Justice, Stability and Toleration in a Federation of Well-Ordered Peoples
[To appear in Rex Martin and David Reidy, eds. Rawls's Law of Peoples: A Realistic Utopia?  2006. Oxford: Blackwell.]

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Treaty establishing a Constitution for Europe (2004) 
Article I-2: The Union's values

it makes sense to think of liberal and decent peoples together in an original position when joining together into regional associations or federations of some kind, such as the European Community, or the commonwealth of the republics in the former Soviet Union. It is natural to envisage future world society as in good part composed of such federations together with certain institutions, such as the United Nations, capable of speaking for all the societies of the world.
Rawls Law of Peoples 70 
Introduction: the European Union and the Law of Peoples 
Scholars of international relations debate the withering of the Westphalian world of states, in Europe and elsewhere. Normative political theorists follow suit and seek to assess the transformed global order. They ask how norms of internal and external state sovereignty should change with regard to international immunity and intervention. New normative standards are needed for federations and regional and global regimes. 
	Europeans have discussed these issues intensely in the process of drafting and now ratifying a Constitutional Treaty for Europe. How should the European Union express and promote human rights and solidarity? What is the scope of toleration towards states that violate human rights, within and beyond its borders? And what is the scope of permissible economic inequality across states in such a federation of democracies committed to domestic solidarity? 
	The ‘Reactions against Austria’ illustrate some of the Union’s human rights challenges. The 2000 Austrian elections put the allegedly xenophobic Freedom Party in government. Other EU Member States -- though not the EU itself -- responded swiftly. They sent diplomatic protests, ended bilateral political contacts, and rejected Austrian candidates for international posts. The reactions had two distinct effects. In the short run they were counterproductive since they mobilized Austrians in defense of their democratically elected government – a government many of them despised. The longer term response by the EU was to develop procedures for when a Member State is suspected of systematic violations of human rights. 
The fundamental issue is how to best respond to alleged human rights violations, within a federation and abroad. The objective must be to promote long term compliance by means of a consistent and unified policy toward states within and beyond EU borders. 
Another major challenge concerns international responsibilities for social and economic human rights. The Constitutional Treaty recognizes obligations of federal solidarity: 
the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. 
The recent inclusion of poor Central and Eastern European states into the EU increases the challenge. Distributive justice seems to require redistributive common institutions that burden richer Member States. Such obligations meet opposition, especially when European economic integration already seems to challenge domestic structures of solidarity in the Western states. Yet to deny federal solidarity seems contrary to the egalitarian norms expressed precisely in the domestic welfare arrangements of Member States. A central normative issue is clearly whether sound theories of global or federal distributive justice allow greater material inequality across borders 
John Rawls contributed to these topics in The Law of Peoples (LP), which stresses the intertwined issues of toleration, stability and legitimacy that face these political relations across political borders. Can this Law of Peoples shed light on the legitimacy of emerging regional political orders such as the African Union, The Association of Southeast Asian Nations (ASEAN) or the European Union? 
As with John Rawls’s path breaking A Theory of Justice, LP frames the issues in a fruitful institutional perspective. Institutions are of crucial normative importance and pose particular normative challenges, not least because the basic institutional structures profoundly shape our life plans and preferences and fundamentally affect our resources and opportunities to fulfill them. 
When defending standards for assessing the domestic basic structure of liberal states, Rawls famously sought principles and their immediate justification that were acceptable to a broad range of duly modified philosophical and religious world views. The theory of Justice as Fairness itself alleviates assurance problems among individuals who would otherwise likely mistrust each other to not comply. The theory promotes stability by offering a public justification for just social institutions that all can endorse. 
The normative assessment of global and federal institutions must likewise consider issues of stability, and Rawls underscores how public knowledge of the theory itself may help stabilize the international order. The allegedly universal values of equality and human rights challenge other established norms of political autonomy and stability. The tension prompts careful reflection about the grounds and limits of toleration and intervention. In particular, should non-liberal states continually fear intervention by liberal states eager to promote democracy, human rights and economic distributive justice – and contested conceptions of liberalism? LP explicitly seeks to prevent this source of global instability. Liberal peoples have good reason to tolerate and even respect the political autonomy of some non-liberal ‘decent’ hierarchical peoples. These peoples can live free from fear of liberal humanitarian intervention. 
The present reflections agree with the objective of the Law of Peoples, to provide a plausible “extension of a liberal conception of justice for a domestic regime to a Society of Peoples”. The Liberal Contractualist account below agrees with some of the conclusions of the Law of Peoples, on at least two counts: the respect owed states that deny their citizenry certain human rights, and the standards for distributive justice. The account offered here seeks to respect state sovereignty even in the face of some human rights violations, and it accepts a degree of material inequality among individuals in different sub-units of a federation. In particular, the European Union may have a differentiated human rights policy, and solidarity does not require a European-wide Difference Principle. The Difference Principle, even if appropriate for domestic justice, need not apply to a federal order. 
The conception of human rights for federations sketched below must be more complex than Rawls’ account focused on human rights in a ‘nonfederated’ international order. That difference in domain of application is not a criticism of the Law of Peoples. However, a central weakness of Rawls’ account is that it offers inadequate arguments within its own intended domain of application. International stability for the right reasons requires more than a statement of the limits of toleration about “how far nonliberal peoples are to be tolerated” (LP, 10). The limits must be based on convincing public reasons, namely “the ideals and principles of the foreign policy of a reasonably just liberal people”.  The mixed reception of The Law of Peoples suggests that better justifications are required.  The comments below develop aspects of a theory of federal justice to offer further -- and perhaps better -- Liberal Contractualist arguments regarding these two issues.
	Let me conclude this introduction with an overview of what follows. Section 1 sketches why LP grants moral standing in the form of political immunity to "hierarchical peoples" that fail to secure political rights, freedom of religion and gender equality. Criticisms motivate an alternative account of the grounds and limits of intervention for human rights in section 2. Section 3 presents LP’s arguments for permitting economic inequalities in a federal or global setting. Section 4 provides an alternative account of why claims to equal shares are not as decisive for federal distributive justice as in unitary states. Section 5 returns to check whether the account secures toleration and stability.
1. The argument of Law of Peoples: standards and grounds for international stability
The Law of Peoples seeks to remove ‘hierarchical’ non-liberal peoples’ fears of intervention. The claim is that both liberal and non-liberal peoples endorse principles of non-intervention against each other. In response, we must question why liberal peoples should respect the non-liberal ‘hierarchical’ peoples as “equal participating members in good standing of the Society of Peoples”. (LP, 59, 5) 
	The hypothetical ‘hierarchical’ peoples have a system of laws that is guided by a "common good" conception of justice, defended publicly by judges and other officials, and their system of laws respects certain Proper Human Rights that are said to secure the common good. These include the right to life with subsistence, freedom from slavery, and sufficient liberty of conscience to ensure some freedom of religion and thought, to personal property and to formal equality – but not gender equality or equality of religious freedom (LP, 65). LP also recognizes ‘implied human rights’ against genocide and apartheid (LP, 80). The system of laws satisfying these human rights “specifies a decent scheme of political and social cooperation” which imposes bona fide moral duties and obligations (LP, 66-67). Note that the citizenry is thus bound even though individuals have no political rights, but only opportunities for dissent through a consultation hierarchy. Freedom of religion for some is ‘freely’ curtailed for the sake of the dominant religion. The Law of Peoples argues that these peoples are safe from interventions of any kind. They are only permitted against violations of Proper Human Rights or Implied Human Rights (LP, 80, 83). In the Law of Peoples only human rights play this trigger function, and that is their sole function.
	The upshot is that neither military, economic nor diplomatic intervention or other forceful influence is permitted as a means to foster or establish liberal political structures such as equal freedom of association, democratic political rights, freedom of expression, equal pay for equal work, or right to education, or any of the other rights listed in the Universal Declaration of Human Rights beyond Art. 18 (cf. LP, 65). Indeed, single countries or organizations of reasonable and decent peoples, such as a revised UN or International Monetary Fund, should not even use economic incentives to make hierarchical peoples comply with these human rights (LP, 84).
Critics may argue that LP fails to show why hierarchical peoples are decent. There are empirical reasons for including political rights and freedom of the press as what we may think of as Instrumental Human Rights. Plausible empirical cases can be made for these rights as necessary but insufficient institutional safeguards to reliably prevent hunger and to secure other human rights over time. Indeed, in their absence the society is likely to deteriorate into an absolutist state, a burdened society or even an outlaw state. Rawls acknowledges this empirically plausible instrumental argument for these rights. And his institutional perspective recognizes the need for mechanisms to ensure that governments remain effectively responsive over time. One such imperfect mechanism would be competitive democratic elections under conditions of freedom of the media. In contrast, the long term effectiveness of the consultations of Hierarchical peoples remains unclear. Rawls provides no reason to expect such a society to remain consultative and respectful of Proper Human Rights over time without Instrumental Political Human Rights. 
Why does LP not require that all decent peoples enjoy such instrumental rights? The main defense is presumably not to deny the importance of such instrumental rights, but rather to deny that they are human rights in the relevant sense. The claim may be that international intervention to promote these rights is ill guided. In further support of this view, LP argues that respect, rather than intervention, best promotes domestic reforms (LP, 61). 
In response, we might agree that the success rate of military intervention to promote democracy or gender equality is very poor. But Rawls fails to show that success is noticeably more likely when invading for violations of Proper or Implied Human Rights such as subsistence, or that such success rates are irrelevant. LP does not provide arguments for its claim that ‘respect’ is effective, nor for the claim that that nonmilitary forms of interference and human rights conditionalities by the IMF or the UN are generally futile to promote Instrumental Human Rights. Surely there may be good reasons to consider economic pressure aimed at promoting political rights and freedom of speech, as much as to prevent practices of torture. 
The upshot is that LP as it stands does not provide a reasoned basis for stability. The arguments do not give liberal peoples sufficient reason to respect hierarchical societies and refrain from intervention. Public knowledge of this lacuna undermines hierarchical peoples’ trust; they continue to be concerned that they are at risk and liable to significant interventions by liberal peoples.

2. Human Rights in federations 
LP is right to be concerned for the stability of a just world order. But we need another justification for, and other limits on, interventions and interferences for the sake of human rights. 
Consider first that legally codified human rights serve many different roles within a federation of liberal peoples, exemplified by the European Union. Superficially conflicting accounts of human rights may turn out to address quite different actions of various agents. Critics sometimes miss this point when they accuse the EU and many states for double standards with regard to human rights violations. 
A typical challenge concerns alleged inconsistencies between the ‘internal’ and ‘external’ aspects of EU. The human rights protections for EU residents are stronger than the role of human rights for EU foreign policies. 
Professors Alston and Weiler have recently argued that “only a unified approach embracing both dimensions of the Union’s approach to human rights is viable.” I submit that the Charter of Fundamental Rights, now Part II of the Constitutional Treaty, is necessary but not sufficient to alleviate the apparent inconsistencies. We must also consider the multiple roles of human rights within federal political orders that give rise to different standards for various actions.
Harking back at least to John Locke human rights, we note that compliance by government has been required for citizens’ political obedience. In comparison, LP is concerned with human rights as conditions for immunity from intervention by the international community of states. Since these two functions are different, it should come as no surprise that the standards are likely to differ as well. 
The list of human rights that regulate intervention of various kinds must be specified not only in light of the importance of the substance of these rights for individuals, but also in light of the dangers of intentional and unintentional abuse by intervention-prone states, and the likely effects of such intervention. These considerations lead to a more limited list of human rights whose violation may trigger international intervention of various kinds. 
Human rights can also serve at least three other functions in federal political orders. Firstly, human rights may specify the scope of immunity and discretion for sub-units and their citizens, to protect them from central authorities. For instance, citizens may be granted some scope of cultural and institutional variation to allow for expressions of national identity and sub-unit preferences. Violations may merit reactions by sub-units against central authorities, or even secession. 
Secondly, human rights may protect minorities living within a sub-unit. Violations may warrant rescue by other subunits against the local tyrant, as Montesquieu hoped. This seems to be the role of the new regulation in the EU Constitutional Treaty for human rights based intervention into a Member State. A third task is to promote trustworthiness among sub-units cooperating within common schemes. Europeans of different Member States agree to be jointly governed by bodies consisting of representatives of all sub-units who sometimes decide by majority rule. These representatives must be trusted to not only serve their own electorate, but also be guided by common European values and an ‘overarching loyalty’ to Union citizens. If one government in the EU violates human rights, this may serve as a trigger for other governments and union citizens that it can no longer be trusted to exercise Union political authority responsibly on their behalf.
In each of these five functions, the substantive human rights requirements should presumably be quite different. The lists of human rights should reflect the risks and benefits of various actions, including the likelihood of mistaken assessment of violations and the relative prospects for success compared to alternative policies and mechanisms. The institutional perspective is important to bear in mind: the question is not only the likelihood of an individual case of intervention, but whether such public intervention practice fosters compliance with legitimate institutions in the long run. These assessments will vary depending on the kinds of actions regulated by these five different roles. They range from compliance with law by individuals to humanitarian armed intervention. In federations the sub-units are mutually interdependent to such an extent that milder forms of interventions may suffice. Human rights interventions may also backfire, causing hostility and suspicion rather than transformation, as LP notes. The Law of Peoples rightly raises concerns about stability. Indeed, fear of abuse and instability has restrained institutions and humanitarian intervention policies even by the United Nations, at least until the 1990s. The last ten years have witnessed an increased readiness by the Security Council to allow interventions, in Somalia, Rwanda and Haiti Unfortunately these interventions have not achieved enough in the way of protecting basic human rights. 
This brief sketch suggests that the set of human rights serving each function must be argued with great care in light of the objectives and forms of intervention. We may agree that the EU needs a consistent set of human rights policies regarding interventions of different kinds. Such a unified account does not mean a unitary approach that requires intervention whenever the rights in the Constitutional Treaty are violated. Different -- possibly higher -- standards may apply within Member States than when EU members are reacting against Union institutions, or when the EU is considering international intervention. A satisfactory account must also differentiate much more than LP does among the forms of intervention, ranging from military to economic reactions.
The upshot is that much more must be said to make a convincing argument that peoples should be protected from all sorts of intervention if they fail to secure what we may think of as “Liberal Human Rights”: democratic political rights, freedom of the press, and gender equality. LP’s conclusion seems sound regarding military intervention in defense of freedom of the press or gender equality. Such intervention might seem particularly unlikely to achieve their objectives and to do so better than alternative responses, and they are prone to abuse. Such a practice therefore seems illegitimate. Still, other modes of intervention and sanctions may be more effective. One important objective may be to strengthen domestic mechanisms for improving the situation by means of economic or diplomatic measures which carry lower risks. These actions may entice -- or sometimes coerce -- a government to grant universal voting rights, or promote women’s right to education, or freedom of the press. It would seem feasible and more legitimate than military intervention to offer international loans conditional on such changes, and to refuse to nominate officials from these countries to public offices (contrary to LP, 84-85). 
Rawls’ concern for stability and compliance for the right reasons led him to warn that “the reasons for not imposing sanctions do not boil down solely to the prevention of possible error and miscalculation in dealing with a foreign people." (LP, 83) Reticence is also appropriate out of respect for political autonomy, in the sense that those who live under a regime are often better at improving it, if given the real opportunity to do so.  Against this view, I submit that it is difficult to accept this as an argument against intervening in hierarchical societies to protect instrumental human rights. These citizens are hardly free to make their own political decisions, their consultation hierarchies notwithstanding. Non-military intervention in such societies may indeed foster the ability of citizens to take control over their governors in the absence of political rights. The reactions against Austria support LP’s claim that intervention and the withholding of respect for governments sometimes discourage internal change and mobilized counterproductive popular support (LP, 61). But on other occasions non-military interference and international expressions of contempt for non-elected governments may well foster and support popular dissatisfaction and protest.
	I conclude that there are reasons not to prohibit all forms of international intervention to promote democratic rights, freedom of the press and gender equality. Military intervention is unlikely to further this objective, and hence this practice should not be permitted. In decent hierarchical or liberal states the domestic population may often effect changes in safer, more effective ways. Other forms of intervention may still be accepted, especially when they aim to foster domestic accountability and hence legitimate political autonomy.
3. The argument of Law of Peoples for inter-people inequality
The second normative issue addressed both by the Law of Peoples and by the European Union concerns standards of just economic distribution in a world with several somewhat independent states. The egalitarian commitment of domestic Liberal Contractualism would seem to require massive transfers to poorer states in accordance with a Global Difference Principle, though possibly at a cost to political autonomy. Alternatively, poorer states and their poorest citizens in particular may be left with less than what, say, a Global Difference Principle would allow. LP argues the latter.  There are limited duties of assistance to burdened societies, but only to establish and then preserve their just or decent institutions. This objective does limit inequalities among societies (LP, 106f), but it is not the only such limit. Other obligations hold among peoples who set up cooperative organizations for mutual advantage in the longer run, such as in the European Union (LP, 42f). In his exchange with Rawls, van Parijs rightly claims that political philosophy should point out under what conditions more strict principles should apply, and how one might go about deciding where the borders between peoples should be drawn. Presence of a common culture or shared political institutions may seem insufficient, given mobility, contact and interdependence. LP sheds some light on these issues, though more needs to be argued with regards to distributive justice within federations. 
LP seems to provide two main sorts of reasons for limited trans-border egalitarianism. Firstly, differences in economic development among non-burdened societies are largely regarded as a result of domestic political culture. This in turn seems to render the consequences solely the responsibility of the domestic populations in both liberal and hierarchical peoples, rather than a responsibility of the international community to be borne by taxes. Rawls finds the latter allocation of responsibility unacceptable, since the free and responsible peoples of these poorer societies are able to make their own decisions, and presumably should be able to take responsibility for their decisions (LP, 117).
His implicit argument makes several problematic assumptions. It is difficult to see what reasons liberal societies have for regarding decent peoples as ‘free and responsible’. I take it that the responsibility at issue here is ‘political’ not ‘metaphysical’. That is: is it reasonable that the people of hierarchical societies can make no further claims on the international community, but must bear all burdens of the political culture and the resultant outcomes of government policies? Applying Rawls’ earlier discussion of domestic justice to this topic, LP seems to hold that hierarchical peoples can make no further normative claims on the global “system of common public law which defines and regulates political authority and applies to everyone as citizen” – as Rawls put it when discussing domestic justice. Critics may object that the populations of decent societies have good reasons to object to the ‘division of labour’ imposed by this allocation of resources and authority among individuals and their institutions. By definition, they lack popular political control over ‘their’ government. 
It is true that their system of law is guided by a common good ideal of justice that secures LP’s limited set of human rights (LP, 65, 71). The public officials must have set up a consultation procedure with representative bodies. The officials are thus ‘accountable’ and responsive in the sense that they have a moral obligation to listen to citizens’ concerns, and address and answer them. It seems correct that such societies can self-reform. But if citizens are unsatisfied with the answers given, their recourse is only to renew their protest – they cannot replace the officials. Is this sufficient self-government to hold that citizens in these societies can make no further distributive claims on the global basic structure? It would seem more plausible that democracies make it markedly easier for individuals to shape their lives and obligations in light of available resources and options. Scanlon puts the point thus: 
One thing which people may reasonably demand, however, is the ability to shape their lives and obligations through the exercise of choice under reasonably favorable conditions.  Moral principles of social institutions which deny such opportunities when they could easily be provided, or which force one to accept the consequences of choice under extremely unfavorable conditions which could be improved without great cost to others, are likely to be reasonably rejectable for that reason.
	It would seem that hierarchical peoples may plausibly claim more from the global basic structure, either that the global rules deny their rulers recognition as equals, and/or that the peoples retain claims on a share of material benefits resulting from the global schemes of production. 
Secondly, LP sees the causes of economic development as endogenous to each society (LP, 108). An alternative view is that the global basic structure also plays crucial roles, directly and indirectly. It affects the legal and hence what counts as material resources available to each society. Non-democratic governments are granted international legal recognition. This serves to bolster their international and domestic position. They may get access to international loans, which can be used to further economic growth, but may also damage economic development. And the increased power may diminish domestic opposition forces seeking to replace the economic policies with better ones. If the global basic structure does contribute to economic development in these indirect ways, it further weakens LP’s case that each people should bear the responsibility for their own economic development. 
These considerations do not entail a Global Difference Principle. There are other reasons for denying so egalitarian a requirement among foreigners across borders, even in a system of somewhat independent, liberal states. LP dismisses three reasons in support of equal shares to citizens across borders: to relieve suffering, to prevent stigmatization, and to ensure that political processes work fairly. None of these require equalization (LP, 114). Such claims to equality seem stronger in federal arrangements. Still, there are other reasons to reject a global difference principle for federations.
4. Distributive Justice in Federations 
Federal arrangements are often introduced to solve perceived problems suffered by independent states or by unitary governments: to secure peace, promote institutional innovation, efficiency or liberty. Yet egalitarian cosmopolitans may not permit federal arrangements in practice.
The federations of concern are non-unitary political orders where the central and multiple regional loci of government enjoy final legislative or executive authority with regards to some functions, often by way of constitutionally enumerated powers. Federations challenge strict egalitarian requirements that would restrict the distributive impact of local autonomy. 
The federal contractualist normative theory sketched below pursues a middle ground. It is ‘cosmopolitan’ in being concerned with the well-being of individuals (LP,120), yet allows that the well-being of the globally worst off not be maximized. This account thus defends the somewhat startling claim in LP that the difference principle would not necessarily emerge as the ‘most reasonable’ political conception even for a federal union of liberal democratic societies (LP, fn 53 p 43). Limited inequality may be acceptable because the same interests that ground claims to equality support sub-unit autonomy rather than a unitary political order. Further, it seems that gains in political influence provided by local autonomy and immunity can sometimes be advantageous even for those who are left economically worse off. 
On reasons for equality
Some liberal theories appear to take for granted that equal respect for all entails equal shares -- be it of goods, opportunities, resources, or initially un-owned objects. Rawls’ Justice as Fairness gives a similar impression since it famously requires a baseline of equal shares of economic and social goods (Rawls 1971).  
However, contractualism allows substantive inequalities if they withstand reasonable objections. At least four grounds for lamenting inequalities merit discussion. 
Equality is sometimes necessary to prevent misery. Acceptable institutions must engender and distribute benefits so as to meet the basic vital needs and secure the survival of all when possible. Human rights can be regarded as identifying some such conditions on domestic and international regimes. This argument from basic needs and human rights may limit permissible inequalities as a necessary means, for instance in the market place for food. But misery prevention does not require equality of condition.
Equality may also be required for fair procedures that require a roughly equal distribution of procedural input levers, such as education, income and wealth. The relative share of certain goods matter for the real value of formal political power, and for acceptable food markets. Inequalities of wealth or knowledge may also foster domination, leaving some subject to the arbitrary will of others. Those inequalities that threaten fair procedures or foster domination are therefore objectionable.
	Finally, individuals may claim equal shares of certain goods when they have contributed equally to their production, and when no one can be said to have prior claims to the benefits. This may occur when there is no prior agreement regarding distribution and each party's contribution cannot be determined. When several individuals jointly labor to produce such goods, they have equal claims to them. I submit that this ‘constitutitive’ argument strengthens Rawls’ argument for equal claims to social primary goods. We may think of social institutions as social practices that are maintained by the use of legal powers such as sanctions and authoritative interpretations. Political power, property rights and even income are such legal rights. They are products of cooperation in a significant sense. A person’s claim to own something is true -- and can be made sense of -- only when and because the rules of ownership are generally complied with by those participating in that practice. Her entitlements are of course hers, but the entitlements exist as entitlements only insofar others regulate their actions according to public rules. The constitutive argument for equal shares of products applies to such legal rights. Citizens therefore have equal moral claims on how social institutions should regulate the legal distribution of political power, income and other legal rights, when they all contribute to upholding these practices and where there are no prior claims. This is appropriate when discussing which institutional rules of acquisition and transfer should exist. Since these legal rights exist only through the cooperation of all, all participants in social institutions have a prima facie equal moral claim to the legal rights that arise within such institutions. 
I submit that this account provides an argument in favor of Rawls' egalitarian principles for Social Primary Goods -- that is, political and civil rights, and equality of opportunity and income and wealth. These goods are clusters of legal rights, existing as aspects of public practices maintained by citizens. 
These various arguments for equality only apply to a limited range of objects, and often only put limits on permissible inequalities.

Federal and global implications 
These reasons against inequality do not hold across solid state borders where external sovereignty effectively prevents cross-border causes of misery, domination and unfair procedures. The 'constitutive' argument for equal shares of products of cooperation also fails, if citizens of different states do not participate in common institutions. But states in an interdependent world have restricted real autonomy due to such factors as global market competition, oligarchic trans-national corporations, structural adjustment policies and international human rights norms. The present world order is clearly of this kind. The LP discussions about the best relations among fully independent states must therefore be supplemented to consider standards for cooperative arrangements (LP, 114-115). Reflections on federal distributive justice shed some light on the significance of claims to equality under interdependence. 
Member States of the European Union have pooled sovereignty to a large extent. They share institutions and maintain freedom of movement for capital, workers, goods and services. Many also have a common currency that renders their citizens more vulnerable to trans-border economic shocks. Many decisions are made by majority vote among government representatives in combination with a common directly elected European Parliament. Normatively, it is difficult to distinguish sharply between the effects of domestic social institutions and those of neighboring states and of the union as a whole. The same arguments for equal shares and against certain forms of inequality therefore seem to apply as within a unitary state.  However, there may be a further reason for permitting inequality.
In a democratic order, local autonomy and immunity can provide political influence that is advantageous even for those economically worst off. To show this we consider arguments for splitting legal authority between a central and sub-unit levels of a federal political order, sometimes addressed in the forms of arguments for ‘subsidiarity.’ The legitimacy of such split authority may be assessed by a hypothetical contract between representatives of joining nations or states, deciding on the terms of their federation without knowing which nation or people they represent. Why and when would individuals reasonably seek to protect and further their interests by means of federal arrangements? Note that the arguments here hold for democratically ordered peoples, but not necessarily for hierarchical peoples.
One classical argument is to protect against unjust domination. In a federal system "the parts are so distant and remote that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest." Majority coalitions in larger polities are presumably less likely to harm local minorities. But this argument favours centralization without explaining why sub-units should have any powers at all.
Sub-unit autonomy allows room for institutional experimentation and innovation, "compass and room enough to refine the democracy." These "experiments in living" allow citizens to learn from the experiences of other sub-units. Local autonomy is also valuable when individuals' interests and preferences vary according to geographical parameters such as physical environment, resources, or cultural tastes and values. Several reasons can be discerned. Immunity can protect such groups from majorities. Local powers are sometimes more likely to address the "local circumstances and lesser interests" without neglect. Sub-units may also be more competent at this task, and they may be able to create "club goods" or "internalities" for the affected individuals. If the only effects occur locally, there is little reason to burden outsiders with information gathering, reflection and decisions. Sub-unit autonomy also allows preexisting political units some control over institutional changes, which promotes individuals’ interest in maintaining legitimate expectations.
On the other hand, local government has its own risks and must be curbed to prevent oligarchies and tyranny against local minorities.
To sum up, sub-unit autonomy on certain issues can yield identifiable benefits for citizens in the form of more political influence than in a unitary political order. But is it advantageous for the “sub-unit poor”? Their income share is fair compared to others in their sub-unit, for instance according to a Difference Principle. But they are economically worse off than the worst off in a unitary political order regulated by a Difference Principle. I submit that they would have reason to prefer a federal arrangement at some economic cost for at least three reasons. 
The division of political agendas reduces their vulnerability to the larger majority, preventing domination due to ill will, incompetence or insufficient attention.
Sub-unit autonomy over certain issues makes these political bodies more responsive to the sub-unit poor and others in that sub-unit. Immunity and more political power over these issues can therefore be of more value to the individual than somewhat more economic resources within a unitary political order. The authority to shape institutions to local circumstance may gain them more than marginally more material resources to use within institutions which provide less of a fit. 
Finally, sub-unit autonomy reduces each person's burden to reflect on the political issues largely affecting other sub-units. The economic inequality that follow from such local autonomy may thus be unobjectionable, at least when kept within certain limits. There must be no or few externalities, and local knowledge is required. Furthermore, the sub-units must have fair working democratic processes in place. Under such conditions, sub-unit autonomy may be preferable even at some economic cost to the sub-unit poor -- within limits set by their interest in avoiding misery and domination. 
6. Toleration and Stability Reconsidered 
The arguments presented allow non-military intervention in some cases to promote democratic rights, freedom of the press and gender equality. Economic inequalities across sub-units of a federal political order are justifiable within limits, defending LP’s view that a global difference principle is not required. Do these aspects of a federal theory of justice address the issues of toleration and stability acceptably well?
	Firstly, is this theory indefensibly based on liberalism? Of course, democratic political rights, freedom of the press, and gender equality may well be Western in origin. But genesis is not an objection: if so, claims to external sovereignty should also be dismissed, since state sovereignty is also largely a Western concept. The defense of intervention for Instrumental Human Rights is not based on particularly 'liberal' conception of the person, but on empirical findings that universal suffrage is central to secure basic needs and Proper Human Rights. Among the central mechanisms are, firstly, the articulation of demands provided by freedom of the media and competing political parties, and secondly, electoral accountability with opposition parties that ensure a degree of responsiveness. One might object that conceivably, a nondemocratic hierarchical people with transparent government, freedom of the press and consultation processes may secure subsistence equally well as a democratic regime. In response, we note firstly that the issue is not one of conceivability but rather of empirical matters, and secondly, the issue is not whether there happen to be such cases, but the tendencies of regimes of this kind.
A second objection is that stability is at risk when compared to the criteria of intervention laid out in LP. In response, note firstly that we agree with many of LP’s conclusions, but for other reasons. There are good empirical grounds against a practice of military intervention aimed at establishing democratic governments. Such interventions are seldom successful, and such authority is easily abused. It might be objected that these are merely empirical grounds, and that they are less trustworthy than the more philosophical argument of LP. However, these empirical generalizations are acceptable in public reason. LP indeed appeals to such generalizations when it claims that withholding respect will stifle change in hierarchical peoples who have no Instrumental Human Rights (LP, 64). Moreover, and most important: if the argument in LP fails, it does not bolster international trust. Rawls underscored that the theory itself may serve to stabilize the international order. It would do so because international stability requires more than a statement of the limits of toleration about “how far nonliberal peoples are to be tolerated” (LP, 10). These limits must be based on convincing public reasons for respecting such political autonomy. The Law of Peoples would promote stability if it offered a public justification for just social institutions that all can endorse. It is a central weakness of Rawls’ account that it fails to provide adequate arguments for its conclusions. 
Unlike LP this account is prepared to allow non-military interventions in hierarchical peoples to protect against violations of Instrumental Human Rights. This does not render a legitimate global order less stable. The empirical premises for Instrumental Human Rights hold that in their absence the population faces a higher risk to their Human Rights Proper. So such violations will often warrant intervention anyway. Successful interventions for Instrumental Human Rights will also foster the citizenry’s political autonomy to protect themselves against future human rights violations, and promote longer term just stability.
Another source of instability may be that citizens of rich countries may not be prepared to participate in redistributive arrangements beyond a duty of assistance: “with a global egalitarian principle without target, there would always be a flow of taxes as long as the wealth of one people was less than that of the other. This seems unacceptable.” (LP, 117). A first response is that this worry seems inappropriate for our subject matter, the distributive effects of institutions. The principles do not regulate single acts of transfers. I have also argued that principles of distributive justice may be less egalitarian in federal arrangements, and by extension in the global political order. This result would seem to reduce the ‘burdens of compliance’. Finally, this source of instability from lack of motivation does not seem different in kind from the instability wrought by the risk that rich citizens will not comply with institutions required by the Difference Principle. A response faithful to Justice as Fairness would be that such compliance should be fostered by reflective socialization by the just institutions themselves (LP, 13 fn 2). It is in part a matter of providing sound public arguments against certain kinds of inequality.
The concern for stability thus seems secured as much by this theory of federal justice as by the Law of Peoples. Rawls wrote regarding the Law of Peoples that 
The social contract conception of that law, more than any other conception known to us, should tie together, into one coherent view, our considered political convictions and political (moral) judgments at all levels of generality (LP, 58). 
The social contract conception Rawls single handedly did so much to revive and develop may avoid some of the criticisms raised against his own arguments in The Law of Peoples. His objective remains paramount: to provide a public, reasoned basis for an overlapping consensus that may contribute to a just and stable political order.