TRANS Nr. 5: Michael Dusche: Liberal Tolerance between People(s)

Liberal tolerance

Tolerance, I believe, has at least two meanings, one positive, and one negative. The positive, or rather the normative conception of tolerance includes a sense of doing full justice to the one to be tolerated by calling for recognition or even reverence. The negative conception of tolerance, on the other hand, reminds us of a use of the word which seems to evoke a notion of domination by the one who tolerates and a notion of condescendence towards the one who is to be tolerated. Goethe expressed this latter conception of tolerance in his famous dictum that tolerance is to be only a transitory stage and eventually should lead to recognition.

It seems to me that there is some truth in both of these perspectives, and that treating the idea of tolerance as a merely terminological matter would do injustice to this fact. It also seems to me that the concept of tolerance would be ill conceived as a freestanding normative concept. It should rather be viewed in connection with matters of social justice and within a larger ethical framework. I shall try to show that tolerance can be discussed at different levels, each of which offers a distinct context in which both of the meanings stated above, the positive and the negative will become intelligible.

The framework that I propose is that of a liberal theory of justice. In liberal theory of justice, it is a shared belief that we have to distinguish between the normative level on which we discuss the justice and legitimacy of institutions such as states – but also informal institutions as customs – and the level of virtue ethics as regarding questions of a good life with respect to individuals or groups of individuals. Thus, with respect to the notion of tolerance that we are discussing we have to keep in mind the level on which we are discussing the term. Are we talking about tolerance as part of a virtue ethics, or are we talking about a norm that should be binding not only for the followers of a certain comprehensive view on what constitutes a virtuous life, but also for all of us as citizens of a liberal democracy.

Another question that we have to keep in mind in order to avoid confusion between the two meanings of tolerance is the question as to who is tolerating and who is to be tolerated, that is, who is the subject and who is the object of toleration. Subjects of toleration can be states, authorities, institutions, associations, on the one hand, but also individuals or groups of individuals, on the other.

The genesis of the concept of tolerance in the time of religious war in Europe (especially in the German-speaking territories) suggests that the first objects of toleration were not simple individuals but rulers of certain territories. The cuius regio eius religio of the religious peace treaty of Augsburg (1555) defined the right of a king to choose his religion, which had to be granted from the point of view of the Emperor of the Holy Roman Empire, which in turn was the subject of toleration. Religious freedom had not yet been extended to the individual level. Sometimes individuals were tolerated in their divergent beliefs but most of the time they had to adopt the religion of their sovereign. Tolerance here takes its negative meaning, implying a condescending attitude towards the object of toleration.

It was only when sovereignty (power) itself came to be thought of as residing in the people, that is, in the individuals as parties to a social contract, that tolerance lost its negative connotation. At the same time, when we witness the turn from domination to non-domination, from an authoritarian to a democratic ideology, we also witness a shift in the meaning of tolerance. Now, toleration is no longer viewed as springing from a patriarchal subject condescending to its objects of rule but toleration has its source and its goal in the civic public that rules itself by means of a democratic state. At this point, the role of the state as a subject of toleration is only one of mediation. Essentially, it is not the state, which tolerates different worldviews, but it is the civic public as a whole, which tolerates its own many factions through the power structure that it supposedly controls. Only at this stage can we talk about tolerance in the positive sense, because now subject and object are for the first time conceived of as equals who owe each other equal respect and recognition as the co-authors of the authority, which they establish and control.

It is as if human beings encounter one another in two roles: as citizen and as individual pursuing her or his private goals. Tolerance among citizens is granted by a system of equal liberties and obligations for mutual respect for these liberties. Tolerance on this level is a moral duty of every citizen and not simply a matter of lifestyle. On the other hand, tolerance on this level is also limited to mere co-existence. There can be no obligation among citizens to revere each other. The relationship is one of respect and fair treatment, with the emphasis on not doing harm to each other. Tolerance among private human beings, on the other hand, can involve more. Some people may choose as a maxim of their virtue ethics to not only respect, but also to revere or even to love their fellow human beings, regardless of their being similar or very different from themselves.

Similarly, the limits of toleration can be discussed on these two levels. On the level of citizenship, the limits of toleration are clearly set out in the system of equal rights and in the duty to respect the rights of others. Restraint of an individual's liberties beyond what is legally called for constitutes a violation of human rights and cannot be tolerated. Tolerance between private human beings, by contrast, can be limitless. A person's virtue ethics can include a principle of non-violence, which prevents her or him from interfering even in manifest cases of intolerance.

The Domestic Case

In a simplifying way, the principle of liberal tolerance as between citizens can be stated briefly as the right to the greatest amount of liberty that is compatible with the same amount of liberty for all. In the words of the French Revolution this

liberty consists of being able to do whatever does no harm to others. Therefore, the exertion of the natural rights by every human being has only those limits that grant the enjoyment of the same rights to the other members of the society. These limits can only be determined by law.

Intolerance, in turn, would be the restriction of someone's liberty by some single other or by a collective of others for reasons that are not justified by the above principle, and that are not part of a public rule or law.

In Kant, this thought has taken the shape of a single most fundamental Human Right; the right to do and to omit whatever is not subject to justified limitations. Modern liberal theory takes up the same idea in the form of a first principle of justice such as in Rawls' Theory of Justice:

[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others (Rawls 1971: 60).

According to this liberal view, it is the moral duty of every person to respect the liberty of everybody else and to tolerate their beliefs and sayings, their doings and omissions up to the point where they infringe on the liberty of someone else. No person has the right to restrict another person's liberty in any other way then by reference to the limits set out by law. This most basic formulation of the singular Human Right has been interpreted to yield a plurality of Human Rights as by their different declarations, which by now, in the way of fundamental rights, have become part of the constitution of almost every liberal democracy in the world. It has lead to the permissive lifestyle that we know in some Western countries, where not only the state is more or less liberal, but also the society has largely embraced these values. In such regions of the world, society exerts less pressure on individuals regarding their dress codes, sexual preferences, social or religious affiliations then in more traditional societies in other parts of the globe. Liberal societies, whatever their drawbacks otherwise may be, can thus legitimately be called more tolerant then others. Traditional societies, in spite of the virtues that they also possess, tend to be more intolerant. This much seems to be clear for the domestic case.

Now, several liberal thinkers in the last decades of the bygone century have tried to expand their views to the global level and to make them a basis for a theory of international law and justice. In the following, I would like to take a critical look at one of the more recent examples, namely, John Rawls' recent book on The Law of Peoples.

The International Case

While in the domestic case, a liberal theory of justice can be seen as providing a solution to the problem of tolerance as between citizens, liberal theory itself becomes a problem in the global or international case. In view of the fact that not all existing political cultures can be called liberal, the question arises as to where to draw the line between tolerable and intolerable political cultures from the point of view of global or international justice. If liberalism as a political culture is not universally practiced, a merely liberal conception of international law or global justice would rightly be called culturally biased. A culturally unbiased view, if it exists, has to mediate between political cultures that are liberal, on the one hand, and non-liberal but tolerable political cultures, on the other.

Taking a neutral stand between alternative political cultures, one is tempted to apply the principle of liberal tolerance once more but on a higher level. The principle would then read:

Liberty between political communities consists in being able to do whatever does no harm to other political communities. Therefore, the exertion of the natural rights by every political community has only those limits that grant the enjoyment of the same rights to the other members of the society of political communities. These limits can only be determined by law.

However, unlike in the domestic case, where persons benefit from a system of maximal liberty, in the international case, states are the immediate beneficiaries. People, as citizens of these states, only indirectly benefit, if indeed they do. For, there is no guarantee that a greater liberty for a state translates automatically into a greater liberty for its subjects. On the contrary, the liberty of a state can be misconstrued as meaning a liberty to suppress the liberties of its own subjects. By tolerating the intolerant state, the principle of liberal tolerance as among political communities would run counter to the principle of liberal tolerance as on the individual level. The principle of liberal tolerance can therefore not directly be transferred to the global or international level. We have to ask ourselves the question: what on a global level would be the minimal criteria for a tolerable political community, liberal or non-liberal?

Rawls in his recent book asks himself precisely this question and formulates his main task correspondingly (Arabic numbers below refer to pages in Rawls 1999):

A main task in extending the Law of Peoples to non-liberal peoples is to specify how far liberal peoples are to tolerate non-liberal peoples. [And] If all societies were required to be liberal, then the idea of political liberalism would fail to express due toleration for other acceptable ways ... of ordering society (59).

"Kazanistan" - A Decent Political Community?

In order to specify what he holds to be a still tolerable, non-liberal, political community, Rawls suggests the concept of a decent political community and exemplifies it through an example. He imagines a Muslim country called "Kazanistan" as an instance of a decent, non-liberal, political community. If Kazanistan can realistically be conceived to fulfill the minimal criteria of a decent, although not liberal political community from the point of view of international justice, then the concept of tolerance as between political communities has found its delineation.

According to Rawls, a decent political community is likely to be organized in a hierarchical fashion. Rawls speaks of "decent hierarchical peoples" (63). Decent hierarchical societies have to fulfill the following seven criteria:

Their underlying (religious) doctrine is comprehensive (64). This may take the shape of a "state religion", but their doctrine "must admit a sufficient measure of liberty of conscience and freedom of religion and thought, even if these freedoms are not as extensive nor as equal for all members of the decent society as they are in liberal societies" (74). "[I]t is essential ... that no religion be persecuted, or denied civic and social conditions permitting its practice in peace and without fear" (74). "[I]t is essential that a hierarchical society allow and provide assistance for the right of emigration" (74).
Their basic structure has a decent consultation hierarchy (63). "That is, the basic structure of the society must include a family of representative bodies, whose role in the hierarchy is to take part in an established procedure of consultation and to look after what the people's common good idea of justice regards as the important interests of all members of the people" (71).
Their members are viewed in public life as members of different groups. Each group is represented in the legal system by a body in the consultation hierarchy (64). "Each person belongs to a group ... and each person engages in distinctive activities and plays a certain role in the overall scheme of cooperation" (71f.). "In political decisions a decent consultation hierarchy allows an opportunity for different voices to be heard" (72). "Persons as members of associations, corporations, and estates have the right at some point in the procedure of consultation ... to express political dissent, and the government has an obligation to take a group's dissent seriously and to give a conscientious reply" (72). "Judges and other officials ... cannot refuse to listen, charging that the dissenters are incompetent and unable to understand" (72). "Moreover ... the dissenters are not required to accept the answer given to them; they may renew their protest (72).
Officials and Judges who administer the legal system hold the sincere belief that the law is in deed guided by a common good conception of justice (66).
Their legal system imposes bona fide moral duties and obligations on everyone within their territory (65f.).
Their legal system secures basic Human Rights for all members in accordance with its common good conception of justice, that is the right to life (to the means of subsistence and security), the right to liberty (as freedom from slavery and serfdom and forced occupation), the right to a certain degree of the liberty of conscience (freedom of religion and thought), the right to personal) property and the right to formal equality as by the rules of natural justice (that is, that similar cases be treated similarly) (65). Rawls claims that Human Rights, thus understood, cannot be claimed to be peculiarly liberal or western (68).
Decent hierarchical societies have no aggressive aims, that is
1. they recognize that they must gain their political ends through diplomacy and trade and other peaceful ways (64).
2. they respect the political and social order of other societies (64).
Decent hierarchical societies consequently accept the f ollowing eight principles of a decent Law of Peoples just like well-ordered liberal democracies would do (37):
1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples.
2. Peoples are to observe treaties and undertakings.
3. Peoples are equal and are parties to the agreements that bind them.
4. Peoples are to observe a duty of non-intervention.
5. Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense.
6. Peoples are to honor Human Rights.
7. Peoples are to observe certain specified restrictions in the conduct of war.
8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.

In envisaging Kazanistan, Rawls draws the picture of a Muslim society that exemplifies all seven criteria of a decent hierarchical society: Kazanistan's system of law does not institute the separation of church and state. Only Muslims can hold the upper positions of political authority and influence the government's main decisions and policies, including foreign affairs (cf. 75). However, Kazanistan is organized as a decent consultation hierarchy, in which every Kazanistani is a member of an organized group that, in turn, is represented by a body that contains at least some of the groups' own members and all representative bodies have to be consulted by the political body that makes the ultimate political decision (cf. 77). For Rawls, a country like Kasanistan is "not perfectly just but decent" (78). It marks the limit of what could still be tolerated from a liberal perspective. Kasanistan could still be a "bona fide member" in a reasonable Law of Peoples (84).

Some Critical Questions

On a first appraisal, several questions come to mind: Why would a hierarchical society grant such extensive liberties as Rawls specifies? Why would the ultimate body of decision-making bother with a long and tedious process of consultation if its power does not indirectly depend on the approval of the concerned people, as in a liberal democracy? The whole point of instituting a hierarchy, one would conjecture, is to make ruling more efficient and decision-making less time consuming. The nice thing about a hierarchy, one would expect, is that one can do away with the dull method of democratic wrangling. Historically speaking, a hierarchical system is not likely to have emerged from the good will of negotiating everything with everybody but from the determination of a few who do not want their decisions to be questioned by many others. It does not seem rational, from the point of view of a hierarchical society, to grant meticulous consideration of every groups' apprehensions if the decision finally rests with the uppermost political body. Therefore, is not the picture that Rawls draws of a decent hierarchical society somewhat glossed over and therefore unrealistic?

A second question regards the notion of Human Rights that underlies Rawls' notion of a decent hierarchical society. Why does Rawls want us to demand from a decent hierarchical people to grant only liberty from serfdom and slavery and not, say, from arbitrary arrest or cruel and inhuman punishment? Does, for instance, the corporate system of a decent hierarchical society include a representative body for criminal perpetrators to be consulted when questions of fair trial arise? Furthermore, as we know from existing hierarchical societies, the number of representative bodies never matches the range of real life conditions in which a person might get caught up. People, due to circumstance, can fall out of the frame of hierarchical groups. Are these people, then, without representation and thus unprotected even in their most fundamental Human Rights? Thus, is not the picture that Rawls draws of a decent hierarchical society somewhat arbitrary?

Take a caste society like ancient India and imagine it counterfactually as conforming to Rawls' criteria of a decent hierarchical society. The population would be organized in different castes, with each caste locally being represented in the regional bodies of the consultation hierarchy. The caste is instrumental in guaranteeing each of its members the fair value of their fundamental Human Rights. However, what happens to those people who have been outcast and who thus fail to be represented in the consultation hierarchy? Of course, Rawls could maintain that if such out-casting occurs in a hierarchical society, then this society is simply not decent because it does not conform to the requirements set out by him in his definition of a decent hierarchical society. However, is it realistic to envision a hierarchical society in which such phenomena do not occur?

To add another example, think of women who would want to leave their abusive husbands and who would then enjoy none of the accepted statuses of women in the hierarchical society: they would neither be widows, nor wives, nor daughters. A fourth option not being available they lack representation, and their most basic needs would go unnoticed. Again, we may ask: Is it realistic to envisage a hierarchical and thus traditional society in which unmarried or divorced women would enjoy an acceptable status? Is the right to choose one's husband or no husband at all not a fundamental Human Right? And why would it not be one? Since patriarchal interest can lead to cross group alliances among men, securing fundamental rights to women would require that women themselves figure as a group in the envisioned hierarchical society. However, according to Rawls, women would be represented only through their belonging to one or the other group together with men. Rawls could reply that such a patriarchal alliance is conceivable and could indeed lead to a tacit understanding among men to the effect that only men benefit from basic human rights and not women, but that Kasanistan happens to be free of that deficiency since, by definition, in Kasanistan basic human rights are secured for everyone, men and women. However, then what accounts for Rawls' concept of international liberal tolerance is the concept of basic human rights and not the concept of the decent hierarchical society. This begs the question as to why we have to envision a hierarchical society in the first place and not talk about which human rights are basic and which are not.

Of course, envisioning a society like Kasanistan or a decent hierarchical Indian society is meant to help us test our moral intuitions about the limits of what non-liberal societies we can still tolerate from a liberal point of view. However, if such a society is not realistically imaginable, the exercise lacks a point. We only achieve a mutilated notion of Human Rights without offering traditional societies a viable alternative to liberalization. What is more, there is a danger involved in minimizing the notion of Human Rights. Peoples are no monadic entities that either wholly embrace or reject a conception of Human Rights. In reality, the conception of Human Rights is nowhere fully and equally understood and embraced, not even in liberal democracies. In every existing society, there are groups of people who embrace this idea and work towards its fuller implementation, and there are others who seek to subvert a broader liberalization and democratization of the society. The former may be in a minority in a hierarchical society, the latter might form a minority in a liberal society. Attempts like Rawls' to create a minimal or core conception of Human Rights, so as to make Human Rights appear less Western or liberal, risks giving the wrong signal. A liberal society whose foreign policy is guided by such a reduced notion of Human Rights diminishes its impact on pro Human Rights developments in non-liberal societies. This not only lessens the prospects of traditional societies to become more liberal. It also enhances the prospects of anti-liberal and anti-democratic groups within the liberal society.

To summarize these first observations, it seems that the category of the decent hierarchical society is a somewhat arbitrary, incoherent and unrealistic notion which, even if it were more convincing, would be a dangerous category to apply to the foreign policies of a liberal political community, for it bears the danger of mutually reinforcing anti-liberal tendencies in both the liberal and the non-liberal society. One might finally question the usefulness of a discrete notion of a "still tolerable, non-liberal society" altogether. Alternatively one could think along the lines of a continuum of societies, some more liberal, some less and leave it to empirical political analysis to position one's own and the other relative to one another in the common spectrum of liberal and non-liberal societies.

The charge of eurocentrism in the concept of liberalism could be countered by reference to the independence of root and rule of a given normative concept. The fact that liberalism has originated in political communities in the West does not mean that non-western political communities cannot also embrace this notion just as they have appropriated for themselves the notion of a nation state. To use a reverse example: The fact that the zero was invented in India should not prevent non-Indians from using it. They should not even feel bad about not having invented it and still finding it useful. Thus, if liberal democracy is found to be more just than other ways of organizing society, nobody should feel bad about adopting liberalism, even though it was first tried out in some other place. Just as there is nothing intrinsic in Western culture that makes it more prone to liberal ways of organizing society, so there is nothing intrinsic about other peoples that would prevent them from opting for liberalism, democracy and a full fledged notion of Human Rights.

When it comes to normative questions of foreign policy, as Rawls discusses them, such as questions of intervention into the internal affairs of other political communities through public criticism, economic sanctions or even forceful intervention, the proposed alternative would do equally well. Decisions can depend upon the relative distance of a given society from the ideal of a liberal democratic state. Since no political community reaches the ideal state, this of course means that no political community is in principle protected against some kind of intervention by others. Which intervention is called for under what circumstances and by whom is the remaining big question of a global theory of justice and law. Rawls, unfortunately, does not address this question from a truly global perspective. His perspective remains within the parochial boundaries of the nation state and its allies.

Rawls' Concept of Law in the Law of Peoples

In order to see why and how Rawls' proposal fails to address the normative questions of foreign policy in a truly global perspective, we need to better understand the status of the concept of law in the suggested Law of Peoples. To achieve this, I would like to distinguish between two different notions of law and then ask what sort of a law Rawls has in mind when he talks about the Law of Peoples. The first notion of law, as I suggest, would signify a set of rules, which (ideally) hold without exception, as is customarily intended when we speak of "the rule of law". This implies the existence of a number of institutions such as courts, a legislative body and means to enforce the law universally and coercively such as an administration and a police force. Secondly, "law" can signify a set of rules that (only) generally govern a given praxis, as in customary law, without presupposing a legislative body and institutions to enforce it. There is no body to institute it. Customary law is not universally enforced. It is not public in that sense. In fact, it is prior to the distinction of public and private. It is neither legislated through a parliament nor decreed by a king. However, it may require the institution of a mediator to settle controversial cases in a consensual fashion. The first notion, I will call the concept of "instituted law", the second, I will call the concept of "customary law". Clearly, if we speak about law in the domestic case, we use "law" in the first sense. Talking about a Law of Peoples, however, we switch to the somewhat metaphorical second usage of the word. The question arises, as to whether we are always aware of the consequences of this change of meaning in our use of the concept of law.

If we try to imagine a situation in which the same coerciveness and universality would apply to the case of international law as well as to the domestic case, we would have to envision some sort of a supranational authority that would be in a position to legislate the Law of Peoples, international courts of justice and an administration which would be required in order to enforce the imagined Law of Peoples. Clearly, Rawls is not envisaging such an authority. He is more likely to think of the Law of Peoples as generally governing the international praxis as in the case of customary law. In order for Rawls to speak of these principles as governing the international praxis, it is not required that they be followed all the time. But it should be clear that they would be followed more often than not, at least amongst what Rawls calls the decent nations. Preferably, there should be an internationally accepted mediation body to which nations can appeal in cases of dispute. Rawls himself does not explicitly discuss this topic, but his approach does not preclude this possibility.

As noted above, we are used to making a shift in meaning when we talk of law in the international context. We do not normally expect cases of conflict between nations to be settled before a global court of justice. We would think it utopian to envision a United Nations actually enforcing international Human Rights law, especially when it would come to powerful perpetrators like the United States. But should we not expect of a normative theory of international law and justice that it critically reflects the fact that we have somehow become used to not expecting anything more than a code of honor for nations when it comes to international law?

To illustrate the insufficiency of the established international (customary) law, let us look at one example: the international convention on the prevention of and the punishment for genocide. It prohibits in article II the "total or partial" destruction of national, ethnic, racial or religious Groups (cf. Brand & Hattenhauer, 1994). However, according to article VI the implementation of this standard is dependent upon the cooperation of the state in which the genocide takes place. In the likely event that the affected state itself is the offending party, this would give the presumed culprit the right to decide whether proceedings are initiated against it or not. This means that the convention on the prevention of genocide would not be applied in the cases in which it is needed, and in the cases where it could be applied, it would not be needed. Obviously, following Rawls' account, well-ordered liberal and hierarchical societies would not commit such crimes in the first place. And when it comes to what Rawls calls "outlaw states", appropriate measures can be taken by the society of well-ordered states. But are matters really so clear cut. It may be difficult to decide at times when a state is still decent and when it is outlaw. Who is to decide these questions? To whom can the victims of a genocidal state appeal? In a system of mutual cooperation, the victim is not likely to find an uninterested party who would be willing to interfere, despite its lack of interest. On the contrary, any state that would be willing to become involved would also be a state with proper interests in the matter. It would interpret the case at hand in such a way that its own interests are served first. It can be maintained, I believe, that a merely customary international law is bound to become a mere fig leave for an essentially self-interest national policy. The law is then left to the interpretation of any nation in the light of its perceived national interest, and the struggle for the suitable interpretation becomes a crude struggle for power and dominance among rivaling nation-states.

The only alternative to the conception of customary international law that Rawls proposes is the concept of a world state, which he rejects for good reasons:

[The principles of the Law of Peoples will] make room for various forms of cooperative associations and federations among peoples, but will not affirm a world-state. Here I follow Kant's lead in Perpetual Peace — in thinking that a world government – by which I mean a unified political regime with legal powers normally exercised by central governments – would either be a global despotism or else would rule over a fragile empire torn by frequent civil strife as various regions and peoples tried to gain their political freedom and autonomy (36).

Clearly, a homogenous world state would be adverse to the required diversity of political ways of life and likely to be despotic. But does that mean that we have to give up seeking for a Law of Peoples with an instituted conception of law in mind? Rawls concedes that

once the idea of a world state is given up ..., liberal and decent peoples' acceptance of the Law of Peoples is not alone sufficient. The Society of Peoples needs to develop new institutions and practices under the Law of Peoples to constrain outlaw states when they appear (48).

However, Rawls does not discuss the kinds of institutions that he has in mind. The literature abounds with attempts to conceptualize something in-between a world state and a mere set of rules with no authority to interpret and no power to enforce them. One would have to look only into the constitutional debates around the future of the European Community to find a great quantity of models that seek to avoid the aporia of a supra-national state as well as those of the customary international law (cf. Dusche, 2000, §18ff.). Rawls failure to do so, I fear, weighs heavier against his proposed concept of the Law of Peoples than the earlier observations regarding the incoherence and arbitrariness of his concept of tolerable, non-liberal societies.

Rawls argues against a cosmopolitan theory of justice (with a global original position), saying that this view would exclude the possibility of an acceptable non-liberal conception of justice without giving sufficient reason for it. It simply universalizes the fundamental rights and liberties that citizens of a democratic society would demand. This is, however, not correct, as I have tried to show elsewhere (cf. Dusche 2000, §5). In a cosmopolitan theory of justice, as I view it (cf. Dusche 2000, §18), the parties in a global original position would in a first step choose among different catalogues of possible Human Rights. Thus, the exact nature of this catalogue is not fixed beforehand and cannot be dismissed as particularly liberal. Secondly, I argued that within the larger framework of a global Human Rights' law, the parties in the global original position would opt for the greatest possible number of different forms of political community, since they do not know the preferred form of political community for their clients. Thirdly, I argued that the parties in a global original position would opt for a principle of free movement between political communities. The outcome would be a great variety of small political communities under the umbrella of an institutionalized and enforceable global conception of Human Rights and legitimate rule. There is nothing in the proposal that prevents a political community from being non-liberal, as long as it abides by the rules of the global conception of Human Rights and legitimate rule.

Conclusion

Allow me to sum up. We have seen that the principle of liberal tolerance cannot simply be transferred to the global level without taking into account the basic structure of the states and the particular features of their political communities. It is only when the basic structure of the political community grants its members a minimal material, moral and political status that a principle of mutual non-interference can guide the relations among nation states. I have tried to show that Rawls' proposal to define this status through his envisioning of a fictional entity as Kasanistan is not convincing. First of all, Rawls does not motivate in a coherent way the particular selection of Human Rights that he takes as underlying a decent hierarchical society like Kasanistan. Secondly, Rawls does not take into consideration the possibility of a truly global perspective on law and justice, which would preempt any single nation state from being simultaneously the interpreter and the enforcer of international human rights' law. Rawls instead promotes the customary conception of international law with its well-known insufficiencies. What is called for instead would be a truly global perspective on a law of peoples, based on a full-fledged notion of Human Rights and allowing for independent institutions to interpret and to enforce this law. These institutions can be supranational but do not have to take the shape of a world state. In such a setting, tolerance between political communities could be tantamount to an equal maximal liberty for all political communities.

Liberal Tolerance between People(s)*