Kant, Rawls and Pogge on Global Justice

Thomas Mertens (Nijmegen/Firenze)

1. Introduction
Pogge’s writings on international distributive justice, some of them now collected in ‘World
Poverty and Human Rights’ (2002),1 exhibit a masterly interplay of moral argumentation and
empirical data. In this contribution, I cannot do justice to both and will therefore focus on
Pogge’s moral arguments, the origins of which are to be found in the legal philosophies of
Kant and Rawls. Contrary to these philosophers, however, Pogge does argue in favor of an
institutionalized global order. That is, he argues, what justice demands.
On this point, he sharply differs from his predecessors. Although Rawls criticizes Kant
because of his adherence to a ‘comprehensive’, metaphysical viewpoint, he follows Kant in
distinguishing between several layers of justice, especially between justice on the domestic,
national level and justice on the international, global scale (adding local justice as a third
layer). In comparison with both Kant’s and Rawls’s views, Pogge pleads for a revolutionary
transformation of the ‘law of peoples’, in which the ‘statist’ approach is rejected altogether
and a much more utopian stance is adopted. Here, I intend to bring the main arguments
together: Kant’s and Rawls’s pleas for international justice on the one hand and Pogge’s
arguments for global justice on the other. By doing so, I hope to contribute to answering the
question whether Pogge’s views represent an unjustifiable ‘moral doctrine’, unfit for the
highly complex international society of societies or an utopian view in need of being endorsed
by many. This then sets my agenda: I will first briefly summarize Kant’s and Rawls’s
arguments in favor of a layered structure of ‘international’ justice. Second, I will briefly
summarize Pogge’s arguments in favor of ‘global’ justice. The contrast between those views
will then enable me to raise the most difficult question: if the requirement of global justice is
true in theory, why is it so difficult to apply it in practice? Do these difficulties point at the
nature of morality itself?

2. Kant
In modern philosophy, Kant is the first to emphasize the moral obligation to establish legal
relations not only with our co-nationals, but with all humans. It is a duty to leave the state of
nature and to unite oneself with all others (with whom one cannot avoid interacting) and to
1
Th. Pogge, World Poverty and Human Rights, Polity Cambridge 2002.

1
subject oneself to external coercion in accordance with public laws.2 No human being can be
excluded from this legal constitution, since the earth is a globe where human beings cannot
disperse themselves indefinitely. The need to establish legal relations with all, however, does
not imply equal legal relations. With the people of my nation I have to establish a republican
constitution; as a member of such a republic I must contribute to the realization of a
federation of free states; finally, foreigners and foreign communities ought to be treated with
respect. In Kant's ‘ius cosmopoliticum,’3 however, the distinction between same and other is
not denied, nor is patriotism ruled out.4
What are the reasons for Kant to adopt such a layered legal structure? First of all, Kant rejects
the world-republic as being contradictory: if a number of nations were to form one state, it
would constitute a single nation and it would cease to be an ‘international’ state. This is not a
strong argument. If the establishment of peaceful legal relations between all humans as the
‘highest political good’5 can only be reached by establishing a world-republic, why would the
historical plurality of political communities then count as a counter-argument to
cosmopolitical government?6 Second, Kant argues that the concept of a world-republic is true
‘in thesi’, but not ‘in hypothesi’, since it does not fit in with the will of the states. 7 This
argument is not strong either: in his ethical writings, Kant does not seem to take into account
that humans often do not want what they ought to do. The moral law has an unconditional
validity. Why would the situation be different when the moral actors are states instead of
individuals? States are indeed more powerful than individuals and thus more reluctant to give
up their arbitrary will, read: sovereignty, but that is a pragmatic argument, nothing more.
Kant’s third argument is of a more serious nature: ‘While natural right allows us to say of men
living in the lawless condition that they ought to abandon it, the right of nations does not
allow us to say the same of states. For as states, they have already a lawful internal
constitution, and have thus outgrown the coercive right of others to subject them to a wider
legal constitution in accordance with their conception of right.’8 The analogy between
individuals in a lawless state of nature and states in the international realm is not complete.
2
I. Kant, Die Metaphysik der Sitten, Rechtslehre, §§ 44, 312 (Tr. Gregor, 124).
3
I. Kant, Zum ewigen Frieden, 349n. (Ed. Reiss, 99n.).
4
The distinction between despotism and republicanism (in: I. Kant, Zum ewigen Frieden, 352 (Ed. Reiss, 101) is
preceded by the distinction between despotism and patriotism. In despotism the entire freedom of the subject is
suspended. Therefore it makes a patriotic attitude impossible, because nobody is able to regard the
commonwealth as a maternal womb or the fatherland as a treasured pledge (I. Kant, Über den Gemeinspruch
(1793), AA, VIII, 291 (Ed. Reiss, 74); See also: M. Riedel, Menschenrechtsuniversalismus und Patriotismus.
Kants politisches Vermächtnis an unsere Zeit, in: Allgemeine Zeitschrift für Philosophie, 18 (1993), 6, 12-3.
5
I. Kant, Die Metaphysik der Sitten, Rechtslehre, 355 (Tr. Gregor, 161).
6
V. Gerhardt, Immanuel Kants Entwurf, 95.
7
I. Kant, Zum ewigen Frieden, 354, 357 (Ed. Reiss, 102, 105).
8
I. Kant, Zum ewigen Frieden, 355-6 (Ed. Reiss, 104).

2
The establishment of legal relations between states has to take into account their internal legal
development. While individuals have nothing to loose when leaving the state of nature, states
run a considerable risk when establishing international law. They might end up losing their
internal lawful condition when choosing inappropriate legal means to escape from the state of
war between them. If e.g. they would opt for fusing the separate nations into a world republic,
they would end up in the despotism of a ‘universal monarchy’. Such ‘global justice’ is,
according to Kant, incompatible with respect for the diversity of different nations and a
world-republic can only be created by negating those differences.
Fortunately, Kant concludes, in the long run no nation will be able to impose its will on all
other nations and establish ‘universal monarchy.’ He mentions two reasons: first, laws
progressively lose their impact if the government increases its range. This is the classical
argument that a stable government is incompatible with too large a territory; second,
differences between nations are too strong to be annihilated. According to Kant, the
intermingling of nations in a world-republic is prevented by nature itself, which intentionally
divided mankind according to linguistic and religious differences. 9 These differences between
nations can nor should be overcome by legal arrangements on a world scale. The mixing of
nations and gradually extinguishing their characters is not beneficial to the human race. 10
Mankind is not only threatened by the differences between nations, but also benefits from the
rivalry between them.11
This picture of a peaceful system of nevertheless conflicting nations is deeply rooted in Kant's
philosophy.12 In his philosophy of nature, Kant conceptualizes matter as a dynamic entity held
together by the conflicting forces of attraction and repulsion. The structure of human society
is not much different: the human race is characterized by unsocial sociability. Men tend to
come together in society, but they also resist this tendency and threaten to break society up. 13
All efforts to establish one single world-republic with equal membership for all humans fail to
acknowledge the unsocial element of human nature. A ‘realistically utopian’ view on
international law therefore does aim at a decent antagonism, i.e. an antagonism between
nations regulated by principles of external freedom.14

9
I. Kant, Zum ewigen Frieden, 367 (Ed. Reiss, 113-4).
10
I. Kant, Anthropologie in pragmatischer Hinsicht, AA VII, 320; I. Kant: Anthropologie from a pragmatic
point of view (Tr. M.J. Gregor), Nijhoff, The Hague 1974, 182. See also P. Laberge, Von der Garantie des ewigen
Friedens, in: O. Höffe (ed.), Immanuel Kant, Zum ewigen Frieden, 166-7.
11
I. Kant, Zum ewigen Frieden, 367 (Ed. Reiss, 114).
12
R. Brandt, Vom Weltbürgerrecht; P. Laberge, Von der Garantie des ewigen Friedens, in: O. Höffe (ed.),
Immanuel Kant. Zum ewigen Frieden, 141, 160.
13
I. Kant, Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht, AA VIII 20, (Ed. Reiss, 44).
14
I. Kant, Die Metaphysik der Sitten, Rechtslehre, § 57, 347 (Tr. Gregor, 153).

3
This third reason for rejecting ‘global justice’ does not seem very convincing either, as it is
based on a metaphysical conception of (human) nature irrelevant in a post-metaphysical era.
Here, however, hasty conclusions must be avoided. One might also argue that Kant refers here
to common sense. Everybody seems to accept that human beings in order to develop their
identity, always need to form part of a particular family, a particular language and a particular
culture. Only within those particular backgrounds do human beings learn ethical and moral
rules. Accepting this fact does not imply the exclusion of other particularities or the denial of
universality, but may well explain the moral significance of borders.15 Most human beings
tend to go beyond these linguistic, cultural and national borders by travelling or migrating.
The risk that some people may seclude themselves in their own particular nation should not
lead us to deny the significance of particularities. Without acknowledging such natural facts,
moral knowledge becomes a moralistic, rigid ideology. Kant tries to avoid this rigidity and
rejects the despotic boundaries of a world republic and advocated instead a cosmopolis of
homelands.16

3. 1. Rawls’s theory of (domestic) justice

In the context of 20th century philosophy, Rawls’s A Theory of Justice17 aims at reformulating
and at bringing to a higher level of abstraction the familiar theory of the social contract as
found in Locke, Rousseau and Kant.18 Like these writers, Rawls holds that the principles of
justice for the basic structure of society should be the object of an original contract. This he
calls ‘justice as fairness’: principles for a society are just when chosen by representative
citizens placed within ‘fair’ conditions.19 When studying Rawls’s text, it becomes evident that
this theory of justice is meant to apply to the basic structure of a well-ordered society, the
boundaries of which are supposed to coincide with a self-containing national, autarkical
community. He admits that this presumption may need to be adjusted in the light of principles
for the law of peoples, but he does not give much attention to formulating those principles. 20
Despite its more abstract level, Rawls’s theory thus seems in line with Kant’s layered structure
of justice.

15
This is very clearly pointed out by O. Höffe, Ausblick: Die Vereinten Nationen im Lichte Kants, in: O. Höffe
(ed.), Immanuel Kant. Zum ewigen Frieden, 264-5.
16
M. Riedel, Menschenrechtsuniversalismus und Patriotismus, 17.
17
J. Rawls, A Theory of Justice, Oxford 1971.
18
J. Rawls, A Theory of Justice, 10.
19
Using the idea of pure procedural justice, see: J. Rawls, A Theory of Justice, 85.
20
J. Rawls, A Theory of Justice, 457,4.

4
A number of authors, I mention Pogge and Beitz, 21 have responded in amazement about this
seemingly limited scope of A Theory. They argue as follows: since the 18 th century, it has
become evident that ‘human rights’ ontologically precede any political community and thus
need to be embedded not only nationally, but also internationally. A well-ordered national
state is not enough to guarantee these rights. Their very nature asks for a global legal order, as
already correctly formulated in article 28 of the 1948 Universal Declaration on Human
Rights: ‘Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.’ This article aims not at adding yet
another individual human right, but formulates the necessary legal precondition for the
realization of basic rights, namely a global legal order. Human rights are not only important
claims of individuals on other individuals and on their states, but also on the institutional
order in which individuals and states are to function. 22 Furthermore, this seems to be fully in
accordance with Rawls’s moral intuition, namely that any person’s prospects and possibilities
in life should only depend on choices that he or she makes for him- or herself and on the
responsibilities he or she accepts, but not -at least not to a large extent- on the natural and
social structures in which he or she is born. Individuals should start with equal rights, and
their societies should not give an undeserved advantage to some and an equally undeserved
disadvantage to others. In our present world, the prospects of individuals are undeniably not
so much determined by his or her ‘social’ place of birth within the national society, but rather
by the place of ‘his’ or ‘her’ national society within the global order.
Pogge and others therefore argue in favor of a cosmopolitan interpretation of Rawls’s
principles of justice. The basic elements of Rawls’s thought experiment, the initial position
and the veil of ignorance, do not compel us to apply its outcome, i.e. the two principles, to a
national community only. Such an interpretation seems confirmed by Rawls’s own statement
that the principles of justice for the relation between peoples should also be derived from an
initial position, in what he calls ‘a second round’.23 Pogge et al. admit that the result of this
second round is not very surprising since Rawls’s determination of principles of international
life coincides with the principles generally recognized in public international law: nations
have the mutual right of self-determination and the right to self-defense; they should observe
international agreements, including the laws of war.24 But here, not the outcome matters, but
the procedure, so it is argued. And this procedure leaves room for a ‘globalization’ of the two
21
Beitz, Political theory and International Relations, Princeton 1979; Th. Pogge, passim.
22
Th. Pogge, Human Rights and Human Responsibilities, in: C. Cronin, P. de Greiff (eds.), Transnational
Politics and Deliberative Democracy, Cambridge MA, 2002.
23
J. Rawls, A Theory of Justice, par. 58.
24
J. Rawls, A Theory of Justice, 378-9.

5
‘domestic’ principles of justice.25 Should the representatives in this second initial position
consider themselves representatives of states and decide on the interests of those collective
entities, or do they represent the relevant social positions that exist within these states and do
they thus reflect the diversity of social positions in the world? 26 Only if the former
interpretation is followed, will these representatives adopt the traditional legal principles
endorsed by Rawls. In the latter interpretation however, these representatives would not differ
very much from their counterparts in the first initial position. They would use this (second)
initial position in order to ensure that the share of primary goods would be as large as possible
for whomever they represent. They would thus adopt the two principles for similar reasons as
their predecessors in the first initial position and the distinction between the first and the
second initial position would collapse. In both, representatives would opt for a division of
basic goods in accordance with the two principles of justice and Rawls’s theory of justice
would then indeed be a theory for the only ‘self-contained society’ imaginable: the world
community. The existence of a diversity of peoples and nations would fully depend upon
whether this would add to realizing the two principles or not. The existence of ‘peoples’
would be a matter of pragmatics, rather than a matter of principle.
Clearly, such an interpretation is not what Rawls defends in Theory. Firstly, an interpretation
in which ‘basic rights and liberties’ are understood globally does not fit the framework within
which Rawls asks for the principles for the law of peoples. In Theory, these principles are
developed in connection with the issue of obligation and the citizen’s duty of obedience.
International law is developed from the internal question raised in society. Rawls argues that
even within a (nearly) just society serious questions may arise on whether and when
disobedience is permitted. In a society led by the two principles, citizens might nevertheless
feel compelled to resist certain parts of the law. After all, determining the principles of justice
is important, but not enough for a ‘just’ society. A society needs to pass through the more
concrete stages of drafting the constitution and further legislation. Furthermore, laws and
rules need to be applied by citizens in concrete situations and interpreted by judges and public
bodies in particular cases.27 If citizens think that specific legislation or the application of the
law violates the higher principles of the legal order, on the level of the constitution or on that
of its principles, they will consider the legal order as in contradiction with itself, and as a
result they will feel compelled to violate the lower norm in order to obey the higher norm. But

25
See: Th. Pogge, Realizing Rawls, New York 1989, 242-3; C. Beitz, Justice and International Relations, in:
C.R. Beitz et al. (eds.), International Ethics. A Philosophy and Public Affairs Reader, Princeton 1985, 284-5.
26
Th. Pogge, An Egalitarian Law of Peoples, in: Philosophy and Public Affairs (23) 1994, 195-224.
27
J. Rawls, A Theory of Justice, par. 31.

6
when is so-called ‘civil disobedience’ permitted and when not? An important case in this
regard concerns military obligations. A theory of justice must provide an answer to the
question as to when conscientious objectors are justified in resisting the use of military means
by their society. Therefore, it is necessary to know what justice between states means.
Representatives of the second initial position have the duty to determine these principles.
Theory then gives the following answer.28 A citizen can refuse its military obligations if he has
good reasons to believe that his state is or will soon be involved in an unjust war. If the
criteria of a just war are not met, citizens have the right, or even the obligation to refuse to
participate in that war. The principles of international justice agreed upon in the second initial
position are thus not designed as a blueprint for a cosmopolitan order. Theory rather departs
from the world as it exists, namely as an aggregate of independent unities.
A cosmopolitan interpretation of Rawls’s Theory must also be rejected on the basis of his
priority rule. In short, this rule states that breaches of liberties are justified only with regard to
the scheme of those liberties itself, but never in pursuance of expanding the social-economic
welfare of the society as a whole. In connection with this, Rawls suggests that the two
principles of justice with the priority rule only suit a society that already went through a
certain economical development and has already reached a certain standard of living. It is
said, therefore, that the two principles cannot be read as an abbreviation of universally
applicable (civil, political and social) human rights. Now, this point should of course be dealt
with carefully. This priority has been the subject of an extensive discussion, induced by
H.L.A. Hart’s provocative article.29 On this issue, I can only be brief. Hart drew attention to
the fact that Rawls’s two principles with their ‘priority rule’ specified the more general
conception of justice, according to which all social values, including liberties, must be
‘distributed equally unless an unequal distribution of any, or all, of these values is to
everyone’s advantage’.30 According to this general conception, it would be unjust to restrict
liberties unequally, but it would not seem unjust to restrict liberties equally if this would lead
to an increase of society’s welfare as a whole. However, the priority rule excludes this
limiting of liberties for the sake of social welfare and is thus a more specific conception of
justice. In the initial position, representatives will only accept the priority rule, if they know
that their society satisfies certain favorable social and economic conditions. Only if these
conditions are met, they will exclude the possibility of restricting (certain) civil liberties for

28
J. Rawls, A Theory of Justice, par. 58.
29
H.L.A. Hart, Rawls über Freiheit und ihre Vorrang, in: John Rawls. Eine Theorie der Gerechtigkeit (Hrsg. O.
Höffe), 142-7; originally: H.L.A. Hart, Rawls on Liberty and Its Priority, 551-555.
30
J. Rawls, A Theory of Justice, 62, 303.

7
the sake of enhancing other social values.31 Under circumstances of improving conditions of
civilization, it will not be rational to accept a lower level of liberty in exchange for an increase
of material well being. The marginal significance of extra welfare will decrease in comparison
with the appreciation of liberty.32
Hart criticized Rawls on this point: the increasing significance given to ‘liberty’ by the
representatives in the initial position ‘of’ a relatively advanced society can only be based on
the ideal of ‘liberty’ not accounted for within Theory. In answer, Rawls was quick to declare
that Hart’s interpretation made him adjust his theory and that he indeed expressed himself
wrongly: the priority rule was not based on some ‘comprehensive’ preference for ‘liberty’. 33
Accordingly, Rawls seriously revised Theory, paragraph 82 and no longer assigns priority to
liberty as such, but to ‘a fully adequate scheme of equal basic liberties’ compatible with an
equal scheme for all, as the necessary condition for a society of free and equal persons. 34 This
adjustment, however, does not change the argument against a universalistic interpretation of
the priority rule concerning the two principles. Scattered remarks both in Fairness and in Law
of Peoples emphasize that the priority of basic rights and liberties depends on whether
reasonably favorable conditions occur.35 It is even difficult to avoid getting the impression that
Fairness consists of a hermeneutical ‘description’ of what it means for a society to interpret
itself as a fair system of cooperation between free and equal persons,36 with the initial position
being a heuristic device rather than a abstract thought experiment, applicable universally. If
such a reading is correct, the two principles have no universal validity.37

3. 2. Rawls’s theory of international justice

For Rawls, global justice is the most encompassing layer of justice, to be distinguished from
local justice applicable to institutions and associations within a domestic society, and from
domestic justice formulating principles for the basic structure of a society. 38 Rawls discusses
global justice most extensively in The Law of Peoples.

31
J. Rawls, A Theory of Justice, 152.
32
J. Rawls, A Theory of Justice, 82: 542.
33
See: J. Rawls, The Law of Peoples, 289-371.
34
J. Rawls, The Law of Peoples, 371 n. and Justice as Fairness, 44-5.
35
J. Rawls, Justice as Fairness, 47.
36
J. Rawls, Justice as Fairness, 5.
37
J. Rawls, LP, 14 n.: ‘Justice as Fairness’ is only characteristic of the most egalitarian form of liberalism. See
also: J. Rawls, The Law of Peoples, in: S. Hurley, S. Shute (eds.), On Human Rights. The Oxford Amesty
Lectures, New York 1993, 51.
38
J. Rawls, Justice as Fairness, 11, 13-4.

8
In it, Rawls follows Kant’s lead39 and explicitly defends the idea of a double contract. He
holds that a realistic utopia departs from where we are, here and now, namely in a situation in
which we find a plurality of political communities. 40 The ‘Law of Peoples’ results from a
second original position, in which the parties are representatives of those peoples whose basic
institutions satisfy the principles of justice selected at the first level. 41 Rawls now explicitly
rejects the suggestion of Pogge and Beitz of defining principles of global justice by imagining
only one all-embracing original position, in which the parties are not representing peoples, but
persons holding various social positions and offices worldwide.42 This position is referred to
as ‘cosmopolitanism’. According to Rawls, a realistic utopia cannot ignore the fact of
reasonable pluralism. Contemporary cosmopolitanism represents a non-realistic utopia of
establishing world government.
Like Kant, Rawls sees liberal democratic societies as the focal point of a federation of
peoples. Because such liberal societies are internally structured by the rule of law and do have
a certain moral character,43 they are prepared to offer fair terms of cooperation to other
societies. Statistical evidence confirms this: liberal societies are inherently peaceful. 44
Societies that are structured differently, e.g. hierarchically, might accept the fair terms offered
by their liberal counterparts, but will not themselves take the initiative to develop the law of
peoples.
Key elements of the law of peoples are the right to self-determination, the right to self-
defense, basic, ‘not politically parochial,’45 human rights like the right to seek and enjoy
asylum from persecution in other countries,46 and the humanitarian law of war in line with
Kant’s sixth preliminary article.47
39
J. Rawls, The Law of Peoples, 10, 22.
40
J. Rawls, The Law of Peoples, 30, 32, 83.
41
J. Rawls, The Law of Peoples, in: On Human Rights, 48; J. Rawls, A Theory of Justice, Cambridge 1971, 64;
I. Kant, Zum ewigen Frieden, AA VIII, 354, 356 (Kant’s Political Writings, 102, 104; Toward perpetual peace. A
philosophical project, in: Immanuel Kant, Practical philosophy, 325, 327). On the double meaning of ‘Free’ in ‘a
Federation of Free States’ see: G. Cavallar, Kantian Perspectives on democratic peace: alternatives to Doyle, in:
Review of International Studies, 243-247.
42
See e.g.: Th. Pogge, An Egalitarian Law of Peoples, in: Philosophy and Public Affairs 23 (1994), 205-206.
43
J. Rawls, The Law of Peoples, 8, 25.
44
This is sometimes referred to as Doyle’s law, see: M. Doyle, Kant, Liberal Legacies, and Foreign Affairs, in:
Philosophy and Public Affairs (12) 1983, 205-235, 322-353.
45
J. Rawls, The Law of Peoples, 65; Earlier on, basic human right were called politically neutral, see: J. Rawls,
The Law of Peoples, in: On Human Rights, 69.
46
I ignore the differences here between the two versions of ‘The Law of Peoples’. Rawls incorporates the right
to emigration into the list of basic human right, see J. Rawls, The Law of Peoples, in: On Human Rights, 63, 68.
In the extended version Rawls puts more emphasis on a people’s qualified right to limit immigration, The Law of
Peoples, 8-9, 39n. See also: Universal Declaration, art. 14.1.
47
The main difference between Kant and Rawls is the latter’s acceptance of what he calls the ‘Supreme
Emergency Exemption’, which allows combatants to set aside the strict non-combatant status of civilians under
certain special circumstances, see: The Law of Peoples, 98. According to Kant however, is this sixth article of the
strictest sort and allows of no exception, see: Kant, Zum ewigen Frieden, AA VIII, 347 (Kant’s Political

9
Now that Rawls follows the institutional form of Kant’s ‘international justice’ so closely, it is
interesting to see how he comments on Kant’s conception of nature, more specifically on the
‘social unsociability’. Here too, Rawls seems to follow Kant. He argues that the Law of
Peoples is in line with deep tendencies and inclinations of the social world. Its principles and
precepts are workable and applicable to the political and social arrangements of the world we
inhabit.48 Of course, Rawls no longer subscribes to Kant’s belief that the great artist ‘Nature’
would guarantee the end of war. Yet he defends that establishing the ‘Law of Peoples’ is
possible and he denies that the political world of states and communities is an irreducible
Hobbesian pluriversum. Without denying the unsocial tendencies, Rawls, like Kant, holds that
man’s ‘sociability’ will prevail. In this respect, Rawls adds two elements: he holds that public
reason and publicity will have a beneficial role in overcoming unsociability and in convincing
49
political leadership of what the real interests of society are; world commerce will also have
a beneficial effect in this direction. This follows from what Rawls writes about so-called
burdened societies. Societies that are burdened by unfavorable circumstances do not refute the
thesis that world commerce in general has beneficial effects. Generally they are burdened
more by the lack of political and cultural traditions than by economic monopolies and trade
barriers invented by well-off peoples.50 Pogge calls this ‘explanatory nationalism’. 51 And such
societies will make progress as soon as they have developed a decent internal political culture.
Therefore there is no need for a more egalitarian oriented ‘Law of Peoples’, in which an
element of distributive justice, like the difference principle, is included. The difference
principle is valid only for a liberal society with strong egalitarian features. 52 The crucial
element, according to Rawls, in how a country fares is its political culture, and not the level of
its resources.53
One might indeed say that Kant’s and Rawls’s versions of ‘international justice’ have a lot in
common. Yet there are important differences as well. The situation from which they wrote,
differs substantially: Kant wrote in a time of transition from monarchical to republican rule.
The units from which to create ‘Perpetual Peace’ still had to be developed. A concrete
blueprint of the society of societies regulated by the rule of law seemed hardly imaginable.

Writings, 97; Toward perpetual peace. A philosophical project, in: Immanuel Kant, Practical philosophy, 320).
48
J. Rawls, The Law of Peoples, 128, 12-13.
49
J. Rawls, The Law of Peoples, 97.
50
J. Rawls, The Law of Peoples, 106.
51
Th. Pogge, World Hunger and Human Rights, 15, 143-145.
52
J. Rawls, in: On Human Rights, 51.
53
J. Rawls, The Law of Peoples, 117; This statement in general and the absence of anything like an international
‘Difference Principle’ in the 1993 version of ‘The Law of Peoples’ has provoked fierce criticism. But Rawls
hasn’t changed his position in the 1999 version.

10
Almost two centuries later, Rawls has the experience of international law and international
organizations. In this regard, his picture of the ‘Law of Peoples’ is less utopian than Kant’s.
This has an obvious reason. Rawls no longer shares Kant’s belief in human history as guided
by an immanent teleology. The kind of liberalism Rawls defends, is not a comprehensive, but
a political one,54 which has to stand on its own. Just like ‘Justice as Fairness’, the ‘Law of
Peoples’ must be a freestanding view. Thus, Rawls only defends the modest claim that the
actual laws of nature and society (and its actual institutions) admit the possibility of
establishing a worldwide and stable loyalty with the ‘Law of Peoples’.
This has, I think, far-reaching consequences. Within Kant’s comprehensive liberalism, it was
evident that any institutional design for a lasting peace should start from the institutions as
they were developing ‘then and there’. When Kant drafted his proposal, the political world
consisted of no more than a few states, which only very roughly approximated his ideal of the
republican state. The emergence of such a constitution in France, Kant’s prime example, was
filled with misery and atrocities.55 Kant’s starting position ‘there and then’ did not keep him
from sketching a bold proposal of an entire world consisting of such republican states since he
looked at mankind as if it was embedded within a reasonable course of history. However, if
the Enlightenment project of ‘a perfect civil union of mankind’ 56 now really stands on itself, it
has to create its own support and should, therefore, not be too utopian? On the other hand: if
no metaphysical guarantee is present, why then feel committed to take a starting position in
the institutional situation in which we live, here and now? Why should the present political
world, apparently neatly separated into distinct closed societies, 57 be considered the starting
point of utopian reflection?58 Are the reasons for Rawls to insist on a domestic original
position first, to be followed by a second one between representatives of those domestic
societies, convincing?

4. Pogge on Global Justice.

54
He locates the historical origins of political liberalism in the Reformation and its aftermath of the religious
civil wars of the 16th and 17th century. The theory tries to answer the question of how a stable social order can
be established given a plurality of conflicting, but reasonably comprehensive doctrines, J. Rawls, Political
Liberalism, xli.
55
I. Kant, Der Streit der Fakultäten, AA VII, 85 (Kant’s Political Writings, 182; The conflict of the faculties, in:
Immanuel Kant, Religion and Rational Theology, Transl. and ed. A. Wood, G. di Giovanni, The Cambridge
Edition of the Works of Immanuel Kant, Cambridge UP 1996, 302.
56
I. Kant, Idee zu einer Geschichte in weltbürgerlicher Absicht, in: AA VIII, 29 (Kant’s Political Writings, 51);
In Rawls’s words: the great evils of human history follow from political injustice and that eliminating them
would make those great evils eventually disappear, J. Rawls, The Law of Peoples, 7.
57
e.g. J. Rawls, The Law of Peoples, 26; Political Liberalism, 18. Of course, this is a fiction, see: S. Hoffmann,
Dream of a Just World, The New York Review of Books, November 2, 1995.
58
J. Rawls, The Law of Peoples, 121, 128.

11
Pogge is not convinced. In the sometimes heated debate with the so-called statists, who accept
and endorse (and praise!)59 states as the main agents of international justice, Pogge as one of
the most prominent globalists, emphasizes the need to take persons as the primary focus of
global justice.60 Evidently without doing any justice to his well-elaborated and empirically
underpinned position, I characterize Pogge’s and other globalists’ approach as follows.
Aiming at taking Rawls seriously, Pogge formulated very succinctly long before Rawls’s Law
of Peoples: ‘Rawls’s principles for domestic institutions would be sufficient, if modern states
were indeed closed schemes. … But since modern societies are not closed, we must at some
point go beyond Rawls’s first approximation and ask how the theory might be best adapted to
the complexities of the real world. ... I will argue for viewing the parties as immediately
addressing the world at large, and as dealing with the organization of national societies only
within the context so provided: Taken seriously, Rawls’s conception of justice will make the
life prospects of the globally least advantaged the primary standard for assessing our social
institutions.’61 In much the same vein, he then criticizes Rawls’s mature view on international
justice for its lacking a principle that assesses the global economic order in terms of its
distributive effects in ways his own difference principle assesses the domestic economic
order.62
Thus, Rawls’s thesis that the primary object of justice should be the basic structure of society
and not, e.g., personal attitudes of citizens is fully accepted. However, Rawls’s idea that such
a basic structure is to be found in particular national societies is rejected. It is argued that a
global basic structure exists63 and that it is clearly in need of moral improvement. The
principles of justice chosen behind the veil of ignorance need not so much be applied
domestically, but should be applied globally. If indeed the life prospect of human beings
(depending on their share in primary social goods) is largely determined by this global basic
structure, Rawls’s two-level bottom-up approach can no longer be accepted. The question of
domestic justice no longer has any priority, since in a globalized world the basic structure of

59
“Lob des Nationalstaats”, W. Kersting, Philosophische Friedenstheorie und internationale Friedensordnung,
in: C. Chwaszcza, W. Kersting (Hrsg.), Politische Philosophie der internationalen Beziehungen, Frankfurt am
Main 1998, 523-554, esp. 544-548, 552; Globale Rechtsordnung oder weltweite Verteilungsgerechtigkeit?, in:
W. Kersting, Recht, Gerechtigkeit und demokratische Tugend, Frankfurt am Main 1997, 243-315, esp. 274-312;
Idem, Weltfriedensordnung und globale Verteilungsgerechtigkeit, in: R. Merkel, R. Wittmann (Hrsg.), “Zum
ewigen Frieden”, Frankfurt am Main, 1996, 172-212, esp. 191-206.
60
This opposition is summarized in: R. Forst, Towards a Critical Theory of Transnational Justice, in:
Metaphilosophy 32 (2001), 161-165.
61
Th. Pogge, Ralws and Global Justice, in: Canadian Journal of Philosophy (18) 1988, 241.
62
Critical Study: “Rawls on International Justice” in Philosophical Quarterly (51) 2001, 246-53; see also: An
Egalitarian Law of Peoples, in: Philosophy and Public Affairs (23) 1994, 195-224.
63
See e.g. A. Buchanan, Rawls’s Law of Peoples: Rules for a Vanished Westphalian World, in: Ethics 110
(2000), 703-715.

12
any domestic society depends on this overarching basic structure. Global justice comes first. It
is maintained, however, that this has no major implications for the political autonomy of
domestic societies. Global justice does not ask for a world government as a super-sovereign,
whose task would consist of imposing the principles of global justice. But even if it did: this
would not change much in comparison with the present situation. A global basic structure
already exists and it empowers the rich and wealthy at the cost of the poor and unprivileged.
No real opposition exists between an alleged present situation of mutually independent
domestic societies on the one hand and a world government trying to implement despotic
principles of global justice on the other. The real opposition is rather between an unjust global
structure and attempts to reach a more just structure. Domestic societies now already fully
depend on the existing global structure, which is advantageous to some and disadvantageous
to many others. Taking global justice seriously merely aims, in the long run, at taking away
the existing injustice and thus at fulfilling our negative duty not to impose on others an unjust
institutional order.
The adjustment of that basic structure to principles of justice in which the interests of all
human beings are taken into account can be reached by relatively little costs for those who
benefit from the present situation. Rather modest rearrangements would suffice. Pogge e.g.
argues that the present global basic structure would morally improve enormously if some
principles of international economic life were rearranged modestly, in particular he argues in
favour of the abolishment of what he calls the International Borrowing Privilege and the
International Resource Privilege, or the introduction of a Global Resources Dividend or a
Tobin Tax. Of course, some argue that such arrangements would significantly reduce the
political autonomy of domestic societies as we understand it, but the contrary is the case. With
respect to democratic accountability, these rearrangements would be very helpful. It is
because of the two privileges mentioned that in poor countries kleptomaniacs are stimulated
to seize state power and that they, once in power, are not interested in winning local support.
The present unjust global structure undermines democracy by stimulating warlords to try and
take control of a nation’s resources and by afterwards making the transition from dictatorship
to democracy very difficult. The institutional facts contradict Rawls’s conjecture that poor
societies are burdened more by their internal structure and the lack of political and cultural
traditions than by the present global structure in which the well off people created economic
monopolies and invented trade barriers. ‘Explanatory nationalism’ does not explain much.
The sources of the present global inequality are not primarily domestic, although internal
factors may not be unimportant, but they result from the present unjust global basic structure

13
actively supported by the rich states. A present day theory of justice should concentrate on
what really matters: not the well being of affluent political communities, but the ways in
which the global basic structure affects the well-being of all individuals, irrespective of their
nationality.

5. ‘Global Justice’ contested

Pogge’s description of the ever-growing global inequality of resources and goods, of extreme
poverty and world hunger is impressive and his explanation in terms of causal relations
between these facts and the global economic system seems convincing. 64 At first sight, this
would make any feasible alternative to change this inequality morally compelling. However,
that is not the case. Fierce opposition against ‘global justice’ exists and the Rawlsian two-
level bottom-up approach is strongly defended. Opposition ranges from the empirical level to
the conceptual and to the moral one.
Empirically, it is argued that principles of justice can only apply to contexts in which certain
degrees of stable institutional cooperation exist. While indeed transnational bonds between
domestic societies exist, the primary unit of institutional cooperation still is the national state,
and not the international, global world. We should start with the world as it is, and thus with
the ‘Faktum’ of the plurality of states. The law of peoples should not aim at more than merely
regulating their peaceful coexistence. The problem of distribution of primary social goods
should be regulated within these units according to their domestic standards, and these
standards do not necessarily coincide with the egalitarian standards as formulated in e.g. A
Theory. The kind of liberalism Rawls defends is not a comprehensive doctrine, but reflects the
understanding of ‘his’ society as a cooperative enterprise of free and equal citizens. Other
societies have different ways of self-understanding. Moreover, as it is already extremely
difficult to compare individual levels of well being within egalitarian societies, this problem
can surely not be solved on a global scale.
Conceptually, the globalist’s proposals for a global dispersal of sovereignty 65 rather than its
concentration by means of a transfer from domestic sovereignty to world government are met
with scepsis and the distinctions between moral and legal cosmopolitanism, or between weak
and strong cosmopolitanism66 are not taken too seriously. Arrangements such as the Global
Resources Dividend or the abolishment of two before mentioned Privileges will only function

64
See e.g.: Th. Pogge, The International Significance of Human Rights, in: The Journal of Ethics 4 (2000), 45-
69; Th. Pogge, Priorities of Global Justice, in: Metaphilosophy 32 (2001), 6-24.
65
Th. Pogge, World Hunger and Human Rights, 178.
66
Th. Pogge, World Hunger and Human Rights, 169

14
by means of global institutional bodies. These bodies will have to make concrete decisions,
for example on which domestic community has to pay what taxes, or on which community is
democratic enough to decide on its resources and on its borrowing policy. ‘Global justice’ can
only function if the question of the ‘quis judicabit’ is solved and the institutional bodies which
are needed to adjudicate, will either stand under a tremendous pressure of domestic
communities, or will have to develop themselves into the direction of an independent world
government. Although the proposals for improving the global structure are presented as
feasible and merely modest reforms, in fact they are not. They do entail the establishment of a
global super-state. Echoing Kant’s words that such a world state would bring about the end of
freedom, Kersting maliciously describes the life of human beings in such a global impersonal
distributive arrangement as the life of production slaves. 67 This conceptual argument against
‘global justice’ can be traced back to Kant’s ‘naturalist’ argument: according to Kant, nature
intentionally keeps mankind divided into a plurality of domestic societies because of religious
and linguistic differences, so as to prevent mankind from ‘indulging in pleasure rather than
into taking pains in enlarging and improving’ its natural capacities.68
Morally, the cosmopolitan approach is being accused of neglecting some fundamental features
of morality. In order to understand what this objection means, I mention the most pressing
problem Pogge presents us with in World Hunger and Human Rights, namely the existing gap
between what is commonly acknowledged as requirements of morality on the one hand and
the practical conduct of citizens of the rich and wealthy countries on the other. By letting the
problem of world hunger persist these citizens do not adhere to what they themselves regard
as their deep-seated moral convictions. Pogge describes this as a great juxtaposition between
the progress made in the last centuries toward universal moral norms and practical conduct.
What seems true in theory regarding moral universalism and human rights, is not applied in
practice.
Pogge tries to explain this gap by mentioning some, what he calls easy reasons for people to
ignore world poverty: to fight poverty is making the problem worse; the problem is too
immense to be solved both in terms of quantity as well as in terms of available methods; the
problem of poverty is gradually disappearing anyway. Of course, he argues that these reasons
have no validity whatsoever and ignoring world hunger is not a rational option. By proving
that world hunger is causally connected with the existing global structure, he urges us to
improve on our practical conduct in order to put it in line with our moral convictions. What is
67
W. Kersting, Globale Rechtsordnung oder weltweite Verteilungsgerechtigkeit?, in: Idem, Recht, Gerechtigkeit
und demokratische Tugend, Frankfurt aM 1997, 297.
68
I. Kant, Grundlegung zur Metaphysik der Sitten, Akademie Ausgabe Bd. IV, 423.

15
true in moral theory must be applied in practice! When acting, at least in the context of
maintaining, changing or establishing institutions we should take the fundamental interests of
all human beings into consideration.
This imperative, however, that the gap should be closed and that acting should be in
conformity with moral theory, still does not explain why the gap exists. A first step in giving
an additional explanation for this gap is by looking back, again, at Rawls. His ‘law of peoples’
is strongly aware of global pluralism. The diversity of cultures and traditions between peoples
is even greater than pluralism within a liberal society. These differences account for the
existence of what Rawls, with Mill, calls ‘common sympathies’, so that some people are more
willing to cooperate with each other than with other people and that they put a higher
emphasis on their common interests than on the interests of ‘other’ people. When establishing
international law, peoples, according to Rawls, do not so much aim at getting the largest
possible share of a global set of primary goods for each of its members, but rather at the
preservation of their common life. Because of their ‘amour-propre’, they want their common
lives to be respected and recognized by other peoples. 69 It cannot be denied that people care
primarily about what is common and close to them. With approval, therefore, Rawls quotes
Walzer: ‘To tear down the walls of the state is not … to create a world without walls but
rather to create a thousand petty fortresses’.70
Now this explanation of the gap in terms of Rawls’s ‘common sympathies’ might not seem to
bring us very far. Moral universalism does not deny the fact that people care more about their
relatives and less about foreigners. It only stresses that such local preferences should take
place within a global framework that guarantees a fair minimum to all. The problem is that the
unfairness of the existing global structure denies this to an increasingly large part of the world
population.
A second step in understanding this gap builds on what some suggest, namely that the analogy
exists between the situation of ordinary citizens of the rich countries with regard to world
hunger and starvation and the situation of ordinary Germans in Nazi Germany with regard to
the Holocaust. The similarity would then consist in the fact that people then and now simply
do not seem to see the problem, or that they simply do not accept the problem as their moral
problem once confronted with it. Arendt describes as one of the most frightening remarks
made by Eichmann during his trial in Jerusalem that ‘he could see no one who was actually
against the Final Solution.’ This was the most potent factor in soothing his conscience. This

69
J. Rawls, The Law of Peoples, 11, 18, 23, 34.
70
J. Rawls, The Law of Peoples, 39n.

16
then resulted in ‘thoughtlessness’ as the most striking elements of Eichmann’s personality. 71
Pogge mentions ‘thoughtlessness’ too as characterizing the attitude both of ordinary German
citizens during the Nazi era and of citizens of the rich and wealthy countries at present. 72
Perhaps, then, elements of the answer on how the Holocaust was possible enable us to
understand widespread indifference to world hunger. In his important Modernity and the
Holocaust, Bauman draws the following lesson concerning morality, namely its apparent
inability ‘to bridge too long distances’. There seems to exist a connection between morality
and proximity such that ‘morality tends to stay at home and in the present’. 73 Primarily,
morality teaches me to take responsibility for people that are close to me, both in the
territorial and in the emotional sense of the word. In cases in which the lives of others are
removed out of our sight, either because they are deliberately removed and sealed of from our
lives by a series of wicked administrative measures or because they literally live at too far a
distance so that it seems almost impossible to imagine ourselves in their position, the voice of
morality can be brought to silence.
Pogge acknowledges the importance of this spatial element. Most rich people live in extreme
isolation of severe poverty and do not know people that are extremely poor, but ‘if we had
such people as friends or neighbors’, many of us would feel compelled to help to eradicate
this problem’.74 Living far away from lethal poverty, people tend to deny the relevance of the
unjust global structure and to resort to ‘explanatory nationalism’, not only as an exonerating
mechanism, but also as the result of morality’s inability to follow a too long causal chain. In a
similar way, Bittner emphasizes the link between morality and closeness as an answer to the
problem why morality did not lead people to bringing world hunger to an end. This link, he
argues, does not deny the existence of human universalism. But cosmopolitanism with regard
to the principles of moral action does not entail cosmopolitanism with regard to moral action:
‘moral agents should act on principles that could receive approval of all human beings, but
these principles do no require a certain conduct towards all human beings’.75
If morality’s imaginative force is not strong enough to bring us as close to the poor as to
consider their lives as our moral responsibilities, what follows? Do we have to dismiss all
pleas for global justice as originating in ‘abstract morality’, unable to make the transition

71
H. Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil, Harmondsworth 1992 (orig. 1963), 116,
287.
72
Th. Pogge, World Hunger and Human Rights, 145.
73
Z. Bauman, Modernity and the Holocaust, Cambridge 1989; A.J. Vetlesen, Why does proximity make the
moral difference, in: Praxis International (12) 1993, 373-4.
74
Th. Pogge, World Hunger and Human Rights, 4.
75
R. Bittner, Morality and World Hunger, in: Metaphilosophy 32 (2001), 28.

17
towards what Hegel calls ‘ethical life’? Should we confine ourselves to Rawls’s realistic ‘Law
of Peoples’, at least utopian enough to reconcile us with the world we live in? 76 To a certain
extent, even Pogge would symphatize: Rawls’s ‘Law of Peoples’ includes the international
duty to assistance and its implementation would significantly improve the lives of the global
poor. This conclusion, however, would give too much credit to Kant’s and Rawls’s
‘international justice’ and too little to the cosmopolitan approach. Here again, Bittner might
help. In close connection with the element of closeness, he adds ‘imputability’ as morality’s
second essential feature. Morality concerns those states and events that can be ascribed to a
specific agent or a group of specific agents. In the case of world hunger, it is difficult, if not
impossible, to find such an agent or group of agents. World hunger results from a long series
of actions and institutions and ‘we do not have a clear understanding of who brought it about,
or who is bringing it about.’ 77 The connection between closeness and imputability is evident:
if the causal connection between the victims of world poverty and our wealth were evident,
this would bring them close enough for the moral imperative to have sufficient motivational
force as to have us act in order to improve their situation. Where clearly ‘imputable’ instances
of global injustice exist, many people are sufficiently motivated to do something about it. In
international law, important steps towards a system of international criminal law are being
made, ranging from the acceptance of universal jurisdiction, as in the Eichmann case, to the
adoption of the Genocide Convention in 1948 and to the acceptance the Rome Statute on the
permanent International Criminal Court. Institutionalizing criminal ‘global justice’ is indeed
very different from bringing about economic ‘global justice’. It might nevertheless help to
clear the way, in two ways: in the former field, the problem of establishing institutions with
‘global’ jurisdiction and of solving the adjudicatory problem of ‘quis judicabit’ must be solved
and steps are now taken to overcome these problems. These criminal institutions might then
help us understand how to set up more encompassing institutions. Global criminal justice will
also add to our understanding, secondly, that global justice should not only aim at punishing
international criminals, but also at preventing criminality. By trying to scetch what the reasons
for international criminality are and what its prevention might mean institutionally, globalists
remain faithful to Rawls, since he too held that the ‘great evils of human history follow from
political injustice and that eliminating them would make those great evils eventually
disappear’.78

76
On this role of political philosophy: J. Rawls, Justice as Fairness, 3.
77
R. Bittner, Morality and World Hunger, in: Metaphilosophy 32 (2001), 31.
78
J. Rawls, The Law of Peoples, 7.

18