of
all peoples.  But it's certainly not relativistic.  It marks what liberal democratic and all other
decent peoples may legitimately enforce against other societies and states regardless of their
voluntary treaty undertakings.