The supreme emergency exemption: Rawls and the use of force

Abstract

Both Rawls and Walzer argue for a supreme emergency exemption and are commonly thought to do so for the same reasons. However, far from ‘aping’ Walzer, Rawls engages in a reconstruction of the exemption that changes its focus altogether, making clear its dependence on an account of universal human rights and the idea of a well-ordered society. This paper is therefore, in the first instance, textual, demonstrating that Rawls has been misinterpreted in the case of supreme emergency. In the second instance the approach is reconstructive, providing a reinterpretation of Rawls that fits his treatment of supreme emergency with his broader commitments in just war and international relations. This reinterpretation enables us to draw out a pattern of argument that Rawls appears to share with a much more strident liberal cosmopolitanism.

Keywords

human rights just war Rawls supreme emergency Walzer

Introduction

Since it was proposed by Michael Walzer in Just and Unjust Wars the idea of a supreme emergency exemption has been both a central and a controversial aspect of modern thinking about the use of force in the international system.¹ Walzer argues that under certain emergency conditions political leaders are justified in setting aside a fundamental tenet of just war theory, noncombatant (or civilian) immunity. Under almost all circumstances, even in the heart of combat situations, just war theory argues that it is not permissible to deliberately target innocent civilians. In arguing that there are times when this restriction can legitimately be set aside Walzer is proposing what Orend calls ‘probably the most controversial, and consequential, amendment to just war theory ever proposed’.²

Walzer argues that defeat in war takes at least two distinct forms. ‘Ordinary defeat’ encompasses the usual penalties for military defeat; political subjugation, becoming a puppet regime or a satellite state, even resistance against an occupier.³ None of this constitutes a supreme emergency. Alternatively, a political community might find itself facing a threat beyond ordinary defeat, a threat to its continued existence. Only such a threat constitutes a supreme emergency. He claims that Britain faced such a threat from 1939 until at least late 1941 when under attack by Nazi Germany. Churchill’s decision to bomb German cities in 1940, deliberately aiming for civilian deaths instead of continuing to target only military and industrial complexes, can be regarded as a legitimate response to the possibility of the final victory of Nazism. Britain, it is argued, faced a supreme emergency and so a supreme emergency exemption kicked in.⁴ Walzer is also clear that by the bombing of Dresden in 1945 the supreme emergency had passed and such targeting of civilians was no longer in order. Nor was an exemption in place to legitimate the United States’s targeting of Japanese civilians through extensive firebombing and then atomic attack in the same year. The United States simply did not face a threat of the sort that constitutes a supreme emergency.⁵

John Rawls accepts that Walzer’s proposed supreme emergency exemption is a valid and desirable part of contemporary just war theory. In the two places where he engages in extended discussion of just war, The Law of Peoples and ‘Fifty Years after Hiroshima’, it is clear that Walzer is an important source.⁶ Rawls discusses the same examples of Britain and the United States in the Second World War and comes to the same conclusions as Walzer about when the supreme emergency exemption applied. Indeed, these are the only examples he discusses. Many commentators accept that Rawls adopts Walzer’s account of just war and supreme emergency wholesale. In discussing the use of force, Rawls himself writes ‘here I follow Michael Walzer’s Just and Unjust Wars’.⁷ Chris Brown suggests that Rawls’s discussion is ‘largely along the lines of Michael Walzer’s reasoning’.⁸ Toner treats Walzer and Rawls together, assuming their positions to be pretty much identical, arguing that ‘while Rawls’ endorsement of the supreme emergency exemption … lends it a great deal of credibility … it is Michael Walzer, whom Rawls follows here, who is the originator’.⁹ Orend goes so far as to claim that ‘it is Walzer who is fundamentally responsible for the structure of this exemption: Churchill merely inspires it, and Rawls merely apes it’.¹⁰

This paper disputes this common interpretation of Rawls’s engagement with just war theory. It is not at all clear that any of the claims that Rawls’s account of the supreme emergency exemption follows Walzer are accurate, even Rawls’s own. Far from ‘aping’ Walzer, Rawls engages in a reconstruction of the exemption that changes its focus altogether. Demonstrating that, contrary to received opinion, Rawls and Walzer fundamentally disagree about the grounds of the exemption and so might be expected to disagree about when a supreme emergency is in place is the first task. Explaining why Rawls’s account differs from Walzer’s requires us to place the exemption in the broader context of Rawls’s account of the Law of Peoples, highlighting its dependence on human rights and the notion of a well-ordered society. This involves reconstructing Rawls’s position in order to demonstrate that The Law of Peoples has a commitment to universal human rights built into its structure. The argument here is not that Rawls provides the right account of human rights, but that his account of supreme emergency requires universal human rights in order to get it off the ground and that his broader theory can be understood to attempt to provide them. The approach must therefore be, in the first instance, textual, demonstrating that Rawls has been misinterpreted in the case of supreme emergency. In the second instance the approach is reconstructive, providing a reinterpretation of Rawls that fits his treatment of supreme emergency with his broader commitments in just war and international relations. This involves a reinterpretation of Rawls’s account of human rights generally. Finally, this enables us to draw out a pattern of argument that Rawls appears to share with a much more strident liberal cosmopolitanism.¹¹

Walzer and Rawls on the Supreme Emergency Exemption

Walzer

To see that Walzer and Rawls come apart on the supreme emergency exemption in particular we need to pay close attention to the criteria they propose for governing when an exemption is in place. In Just and Unjust Wars Walzer proposes two criteria:

1. Imminence of danger: the threat must be close and pressing.

2. The nature of the danger ‘must be of an unusual and horrible kind’, threatening the existence of the political community.¹²

Both these criteria must be met, placing political leaders in a position where ‘they will do what they must to save their own people’ and they may ‘override the rights of innocent people for the sake of their own political community’.¹³ The exemption applies because ‘the survival and freedom of political communities – whose members share a way of life, developed by their ancestors to be passed on to their children – are the highest values of international society’.¹⁴ So, when Walzer poses himself the question ‘Can a supreme emergency be constituted by a particular threat…against a single nation?’ he responds ‘I am inclined to answer this question affirmatively’.¹⁵

This justification of the supreme emergency exemption is endorsed and expanded on in Arguing about War. Recognizing that the exemption legitimates ‘great immoralities’ he argues that it does so ‘only in the face of a far greater immorality…attack on the very existence of a particular community’.¹⁶ Walzer’s concern is for a/any particular community as

…the political community (the community of faith too) can’t be…replaced. It consists of men, women and children living in a certain way, and its replacement would require the elimination of the people or the coercive transformation of their way of life.¹⁷

He continues,

The commitment to continuity across generations is a powerful feature of human life…When our community is threatened…in what we might think of as its ongoingness, then we face a loss that is greater than any we can imagine, except for the destruction of humanity itself. We face moral as well as physical extinction, the end of a way of life as well as a set of particular lives, the disappearance of people like us…only then do we enter the terrible world of supreme emergency.¹⁸

Rawls

We have already seen that when discussing just war Rawls suggests that he follows Walzer’s line in Just and Unjust Wars, writing ‘this is an impressive work and what I say does not, I think, depart from it in any significant respect’.¹⁹ Despite this, I hope to show that Rawls does depart significantly from Walzer on the supreme emergency exemption and this can be seen most plainly if you look at Rawls’s stated criteria for the existence of an exemption.

Rawls is less clear than Walzer about exactly what the criteria for an exemption are but is clear enough.

Whether the supreme emergency exemption applies depends on certain circumstances…Britain’s bombing of Germany until the end of 1941 or 1942 could be justified because Germany could not be allowed to win the war, and this for two basic reasons. First, Nazism portended incalculable moral and political evil for civilized life everywhere. Second, the nature and history of constitutional democracy and its place in European history were at stake.²⁰

Rex Martin concludes from this that Rawls allows the exemption to be invoked only if doing so is necessary for the survival of a liberal democratic (or perhaps decent) polity rather than any polity whatever.²¹ While recognizing the clear light between Walzer and Rawls it seems to me that Martin may not recognize the extent of Rawls’s revision of Walzer. Key here is that neither criteria, however imprecisely stated, refers to the threat to any particular political community. Rawls goes on immediately to write,

Churchill really did not exaggerate when he said…‘if we fail…the whole world including the United States will sink into a new Dark Age’. This kind of threat, in sum, justifies invoking the supreme emergency exemption, on behalf not only of constitutional democracies, but of all well-ordered societies.²²

This is the only passage where Rawls discusses the application of the supreme emergency exemption²³ and nowhere is the threat to a particular community mentioned. The threat that Rawls discusses is much broader in scope. It is a threat to ‘civilized life’, to ‘the nature and history of constitutional democracy’ and is to be invoked on behalf of all well-ordered societies. The exemption is invoked in defence against a threat to well-orderedness in the world rather than in defence of any particular polity, well-ordered or not.

It is true that Rawls does not anywhere explicitly reject Walzer’s criteria when rejecting other improper criteria. In discussion of Hiroshima he clearly rejects the following arguments for invoking the supreme emergency exemption: hastening the end of the war; saving lives of American soldiers, giving the Japanese a way to save face; and impressing Russia.²⁴ However, given the obvious influence of Walzer here, it is significant that when laying out his exemption criteria Rawls does not mention Walzer, nor invoke his criteria, nor mention the survival of a particular state. Even in discussion of Britain in 1940, where Walzer makes it clear that the grounds for invoking the exemption is a supreme emergency constituted by a threat to Britain’s survival as a distinct political community, Rawls never makes Britain’s survival an issue. It is not at all clear that Rawls’s exemption could be invoked by a single polity even under threat of extinction, if it was not facing at the same time a general threat to the existence of civilized life or well-orderedness in the world. This implies that any single polity may have to accept destruction rather than deliberately target innocent civilians. This is similar to the position that Toner takes himself to be defending against Rawls. My argument here is that, at least sometimes, Rawls agrees with Toner that ‘there may be times when a political community must accept its own defeat and perhaps destruction’.²⁵

Even if we think that Rawls sets unrealistic criteria it is clear that his supreme emergency exemption is different from Walzer’s. This is significant for two reasons. First, the supreme emergency exemption is an important and distinctively contemporary part of just war theory so if there are two competing sets of criteria for its application this is worthy of attention.²⁶ If the basic criteria are different then, despite agreement over the Second World War examples, they would make different judgements about when a supreme emergency is in place and so when an exemption applies in future conflicts. Second, understanding why Rawls differs on this issue pushes us to consider how the supreme emergency exemption fits into the Law of Peoples and to question his place in a broader set of contemporary debates about the use of force in international relations. This is the focus of the rest of the paper.

Human rights, well-orderedness and the law of peoples

Rawls’s reworking of the supreme emergency exemption places well-orderedness firmly onto centre stage. Well-ordered peoples are either liberal or decent, meaning that they are non-aggressive and that they respect Rawls’s reduced list of human rights.²⁷ The central role that Rawls gives to the idea of a society being well-ordered makes sense if we bear in mind the main aim of a Law of Peoples. ‘The aim of the Law of Peoples would be fully achieved when all societies have been able to establish either a liberal or a decent regime’, when they are by definition well-ordered.²⁸ The ‘long-run aim [of well-ordered societies] is to bring all societies eventually to honor the Law of Peoples and to become full members in good standing of the society of well-ordered peoples. Human rights would thus be secured everywhere.’²⁹ It is the threat to the existence of well-ordered, human rights respecting, societies in general that underpins Rawls’s criteria for emergency exemption, as the existence of such societies fundamentally structures Rawls’s conception of an international Society of Peoples. Walzer’s account of supreme emergency reflects the importance he places on the values of any particular political community. Rawls’s reflects the importance of a set of universal values embodied in the notions of well-orderedness and human rights that he takes to radically constrain the legitimate actions of all particular communities.

If Rawls’s reconstruction of the supreme emergency exemption is to be sustainable he needs to develop an account of human rights that is able to take this sort of weight. I want to argue that we get the bare bones of just such a strong account of human rights in The Law of Peoples and, without really engaging with their content but by concentrating on their role, I want to start laying that out.

Rawls argues that a Society of Peoples would adopt the Law of Peoples as its charter. He argues that the same charter would be agreed to, first in an original position populated by representatives of liberal peoples and second in another original position populated by the representatives of decent, non-liberal peoples.³⁰ Point six of Rawls’s basic charter of the Law of Peoples agreed in both these original positions is that ‘Peoples are to honor human rights’.³¹ Human rights are respected by all liberal and decent, non-liberal peoples and states that reject them are judged outlaw. However, these rights are not conventional, simply the result of a modus vivendi agreement between liberal and decent peoples, but universal.

The list of human rights … should be understood as universal rights in the following sense: they are intrinsic to the Law of Peoples and have a political (moral) effect whether or not they are supported locally. That is, their political (moral) force extends to all societies and they are binding on all peoples and societies, including outlaw states.³²

It may be thought that only outlaw states that are expansionist would be subject to the Law of Peoples on the basis that they threaten the existence, interests or human rights of liberal and decent peoples, but in discussing intervention in other societies Rawls goes further than this. Outlaw states that are externally non-aggressive but internally threaten the human rights of their own members are also subject to the strictures of the Law of Peoples. To illustrate this point Rawls imagines a developed but peaceful society resembling the Aztecs, holding its lower class as slaves and maintaining an institution of human sacrifice. In this case, where the ‘offenses against human rights are egregious’, and a tactful appeal to self-interest and the use of sanctions fails, ‘forceful intervention … in the defense of human rights would be acceptable and would be called for’.³³ The fulfilment of human rights, on the other hand, ‘is sufficient to exclude justified and forceful intervention’.³⁴

The centrality of human rights to Rawls’s international theory is reinforced in his account of self-defence. The Law of Peoples assigns to ‘all well-ordered peoples (both liberal and decent)…the right to war in self-defense’.³⁵ Liberal peoples fight in self-defence in order to preserve the basic freedoms of citizens and democratic institutions, decent peoples ‘also have something worth defending’, their decency.³⁶ Finally, benevolent absolutisms also have a right to defend themselves because, although not well-ordered, as they give members little input into political decisions, they do respect human rights and ‘any society that is non-aggressive and that honors human rights has the right of self-defense’.³⁷ Societies that do not honor human rights, most notably outlaw regimes, do not have this right. Again, Rawls’s criteria for the legitimate use of force give human rights the central role.

It is clear that Rawls regards human rights as universal rights, applying to all societies. This universalism is reflected in the way that they structure his broad account of just war; they are key criteria in judging humanitarian intervention, in their relation to well-orderedness they are the basis of criteria for the supreme emergency exemption, and, finally, Rawls also limits a right to justified self-defence to those peoples that respect human rights. We are in a position to conclude that Rawls’s supreme emergency exemption is inseparable from his broader theory; it is one part of a unified theory of the liberal (and decent) use of force. Walzer essentially regards the supreme emergency exemption as part of a principle of self-defence in just war accessible by any political community; it is a clause of a principle of self-defence that becomes active once a state faces a threat to its continued existence rather than the threat of ordinary defeat. Rawls regards self-defence and the supreme emergency exemption as distinct principles, equally subject to a broader account of the constraints on the use of force. Self-defence is legitimate only in defence of the institutions of a human rights-respecting society. A supreme emergency exemption is only in place when there is a threat to well-ordered societies in general. In this way the exemption looks to be a principle of self-defence only incidentally, as what is really being defended by invoking an exemption is something larger than any individual people or community.

Are Rawls’s rights just liberal rights?

This broader interpretation of Rawls is sustainable only if he intends to offer a universal account of human rights. If he was to offer a more limited account of rights by instead defining them as those that liberal and decent people are capable of agreeing to, thereby casting them conventionally or at least partially, then the obligation on outlaw states to avoid both aggression and human rights violation is difficult to understand. If Rawls’s rights are intended to be just liberal rights then my reading of Rawls could not be sustained. The argument advanced here is that Rawls’s The Law of Peoples does contain arguments for universal rights and so my interpretation of the Rawlsian use of force is sustainable. The argument is not that Rawls is successful in justifying universal rights – this would involve a much more extensive undertaking – but is an argument about interpreting the aims of the Law of Peoples.

We must first set aside possible interpretative claims that Rawls’s human rights, and the Law of Peoples more generally, have a distinctively liberal character that undermines their universality. This claim takes two forms: first, that he sets up his argument as one about the appropriate foreign policy of liberal regimes; second, that his account of rights has an obvious basis in liberal history and theory. The contention is that Rawls cannot have intended universality as his account of rights is compromised at the outset by its ethnocentricity.

Liberal foreign policy?

This is the most obvious challenge to a universalist reading of Rawls on rights. He describes the Law of Peoples as an attempt to ‘work out the ideals and principles of the foreign policy of a reasonably just liberal people’ where ‘liberal societies ask how they are to conduct themselves towards other societies from the point of view of their own political conceptions’.³⁸ This challenge might also read The Law of Peoples through an understanding of Political Liberalism which highlights its apparently less ambitious tone, drawing as it does on the fundamental ideas of liberal democratic public political culture.³⁹ Surely asking the question in terms of liberal foreign policy localizes the content of the Law of Peoples? Let us see if we can answer this charge.

One of the most striking features of Rawls’s argument is the central distinction that he draws between states and peoples.⁴⁰ The question he asks is not ‘what is the appropriate foreign policy for a liberal state?’ This is because he explicitly rejects the way theories of international relations and policy-makers generally have regarded states as ‘anxiously concerned with their power’, ‘always guided by their basic [prudential] interests’ and with a conception of state rationality which ‘excludes the reasonable’ and ‘does not allow them to be stable for the right reasons: that is, from firmly accepting and acting upon a just Law of Peoples’.⁴¹ On the other hand peoples, in contrast to states, have a ‘moral nature’ and ‘they are not moved solely by their prudent or rational pursuit interests, the so-called reasons of state’.⁴² Indeed, ‘just liberal peoples limit their basic interests as required by the reasonable’ and beyond these interests ‘a liberal people tries to assure reasonable justice for all its citizens and for all peoples’.⁴³ One point of Rawls drawing the distinction between states and peoples is to recognize the moral nature of peoples and its force in the Law of Peoples. The question Rawls actually asks is ‘what are the ideals and principles of the foreign policy of a reasonably just liberal people?’, a people guided by their moral nature to try to assure reasonable justice for all peoples. This question is effectively ‘what is a just foreign policy?’ as this is what a liberal people will reasonably pursue.

If we think we know what a just foreign policy looks like, the Rawlsian approach asks us to take a further step and to check whether it still looks reasonable when seen from other points of view. Could non-liberal but decent societies acknowledge the reasonableness of a foreign policy guided by the ideals and principles of the Law of Peoples or does it appear partial, parochial and fuelled by self-interest? This is the role of the several original positions in Rawls, to make it clear that The Law of Peoples is genuinely impartial and reasonable rather than self-serving, and that it could be generally recognized as such. It is important that in the last original position decent, but non-liberal, peoples asking themselves about the principles of a reasonable Law of Peoples are able to affirm the same basic charter as the liberal peoples in their original position. As Rawls says when discussing exactly this point, the Law of Peoples is not ethnocentric, ‘the objectivity of that law surely depends not on its time, place, or culture of origin, but whether it satisfies the criterion of reciprocity’; does it outline fair terms of political and social cooperation to all peoples?⁴⁴

A liberal basis/bias?

The second charge focuses on the liberal origin of ideas of human rights. Is it significant if, as Reidy writes of Rawls’s rights, ‘their universality is a function of their genesis within the practical reason of liberal democratic peoples’; or, as Boucher argues, Rawls’s account ‘is latent within the self-understandings of liberal democratic peoples, but sufficiently restricted as to be acceptable to decent hierarchical non-liberal regimes’? ⁴⁵

It is not clear that Rawls could place much weight at all on the origin of rights, although he obviously acknowledges their historical development in the discourse of liberal democracy. He certainly could not regard it as of clinching significance or as evidence of their ethnocentrism. After all, we can imagine a world populated only by decent peoples, with no liberal or democratic peoples in it at all. It is an important part of Rawls’s justification of the Law of Peoples that the second international original position is inhabited only by representatives of decent non-liberal peoples.⁴⁶ It is also vitally important here that these decent societies would independently adopt the same Law of Peoples to govern their interactions as would liberal peoples.⁴⁷ Indeed, one of Rawls’s clearest statements of human rights is part of the account of decent non-liberal societies where he argues that they ‘cannot be rejected as peculiarly liberal or special to the Western tradition. They are not politically parochial.’⁴⁸ So, Rawls appears committed to arguing that a world without liberal peoples could still be a world where human rights and a reasonable Law of Peoples are acknowledged. This makes it difficult to maintain a claim that the liberal origin of rights even if acknowledged by Rawls forces him to accept that their universalism is undermined.

Human rights, social cooperation and the use of force

With the two obvious grounds for a charge of ethnocentrism put aside we still need to show that Rawls has a positive argument about the basis of rights that links with his understanding of well-orderedness. We need a positive argument that makes clear how the objectivity of the Law of Peoples does not depend on its time, place or culture of origin. We can find this if we pay attention to Rawls’s account of social cooperation.

Human rights are distinct from constitutional rights, or from the rights of liberal democratic citizenship, or from other rights that belong to certain kinds of political institutions, both individualist and associationist. Human rights set a necessary … standard for the decency of domestic political and social institutions.⁴⁹

Human rights can be the subject of agreement between liberal and decent societies precisely because they are ‘recognized as necessary conditions of any system of social cooperation’.⁵⁰ When Rawls describes human rights as necessary in this way he is not arguing that these rights must be observed if there is to be international cooperation between liberal and decent peoples but that they underpin the idea of cooperative social relations as such. Because of this human rights set a limit to reasonable pluralism between peoples, and outlaw states, as violators of human rights, are beyond that limit.⁵¹ Human rights are ‘a special class of urgent rights’ and ‘when they are regularly violated, we have command by force, a slave system, and no cooperation of any kind’.⁵²

When Rawls argues that fulfilment of human rights is a necessary condition of decency he is deploying them as a criterion, along with representation in political consultation, that draws a line between liberal and decent cooperative societies on the one hand and any non-decent one that can be no more than a ‘slave society … driven by a scheme of commands imposed by force’ on the other.⁵³ Decent societies (liberal and non-liberal) are characterized by an appropriate form of cooperative mutual recognition between members while non-decent societies systematically misrecognize their members, effectively treating them as slaves instead of respecting their human rights. Respect for human rights is a key element in the criteria of decency that distinguish reasonable forms of cooperation from indecent ones. It appears to be an imperative for Rawls, and a ‘fixed concern of the foreign policy of all just and decent regimes’, that all societies should become schemes of proper social cooperation and therefore respecters of human rights.⁵⁴ Recall that he says ‘the aim of the Law of Peoples would be fully achieved when all societies have been able to establish either a liberal or a decent regime’⁵⁵ because only then would human rights be properly recognized.

All societies should be properly cooperative, respecting human rights. Where societies are not proper schemes of social cooperation then remedial action is called for. In the case of burdened societies and some outlaw societies action to bring about a socially cooperative society should be, where possible, pursued peacefully through a duty of assistance, the use of persuasion and encouragement, or of sanctions.⁵⁶ In the case of the worst sort of outlaw societies we have already seen, in his hypothetical example of an Aztec-like society, that Rawls argues that forceful intervention may be necessary, and called for, to establish cooperative society. Indeed, Rawls goes so far as to say about ordinary hierarchical regimes that if, contrary to his expectation,

…the facts of history, supported by the reasoning of political and social thought, show that hierarchical regimes are always, or nearly always, oppressive and deny human rights, [then] the case for liberal democracies is made.⁵⁷

It is clear that human rights and the cooperative societies that they underpin are the focus of the Law of Peoples. Decent non-liberal societies are regarded as well-ordered only if they are capable of sustaining proper relations of social cooperation.

So, why is it so important that all peoples are organized into cooperative societies? The straightforward answer is that in this way we eliminate the gravest of political injustices and thus diminish the impact of the ‘great evils of human history – unjust war and oppression, religious persecution and the denial of liberty of conscience, starvation and poverty, not to mention genocide and mass murder’ which follow from political injustice, and we all have an interest in this.⁵⁸ However, there is more to say about the importance of cooperative society and the way cooperative societies conceive of their members. Liberal societies regard their members as free and equal citizens who are both rational and reasonable in that they have a capacity for a conception of the good and the capacity for a sense of justice, including the willingness to propose and abide by fair terms of social cooperation.⁵⁹ As for properly cooperative but non-liberal societies, ‘all persons in a decent hierarchical society … are seen as decent and rational … responsible members of society, they can recognise when their moral duties and obligations accord with the people’s common good idea of justice’ which assigns human rights to all members of their people.⁶⁰ Both types of society regard their members as being able to understand and balance their own interests with the legitimate obligations imposed by life in society. He goes further in Political Liberalism where he couples a basic notion of cooperative society, ‘one whose members engage … in activities guided by publicly recognised rules and procedures that those cooperating accept and regard as properly regulating their conduct’,⁶¹ with a basic concept of the person that enables cooperative societies.

Beginning with the ancient world, the concept of the person has been understood … as the concept of someone who can take part in, or play a role in, social life, and hence exercise and respect its various rights and duties.⁶²

And also,

We ask: what must persons be like to engage in practical reason? To answer we say that persons have the two moral powers … Their being reasonable and rational means that they can understand, apply, and act from practical principles. This means in turn that they have a capacity for a sense of justice and for a conception of the good.⁶³

This is a conception of the person as capable of participating in cooperative society with others and Rawls says that ‘no sensible view can possibly get by without the reasonable and the rational as I use them’.⁶⁴ Of course, different peoples will think of cooperative society in different ways, as a scheme of social cooperation for mutual advantage, or for reciprocal advantage or in pursuit of a common religious aim, for example, but all ought to conceive of societies as cooperative, must therefore accept the human rights that are the necessary conditions of such cooperation and also must assume a basic conception of the person that makes this cooperation possible. Some such account of society and person is necessary, Rawls argues: ‘they are as basic as the ideas of judgement and inference’.⁶⁵ When non-cooperative societies violate human rights they are failing to properly recognize the cooperative capacities of their members. Instead they should become, perhaps with the assistance of other peoples, cooperative societies that do properly recognize those cooperative capacities of their members. In failing to recognize and to uphold human rights outlaw states at the same time undermine the possibility of cooperative society and misrecognize members as persons for whom cooperative society is appropriate. Violation of the human rights of members is a criterion by which we judge outlaw states. So, human rights are a feature of all cooperative societies but Rawls also regards it as an imperative that all peoples be, or aim to be, cooperative societies where human rights are not systematically violated. Again, Rawls regards human rights as fundamental to social relations as we know them and this does not seem to mean to social relations as we know them here in liberal societies, but to social relations in general.

So, in examining Rawls’s account of supreme emergency we have found that he differed from Walzer. Accounting for this difference involves seeing the supreme emergency exemption as an element in a wider account of the use of force, which itself requires an account of universal rights and their basis in order to be sustainable. As this section has argued, it is clear that Rawls can be understood to be attempting to provide exactly this sort of account. That he does so supports the distinction I draw out between Rawls and Walzer on supreme emergency and undermines interpretations of Rawls that collapse this distinction.

Conclusion

In conclusion, let us stand back and look at Rawls on the use of force, in the round. We have seen that his account of supreme emergency appears to limit invoking the exemption to those episodes where well-orderedness itself (and civilized life everywhere) is under threat. Rawls’s just war theory more generally also limits a right to the use of force in self-defence to those societies that respect human rights.⁶⁶ Finally, we have also seen that where the violation of human rights is grave, or egregious, well-ordered societies are justified in intervening violently in outlaw states, to prevent violations continuing. Indeed, such intervention ‘would be called for’. In each of these instances when the use of force is legitimate the relevant criteria take human rights and well-orderedness as central values. His alternative to Walzer’s supreme emergency exemption is entirely consistent with this and is part of a position that challenges traditional just war theory as much as it is a part of it. Walzer advances the supreme emergency exemption as an element in a modern doctrine of just war. He rests it on traditional grounds where use of force is just in response to a threat to the ongoing existence of a political community. It is, in effect, a development of the doctrine of the legitimate self-defence of sovereign states. Despite his self-identification with Walzer, what Rawls’s account of supreme emergency does is to highlight the extent of his reconceptualization of just war. Both a right to self-defence (in an emergency or otherwise) and security from forceful intervention are made dependent on a state’s engagement with human rights. This is a significant departure from traditional just war doctrine.

Let us conclude with a final consideration that we are pushed towards by this reconceptualization of just war theory. It is clear that that Rawls envisages a special role in international society for well-ordered, human rights respecting, societies.⁶⁷ Not only does their existence legitimize the notion of a supreme emergency exemption and of the use of force in self-defence, but their foreign policy is to be guided by the aim of bringing about a world in which all societies are well-ordered. To this end he argues that well-ordered societies ‘should establish new institutions and practices to serve as a kind of confederative center and public forum for their common opinion and policy toward non-well-ordered regimes’.⁶⁸ What Rawls calls a Confederation of Peoples is an organization ‘with a role similar to that of the United Nations’, but of ‘the United Nations ideally conceived’.⁶⁹ It is clear that Rawls does not think that the UN, in its current form, is necessarily the proper organization for this role. He is explicit about the establishment of such a Confederation; ‘they can do this within institutions such as the United Nations or by forming separate alliances of well-ordered societies’.⁷⁰ Rawls explicitly legitimates a league of decent societies outside the auspices of the UN. The role of this league is to

…express for the society of well-ordered peoples their condemnation of unjust domestic institutions in other countries and clear cases of the violation of human rights. In grave cases they may try to correct them by economic sanctions, or even by military intervention.⁷¹

In short, the Confederation of Peoples armed with a strong conception of human rights can legitimately sidestep the UN to promote and enforce respect for those rights on outlaw states. In advocating such arrangements Rawls’s account of international relations may share a basic logic with cosmopolitan support for the development of a coalition of democratic states to ensure ‘healthy competition with the UN system’ in the legitimation of the use of force.⁷² However, much of the broader cosmopolitan position has developed as justification of preventive self-defence in response to events in Kosovo in 1999, the World Trade Center attacks in 2001 and the conflict in Iraq that followed, citing changed security conditions as a possible justification.⁷³ That Rawls draws out this logic some time before the tragic events of 2001 may constitute evidence that this pattern of argument is not simply a response to new security conditions but something tied much more closely to liberal principle. That Rawls argues that the logic of incorporating human rights more centrally into governance of the use of force actually constrains legitimate self-defence considerably should give pause to both those who seem to support and to those who are worried about a developing ‘crusading militancy of liberalism’.⁷⁴