Rethinking Post-colonial Theory in a Global Context: John Rawls’s The Law of Peoples

Malcolm Hayward


            From its beginnings, Edward Said's Orientalism (1978) has produced conflict in post-colonial studies.  Does Professor Said’s theory suggest global implications and/or strategies as Culture and Imperialism (1993) argues?  Or does the East of Orientalism belong only to the Middle East and particularly to Middle Eastern studies?  Is there a monolithic "Othering" at work?  Or do resistive pockets exist within Western imperial discourse?  Perhaps the thorniest issue, however, concerns the stance from which to view global issues of imperialism and colonization.  Ethical decisions—judgments, in a word—should play a large part in post-colonial theorizing and critiques.  But on what basis can judgments be made?  Where should accountability lie?  And if there is accountability, how can it be enforced?

            Moreover, there has been a recent shift in the major players in the 21st century version of the Great Game.  Said and Bhabha have, in characteristically fine ways, questioned the stability of the term “nation.”  “National identity” may now be seen more as a “notional identity.”  But does it matter any more?  Does national identity even count?  These questions come on the heels of global political reactions to global capitalist institutions (multinational corporations) and the global political institutions wholly owned and operated by them.  By global capitalist institutions, I mean organizations like Bertelsmann, Aramco, Merck, Sony, Microsoft, Daimler-Benz, and so on.  By global political institutions, I refer to the World Bank, the IMF, the WTO, and the various protectors of Intellectual Property.  Imperialism and colonization must now be looked at in terms of these global institutions, rather than in political or even cultural terms.  The dichotomies first world/third world, east/west, north/south, developed/underdeveloped do not hold the relevance they once had. 

            There are thus two issues to be faced: first, how to establish a foundational basis for ethical judgments, and second, how to theorize resistance to the new economic imperialism which has changed rather radically from the old imperialism of nation-state or region and which has rendered Samuel Huntington’s “clashes of culture” obsolete.  Critics of both of these situations must ask where to look for guiding principles upon which to base judgments within a global context.  I want to avoid both the hegemonic “westernization” of democratic/capitalist values and the seemingly benign cultural relativism that avoids any standards of ethical or political judgment.  I also wish to avoid ethics based upon particular religions.  As valuable as a set of environmental principles are in imagining the future (or lack of it) of our world, I think there are limitations in the extent to which environmentalism or ecology can be used as a basis for analyzing human systems (such as politics and cultures) in more than a metaphorical way.  I also wish to look elsewhere than feminism, again for the limitations it might impose in analyzing structures that are only partly shaped by gender relationships.  John Rawls' 1999 essay The Law of Peoples seems a good place to look for such a stance.  I will try to show that Rawls works pretty well in the first instance, creating a foundational basis for ethics, and offers a procedural approach for the second issue of economic imperialism. 

Let me first briefly introduce the work of Rawls, a political philosopher from Harvard, for his work, despite its wide-ranging influence in other fields, from ethics to political science to business, has been rather surprisingly ignored by our discipline; the MLA Bibliography lists but ten references to Rawls in the past 20 years, with Altieri and Seyla Benhabib being the most notable contributors.  In comparison, the database for Academic Search, reviewing selected journals in philosophy, politics, and history, lists 167 references.  By the 1960s, political philosophy in America lacked a way to talk about progressive liberal ideals in anything but an historical context.  In 1971, Rawls' Theory of Justice sought to determine general principles by which to measure the nature of justice and the proper goals, as determined by reason, that a liberal society might have to maximize benefits to individuals.  Rawls does not overlook his basis in Kant, but in many ways his work goes beyond Kant to create a "meta-ethics" of behavioral principles.  

            Rawls bases his theory upon two simply stated but compelling principles:

First Principle

Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

Second Principle

Social and economic inequalities are to be arranged so that they are both:

(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b) attached to offices and positions open to all under conditions of fair equality of opportunity.  (302)

These principles follow from Rawls’ General Conception of justice:

All social primary goods—liberty and opportunity, income and wealth, and the bases of self-respect—are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored.  (303)

Enactment of such principles is facilitated by a kind of thought-experiment, proposed by Rawls, which makes use of the Veil of Ignorance.  It works this way.  Let’s say two parties are disputing the future arrangement of a set of primary goods—income, for example.  In what Rawls terms the “originary position,” both parties know the benefits and disadvantages that will flow from a particular distribution of those goods: that a worker will achieve a particular wage, a manager a certain salary, a stakeholder a certain return on investment, and so on.  But a veil of ignorance exists for the parties.  Neither party in the original position knows their specific place in that future arrangement.  Reason should prevail to bring the parties to agree to an arrangement that maximizes the benefits to all.  If we accept Rawls’ tenets as foundational or universal, they offer us a valid and systematic method both for judging just or unjust actions in a society.

            Yet there is in our discipline, as in others, an active distrust of reason as a Western construct and of the universal as merely a tool to extend colonial or patriarchal policies.  An awareness of this distrust can be seen in the work of Seyla Benhabib and Jurgen Habermas.  Benhabib, in writing of Rawls and feminism, states, “the problem is that the Kantian presuppositions also guiding the Rawlsian theory are so weighty that the equivalence of all selves qua rational agents dominates and stifles any serious acknowledgment of difference, alterity, and of the standpoint of the ‘concrete other’” (167).  The point is that for Benhabib, the self is always a situated self, and that it makes no sense in pretending to abstract it.  A similar line is taken by Habermas, for whom the issue is discourse, rather than situatedness.  Habermas feels that it is “unnecessary to resort to Rawls’s fictitious original position with its ‘veil of ignorance’” (198) because the free play of “practical discourse” will better fulfill the function of creating a model of, what Benhabib terms, a “free public reason” or resolve the contradictions of multiple perspectives in, again her terms, “the foray of public contestation” (12). 

            Rawls counters, however, that the discourse model of Habermas and Benhabib’s call for a “free public reason” in order to include the needs of the feminist movement are includable within the guidelines of political liberalism as derived from the model proposed in A Theory of Justice (LP 142 n.).  This is, I believe, part of the agenda of Rawls’s 1999 publication, The Law of Peoples, which includes the rather long essay “The Idea of Public Reason Revisited,” and I will return to the issue of discourse ethics and free public reason shortly.  First, however, I need to introduce The Law of Peoples.  In this book, Rawls extends his theory of distributive justice to a global context.  For post-colonial critics seeking to operate from a global context, the approach is useful not only for the principles put forth but for the general procedural means to conceive of, if not to achieve, a "reasonable pluralism" (11) among peoples. 

Rawls begins by a series of moves based upon rational principles, developing the ideas of justice and public reason to argue that a reasonable Law of Peoples based upon the tenets of political liberalism is both possible and realistic.  A “realistic utopia” is how Rawls phrases it.  Several features mark this argument.  First, Rawls conceives of governments as an outgrowth of the need of citizens to act, to express their common sympathies and moral nature (23).  Governments are thus a means, not an end; the basic unit to be considered, then, is the people—and thus the Law of Peoples, not the Laws of States.  Second, while Rawls openly admits that democracy seems to be the most practicable means of government for achieving the ends of justice, it is not the only means of governance that might work.  Hierarchical societies may also achieve the ends of justice.  Rawls' work is particularly apposite at this juncture--as an answer to some of the problems raised by Orientalism--since he specifically addresses ways in which Muslim states may operate through a "decent consultation hierarchy" (4) to achieve similar ends to those of the liberal democratic state.  The approach helps us move beyond the icily reified conflict recorded in Samuel Huntington's too aptly phrased "clashes of culture."  

At the least, the fundamental division is not between democratic and non-democratic peoples or liberal and non-liberal, but decent and non-decent or outlaw peoples.  Decent peoples allow toleration and subscribe to eight principles:

1.      Peoples are free and independent, and their freedom and independence are to be respected by other peoples.

2.      Peoples are to observe treaties and undertakings.

3.      Peoples are equal and are parties to the agreements that bind them.

4.      Peoples are to observe a duty of non-intervention.

5.      Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense.

6.      Peoples are to honor human rights.

7.      Peoples are to observe certain specified restrictions in the conduct of war.

8.      Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.  (37)

But how about the objections of Benhabib and Habermas and for that matter any others who have a distrust of reason and seemingly a priori, universalist assumptions about the nature of politics? 

Several answers are possible.  First, I might coyly suggest that the form in which Rawls’s discourse is framed—a scholarly book meant to be entered as an item into a public contestation of principles—fulfills in itself a discursive role.  That’s self-evident.  Secondly, The Law of Peoples, much more than A Theory of Justice, seems much more grounded in the shape of historical and contemporary events.  References are made to the Civil War, World War II, the IMF, and so on.  Rawls goes to great lengths in a philosophical enterprise to tie his work to areas of public contestation.  In particular, his thorough analysis of Muslim states is pertinent to issues of Orientalism.  In short, Rawls’s book is both a work of discourse and of situatedness. 

A deeper problem, it seems to me, is posed by the changing nature of imperialism.  Political structures have one essential element for an ethical philosopher: they are open to public discourse.  In liberal societies, such as the U.S., the contentious fray of public debate is waged in newspapers and TV, in political campaigns, in the courts, and so on.  Even non-liberal societies have recourse to subversive methods of discourse.  But where does public debate occur regarding global capitalism occur?  In stockholder meetings?  Hardly.  Sometimes it happens in the streets, as in Seattle, Kyoto, and here in Washington, D.C., and sometimes in the courts, as in the recent ruling that G.E. clean up the Hudson, and sometimes in the movies, as in Erin Brockovich, but by and large, as long as the actions of multinational corporations violate no laws, they go unnoticed—except of course for those directly influenced by them, as when a plant shuts down. 

Here, then, is where Rawls comes into play.  The limitation of situatedness is that it does not easily allow for discussion of ethical requirements for institutions rather than for individuals.  The limitation of discourse ethics is that it only works well if there is a mode to force public discourse and in the economic world that does not operate.  Only in exceptional circumstances are corporations held accountable to legal principles of justice—the tobacco companies and Firestone/Bridgestone—are such exceptions.  Far more rarely are they held accountable to such basic principles as “the greatest benefit for the least advantaged,” from A Theory of Justice, or a “duty to assist other peoples living under unfavorable conditions,” from The Law of Peoples. 

Procedurely Rawls might be of use in dealing with this problem.  It might seem that in a discourse theory of justice or in a theory such as Rawls’s that the word is paramount, particularly the written word.  Benhabib argues, for example, that for Rawls justice must follow publicly recognized rules.  “In Rawls view,” she writes, “free public reason is the manner in which public associations account for their doings and conduct their affairs in a polity” (102).  Such accountability to the rules of reason might create a sense that such legislation comes first, but for Rawls, I don’t think that it does.  The beginning and the end of Rawls’s theory are in the performances of social actions.  The “realistic utopia” is based upon actions, “following just (or at least decent) social policies and establishing just (or at least decent) social institutions” (126).  And the beginning point too is for Rawls the basic structure of society and the various conditions for social engagement with which we are faced; as he says, “we depend on the facts of social conduct as historical knowledge and reflection establish them” (16) in order to construct a theory of justice.  Legislation, then, follows social performance, as the implicit features of the social contract are first acted out, then articulated, then institutionalized and inscribed. 

At this point we need better articulations of the social contract as it is performed or abused and as it may be envisioned within the framework of the capitalist system.  Rawls poses as a danger to democratic governments and thus to liberal politics the “large concentrations of private economic and corporate power veiled from public knowledge and almost entirely free from accountability” (24).  The next stage in the struggle to enact a decent and just society will be to turn our attention to these concentrations and, within a system of justice, work to hold them accountable.


Works Cited


Benhabib, Seyla.  Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics.  New York: Routledge, 1992.

Habermas, Jurgen.  Moral Consciousness and Communicative Action.  Trans. Christian Lenhardt and Shierry Weber Nicholsen.  Cambridge: The MIT Press, 1990.

Hayward, Malcolm.  "Edward Said and the Problem of Political Action," The State of the Arts of Middle East Studies.  Tunis: CEROMDI, 1994.  75-83. 

---.  "Globalization and the Clashes of Culture." International Relations and the Middle East on the Threshold of the 21st Century (University of Florida Presses, in press).

---.  "Globalized Mergers and Acquisitions: The Dangers of a Monoculture."  Competitiveness Review, 9(2): 1999, 1-4.

---.  "Justice, Equity, and Competition."  Competitiveness Review. 4 (2): 1994, 1-2.

Huntington, Samuel P. "The Clash of Civilizations?"  Foreign Affairs.  72.3 (1993): 22-49.

---.  The Clash of Civilizations and the Remaking of World Order.  New York: Touchstone, 1998.

---.  "If Not Civilizations, What?  Paradigms of the Post-Cold War World."  Foreign Affairs.  72.5 (1993): 186-194.

---.  "The West: Unique, Not Universal."  Foreign Affairs.  75.6 (1996): 28-46.

Rawls, John.  The Law of Peoples.  Cambridge: Harvard UP, 1999.

---.  A Theory of Justice.  Cambridge: Harvard UP, 1971.

Said, Edward.  Culture and Imperialism.  New York: Knopf, 1993.

---.  Orientalism.  New York: Random House, 1978.