Two Concepts of Sovereignty: From Westphalia to the Law of Peoples?
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Two Concepts of Sovereignty: From Westphalia to the Law of Peoples? DAVID FAGELSON American University, Washington, DC, USA
Abstract. The idea of Westphalian sovereignty has been waning in the face of renewed support for individual human rights. One of the more audacious proposals for a new international order is offered by John Rawls, who calls for a Society of Peoples governed by public reason. I explore this new foundation for international relations by considering how much respect we owe to other peoples who, while hierarchical and illiberal, are not criminally responsible for the violation of fundamental human rights. The respect for intolerance and hierarchy demanded of liberal peoples exposes a flaw of Rawls’ new world order. The remedy, I suggest, requires us to abandon the search for some overlapping political consensus of all the world’s comprehensive doctrines. Liberals must defend basic rights to freedom and equality not because they are reasonable, which some peoples will never accept, but because they enhance human well being and are, therefore, just.
Introduction1 Robert Frost once defined a liberal as someone who could not take his own side in an argument. This observation always seemed a bit hardhearted, although it is easy to see how he arrived at that view. Liberalism does not prevent people from believing in the value of autonomy or neutrality, but it does require them to put up with people who do not. Indeed, if we do live in a world of incommensurate and conflicting goods, how can we insist that people be even politically liberal where the burden of judgment may lead them to incompatible ideas of justice? Yet when neoNazis want to march through a town of concentration camp survivors or racists want to burn a cross in front of a black family’s house, liberals constantly must reassess the demands of neutrality and ask how much intolerance need they tolerate? Since the fall of the Berlin Wall, this perennial liberal conundrum has become a matter of relations among nations as well as within them. Intense ethnic and nationalist conflict have impelled foreign governments to intervene forcefully to protect minority populations against human rights violations. These interventions raised few concerns about neutrality. Liberalism does not require anyone to tolerate the slaughter of innocents.2 Any reservations about the intervention in Kosovo were not so much a consequence of political concern about neutrality as legal apprehension about state sovereignty. What is the value of sovereignty that it would give anyone a moment’s pause to stop mass murder? Are international lawyers also unable to take their own side in an argument?
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David Fagelson
The ethical, as opposed to legal, deference state sovereignty commands is somewhat of an enigma. To some communitarians, the state is often taken as a prima facie, if not actual, proxy for community.3 While that connection is hotly contested by many liberals,4 sovereignty’s origins in the Treaty of Westphalia leads many of them to associate it with to
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