Jinghua Chen

Rawls regards the liberalism of Kant, Hegel and Mill as important ex- emplars in the history of the moral and political philosophy of liberalism of freedom. This paper seeks to demonstrate how Rawls draws on these three predecessors. Rawls’s theory of justice as fairness has three major components: the original position, the primacy of the basic structure of society, and two principles of justice. I argue that these three elements in Rawls’s theory have parallels in the theories of Kant, Hegel and Mill. Firstly, there are essential similarities between Rawls’s original position and Kant’s Categorical Imperative procedure: justificatory individual- ism, the Reasonable presupposes and subordinates the Rational, and the combination of moral and realistic considerations. Secondly, Hegel attributes primacy to the state due to the insufficiency of abstract right and morality compared to ethical life and the incompleteness of family and civil society compared to the political state. The special role of the basic structure of society in Rawls’s theory of justice draws from Hegel’s emphasis on political institutions in realizing freedom. Finally, Rawls’s two principles of justice as fairness have roughly the same substantive content as Mill’s principles of justice and liberty of the modern world.

Although Rawls claims that his Law of Peoples inherits Kant’s ideas of the Pacific Federation in Perpetual Peace, this study demonstrates that Rawls deviates from Kant’s peace theory in three crucial dimensions: the original position, the basic structure and the substantive principles. First, Rawls’s basic structure in The Law of Peoples has a moral sense and is about the attitude of interactions among nations. In contrast, Kant’s international peace theory has a unique role for the basic global structure in a legal sense, which should be understood inseparably with concepts such as rights, laws and the vertical distribution of sovereignty. Second, Kant’s legal peace is rooted in moral universalism, constituting a justificatory device of the global original position. On the other hand, Rawls justifies the principles of the law of peoples to some collective entities in his device of the international original position. Lastly, Kant’s international project is a kind of legal peace theory, aiming for the juridification of international relationships, while Rawls’s The Law of Peoples is a modified form of democratic peace theory, focusing on the improvement of the domestic political system of sovereign countries.

The idea of the "original position" is one of the most famous concepts in contemporary political philosophy. Since the first publication of A Theory of Justice in 1971, the device of the original position has become a popular theoretical method in many political theorists' writings. Unfortunately, the true meaning of the original position is far from clear both in Rawls's and Rawlsians' accounts. This has caused a lot of misunderstanding and misuse of this concept in contemporary literature. This study attempts to explore the more profound connotation of the original position by sorting out its relationship with Kant's categorical imperative procedure and argues that it is more appropriate to claim that Rawls's original position device is a development of Kant's categorical imperative procedure rather than the standard version of rational choice theory or social contract tradition. I demonstrate three essential similarities between Rawls's original position and Kant's categorical imperative procedure, which embodies Kantian constructivism: justificatory individualism, the reasonable presupposes and subordinates the rational, and the combination of moral and realistic considerations.

Cosmopolitans including Charles Beitz, David Richards, Brian Barry, Thomas Pogge and Gillian Brock propose the device of an original global position to work out global principles of justice. However, John Rawls does not agree with this kind of proposal. In this paper, I add two key original contributions, which go beyond previous arguments by cosmopolitans and advance the current debates. First, to argue against Rawls’s objection to the global original position, I demonstrate the importance of the distinction between accepting a particular substantive principle and accepting the original position procedure. Second, in order to respond to cultural pluralism, I take a unique approach to show that the idea of the person as free and equal is a fundamental part of the global public culture by examining the most fundamental legal documents: the proto-constitutional documents in international law and the constitutions of the major states. I apply Samuel Huntington’s classification of civilisations to identify the major civilisations and their core states and show that the idea of the person as free and equal is implicit in the constitutions of most influential countries even though these countries are categorised in different civilisations.

Habermas and Rawls presented distinctive theories of new world order at the turn of the new century: the Constitutionalization of International Law and the Law of Peoples. Both theories aim to promote peace and justice all over the world. Unfortunately, their theories have been ignored by mainstream IR theorists. Since few scholars make a deep comparative study between Rawls’s Law of Peoples and Habermas’s Constitutionalization of International Law to reveal their crucial difference, this paper aims to fill this gap by clarifying their essential difference and preliminarily exploring how to formulate their proper relationship. I argue that Habermas’s project is a legalistic peace theory. In contrast, Rawls’s Law of Peoples is a modified form of democratic peace theory, putting hope for international peace on the improvement of the domestic political system of sovereign entities. Finally, I present a tentative suggestion to address their relationship, returning to Kant’s systems approach.