Unsavory Implications of A Theory of Justice and The Law of Peoples: The Denial of Human Rights and the Justification of Slavery and Genocide

Dear all,

I post here in pdf format a paper of mine in which I argue, well, that Rawls’s theory of justice implies the justification of slavery and genocide and is therefore an abysmal failure as far as reflective equilibrium is concerned. Comments are highly welcome

All the best, Uwe  Unsavory Implications of A Theory of Justice and The Law of Peoples

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9 Responses to Unsavory Implications of A Theory of Justice and The Law of Peoples: The Denial of Human Rights and the Justification of Slavery and Genocide

  1. I agree that Rawls does not dig into the implications of his appeal to natural duties nearly enough and passes over this rather important move in his work much too quickly leaving it not well developed. But I am not convinced by your argument in this paper. I think you are right to claim that natural duties cannot be limited to insiders but you have wrongly assumed, it seems to me, that Rawls must derive “those duties from an original position only including insiders.” There is no good reason for making the assumption that Rawls must construct the scope of original position reasoning in the same way when thinking about social justice as when thinking about natural duties.

    One can have one construction of the original position when thinking about social justice that is 1) limited to a single political community (i.e. members in relations to each other), another construction of the original position that is 2) concerned with moral demands owed by any individual to any individual that is structured so as to include all individuals, and a third construction of the original position that is 3) concerned with relations between political communities and structure to include well-order peoples. In other words you assume that the Rawlsian division of labour is limited to 1 and 3, but 2 is also a possibility. It does seem clear that Rawls is offering reasons for why we would construct original position thinking differently in the three different cases. He wants to bracket the question of social justice to a single society and once principles following this idealization are established to then move on to ask what reforms if any are warranted by considering relations between political communities. Rawls doesn’t appear to bracket in the same way for the case of natural duties because what is at issue there is not principles of justice that apply to a basic political structure but moral standards that apply simply in virtue of shared moral status (i.e. between all individual moral agents). Rawls does not explicitly argue for #2 in A Theory and writes rather confusingly in the very short passage where he takes the issue up. But what I describe above is what I take to be the interpretation of Rawls’ approach to natural duties in Waldron’s (1999) “Special Ties and Natural Duties”. Waldron’s more generous way of interpreting Rawls is that natural duties are moral duties owed among all individuals to all individuals and thus have a universalistic scope at both the level of reasoning and application (i.e. #2). Natural duties of justice should also be understood as moral duties owed among all individuals to all individuals. Natural duties of justice are moral duties to accept the limits and demands of political institutions because people need political communities to secure basic human goods. Within one’s own state a natural duty of justice amounts to accepting the demands of social justice arrived at in the domestic construction of the original position (i.e. #1), in relation to outsiders the natural duty of justice amounts to, at least, not undermining political communities on which outsiders depend to secure basic human goods. As I have noted Rawls does have clear reasons (partly methodological and partly normative) for employing the different constructions of the original position I suggest above for different kinds of questions. I tend to think that as method it is not a good approach and many (including myself) have argued that Rawls cannot consistently combine the normative premises that seem necessary to argue for the moral force of these three original position constructions. In particular Rawls runs into several different kinds of serious problems when he tries to combine that normative premises that citizens should be treated as moral equals and ends in themselves (social justice) and that individuals should be treated as moral equals and ends in themselves (natural duty) with the normative premise that well-ordered peoples should be treated as moral equals and ends in themselves (Law of Peoples). But that aside, allowing that natural duties of justice apply universalitically among all individuals but are not, as you claim, derived from an original position limit in scope to a single political community (i.e. instead they are derived from some universalistic contractualist construction where the question is what moral obligations all individuals have in relation to all other individuals) Rawls is not forced into a position where he must accept slavery for outsiders.

    Let me explain further. Note that in Rawls’ A Theory natural duties of justice are moral reasons real individuals have for accepting what fictional rational agents would agree to in the original position. Natural duties of justice operate as foundational reasons for why individuals should accept the demands of justice within a political community, i.e. coercive political institutions. Rawls adopts this justification because he came to recognize the unworkability of establishing the moral justifiability of political authority on fair reciprocity (see Simmons, 1979). In other words Rawls is saying that we have natural duties of justice to accept the moral force of Rawls’ thought experiment. There is something problematic about Rawls claiming that what our natural duties are is decided in the original position. Natural duties are supposed to explain why real people should accept what is decided in the original position. Rawls can of course construct another original position (i.e. #2) to identify some set of natural duties (e.g. natural duties of justice, natural duties of humanness, etc..), but at some point of regression there has to be something outside of the thought experiment, some moral premise/starting point for why we should accept the moral force of these thought experiments. This moral premise/starting point in A Theory of Justice is the premise of inherent moral equality between individuals (and of course the premise that intrinsic moral worth amount to more than nothing). Thus the argument is that if you accept the premise of inherent moral equality one ought to accept the normative force of what is chosen in the original position thought experiment. You ought to accept that social justice among members of a political community consists of XYZ. Following Waldron’s analysis we see that Rawls’ natural duty reasoning also implies the following, if you accept the premise of inherent moral equality you ought to accept not only that you have a natural duty of justice to accept the demands of political society and social justice within one’s own state but also to not undermine the workability of other political societies on which others depend.

  2. Dear Maltais,
    1. You are wrong in claiming that I “have wrongly assumed … that Rawls must derive” the natural duties from an original position that only includes insiders. I do not at all say that he MUST do that. I say that he does do that. And that is obvious from what he is writing. When he talks about the original position in which the natural duties are to be selected, he talks precisely about “the original position”, he talks also about “the original position” when he talks about the selection of the two principles of justice. Obviously, this is one and the same position. It is uncharitable to think that Rawls would not realize that it is quite important if we are dealing with two positions here, important enough to let readers know. After all, he does inform readers that the original position in which the law of nations is to be chosen is a different one. And on p. 331 (the beginning of § 58) he says: “Imagine also that the various principles of natural duty and of obligation that apply to individuals have been adopted. … Now at this point one may extend the interpretation of the original position and think of the parties as representatives of different nations …” Thus, only AT THIS point enters a NEW original position. Thus, my interpretation of Rawls is quite correct.
    2. Even if you were right with regard to the natural duties, this would still not undermine my point that on Rawls’s account a basic structure that does not give outsiders any rights would be just. As I argue, it is not, not even if the society we are talking about is closed.
    3. The account you are suggesting – as you actually admit, if I understand you correctly – is hopelessly inconsistent. In an original position that comprises all human beings nobody would choose a natural duty that obliges persons to uphold the international order that Rawls is suggesting. They would choose natural duties that oblige persons to oppose such an order and to strive (if Rawls is right about what people would choose in the first original position) for an international order in which the difference principle is applied to the whole world.
    All the best, Uwe

  3. Hi Uwe,

    Thanks for your reply. I do not accept 1 or 2 and to the degree I accept 3 it is not my fault but Rawls’. I hope my reply below will, if nothing else, be of some use in crystallizing your own thinking.

    On natural duties, in A Theory, Rawls says,

    they hold between persons irrespective of their institutional relationships: they obtain between all as equal moral persons. In this sense the natural duties are owed not only to definite individuals, say to those cooperating together in a particular social arrangement, but to persons generally. This feature in particular suggests the propriety of the adjective “natural.” One aim of the law of nations is to assure the recognition of these duties in the conduct of states. This is especially important in constraining the means used in war, assuming that, in certain circumstances anyway, wars of self-defense are justified (Rawls 1999, p. 99)

    This is Rawls point blank stating that natural duties entail, among many other things, a prohibition on one political community performing genocide on another. After all if just war allows genocide there are in fact no (or no sensible) principles “constraining the means” of war. Thus a rejection of the conclusions you draw from your interpretation of original position reasoning and what is owed to ‘outsiders’ is one the main points of Rawls’ appeal to natural duties in the first place.

    Rawls goes on to say that the “principles that hold for individuals, just as the principles for institutions, are those that would be acknowledged in the original position. These principles are understood as the outcome of a hypothetical agreement.” This comes in one of the sections on principles that apply to individuals as opposed to the institutions of the basic structure and as we see above the individuals Rawls has in mind are “all equal moral persons” meaning “irrespective of their institutional relationships.” What seems obvious is that when Rawls is asking ‘what does it mean for an individual to have natural duties’ he is asking ‘what does it mean for an individual treat all other individuals as his moral equal.’ Obviously the answer to the question of how to treat others’ as my moral equal is not that I ought to deny them all respect and rights so I can leave as a live option enslaving them or killing them. Your argument seems to be that because Rawls in this passage says “the original position” instead of ‘an original position’ his theory leads to the opposite outcome of the one Rawls intends. The idea is that the original position is limited to a definite group of individuals that is ‘respective of their institutional relations’ and these individuals reason in terms of rational self-interest. For these reasons they will deny all rights (natural or of justice) to individuals outside of their own institutional arrangement. This way of reasoning seems to me to be either directly wrong or unduly insensitive to the intended meaning of Rawls’ argument and reasoning.

    It is directly wrong if, as I argued earlier, Rawls actually means that in identifying principles of natural duty that apply to individuals qua individuals (i.e. as opposed to principles of justice that apply to shared institutions) one should construct an original position that can actualize the premise that all individuals are moral equals. As should be clear from the quotes above there is support for this interpretation in Rawls’ text, i.e. at least the intention of the hypothetical agreement is to identify what all individuals would agree are all individuals’ moral duties in relation to all others individuals and not what one group of individuals would want to take on as moral duties for self-interested reason. If on the other hand you are right and Rawls limits the participants of the natural duty original position to a single subset of the individuals that these duties are supposed to apply to, this is at worst a small technical misstep in a rather undeveloped passage. This is because Rawls could easily repair this mistake by simply reconceiving the natural duty original position as universal without affecting the rest of his argument from A Theory of Justice. He could still have a set of principles of justice governing relations between individuals that share in an institutional basic structure and a more general set of natural duties and rights shared among all irrespective on institutional relations as moral equals, as Rawls explicitly intends in this book. Thus it is not true that Rawls can’t have it both ways by adopting principles of distributive justice that are limited to within a political community and prohibiting rights violations of outsiders such as killing them. He can both conceived of the principles of justice as applying to a closed system while principles of morality among individuals (including the natural duty of justice) as applying universally. Waldron (1993) demonstrates at least at the level of ideal theory among just states how this would work.

    Of course the structure of the argument from A Theory may lead to some cosmopolitan implications that Rawls did not want to accept (which ones is a whole other issue), but that is a very different kind of criticism than the one you advance. You say that his theory is a morally awful abysmal failure and should be rejected, but I think at most you should say that Rawls’ A Theory has more cosmopolitan implications than he would like to accept (a conclusion Rawls himself seems to have in fact made, explaining some of the moves he makes in Political Liberalism and the Law of Peoples). I would say that the inconsistency is not mine but between Rawls in A Theory and later Rawls. However this is an explicit and intended inconsistency because Rawls changes to some extent the moral premises/starting points from which he operates to get away from the universalistic, individualistic Kantianism of his earlier work. So there is no big surprise that it is hard to reconcile in some respects his earlier work with his later work. This issue is well established in the literature but I do not see how this leads to the kinds of conclusions you want to draw (given what I have argued above about why the closed system problem you are concerned with does not lead to the denial of all kinds of rights for outsiders). I would (and have) argued that liberals can’t limit certain cosmopolitan claims in the way Rawls proposes in the LoP, but I do not see how even the argument from LoP could force Rawls into the slavery and genocide corner. Even the more limited set of universal rights he argues for there would prohibit these outcomes and they are conceived by Rawls as universalistic in a similar way as the universalistic natural duties from A Theory (see LoP 80-81). Thus original position closed basic structure reasoning can quite readily co-exist with granting outsiders rights, not of social justice, but natural human rights as individuals that ought not to be violated by individuals or states (as Rawls explicitly intends).

  4. Just a quick addition to avoid confusion on my following point from above “You say that his theory is a morally awful abysmal failure and should be rejected, but I think at most you should say that Rawls’ A Theory has more cosmopolitan implications than he would like to accept.”

    The cosmopolitan implications point is especially true if it turns out that the different basic structures of the world’s political communities are not closed systems in the morally relevant ways (e.g. there is a genuine global basic structure of the right kind for social justice) or that conditions develop such that it would, even at the level of ideal theory, be morally wrong to maintain an international system of closed domestic systems without justice bearing interaction (e.g. global warming). But this does not mean that at the level of idealisation in A Theory where these kinds of consideration are bracketed Rawls can’t have both closed social justice and universal morality between individuals. He is not forced to choose closed social justice and the prospect of international genocide, and the modifications that we should expect once the ‘closed system’ premise is no longer simply assumed but assessed all move in the direction of increased rights for outsiders not decreased rights.

  5. Dear Maltais,
    you say you do not accept 1 or 2. Well, I gave textual support for my interpretation (1), while your gave none for yours. And you do not provide any argument against my point (2). As regards (3), yes, that would be Rawls’s fault, but only if he did what you claim he does. My point is that he doesn’t. Since you seem to be very concerned about charitable interpretations, isn’t it uncharitable of you to attribute to him such enormous inconsistencies as I describe in (3)?
    I know that Rawls’s accepts natural duties that rule out slavery. But that is completely irrelevant for my argument. My point is that such natural duties would not be chosen in the original position, contrary to what Rawls claims. And again, the original position for the basic structure and the one for the natural duties is the same, as is completely clear from the text, contrary to what you claim. So my reasoning is not “directly wrong or unduly insensitive”, but it just takes serious what Rawls says instead of inventing new original positions that are nowhere to be found in A Theory of Justice.
    You say: “If on the other hand you are right and Rawls limits the participants of the natural duty original position to a single subset of the individuals that these duties are supposed to apply to, this is at worst a small technical misstep in a rather undeveloped passage. This is because Rawls could easily repair this mistake by simply reconceiving the natural duty original position as universal without affecting the rest of his argument from A Theory of Justice.” A “small misstep” with rather abysmal consequences, I would say. But, again, I do not care that Rawls COULD have repaired it. My argument is that Rawls’s theory, the actual theory as it stands, as he has written it down, has the implications I point out. To point out these implications seems to be rather important, for nobody else does. Again, I criticize the theory Rawls did develop, not the one he should have developed or could have developed in order to be right. I think that is a quite legitimate way of proceeding.
    You are, by the way, also wrong in claiming that he could easily repair that “misstep”. As I point out in point 3 above, such a “repair” would contradict the rules he endorses in The Law of Peoples. That “repair” would call for a global difference principle. He does not want that. And of course it would also contradict the principles that would actually be chosen in the first original position, the one referring to the basic structure. As I argue, those principles would proclaim a basic structure just that does not afford any rights to outsiders. People in “your” natural-duties-original position would thus reject a natural duty to support such a allegedly just basic structure (even if it is one for a closed society, for the reasons I have given in the paper.) They would accept a natural duty to criticize and perhaps even to oppose and to reform such a basic structure. In fact, since people in “your” original position cannot choose a natural duty to support just institutions unless they have come to a consensus what just institutions are, the account of just institutions used in “your” original position would directly contradict the account of just institutions entailed by the first (Rawlsian) original position.
    You further say that you “do not see how even the argument from LoP could force Rawls into the slavery and genocide corner. Even the more limited set of universal rights he argues for there would prohibit these outcomes and they are conceived by Rawls as universalistic in a similar way as the universalistic natural duties from A Theory”. Again, you are barking up the wrong tree. My argument is not that the human rights Rawls officially endorses would not exclude slavery (of course they would); my argument is that these human rights would simply not be chosen in the two original international positions as designed by Rawls. If you think they would, please tell me why.
    Uwe

  6. The whole point of your paper is that Rawls does not reflect over the implications of limiting natural duty reasoning to a single and closed non-universal original position (if he in fact is thinking along those lines). But it is odd to claim undisputable textual support for; “the original position for the basic structure and the one for the natural duties is the same, as is completely clear from the text,” while at the same time to claiming that when it comes to how contractors are to go about reasoning on natural duties Rawls gives “no answer to the question. Indeed, the question seems to never have occurred to Rawls.” Likewise it is odd to defend your position by stating that “My argument is that Rawls’s theory, the actual theory as it stands, as he has written it down, has the implications I point out. To point out these implications seems to be rather important, for nobody else does.” As you show in your paper, Rawls does not appear to reflect over these issues at all so he does not actually have a developed theory about how agents would reason about natural duties in a hypothetical choice situation and obviously did not reflect, as per the thesis of your paper, about the appropriate scope for original position reasoning about natural duties. The only thing we have strong textual support for is what Rawls intends with regards to the introduction of natural duties in his theory (i.e. what role they are supposed to play). As the text clearly demonstrates and as I explained above what is as issue is the question ‘what does it mean for an individual to treat all other individuals as moral equals’ and not the opposite of that! So the real question is how serious of a problem is it that Rawls did not reflect over how contractors would reason about natural duties for the overall plausibility of his theory. You think it is very serious and that it makes Rawls’ overall theory an abysmal moral failure that should be rejected. Basically you argue that Rawls ends up with a badly internally incoherent theory. I think you strongly overstate the significance of the problem and that Rawls theory can quite readily be made internally coherent so that it structurally matches with what he intends. This is because Rawls clearly intends natural duties to have some universal application precisely to avoid the outcomes you develop in your paper. Thus what I have suggested is that the Rawlsian model needs only to match the scope of original position reasoning about natural duties to the scope of application. You have argued that this option with regards to natural duties is not available in the Rawlsian model because it would entail cosmopolitan demands that Rawls explicitly aims to reject. You say,

    The account you are suggesting – as you actually admit, if I understand you correctly – is hopelessly inconsistent. In an original position that comprises all human beings nobody would choose a natural duty that obliges persons to uphold the international order that Rawls is suggesting. They would choose natural duties that oblige persons to oppose such an order and to strive (if Rawls is right about what people would choose in the first original position) for an international order in which the difference principle is applied to the whole world.

    This is a misunderstanding of the role of natural duties in the Rawlsian model. One cannot get to demands for distributive justice from shared natural duties alone. You only get principles of justice such as the difference principle within a shared basic structure (i.e. a political community of a certain kind). As Freeman explains in ‘The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice,’

    the difference principle is not an allocative or alleviatory principle, but applies to design property and other basic social institutions necessary to economic production, exchange and consumption. It presupposes political cooperation—a legislative body to actively apply it, and a legal system to apply it to. There is no feasible global state or global legal system that could serve these roles. Finally, the difference principle embodies a conception of democratic reciprocity that is only appropriate to cooperation among free and equal citizens who are socially productive and politically autonomous. (Freeman 2006)

    So as you can see the question of distributive justice would never arise between contractors in a universal natural duty original position. This is because these agents do not share, in Rawls’ view, in an institutional arrangement for which principles of distributive justice are appropriate. Instead these contractors would be considering, for example, what principles of morality are owed to any person irrespective on institutional connection. Thus what we end up with is a distinction between principles of justice owed among co-nationals and humanitarian/natural duties owed to all individuals. Thus to say that natural duties of justice are universalistic in scope at both the level of reasoning and application is a move one can make on the Rawlsian model because it does not force him, in the name of internal consistency, to accept cosmopolitan claims he wants to reject. Instead, the natural duty of justice amounts to accepting the demands of social justice arrived at in the domestic construction of the original position for one’s own political community and in relation to outsiders the natural duty of justice amounts to, at least, not undermining political communities on which outsiders depend to secure basic human goods. It does not lead to a global difference principle. This interpretation is not something I have come up with here but is very well established in the literature. In addition to Freeman cited above you can see James, 2005 who explicitly takes up your concern and explains why it is not a problem on the Rawlsian model in a way that can readily adopt my arguments (also see Wenar, 2006 for another explanation of Rawls that supports my interpretation). There are also a host of theorists that have adopted the Rawlsian approach of social justice domestically vs. humanitarian/natural duty alt. different standards of justice internationally that should be illuminating (e.g. Blake, 2001, Nagel,2005, Risse, 2006)

  7. 1. There is nothing “odd” about my claiming that there is undisputable textual support for my claim that “the original position for the basic structure and the one for the natural duties is the same” while at the same time claiming that when it comes to how contractors are to go about reasoning on natural duties Rawls gives “no answer to the question. Indeed, the question seems to never have occurred to Rawls.” In fact, I do not see what could possibly be “odd” about that. After all, there is also undisputable textual support for the claim that in the two international positions only liberal and decent peoples participate. Yet, here too, Rawls does not give any indication as to how contractors are to go about reasoning on international law and why on earth they should give any protection whatsoever to peoples that are neither decent nor liberal. Indeed, that there might be a slight problem seems to have never occurred to Rawls. Thus, there is a well established pattern in Rawls’s thinking (or lack thereof) about what people or peoples would actually choose.
    2. I do not care about Rawls’s “intentions”. I care about what principles or duties parties would choose in the original positions as described by him. If he did not intend them as he did describe them, that is his problem, not mine. However, the language he uses of course clearly shows that he did intend the original position to be the same for the basic structure and for the natural duties.
    3. You say, regarding his intentions: “As the text clearly demonstrates and as I explained above what is as issue is the question ‘what does it mean for an individual to treat all other individuals as moral equals’ and not the opposite of that!” You made a big deal about this equality issue also in your previous remarks. I do not quite get that, though. I say that no natural duties would be chosen in the original position that imposed any duties towards outsiders on insiders. Thus, there would be no duties that kept Canadians from enslaving Russians. There would also, however, be no duties that kept Russians from enslaving Canadians. Thus, the moral equality of persons would be preserved – and so I am completely in line with Rawls’s “intentions” regarding equality. So what is your problem?
    4. You claim: “One cannot get to demands for distributive justice from shared natural duties alone.” Of course one can. Again, Rawls (and Freeman) might not “intend” that – but so what? If in the domestic original position persons would choose (distributive) principles for the basic structure of their society that make the worst off better off than they otherwise would be, then they will also choose in your universal original position duties that would make the worst off of all persons better off than they otherwise would be. Thus, if persons in the domestic original position would choose the difference principle, they would choose in the universal natural duties original position something like this: “Individuals have a duty to act in a way that sees to it that social and economic inequalities between persons in the universe are arranged so that they are to the greatest benefit of the least advantaged, consistent with the just savings principle”. But this, very much contrary to Rawls’s intentions (about which you are so concerned), does mean that individuals would have to strive for an egalitarian distribution (in line with the difference principle) among persons in the universe. Thus, if you want to live up to Rawls’s intentions, you should drop your interpretation and embrace mine, which is also fabulously in line with his intentions regarding equality.
    4. You say: “Rawls’s theory can quite readily be made internally coherent so that it structurally matches with what he intends.” Yes, of course it can. Any incoherent theory can be made coherent. So what? If it has to be made coherent in the first place, this means logically that it is not coherent yet. And that is precisely my point.
    Uwe

  8. A reply to points 1-5 above:

    1. Of course there is; the premise of moral equality and natural duties. Just ignoring these features of Rawls thinking or worse changing them is not going to get you anywhere. Everyone who does work on Rawls and his international theory recognizes this whether they tend to agree with him or not.

    2. When you say you do not care about what he intends but only about what he says about his thought experiment in a two paragraph passage, what you are actually saying is that you do not care about his theory and how it is structured and that you only care about the thought experiment Rawls uses to make vivid his theory. But it is the theory that is prior to/driving the thought experiment. As Bell (2006) notes, citing Rawls, “The original position and the veil of ignorance are simply constructed to reflect our prior judgment on that issue; they are in Rawls’s terms merely a ‘device of representation or, alternatively, a thought-experiment for the purpose of public- and self-clarification (Rawls2001,17).” If there is some sense in which the thought-experiment does not seem to make vivid what the theory is arguing for the first course of action should be to see if there are some workable modifications of the thought experiment that can allow it to fulfill its function. What will not work (especially as a first move) is to simply use some potentially absurd conclusions that follow from an unintended interpretation of the thought-experiment as ‘evidence’ that the theory is absurd.

    3. This is unwise. The premise of moral equality is not, following Rawls, that all individuals have an equal moral worth of zero! You simply cannot claim that you are being true to Rawls’ theory (i.e. to the extent necessary to show incoherence in his theory) if you take moral equality to be an equality of zero.

    4. You say that you are being true to what Rawls has written is advancing your argument and that there is a major incoherence in his theory. But if you just decide to change the theory and claim that that there are duties of justice between people simply because they share natural duties you obviously can’t claim that Rawls’ theory as he has written it is badly incoherent. After all it is only once you change what obligations can follow from having shared natural duties that you are able to claim that one cannot claim universal standards of human rights while at the same time avoiding cosmopolitan demands of distributive justice. Rawls theory is that is that the demands of distributive justice are owed among members of a single political community and not between members of different political communities. He constructs his thought experiments to reflect this theory. If you change the thought experiments so that agents will make distributive justice apply globally all you are doing is offering a different normative theory; namely that principles of distributive justice ought to apply between all agents regardless of whether or not they belong to the same political community. This is fine, but what it amounts to is saying that you think Rawls has got the wrong theory from the start (and many have argued just this point). However, it absolutely does not amount to showing that his theory is badly internally incoherent.

    5. As I have said throughout, the issue is ‘what kind of challenge are you presenting.’ What should we think about Rawls’ theory given what you argue? After all you do not claim to simply identify a potential problem in Rawls thought experiment, but draw some very far reaching implications from this problem about how we should think about Rawls’ theory. I have been rejecting the conclusions you draw and I do not think you have made any inroads against the grounds on which I reject your conclusions.

    If you change Rawls’ theory so that shared natural duties alone lead to distributive justice, rob his premises of individual equality of any moral content, ignore fully the moral status Rawls attributed to outsiders in his international theory, ignore the endless accounts in the literature on how Rawls’ domestic theory is meant to be structurally related to his international one, in contradiction to what the original author does take the thought-experiment to dictate what the normative theory can be, and focus on an aspect of the thought-experiment the author does not even address, then of course you can get A Theory of Justice to be mindlessly proscribing slavery. But with that much slack one could turn Mother Theresa into a porn star. Why should anyone care? It does not challenge what Rawls is arguing for because Rawls’ theory does not actually figure in your challenge.

  9. 1. Of course there is what?
    2. There is not a theory and then a thought experiment; rather, the “thought experiment”, the original position, is part of his theory of justice, and probably the most famous one at that. The conclusions I come up with follow from Rawls’s “thought experiment”, whatever he intends. If he intended other conclusions, as he obviously did, he has made a grave mistake with the setup of the original position. That’s precisely what I say – and that is his problem, not mine, and your constant insistence on his noble intentions is simply beside the point.
    3. I do not have to assume that individuals have an equal moral worth of zero. The Russians and Canadians are equals in my example because they may enslave each other. They have a moral worth above zero, however, because the Russians have a claim-right against other Russians not to be enslaved by them, and the Canadians have a claim-right against other Canadians not to be enslaved by them.
    4. What I said (among other things) in my previous point 4 is that one cannot patch up Rawls’s theory in the way you suggested without completely acting against his intentions, about which you are so very concerned. Nothing you now say in your last point 4 refutes that assessment (or any other things I have said in my previous point 4). What people would choose in a given original position, modified or not, depends on the description of the original position – what follows, follows, whether the designers of the position like it or not.
    5. I pointed out that in Rawls’s original position, as he formulates it (not as he intended it, but I deal with theories, not with good intentions) people would choose principles that would allow slavery and genocide. If other parts of his theory say that genocide and slavery are prohibited, then his theory as it stands is incoherent, however noble his intentions – which do not interest me – might have been. This mistake, as I have also argued, cannot easily be patched up, and you certainly did not show otherwise. Who cares? Logically competent philosophers might care.

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