838David Luban, "Just War and Human Rights," pp.209-10. Luban borrows from Henry Shue the notion of"socially basic rights" to goods that we need to enjoy or exercise any other rights.

839Allan Buchanan, Justice, Legitimacy, and Self-Determination (Oxford University Press, 2004, 2007 pb),pp.5-7.

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Chapter Seven:Democratic Rights, Tyranny, and Revolution: Walzer & Cohen vs. Locke & Lincoln

Chapters Five and Six defended the widely accepted post-Westphalian conception of statesovereignty as dependent on protection of citizens and accountability to them – thereby returning tothe Kantian idea that collective autonomy, like individual authority to rule one’s own life, is foundedon implicit commitments to the rights of other persons. Rights-based sovereignty (RBS) is theprinciple that any government’s right to rule is contingent on recognizing "socially basic rights" andproviding (to some minimum extent) the goods to which they entitle individual citizens:838 for stateshave no rights to authority or survival that are not derived from the rights, goods, and needs of thepeoples they exist to serve. Similarly, Allan Buchanan has argued that international law can only bemade coherent on a moral foundation according to which a state’s sovereignty depends on its justice,rather than merely on the consent of other states.839 A club of dictators is no form of international lawat all. As noted, RBS is a weaker version of the Democratic Principle (DP), which interpretslegitimate rule in terms of rational collective decision-making through free deliberation about publicgoods. The case for a league of democracies is not complete without a defense of DP, which groundsthe second half of its claim to greater legitimacy than the UN system.

The case for DP was begun in Chapter Five, where I argued that the most importantconditions for an adequate conception of human rights can be met only within a linkage-approachthat conceptually connects the moral and legal sides of human rights. While this approach is inspiredby Habermas, it represents a more general account of the different parts of a theory of human rights.But linkage-theories necessarily require democratic rights to hold together the whole scheme ofhuman rights: without them, we cannot make sense of the ‘originary sovereignty’ needed to connectthe moral and legal faces of human rights. The subsequent analyses of international law and just wartheory (Chap. 5 and Chap. 6) showed broad support for the principle of Rights-Based Sovereignty,but not specifically for more strictly democratic requirements of equal political rights and relatedequal rights to free speech.

Accordingly, this chapter returns to DP to put more flesh on the bones of the highly abstractLinkage-account by considering some rival conceptions of collective “self-determination” in therecent literature, and explaining in more detail the transcendental connection between the basic rightto popular sovereignty and other human rights that was briefly sketched in Chapter Five. I will alsoaddress whether challenges based on cultural differences undermine these arguments on behalf ofDP, though without attempting to evaluate all versions of cultural relativism (following Caney, weconsidered a few relativist objections in the course of evaluating HI and R2P in Chapter Six andfound them very weak).

These further defenses of DP are applied to the real world in two ways. First, the Lockeanright to revolution and limits to plausible conceptions of collective autonomy imply that we shouldrecognize further cases in which there is just cause for military intervention beyond thosecountenanced by Walzer and the slightly longer list in the ICISS report on The Responsibility to

Protect (R2P): the community of decent nations may justly use force when necessary to freeoppressed and terrorized peoples from the scourge of entrenched tyrannies, even when the tyrants are

840Allan Buchanan and Robert O. Keohane, “The Legitimacy of Global Governance Institutions,” Ethics

and International Affairs 20 no.4 (2006): 405-38, pp.408-9. Thus what they call “higher-order coordination” throughshared norms, following James Fearson on bargaining, refers to what I called cooperative coordination (wide sense)as opposed to technical coordination (narrow sense) in Ch.3.

841This is another set of problems besides those addressed in this book, but interested readers may consult(continued...)

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not engaging in genocide, mass enslavement, or mass ethnic cleansing. But this result still falls shortof arguing for military enforcement of the right to fully equal political liberties and related equalspeech rights: it thus accommodates the Rawlsian call for tolerance of more theocratic andhierarchical cultures, while still arguing for a stronger R2P standard – thus meeting Walzer andCohen half-way.

This more detailed investigation will also help answer the question often posed to proponentsof a democratic league concerning what conditions should be required to join – i.e. what makes anational constitution count as sufficiently “democratic” for such a political goal with avowedly strongmoral grounds. Once we understand why “democracy” in the normative sense is coherent only on thedeliberative approach, this question is not as difficult to answer as many critics assume it will be.

I. Legitimacy: Buchanan and Keohane’s Proto-Democratic Proposal

On a democratic view, the legitimacy of constitutional systems or governments embodyingthem should be understood as two-sided: authorization by the people, understood as a multituderecognizing itself as capable of collective action before or within the authorizing acts, and the powerto coordinate its authorizing members through law, policy, and executive action to deliver the publicgoods that justify its authorization. DP and CP – the two normative premises in the ConsolidationArgument for government (Ch.2) capture these two sides of legitimate sovereignty. The distinction iscrucial because according to the Enlightenment Principle (EP), the power to rule never by itself

entails the right. The fundamental idea descending from Plato’s Republic that government power should be limited by moral norms that have a validity prior to laws made by human sovereigns isencapsulated in this central principle of modernity. Moreover, the right to rule involves standards forfair distributions of burdens and benefits, beyond simple coordination, as we noted in distinguishingdistributive equity problems from other types of CAPs. This is why, as Buchanan and Keohane note,cooperation through a shared sense of an institution’s legitimacy transcends the strategic calculationthat it is useful to all as a purely coordinative device.840

But in any real system of governance, these factors are closely related because theperceptions of de facto and de jure power – first by the government’s own citizens, but also byforeign sovereigns and their peoples – are causally interdependent. A minimum threshold ofcoordinative power is a necessary condition of any government's legitimacy; even if it is stronglysupported by most of its citizens, its inability to fulfil its purposes can rob a system of government ofits overall authority – especially if there are more effective possible alternative institutions that wouldmeet the other requirements of legitimacy. Inversely, the coordinative power of government isusually weakened if its subjects believe its laws are immoral, or generally reject its policies asoppressive or irrational. The objective practical merit of the legislation and programs produced by asystem of government thus affect its actual power to get things done, which is reduced by citizen’sactive refusal to consent or willingly accept the merits of the system. This is why, for example, thedeadlocks preventing action in the US Congress feed voter alienation from the system, which in turnreduces the government’s power to inspire collective action, from voter turnout to willingness tocontribute taxes for programs serving collective goods.841

841(...continued)my webpage on an agenda for a new constitutional convention to fix the American democratic system.

842Buchanan and Keohane, “The Legitimacy of Global Governance Institutions,” p.412.

843Ibid, p.409.

844Ibid, pp.409-10.

845Ibid, p.411.

846Ibid, p.416.

847Ibid, p.414.

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This hybrid or dual conception of legitimacy modifies the conception offered by Buchananand Keohane who also argue, following Rawls, that “If it becomes widely believed that an institutiondoes not measure up to standards of legitimacy, then the result may be lack of coordination...”842 Intheir sense, to avoid circularity, legitimacy must then be understood as pure justification or rationalacceptance making no reference to coordinative power: “legitimacy, understood as the right to rule, isa moral notion that cannot be reduced to rational self-interest.”843 They acknowledge, followingRawls, that deep support for an institution based on a sense that it is inherently just (beyond materialself-interest) tends to make it “more stable.” Indeed, part of the argument for rights-respectingconstitutional systems is that, while state sanctions enforcing law function to coordinate parties toavoid mutually self-defeating forms of competitive interaction, this function will be more reliable andeffective if the state enjoys also the moral support of its citizens based on a sense that it is fair to all(collective) and to each (individually). Democracy adds the further idea that such fairness requiresthat all have a fair opportunity to have a voice in policy-formation and law-making on the basis ofjudgments informed by collective discussion of goods. Collective authorization of the whole systemthen requires ongoing collective participation in the process of legislation and executive policy.

But democracy understood in this ‘deliberative’ sense may seem like a demanding standardfor the legitimacy of institutions at transnational levels: it defines what Buchanan and Keohane callan ideal of justice, and they argue that governing institutions can be legitimate enough to deserve ourallegiance even if they are not “optimal” or “fully just” according to our “highest moral standards.”844

Instead, institutions are legitimate if we have procedural moral and prudential reasons to comply withtheir rules or orders independently of their content (presumably within some limits).845 I agree, butadd that DP should be formulated with criteria to guide a ranking of imperfect, real-world cases andto help us draw lines above which an institution (in a given transnational context) is good enough atdelivering the public goods relevant to that context, and delivering them through sufficiently fairprocesses, that it deserves our considered moral support. Only then can we decide whether Keohaneand Buchanan are correct, for example, that the social conditions do not yet exist for “a globaldemocratic federation that relies on existing states as federal units,” and so such a federation “wouldlack legitimacy.”846 They may well be right that it is too much to demand direct democratic controlover today’s global governance institutions, and that fully voluntary consent from democratic nationsis only necessary but not sufficient;847 as we will see, Habermas holds similar views. However, theyall agree that for transnational governance institutions to be legitimate, in addition to meetingconditions of transparency and accountability, and providing “a reasonable public basis forcoordinated support for the institutions in question, on the basis of moral reasons that are widelyaccessible,” it must garner “the ongoing consent of democratic states” and also “promote the key

848Ibid, p.417. They add to this a condition requiring that legitimate global institutions must be “broadly”transparent in order to facilitate “inclusive, informed debate about their current terms of accountability” (p.429) –another proposal in the spirit of Habermas’s deliberative conception of legitimacy. Their conception of monitoringby “transnational civil society” is also a proposal to employ the network model for a function that it is well-suited toperform – much as issue organizations, unions, charities, and media keep track of what national governments do.

849Ibid, p.421-22.

850Ibid, p.423.

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values that underlie demands for democracy.”848 These include “the conditions needed for principled,informed deliberation about moral issues” that make possible the articulation of more substantiveconceptions of global justice849 – such as, presumably, individual freedoms of expression, free press,rights to organize for discussion, education and wide availability of information, etc.

It is clear, then, that democratic legitimation is operating here as the regulative ideal, and thequestion is only where we draw the threshold for a currently acceptable level of legitimacy. I wouldcontrast this with the position, which might at first seem similar, famously taken by Rawls in hisbook The Law of Peoples that non-democratic forms of national government can be sufficientlylegitimate to deserve recognition by foreign nations as long as they uphold human rights that aremore central or weighty than popular sovereignty. For this position does not tend towards globalizingdemocracy in the same way as does Buchanan’s and Keohane’s standard, or the similar standard wefind in Habermas’s work on global justice. They also more directly critique the UN system,emphasizing that

if the fundamental character of the Security Council’s decision-making process renders it incapable ofsuccessfully pursuing what it now acknowledges as one of its chief goals – stopping large-scale violations

of basic human rights – this impugns its legitimacy.850

In my terms, this “integrity condition” requiring fit between an institution’s goals and its resultsfollows from the idea that an institution’s legitimacy depends on its serving the public goods thatonly an institution of this kind can adequately secure. That its specification of such goods andprocesses for delivering them be democratically accountable to the people depending on such goods,those providing them, and others potentially affected is the further condition to be embodied in someversion of DP.

I will argue in the next section that the need for a fairly robust democratic condition can bediscovered from considering the concept of a people’s “self-determination” (SD), which has to bearticulated in order to apply just war principles regarding intervention, just as some conception of SDis inevitably involved in any notion of justified revolution. I return to Michael Walzer as aninterlocutor on these issues not to add to the criticism his account of SD has received, but ratherbecause considering where Walzer went wrong helps illustrate the need for a morally moresubstantive conception of SD that involves deliberative conditions which make it recognizablydemocratic. Moreover, Joshua Cohen has developed an influential account that is similar to Walzer’sin some respects. The problems in Cohen’s and Walzer’s account provide useful correctives: to avoidthe pitfalls in their accounts, we must move to a more democratic version of SD. When this iscoupled with the need to integrate a view of justified revolution into just war theory, we see that acoherent international doctrine of armed HI for R2P purposes cannot do without a democraticstandard at least as a regulative ideal. And such a standard will affect our conception of just authorityto declare and wage wars for defense or humanitarian purposes. This will not necessarily entail thatRawls was incorrect about recognition of “decent hierarchical” or non-democratic regimes – an issue

851Walzer, Just and Unjust Wars, 2nd. ed, pp.53-54.

852Ibid, pp.xix-xx.

853Power, A Problem from Hell, pp.237-40.

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that is obviously crucial to the argument for a league of democracies.. But it will better prepare us toaddress that question in subsequent sections.

II. Legitimate Self-Determination and Revolution: Walzer and Cohen vs Locke

II.1. Walzer on Cultural fit. Walzer is well-known for defending a communitarianconception of legitimate sovereignty in terms of associative relations and a cultural authenticity,which some have found too nationalist, anti-pluralist, or liable to bias against immigrants. Many ofthese critiques are probably too strong; Walzer affirms that the right of states against foreignaggression derives from “the rights of individuals” who live in these states, and that the sovereigntyof their governments rests “on the consent of their members.” He simply rejects the theoreticaloptions of a literal social contract (actual consent) and an ideal contract (hypothetical consent) infavor of the plausible view that “Over a long period of time, shared experiences and cooperativeactivity of many different kinds shape a common life” leading to a “process of association andmutuality.”851 Government-legitimating consent is then understood as an ongoing and fairly deepsense of belonging to such a “common life.” It is an “independent community” in this sense that isdefended from aggression by sovereignty. I will not contest these claims made for the importance ofcommunal belonging, although I believe that they have discursive implications that imply variousindividual rights, which in turn are protected by the ‘punctuation’ of common life by somewhatdistinct moments of collective action – most often through watershed votes, but also in unusual casesthrough explicit and widely understood collective efforts, e.g. fighting a war, or mass demonstrationsbringing revolutionary changes, or going through a “truth and reconciliation” commission process, orgathering to express collective grief at great loss and undertake healing (or rebuilding, e.g. after9/11). A shared sense of historical events is essential to common life, and the requisite sense cannotbe shared without a variety of robust communicative and action-processes. What we have to consideris how to understand the right of communication and collective will-formation that such anunderstanding of common life or shared culture(s) implies.

Walzer’s position has developed considerably over the years, but he initially posited anasymmetry between the internal legitimacy of a government to its own people and its externallegitimacy to other nations. This view is intuitive enough: the standards can be higher for internallegitimacy because foreigners, and even foreign leaders, lack the same detail of insider knowledge.However, this implied that even regimes which are internally illegitimate to their people(s) becausethey do not “fit” well with their culture(s) must still be presumed to be legitimate by foreign nations,who cannot judge such internal matters, as long as the regimes are not committing genocide or anyother extreme crimes against humanity. For example, Walzer makes the controversial claim thatGeorge H.W. Bush was right not to aid the Iraqi insurgents who tried to overthrow Saddam Husseinfollowing the first Gulf War,852 even though, as was largely predictable, Hussein's forces later killedat least 100,000 Iraqis in suppressing the uprisings. Samantha Power notes Bush’s Feb. 15, 1991speech in which he said that the Iraqi people should “take matters into their own hands and forceSaddam Hussein...to step aside.” In response to the resulting Kurdish uprising, Hussein’s militarydestroyed many Kurdish towns, sending 1.3 million Kurds into exile in northwest Iraqi mountainsand Turkey.853 Yet, despite such horrendous examples, Walzer is strongly influenced by John StuartMill's view that against native tyrants, "the members of a political community must seek their own

854Walzer, Just and Unjust Wars, 2nd. ed, p.87.

855Walzer, “The Politics of Rescue,” p.69.

856Walzer, Just and Unjust Wars, 2nd ed., p.87.

857Ibid, p.88.

858Luban, “Just War and Human Rights,” p.214.

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freedom," and Mill’s related idea that a people can be "self-determining" even if they do not choose"political freedom" or attempt and fail to establish a democracy.854 Walzer believes that only home-

grown change made by internal actors can lead to a stable new government. For ease of reference, Iwill call this the organic revolution thesis (ORT).

There is surely something to this as an empirical claim, on which much of Walzer's argumentrests; as later experience in Iraq and Afghanistan have demonstrated again, especially in multi-ethnicsocieties, democracy cannot be introduced simply by holding elections without risking instabilities.Deep animosities caused by past wrongs that could never be addressed under dictatorship are liable tosplit apart nations that are rapidly converted from tyranny to parliamentary government with generalelections. Much more is required to build the sort of civil society, deliberative customs, mediapractices, and party systems needed to sustain viable democratic government. Yet it is also very clearthat the organic revolution thesis is vastly overstated. First, cases like the Kurds show that organicrevolution can simply be overwhelmed even though it would lead to a stable new nation but formorally irrelevant contingencies (such as the number of tanks and helicopters that Hussein retainedafter his brief war with the US-led coalition to liberate Kuwait). Second, foreign intervention withoutorganic revolution can succeed: the reconstruction in Japan and Germany following WWII show thatliberal democratic culture can be fostered through deep and prolonged restructuring. While theopportunity for Sunni and Shi’a to learn to share political power was lost in Iraq when the USallowed a regime mainly by Shi’as and for Shi’as to take over, smarter nation-building can avoidsquandering such opportunities. And there are other cases in which less dramatic foreign influencehas shifted the balance in favor of progressives who lifted their peoples out of tyranny withouterasing the original culture. Burma would be a good example, where political pressure has helpedbring about an easing of bans on Aung San Sui Kyi’s reform party (and her release from decades ofhouse arrest). Similarly, Benazir Bhutto brought to Pakistan strong ideas about women’s rights,political order, and democracy and she had some influence before her appalling assassination byreligious fundamentalists.

There is also a normative premise in Walzer's argument: on his communitarian view, the"integrity" of a nation's internal political processes is always a public good of central significance.855 If so, Mill is right that it should not be our purpose "to establish liberal or democratic communities"even if this could be done; a just global order can only seek to promote "independent ones."856 Butthen this notion of "independence" severely limits the right to civil liberties and popular sovereignty;it only allows "'the right of a people to become free by their own efforts,' if they can, without theintrusions of alien power."857 This is too libertarian a conception of the right to revolution against adictatorial regime, for it implies that the rest of humanity has no moral responsibility to aid suchwould-be revolutionaries, even by non-military means. Luban argues that such a "Pickwickian" view"takes the legitimacy of states too much at face value" on the tacit belief that dictatorial governmentsreflect the real needs and wishes of their peoples, which is patronizing.858 In reply, Walzer rejectsLuban's dichotomy: it is false that governments can be based only on democratic consent or coercion,

859Ibid, p.215.

860Walzer, “The Moral Standing of States,” p.212.

861Ibid, p.212.

862Orend, The Morality of War, 2nd ed., p.92,

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as Luban had implied.859 On the contrary, Walzer insists that for most non-democratic regimes, othernations must presume that

there exists a "fit" between the community and its government and that the state is "legitimate." It is not agang of rulers acting in its own interests, but a people governed in accordance with its traditions. Thispresumption is the respect that foreigners owe to a historic community and to its internal life.860

Walzer believes that such a fit explains why citizens of non-democratic nations may be willing tofight against foreign armies who invade in order to free them from dictatorial government.861 Thereare then two distinct standards of political legitimacy: the internal communitarian standard, and theinternational standard that looks at de facto power over a territory with very minimal limitations bythe most basic rights (short of democracy). This distinction has the crucial implication that internallyperceived wrongs that can justify people(s) in rebelling against their government will not normally(unless they involve extreme crimes) justify foreign nations in aiding the revolution. Instead Walzerthinks of revolutionary processes as part of the integral development of a culture that would be forcedout of its path of natural growth by foreign intervention.

One preliminary problem with assessing this ORT is that there are few pure cases of armedrevolution aiming to establish democratic government in the 20th and 21st century so far. Arguably itis only now, after the end of decolonization and the Cold War, that we face revolutions and relatedHI-questions in their purer form. For most revolutionary movements in the 20th century aimed atthrowing off colonial rule; and while the entire anti-colonial movement arguably supports the near-inviolable value that Walzer puts on national self-determination, virtually all of these revolutionarymovements were influenced by wider transnational currents (and especially Cold War forces thatwere hardly indigenous). Walzer’s own account is clearly shaped by his involvement in protestsagainst the Vietnam War and subsequent reflections. For, as Orend has argued, clearly manyVietnamese did not want to be “saved” from communist rule by the Americans. But that was at leastpartly because the Diem regime refused to participate in 1956 elections, and was corrupt in manyother ways.862 Moreover, I would emphasize the widespread sense that the Diem regime was linked tothe highly unjust prior colonial French government. Thus US efforts to save the South from Ho ChiMinh’s regime were far from pure armed humanitarian efforts to save a democratic regime fromoverthrow by a dictatorial successor. On the other hand, the victory of the communist regime wasalso far from an organic revolutionary movement of purely Vietnamese provenance; it was heavilyinfluenced by Mao’s regime – and tragically, Minh had held more democratic views before Francepushed him into the arms of China and Russia.

After Vietnam, one might turn to Daniel Ortega’s revolution in Nicaragua, but that case wasalso complex. There have also been many other democratic revolutions accomplished without civilwar, such as the Haitian revolution of 1986, the peaceful exit of the British from India, the end ofApartheid in South Africa, the revolutions in Eastern Europe and Mongolia during 1989-1990, andmore recently the Arab spring movements in North Africa. Only in Libya and Syria did these developinto full civil wars. In Libya, pro-democratic rebels succeeded in overthrowing a terrible dictatorshiponly with large assistance by NATO air power, while in the latter, the pro-democratic revolutionaries

863John Locke, The Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett(Cambridge University Press, rev ed. 1963), §172, p.429.

864Ibid, §174-76, pp.430-32.

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have largely failed for lack of help from democratic nations, even though among the Sunni majoritythey were organically authentic (as detailed in the final section of Chapter Six). These recent cases donot help Walzer’s thesis. Although Libya remains unstable and could break up into smaller nations,that has little to do with the foreign intervention; it arises instead from the distinct interests ofdifferent groups that banded together in the revolutionary movement, which would all have beendefeated but for the outside help. Most successful revolutions face such problems in the early years ofnew democratic regimes, as revolutionary France demonstrated most dramatically, even though theFrench people received no outside help against the ancien regime.

If the intervention doctrine he infers from it has these problems, we should reconsiderWalzer's two-level account of state legitimacy. This account is subject to at least three key criticisms.These problems all relate to the infamous vagueness and unclarity in the meaning of political “self-determination” concepts that loom so large in the UN Charter, many associated treaties, and thedecolonization process. Reflecting on these problems forces us back to fundamental issues in forminga viable conception of SD. In this section and the next, I develop Luban's critique of Walzer's Millianaccount with insights from Habermas, Locke, and Buchanan. They help to show that Walzer isworking from an inadequate conception of consent, and that his own communitarian alternativebecomes incoherent when applied to cases where an internal right to revolution exists. This hasimplications both for how we should conceive just authority to wage wars and for what counts assufficient grounds for armed HI.

II.2. Lockean Limits to Self-determination and Support for Justified Revolutions.The first major problem with Walzer’s Millian view (ORT) is that, to any developmental

process explained by a cultural narrative, it removes the moral preconditions of autonomy thatground the Lockean right to revolution. Although Locke understands the inherent authority thatindividuals have to govern themselves in a way that is neutral between a very wide range of personalgoals and ways of life, he directly rejects the doctrine affirmed by Hobbes, Pufendorf, and severalother early modern jurists that people may bargain for their lives by submitting to absolute monarchy.In the Second Treatise of Civil Government, Locke argues that "Despotical Power" can never bejustified through contract: since no one has "Arbitrary Power over his own Life, [he] cannot giveanother Man such a Power over it."863 This means that no one can sell himself into slavery: the rightto basic liberties is inalienable, except to the extent that criminal acts forfeit part of it (but even thatis an unintended side-effect of the crime, not an accomplishment of the criminal’s agency). Thurinnocent captives cannot bargain for their lives by agreeing to be slaves or, equivalently, subjects ofan absolute power (let alone bind one’s decedents in perpetuity). So conquest can never give anyrights to dictatorship over a conquered people.864 It follows that unlimited hereditary monarchy cannever be legitimated by reference to conquest and surrender. The modern norm of non-interventiondeveloped from this basis: the idea of national independence that was crystalized in the Treaty ofWestphalia depends less on a worked-out conception of internal consent than on a clear rejection ofaggression as a basis for any legitimate claim.

So central is this refutation of monarchy to all modern thought that we might call it the"Enlightenment Argument,” because it helps explain the general “Enlightenment Principle:" mightalone can never make right, because right springs from living embodied freedom that cannot sell its

865See Rousseau, On The Social Contract, in The Basic Political Writings, tr. Donald Cress, int. Peter Gay

(Hackett Publishing, 1987), Chap. IV. Compare Kant, The Metaphysics of Morals, tr. Roger Sullivan, ed. MaryGregor (Cambridge University Press, 1996). "The Doctrine of Right," §30, 283, p.66.

866I take this to be the central point of Kant’s explanation of the Formula of Humanity at Groundwork 442:“...rational nature exists as an end in itself. The [individual] human being necessarily represents his own existencethis way,” as does every other person (Gregor translation, p.37). Its connection with the idea that the rights to lifeand bodily integrity are inalienable is made clearer in the earlier version of the analysis in Kant’s Lectures on Ethics,tr. Lewis Infield, int. Lewis White Beck (Hackett Publishing, 1963), "The Supreme Principle of Morality," p.43.

867Locke, Second Treatise of Government, §199, pp.446-47. Still, Kant did not recognize Locke's right torevolution, because he (mistakenly) took it to be directed against all "political order as such" – see Davis, "Kant'sPrinciple of Publicity in Perpetual Peace,” in Akten des Siebenten Internationalen Kant-Kongresses, ed.Kleinschnieder et. al. (Bouvier Verlag, 1990): 317-24, p.323.

868Locke, Second Treatise of Government, §201, p.448.

869Ibid, §210, pp.452-53.

870Ibid, §221, p.460.

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life or freedom without simultaneously cancelling its authority to decide. Rousseau and Kant developthese basic intuitions from Locke by working out the reflexive relation of rational free will to itselfthat explains them.865 Rousseau focused on developing the implications of freedom’s inalienablevalue for popular sovereignty. Kant focused on clarifying why the natural authorization to decide onactions, which it inherent in our nature as capable of choosing in light of practical reasons, comeswith an acceptance of its own inviolable value built into it – in exercising our free will, we areimplicitly committed to the existence and effectiveness of rational free agency as having aninviolable value that trumps particular or contingent ends. Thus the autonomy that individualsexercise in making decisions for their own lives cannot legitimately be exercised in giving up one’sliberty, one’s conscience, one’s life, or one’s body.866

Thus Rousseau and Kant both defended Locke's doctrine that tyranny is rule for the ruler’sprivate advantage without any reference to the common good, and as this amounts to sheerunjustified force, it makes no legitimate law at all.867 Tyranny in this sense is not limited to absolutemonarchs, military dictators or juntas, or small oligarchies; larger ruling groups can also becometyrannical if power that naturally authorized only to serve the good of the whole people "is made useof to impoverish, harass, or subdue them to Arbitrary and Irregular demands."868 It is only againsttyranny in this sense, when proven to the conscience of most citizens by a "long train of abuses," thatcitizens have a right to revolution.869 The collective right to revolution is a remedial right, applyingonly against genuine tyranny. But mass atrocities are more than sufficient to constitute tyranny: thusany government that arbitrarily disposes of the "Lives, Liberties, or Fortunes of the people" counts asde jure dissolved: it ceases to be a legitimate sovereign, and the people are free to form a newgovernment.870 Moreover, even if they do not attempt actual revolution given the regime’s power, itnecessarily lacks legitimacy: in the de jure sense, the people are eo ipso already alienated from it.

We see here in Locke’s analysis that the most intelligible basis for an RBS principle limitingsovereignty depends on the same ground as the internal right to revolution. For Walzer, this poses anintractable dilemma. Like Mill, he accepts RBS; his justification for armed HI in cases of extremeatrocities depends on this. Yet he wants to count as "self-determining" most states in which "thehistory, culture, and religion of the community may be such that authoritarian regimes come, as itwere, naturally;" for example, he cites the oligarchy that was established in Algeria following its war

871Walzer, “The Moral Standing of States,” p.225. Yet Walzer’s account implies that even if the Algerianrevolutionaries had established a secular state with equal rights, that would have been authentically "Algerian."Similarly, the military republic following Attaturk in Turkey counts as authentically Turkish, but by Walzer'sstandard, a brutally repressive Taliban-style theocracy might also have counted. Authenticity, then, seems to be moreabout the people who are the sources of the changes than their content. On the other hand, Hussein's Baathistdictatorship in Iraq did not count as authentically Iraqi, at least by its end (see Walzer, “Five on Iraq,” p.160).

872Walzer, “The Moral Standing of States,” pp.217-18.

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of independence.871 But if RBS holds and Locke is right, then no permanent dictatorship embodies theright to self-governance of the people; it is not possible legitimately to accept being ruled by tyranny.There is no conceptual space for a regime that (a) is still internally legitimate, representing its people,even though (b) it would be legitimate for them to rebel against it to democratize the nation. Yet thisis exactly the category implied by Walzer’s asymmetry between internal and external legitimacy.

On the other hand, if Locke (and Rousseau and Kant) are wrong because no inalienable rightsare implicit in the exercise of the free rational agency that makes us morally accountable beings, thenindividuals can legitimately sell themselves into slavery, or legitimately sell their lives, etc. Thiswould make it possible to a people legitimately to consent to mass atrocities as a price for some othergoods. Yet Walzer is too sane to accept this: he rightly insists that a government which enslaves itsown people on any grounds cannot "fit" their culture, and hence such a society does not count as self-determining.872 His exceptions to non-intervention are based on this point.

Walzer’s difficulties here are instructive in a general way, beyond concerns narrowly focusedon his communitarianism. We cannot do without the vital principle that legitimate "self-determination" cannot include voluntary submission to slavery, or to genocide, ethnic cleansing,masspersecution, torture, selling children, or perhaps in future selling control of our minds. To abandonthis idea is to embrace the most extreme kind of libertarianism holding that anything can be sold,which no communitarian, liberal, or conservative should accept – as Michael Sandel has argued (seethe discussion of common goods in Chap.3). While the borders of inalienability are contentious (e.g.does it extend to selling one’s organs or sexual services, as Kant certainly held), there must be morallimits on free-market contract, whether these are expressed in terms of inalienable rights or somegood-focused teleological concept. But such limits will always be inconsistent with oppressivedictatorship. Even if a full-blown right to democratic consent is not as inalienable as Locke held,when its violation gives citizens an internal right to revolution, it will normally also give legitimateforeign governments (or the international community) just cause to help the revolutionaries rid theirnation of despotical domination. That is a conclusion about the in-principle status of oppressivedictatorships. Walzer’s secondary epistemic claim that it is hard for foreigner to discern theseconditions is also suspect today; for in many cases, contemporary media (even when ‘unauthorized’)makes it clearly discernible to us that dictatorships like those n North Korea, Sudan, Tibet,Zimbabwe, and probably also China would be legitimate targets for internal revolutions.

Thus any plausible explanation of the RBS idea underlying R2P must include inalienablerights or similar constraints, which limit what forms of government a people may collectively accept.Because such limits are conceptual and therefore universally intelligible, we then arrive at theSymmetry Thesis (ST) that just causes for revolution and active foreign intervention (includingarmed HI when necessary) are the same: the evils of a government against its own people which aresufficient to justify internal revolution should in principle justify the international community insupporting such a revolution, all else being equal. ST is especially significant for my purposes if weaccept, as Walzer generally seems to, that oppressions aimed at preventing peaceful reform towardsdemocratic rights (e.g. as in Tiananmen Square) may be enough to justify revolutionary change, by

873Walzer, Just and Unjust Wars, 2nd. Ed., p.89; compare “The Moral Standing of States,” p.215.

874Cite Kant and Onora O’Neill.................

875Walzer unfortunately seems to think this is always the case, which is extreme: see “The Moral Standingof States,” p.220, where he reaffirms his view that justified revolution arising from internal processes actually rules

out foreign intervention, as if any outside aid would necessarily undermine the movement. He is unclear whether hemeans that outside help always taint the purity of the movement’s actual justifications, or only that it always reducesits likelihood of success by hijacking its perceived authenticity, The former is absurd, as we saw in analyzing theright to revolution. And the latter is implausible as an empirical thesis: sometimes a small loss of some internalappeal might be outweighed by a giant increase in effectiveness due to foreign help.

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force when necessary if the regime resists with force. For then ST can justify armed intervention tosupport revolutionary movements with broad internal support against tyrannies that are notcommitting mass atrocity crimes – thus expanding the scope of just cause for intervention.

Yet I conceded earlier that there is some intuitive plausibility in Walzer’s view that internalcases for revolution and external cases for humanitarian intervention are asymmetrical. He explainedthis intuition according to different levels of legitimacy: "It is not true that intervention is justifiedwhenever revolution is; for revolutionary activity is an exercise in self-determination, while foreigninterference denies to a people those capacities that only such exercise can bring."873 His mistake, inlies in this explanation which relies on inadequate conceptions of legitimacy and SD, which can beenhanced by some forms of external aid (especially when voluntarily invited or wished for). In fact,at the personal level, all SD begins with interpersonal recognition and education that instills basiccapacities, minimal levels of self-confidence, and awareness of basic values, and there is no goodreason to think that it is utterly different with SD at the collective level. Of course I do not mean thatcolonial trusteeships are needed to bring ‘childish’ peoples to the point where they are capable ofself-governance; Walzer rightly sought to reject that outmoded elitist view. On the contrary, it is thematerial conditions for effective self-governance that often depend on some assistance from outside,which (following this domestic analogy) is why Kant argued for a duty to aid other people when theirbad luck makes such aid essential for them to establish and maintain their autonomy.874 This duty isfamously indefinite at the personal level, but it can be systematized at the collective level of politicalrelations, which is what the R2P doctrine should do.

Instead, we can replace Walzer’s explanation for the apparent asymmetry with a better one: tothe extent that they are plausible, his cautions against intervention to help an ‘internally’ justifiedrevolution get going or succeed against an oppressive dictatorship belong under the ad bellum

proportionality criterion of just war theory (see Chap. VI §... on category 5). Suppose there is goodevidence that in some instances, foreign help to a revolutionary movement that is justified in trying toestablish democracy in some nation N would prevent the character development or cultural growthnecessary for a healthy society in N following the struggle. Then that likely harm would weighagainst the benefits of intervening (including the benefits of avoiding the harms that will follow if theunaided revolution failed). We should treat these considerations just as we would evidence that therevolutionaries can probably succeed without help, or that the most feasible forms of assistance couldundermine their perceived internal legitimacy (for example, by appearing colonialist),875 or that theywould threaten world peace or have any other counterproductive side-effects.

In sum, all such considerations properly concern ad bellum proportionality (category 5) ratherthan just cause, and thus do not undermine ST (which pertains to category 3). Not that ST does notsay that sufficient internal reasons for citizens to start a revolution all things considered entailsufficient reasons for foreign powers to help them, all things considered; rather, its caveat is “otherthings being equal,” which means that other requirements of just war must be met in either case. We

876See Coady, The ethics of armed humanitarian intervention, p.25.

877For example, see Wilkins, “Humanitarian Intervention: Some Doubts,” p.37.

878 For example, Luban and Walzer both rightly note that in the Yugoslav conflict, the lack of political willin Europe and the United States to commit enough ground troops for a sufficient time undermined the legitimacy ofthe eventual interventions: see Luban “Intervention and Civilization,” pp.80-82, and pp.85-86; also see Walzer “ThePolitics of Rescue,” 72-74. They should instead conclude that legitimate humanitarian intervention depends onstronger multinational system to muster the necessary will.

879For example, it is not implausible that the expulsion of Jews from Spain and the Spanish Inquisition wereboth ‘authentic’ expressions of some prominent strands of Spanish culture(s) at the time (though one can always citecross-currents in a complex culture to deny the integrity of any particular events, practices, or institutions).

880Rawls, The Law of Peoples, Part II, §§7-9.

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should never intervene even when we have just cause if that would do more harm than good. Forexample, as mentioned earlier, it would be crazy to attempt armed liberation of Tibet as that wouldrisk nuclear war with China.876 The same goes if other ad bellum criteria are not met (for example, ifwe could only aid just revolutionaries by grossly immoral means). Thus Lockean symmetry does notimply that atrocity or tyranny are sufficient by themselves to justify aid to revolutionaries overthrowa despotic government. Skeptics about humanitarian intervention often fall into this confusion.877 Worse, they fail to see that when just cause for humanitarian intervention is present but other criteriaare not met, that itself is often due to CAPs that a league of democracies would overcome.878

This division of labor between just cause and proportionality criteria sustains a crucial moralpoint that Walzer obscures in portraying humanitarian intervention in cases of ordinary tyranny(without genocide or massive persecution) as violations of a basic right to cultural integrity. On hisview, the main reasons against intervention are not contingencies affecting instrumental calculationsin particular cases; rather, they are matters of universal duties to respect non-liberal cultures. Wefocus in more detail on this topic next in taking up the second major problem with Walzer’s ORT.

II.3. Limits to Cultural Self-Expression: Rawls, Cohen, and Luban. As we have seen, theconception of "self-determination" (SD) that Walzer employs is too voluntarist to ground theLockean right to revolution: it leaves the “self” that determines empty of any nature that could guideits choices. The remedial right to revolution, especially when it applies to a regime mainly on theground that it refuses to democratize (and thereby entrenches rule for a minority’s benefit), dependson a conception of autonomy or legitimate self-direction through choices that embeds moral

preconditions limiting the contents of such choices. An agent who chooses options that violate thosepreconditions negates the basis of his own right to choose, and likewise for a collective. But if suchmoral preconditions are stripped out of the concept of SD, it can include any expression of thickcultural values and beliefs involved in traditional ways of life, no matter how unjust, cruel, orharmful they may be. Then even exceptions to SD for genocide, ethnic cleansing, and slavery,including de facto enslavement of women on the basis of gender, become ad hoc.879

Rawls and Cohen. This reveals the second fundamental problem in Walzer's two-tier accountof legitimacy and SD: his conception is too thin to fit the communitarian intuitions to which heappeals in defending the right to cultural integrity against intervention in illiberal states. It is certainlytrue that thick cultural values and religious traditions may often be at odds with liberal ideals, whichis why Rawls makes room for "decent" non-liberal states in his conception of global justice in The

Law of Peoples.880 But Rawls conceives the moral powers of personhood as oriented to justice asreciprocity with other willing interlocutors, and as requiring that persons be free to form their most

881See Rawls, “The Basic Liberties and Their Priority,” reprinted in Political Liberalism, §§5-6, esp. p.312.

882Rawls, The Law of Peoples, Part II, §10, p.79.

883Ibid, §9, pp.71-78. Note that Rawls's list of crimes that can justify armed HI is similar to Walzer's.

884Baynes, “Discourse ethics and the political conception of human rights,” p.11.

885Joshua Cohen, “Minimalism About Human Rights,” p.193. Compare Cohen, “Is there a Human Right toDemocracy?” p.231, where there is a nearly identical list of objections to more maximal lists of human rights.

886Cohen, “Is there a Human Right to Democracy?” p.233.

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central religious and philosophical belief according to “conviction, reason, and reflection” ratherallowing them to be controlled by power-relations.881 This substance furnishes a basis for

a special class of urgent rights, such as freedom from slavery and serfdom, liberty (but not equal liberty) ofconscience, and security of ethnic groups from mass murder and genocide. The violation of this class of[most basic] rights is equally condemned by both reasonable liberal peoples and decent hierarchicalpeoples.882

On this view, non-democratic states that deserve recognition as legitimately self-determining peoplesrespect a “common good” including all groups within their nations, and it is clear why regimes thatcommit gross atrocities inconsistent with this common good cannot claim SD as a basis for the rightenjoyed by recognized states to freedom from intervention.883

Perhaps, then, Rawls’s approach as developed by Joshua Cohen provides a more defensiblenon-democratic account of “collective self-determination.” As Baynes notes, “Rawls’s positionseems to be that a minimal set of human rights specify the conditions for membership in a societyconceived as a system of social cooperation, and that only such a society is able to make a plausibleclaim to self-determination” – it’s government can “claim to govern in the name of its members”because it aims at their common good.884 This aspect of cooperation is important, as we will see.Similarly, Cohen echos Walzer’s objection that overly-expansive lists of human rights “threaten tosubordinate the political self-determination of peoples (within acceptable limits) to the decisions ofoutside agents, who justify their interventions in the name of human rights.”885 Thus Cohen sharesWalzer’s view that “collective self-determination” is a “normative requirement, but less demandingthan a requirement of democracy,” which implies equal political rights. Collective SD requires rightsto dissent for collective decisions, public rationales for government decisions that are founded on “aconception of the common good of the whole society,” and that

collective decisions result from, and are accountable to, a political process that represents diverse interestsand opinions of those who are subject to the society’s laws and regulations....The representation may be,for example, be organized territorially, functionally, or ascriptively; but, however it is organized, it

may...assign special weight to the interests of some groups.886

There are two problem with SD so understood (and with Rawls’s closely related notion of aconsultative hierarchy in a decent non-liberal society). First, people are represented only as part ofgroups within their society, e.g. as members of certain races, faiths, castes, or even economic“estates” in the medieval European sense. Without full democratic rights, most of them will have nosay in which of the many possible groupings is most relevant: at best, their caste, region, military ornon-military group, or perhaps gender gets its Tribune, in the ancient Roman sense. Second, the

887Cohen, “Minimalism...,” , pp.198-99. Cohen first suggested that justificatory minimalism will lead to asubstantively minimalist list of human rights (p.193) but then he reinterpreted the result as a more moderate schedulein “Is there a Human Right to Democracy?”

888Compare Cohen, “Is there a Human Right to Democracy?” p.198 where Cohen concedes that othernormative grounds for some rights may be needed.

889We saw in Chapter Five that Habermas recognizes such a right to membership in some nation as one ofthe basic categories of right (at level 2 in my sense).

890Cohen, “...Democracy,” pp.237-38. The text is almost identical in “Minimalism...” p.197, although theswitch from “a person’s interests” to “a person’s good” perhaps reveals how much this accommodates paternalism.

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greater weight given to some groups (e.g. clerics, military guardians, or party elders) makes themultimate guardians of the lesser groups’ interests.

It is easier to grasp this second problem by seeing its manifestation in Cohen’s conception of“membership.” While he aims for a moderate (neither “minimalist” nor “maximalist”) schedule ofhuman rights, Cohen views Rawls’s notion of global public reason as a basis for “justificatoryminimalism:” all the main components in a conception of human rights “should be presentedautonomously” or independent of religious or secular worldviews “so that they can be affirmed by arange of ethical outlooks, for the varying reasons provided by the terms of those differentoutlooks.”887 In Chapter Five, we noted the problems with building in such a compromise betweentraditions and cultures into the justification of human rights, while accepting Cohen’s point that suchrights function as conditions for membership in political societies. Cohen regards this as the mainpublicly reasonable basis for the content of human rights, while my Linkage model would view thehuman need for membership as grounded on other more fundamental needs for basic capabilities (atlevel 1)888 and reflected not only in a particular human right to some nationality (e.g. as a basis forasylum rights in international law), but also in the whole linkage-requirement that all rights berealized within positive law and authoritative social practices. Thus in my view, Cohen is correct thatmembership in political societies (perhaps at multiple territorial levels) plays a central conceptualrole in explaining human rights; this is analogous to Habermas’s point that the rule of law (which wesaw stood in for Linkage in his model) implies an equal right to the status of citizen in some legalorder(s).889 This is not just one human right among others: it is reflected in the content of all otherhuman rights, as Benhabib’s notion of “the right to have (legal) rights” suggests.

But Cohen argues that the normative sense of “membership” that forms a public basis forhuman rights is less demanding than democratic citizenship and implies rights that are more urgentthan those of equal political participation:

The central features of the normative notion of membership is that a person’s good is to be taken intoaccount by the political society’s basic institutions: to be treated as a member is to have one’s good givendue consideration, both in the processes of arriving at authoritative collective decisions and in the contentof those decisions. For this reason, an idea of collective self-determination of a kind that I mentionedearlier in natural correlate of the requirement of treating all as members.890

That much is clear: this notion of membership is closely bound up with Cohen’s conception of SD,including its “rights of dissent, expression, and conscience.” Yet in my view, these rights, along witha group-mediated representation or “consultation hierarchy” are insufficient for full collective SD,because they allow a completely paternalistic management of some groups: the elite can decide whatis “good” for them and impose it, given their greater weight in the representation system, even if themanaged group(s) can openly express dissent without reprisal. According to Cohen’s criteria, clearly

891Ibid, p.238.

892See Baynes, “Discourse ethics and the political conception of human rights,” p.11.

893Cohen, “...Democracy,” p.239.

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the ruling elite must ensure that rights to life and personal security are secured for such managedgroups, along with their “cultural inclusion” in the sense that they participate in some of the mainsocial practices; it is less clear why he would think their right to education would be entailed bymembership or SD in his sense891 (because the ruling elite may decide that what is “good” for them isto stay at home rather than having their minds expanded by science, sociology, history, criticalthinking skills etc). In short, these groups may be treated as wards of the state without muchautonomy beyond limited freedom of movement and dissent. Cohen’s conditions, then, areinsufficient to ensure that those treated as “members” are really cooperating with the rest of theirsociety, as Rawls’s approach requires: for cooperation requires at least informed voluntary consent.

The following analogy may help illustrate my point. It would be entirely specious to say thatseverely mentally disabled persons living in the US, UK, or Germany who are cared for in agovernment-run psychiatric home are taking part in their nation’s “collective self-determination”because they are treated in some sense as “members” of that society. For they are clearly notparticipating in robust social cooperation, which Rawls held to be crucial in distinguishing betweenvoluntary membership and mere the mere rule of “force.”892 Similarly, it would specious to say thatwomen living in Rawls’s imaginary ‘Kazanistan’ are taking part in collective SD because they enjoyliberties of speech and dissent, and are represented by three women in a governing council of 30representatives who are chosen by village councils, when almost every aspect of their lives–including their dress, their marriages, and their chaperoned forays into the world beyond theirhomes – are entirely managed by their male relatives, who allow them formal schooling up to agenine (with a curriculum including basic reading, writing, math, and no more – no art, novels, history,science, comparative religion, comparative study of cultures, etc.). This is certainly a normative kindof membership, and I fully grant that such women are better off than the thousands slaughtered byAssad or enslaved by ISIS; but they are not “self-determining” in their role as members of thispolitical society. Maybe this is part of the reason that is it hard to find real-world examples thatapproximate to Rawls’s Kazanistan: it identifies an unstable ideal of moderate rights-realization, inwhich the suppression of genuine SD for some segments of society tends naturally to make it easierfor the ruling elites to violate or inadequately protect those human rights that Rawlsians do defend asessential to this ideal of a decent consultation hierarchy.

The root of this Cohen’s error is similar to the problem with Walzer overly-inclusive sense ofSD: Cohen is trying to interpret living according to a dominant set of cultural norms as a form ofcollective SD, in his case by noting the senses of inclusion and concern for one’s well-being that thisimplies. But this is inadequate for SD: it amounts to misinterpreting SD in terms of somethinganalogous to the rule of law in Habermas’s scheme – namely membership in a political society with agovernment concerned for the common good – without any principle analogous to D or EP. Thus in acrucial passage, Cohen argues that

attending to the common good, on some interpretation of that goods, is necessary if the requirements that apolitical society imposes on its people under its rule [of law and practices] are to have the status of genuineobligations and not mere forcible impositions. Regulations cannot impose compliance on those who aresubject to them unless the regulations reflect a concern with their good.893

894Ibid, p.240 (my italics). However, I do not agree that Rawls’s difference principle is inherently“democratic;” I have argued that Rawls’s conception of justice treats democratic rights as conceptually secondary.

895Ibid, p.243.

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To this, we must ask: on whose assessment of “their good?” To satisfy EP, or show that this is notmere might making right, the system must aim, as an ideal, for those who are subjected to such rulesand regulations to be able to understand the reasons for them and agree, at least when they arementally competent to do so (i.e. setting aside cases of severe mental disability). That is turn requiresdiscourse in which people’s basic status as interlocutors must be recognized as equal for the reasonswe have rehearsed from Habermas; and then democratic rights will follow. When dealing withrational agents who are competent to exercise planning agency and to understand and evaluate thenorms behind the basic structure within which they could plan their lives, there is no principled half-

way point between mere Thrasymachian-Nietzschian might-makes-right and equal rights of politicalparticipation. The reason that the Rawlsians have sought for such a point is quite understandable: Iagree that a regime which cares for them as would a loving parent or benevolent despot is far less evilthan a tyranny aiming to terrorize them into slavery. But this fact cannot be used to draw a line onhuman rights in a coherent conception of such rights that accords with EP; it can only form the basisfor saying that rights to life, bodily integrity, physical security, and perhaps basic membership withina culture (as opposed to exile or being stripped of all nationality) are morally more weighty among

human rights than the basic right to popular sovereignty, though the latter remains a human right (andone with a special conceptual role in the whole scheme). The juridification of rights in internationallaw could reflect this priority-ordering, as could legitimate accommodations among nations. Yet thebasic human right to equal political participation remains a crucial aspiration that a League ofDemocracies could legitimately promote – though presumably by measures short of armed HI, as Iconceded at the end of Chapter Six.

Note that I am not trying to defend a human right to democracy by contesting Cohen’sdemanding conditions for democracy: I largely agree with his arguments that democratic rightsextend well beyond equal suffrage in regular elections for top political posts, and include broaderrequirements of “equal respect” that are fulfilled in the equality of other basic rights and libertiesaccorded in the constitutional scheme. Thus “aristocratic or caste” systems are ruled out: this followsfrom the linkage between rights to popular sovereignty and other equal basic rights defended byHabermas, which actually provides a deeper basis for this point in Cohen’s essays. Second, Cohennotes that democracy involves the idea of equal

political capacity: we owe equal respect to those who have sufficient capacity to understand therequirements of mutually beneficial and fair cooperation, grasp their rationale, and follow them in theirconduct. So the basis of equality in a society of equals lies in the capacity to understand and follow therequirements that provide the fundamental standards of public life – a capacity that appears to be more or

less universally characteristic of human beings...894

Correct – a yet this very capacity, which implies that members of a political society ideally should beable to regard their constitution as a social contract, is exactly the capacity that can be denied in somegroups according to Cohen’s conception of SD, as we have seen. My point is not just that conceptionsof SD should recognize the universality of this capability because it is there: Cohen is correct thattolerance requires accepting that people may be reasonably within their epistemic rights not tobelieve certain truths that we recognize.895 Nor am I just stipulating the all human rights depend fortheir derivation on “the conception of persons as free and equal,” e.g. as Rawls’s understood Kant’s

896Ibid, p.244 (and see Rawls’s A Theory of Justice §40).

897By minimal common epistemic standards, I mean something like Frederick Douglass’s point that any white man in the antebellum US South was witness to plenty of evidence that black men and women could think,reason, and accomplish creative tasks, whether they wished to admit the force of such evidence or not.

898Cohen, “...Democracy?” p.234.

899Ibid, p.244.

900Cohen describes how Confucianism could ground rights in “Minimalism...” pp.203-07, but does notclarify what the basis of social roles is supposed to be. In fact, it seems to have a deeper basis in a Confucianconception of universal human nature and our natural telos.

901See Cohen, “Minimalism...,” p.209.

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Kingdom of Ends.896 Rather, the point that human rights are all grounded on EP, whatever othermoral considerations enter into the determination of particular human rights; and EP implies an equalright to justification or communicative freedom for all with the capacity to enter into a social contractor (to translate this Enlightenment concept into its contemporary analog in the Linkage-approach) toparticipate in originary sovereignty in articulating the basic rights of a constitution and set of ultimatesocial norms for practices that govern the basic structure. To deny the resulting rights to anyone whoclearly has psychic materials to be able to develop this capacity (on minimal common standards forreasonable recognition of potentials)897 is to violate EP, and hence to violate any standard ofcollective SD for which this label is not cynical ‘doublespeak.’

Of course, it is not Cohen’s intention to whitewash any form of “group domination” – hethinks a plausible conception of SD must avoid this charge.898 But he argues that Islamic andConfucian conceptions can coherently recognize membership rights while denying “the idea of equalpolitical capacity;” the Confucian view makes rights depends on different responsibilities arisingfrom social roles, while “the Islamic conception is founded on obligations given by law, andinterprets rights as preconditions for fulfilling the obligations.”899 But if the Confucian view groundsall rights-entailing responsibilities in social roles that are just given by social tradition rather thanhaving some deeper justification in human nature that all competent persons can understand (I don’tsay that this is a correct interpretation, but only if it is), then it is an archaic or pre-axial conception ofobligations that violates EP, as would a worldview that assigns all duties and resulting rights by birth-caste.900

Similarly, what is the basis of laws commanded by God that entail obligations on the versionof Islam that Cohen has in mind? If it simply God’s power, rather than God’s goodness and concernfor human well-being, then EP is violated, as in any pure divine command theory resting obligationon God’s creative/cosmogonic power alone. If not, then human persons generally have the ability tounderstand the goodness of those qualities in God which makes divine legislation authoritative; andthus they can rightly expect justification for any “human interpretation of those laws.”901 If suchunderstanding is reserved only to an elite set of illuminati, we are back to violating EP. Thus theEnlightenment Principle recognizes a basic dichotomy that divides different God-centeredworldviews as much as it divides caste-based vs reason-based worldviews: as I have arguedelsewhere, any religious view which rejects the epistemic preconditions of democracy is theocratic inthe sense that violates EP. Such worldviews cannot accommodate even minimal human rights,although they might include rights-simulacra in the form of rules that we are said to be simply forcedby divine power to obey. By contrast, theologies that affirm EP thereby provide the basis fordemocratic rights, even if they have not drawn this conclusion within their own tradition.

902See Coady, The ethics of armed humanitarian intervention, p.22.

903Anthony Ellis, "War, Revolution, and Humanitarian Intervention," in Humanitarian Intervention, ed.Jocik: 17-44, p.24.

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Luban’s Critique of Cultural SD. A related problem with the communitarian or common-good approach to SD concerns limits to what can reasonably count as an expression of ‘culture.’ Forultimately, the very idea of culture in contrast to ‘nature’ involves the capacity of human beings touse reason to erect protections against the raw forces of natural selection and other morally irrelevantnatural contingencies. Thus culture vs nature recapitulates rights vs might.

This may seem like a rarefied theoretical point, but it can be applied to the real world. Manypractices that we regard as violating equal civil liberties surely are authentic expressions of non-liberal cultures, as Rawls has argued in agreement with Walzer. And there may be some genuinelycultural practices and beliefs that require bodily mutilation or (if we went back centuries) evenslavery and human sacrifice that violate Rawls’s minimal standards. But that cannot hold for regimesof terror maintained by death squads, secret police torturing, and disappearing political opponents,schools brainwashing children with teachings contrary to much known history and science, tomilitants packing teenagers with explosives for suicide attacks, or kleptocrats using armies of orphanswith machine guns to build diamond monopolies. These activities simply deny all the values thatform the bases of any pre-Enlightenment or pre-axial cultures. Moreover, they are all recentphenomena of colonial and post-colonial societies reflecting contact with a larger world throughmarket incentives if nothing else. They have little to do with traditional cultures or indigenousreligions; rather, they are social viruses that have repeatedly hijacked cultures trying to build ways oflife promoting human goods. Even the archaic honor code that once cemented timocratic and feudalcultures, which is made more meritocratic and universal in Confucian thought, is entirely lacking insuch regimes. Duvalier’s Tonton Macoutes were a pure expression of the tyrannical conviction thatmight is its own justification, or that the power to terrorize needs no justification. Thus they couldnever have been an expression of anything cultural, or a result of anything we could call "nationalself-determination," even if they had enjoyed popular support.902

Despite this, the most oppressive tyrannies often derive or draw on political ideologies andmovements from other lands in conceiving their stated aims (though not always their actual aims) andin justifying a coup by a small elite or domination by a ‘purified’ small segment of the population.The ruling politburo in North Korea reflects nothing of original Korean culture prior to the Cold Warand the fury of ideological purges by Stalin and Mao, just as the Khmer Rouge had nothing to dowith traditional Cambodian culture. The way their leaders often try to copy the uniforms of formercolonial officers is quite revealing in this regard (Idi Amin’s rule was more of an insane version of aconquering aggressor than a reflection of anything Ugandan, and Qadaffi’s grandiose military outfitwith hundreds of fake medals was a much better reflection of his true nature than his later attempts toappear Bedouin). In this vein, against Walzer, Anthony Ellis notes how obvious it was that the Sovietregime in Poland "did not properly represent the Polish people" even though many Poles worked forit.903 As Luban puts the same point, often the "lack of fit between government and people" is oftenblatantly apparent even in "ordinary dictatorships" that are not presently committing genocide:

Each year, there are a few score executions, a few hundred tortures, a few thousand politicalimprisonments, a few million people behaving cautiously because they know that a single slip will bring

904David Luban, "The Romance of the Nation-State," Philosophy and Public Affairs 9.4 (Winter, 1985),reprinted in International Ethics, ed. Beitz: 238-43, p.241. Vietnam is again relevant here: Walzer may beincorrectly generalizing from Vietnam to the presumption that the police and army backing a dictatorship must beintegrally connected with the rest of the population (see Walzer, “The Moral Standing of States,” p.221).

905Flynn, Reframing the Intercultural Dialog on Human Rights, p.200; compare p.135.

906Luban, "The Romance of the Nation-State," p.242 (my italics). Apt, except he should have said “the soleof a boot...”

907Walzer, “The Politics of Rescue,” p.68 and p.81.

908Walzer, “The Moral Standing of States,” p.212.

909Ibid, p.228.

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the police. The police and the army believe that if the government falls, they are dead men; it is the bargain

they accept to escape the poverty of their villages.904

Though written three decades ago, this description applies to still applies to Burma even after itsrecent small steps away from total dictatorship; the military remains alienated from the rest of thepeople, just as it did in the Dominican Republic under Trujillo's dictatorship from 1930-61 (one ofthe most brutal in history). Arguably Luban’s description even largely applies to China today.

Of course, such regimes often claim to be defending traditional ways of life against westernnorms; Burma’s Than Shwe is infamous for such rationalizations, which are patently disingenuousattempts to use appeals to “culture” as a cloak for tactics designed to create terror and preserveextreme privileges for a military elite. In many other cases, the claim for internal support onlyexpressed the corrupted priorities of one or a few groups willing to commit atrocities against othergroups in the national population for vengeance, gain, or to retain supremacy. Thus as Jeff Flynnnotes, we should not let our effort to respect cultures around the world blind us to victims ofoppression who are “struggling for human rights against dominant interpretations of their culture”905

by their rulers that are used to justify the oppression. Consider the minority Sunni regime in Bahrain;or Pinochet's party in Chile; or supporters of Mugabe in Zimbabwe since the early1990s; or the reignof terror by the junta that ruled Haiti from 1991-94 (ended by Clinton's threat of intervention). Wecan extend this to plausible imaginary cases. The demilitarization of the FARC army and drugorganization in Columbia is huge progress for that nation. But imagine that it had gone the other way,with drug warlords establishing a new state out of the parts of Columbia that they controlled. It isabsurd to suggest that foreigners must regard such total tyrannies as historical communities shapingtheir cultures according to their own rich traditions and thick values. Dictators drawing on 20th

century totalitarian ideologies may try to portray themselves as guardians of authentic culture, but asLuban says, in fact "[t]he government fits the people the way a boot fits a human face."906 Like manyothers, I have found this an especially apt description.

In sum, if the strong presumption in favor of nonintervention is based primarily on "ourcommitment to self-determination,"907 then the internal processes valorized under that label have toamount to more than pure violence or domination by some segments with no plausible culturaljustification beyond cynical rationalizations. When a dictatorship is "not a gang of rulers acting in itsown interests, but a people governed in accordance with its own traditions,"908 then some process ofrational communication about thick values – which cannot be practical reasoning without some roomfor critical discourse – must be involved. Communitarian "civic friendship" in which "politicaldevelopment" in any Aristotelian sense can occur909 requires at least this much, as Hannah Arendt

910For example, see Arendt, The Origins of Totalitarianism, 2nd ed. (Meridian Books/World Publishing Co.,1958), chap.12 on the way that totalitarianism destroys ongoing community and civic friendship in an almostpurposeless nihilism in which power is exercised for its own sake.

911See Arendt, “Truth and Politics,” reprinted in Between Past and Future (Viking Press, 1961; repr.Penguin Books, 1977): 227-63..

912Rawls, The Law of Peoples, §9, pp.71-73.

913Nor is such neutrality required by tolerance of pluralism, as Walzer implies in 1980, 217. On this point,see Rawls 1999, 65-66, citing Scanlon 1979.

914Ellis, “War, Revolution, and Humanitarian Intervention,” pp.22-23.

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teaches.910 She argues that truth, especially about historical and economic facts, is required for thesurvival of human lifeworlds.911 Authentic culture is always in jeopardy when mass propaganda andgovernment control of media replace the public use of reason, as in Russia today. Rawls is makingthe same point when he describes legitimate associationist non-liberal states as embedding a "decentconsultation hierarchy" in which laws are guided by a "common good idea of justice" that itselfimplies recognition of basic human rights short of equal representation.912

I conclude that the concept of "self-determination" cannot be entirely neutral with regard tothe contents determined;913 as Ellis says, it does not apply when massive abuse of certain segments ofthe population becomes integral to that culture,914 and the Rawlsians of course agree with this much.For example, the wide practice of rape among militias in the DRC conflicts today is a corruptionderiving from chaos and impunity, having little to do with any practices and beliefs of Congo peoplesprior to Belgian rule. There are limits to the normative sense of “culture” that can play a role in anyconception of SD relevant to global justice.

II.4. Buchanan and Lincoln: the Internal Logic of the Right to Democracy. This bringsme to the third central problem in Walzer's conception of SD: its voluntarist character unites it withso-called ‘public choice’ or market-based models that count any aggregation of consumer preferencesunmodified by critical discourse about values as the "self-determination" of a people. We havealready considered critiques of such views by Sandel, Sagoff, and others in Chapter Three, but in thissection I return to reasons in democratic theory in favor of the more robust deliberative alternativeintroduced in Chapter Five (in discussing Jürgen Habermas and Seyla Benhabib).

The conception of SD that Walzer claims to take from Mill actually has its more immediatesource in President Woodrow Wilson's "Fourteen Points," issued during World War I, whichproclaimed a right of distinct enthocultural communities to live according to their preferences,whatever their basis. It is well-known that this approach faced many problems after the conclusion ofthe war and the Treaty of Versailles. First, when trying to carve boundaries according to ethnic orcultural bonds, what do we do when groupings by race, language, and religion do not give the sameresults? Second, what happens to other minority groups that are always left within the new nation, nomatter how much we fragment it? And third, what about future migrations and cultural changes thatalter the bonds on which the nation was set up? The root problem with this approach, as Beitz hasargued, is that it leads to a "morality of states" model in which legitimacy is based on a stateembodying the group identity of ethnic or cultural collectives; by contrast, "cosmopolitans" do notallow "the non-derivative interests of collective entities such as states of social groups" to justify

915Charles Beitz, "Cosmopolitanism and Global Justice," The Journal of Ethics 9 (2005): 11-27, p.17.

916There is much recent and rich work on this topic; for example, see Will Kymlicka, Multicultural

Citizenship (Oxford University Press, 1995), and Charles Taylor, ed., Multiculturalism.............

917Buchanan, Justice, Legitimacy, and Self-Determination, ch.8; also see Detter, The Law of War, pp.27-35.

918Ibid, pp.352-53.

919Ibid, pp.336-37. Of course conditions are weaker for consensual secession, as in the case of Norway andSweden in 1905 (p.338), and the same holds for the Czeck Republic and Slovakia more recently. The secession ofSouth Sudan, by contrast, was remedial and negotiated in response to extensive atrocities in the prior Sudan.

920In American thought, this conception actually goes back to Senator John Calhoun's Disquisition of

Government, where democracy is described as pure majoritarianism not to endorse it but to critique it in favor of a

(continued...)

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political choices.915 Note that we need not assert here that there are no irreducible group-rights;916 it isclearly impossible to base a conception of a nation’s right to SD mainly on such group-rights.

In addition to its pragmatic problems, the group identity model of SD also has conceptuallycounterintuitive implications. As Buchanan complains, it implies not a "remedial" right to secessionas a last resort in the face of severe and prolonged injustices, but rather a "primary" right to secessionat will that promotes destabilizing levels of fragmentation.917 There are two versions of such aprimary right: an “Ascriptive” conception allowing groups distinguished by certain characteristics tosecede at will, and a “Plebiscitary” variant which allows any “majority of persons residing in aportion of a state’s territory” to form a new nation if they wish to (without clarifying what therelevant lines are defining such portions).918 Both versions are highly problematic: if the right torevolution is only remedial, as I argued (following Locke and the entire tradition) because of the highvalue of political stability, then the right to unilateral secession cannot be stronger. For suchsecession is an even more dramatic step than revolutionary regime change, requiring a higher burdenof justification: it changes national boundaries. Thus Buchanan argues that on a comprehensiverights-based theory of legitimacy, there is no free-standing and unlimited notion of "self-determination" from which a primary moral right to secede can be deduced. There is only a "remedialright" to secession to stop rights-violations if regional autonomy alternatives fail; moreover, the newgovernment to be created by secession deserves recognition only if it guarantees equal rights for all,including minorities, within its territory. Thus "the right to secede unilaterally," either of groups orany association of citizens, is limited like the Lockean right to revolution.919

Note here that it the unlimited version of collective SD which generates the unacceptablealleged rights to revolution-at-will and secession-at-will. This is a symptom of the deeper problem inmarket-like conceptions of self-governance at the group or national levels: they give us a pure

majoritarian conception of democracy that leads straight to classic problem of ‘tyranny of themajority.’ This problem is usually understood as an issue for democracy in all forms, but it isprimarily a problem for pure majoritarian conceptions (of which unlimited group-SD is one). For inits most general form, the challenge to majoritarianism is based squarely on EP: why should the‘brute’ preferences of a majority of any normative weight? Why should the fact that 51% of a nationjust want policy X mean that X should be implemented? Can mere force of unargued desire, or sheerforce of numbers, justify any law or policy? This problem of majority tyranny is illustrated moststarkly by President Wilson's likely source for his own implicit conception of SD in the FourteenPoints – namely the famous nineteenth-century Democrat Stephen Douglas, whose doctrine of"popular sovereignty" said that the people of each new state in the expanding United States should beable to vote for or against slavery in their state. But such a vote for slavery is obviously tyrannical.920

(...continued)consociational model like that of the Articles of Confederation (based on a conception of democracy that is at oddswith the CP). Pure majoritarianism was enshrined in Douglas's Kansas-Nebraska Act of 1854, and was the target ofAbraham Lincoln's critiques, beginning with his 1854 speech at Peoria and continuing throughout the 1858 Lincoln-Douglas debates.

921See Hannah Arend, On Revolution, and Isaiah Berlin, Four Essays on Liberty. There is an acute ironyhere: the collectivist view now defended by those claiming that “Asian values” support less concern for individualcivil liberties and participatory rights is not so far from Jacobin views that were most decidedly of western origin,and informed totalitarian models taken up by some Asian communists. The difference is that the so-called Asian-values movement defends hierarchical organic community against calls for democratic reforms, which the Jacobinsdefended radically egalitarian organic community against hierarchy. Yet both erase the individual.

922Murray Rothbard, Power and Market, 2nd ed. (Sheed, Andrews, and McMeel, 1977), ch.5.

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The familiar way of answering this problem is to develop set of basic rights of individuals(and perhaps minorities as groups) that majorities cannot violate. But this solution is not satisfying byitself, for several reasons. First and foremost, it leaves the relation between these other basic rights(constraining majority rule) and the right to popular sovereignty (that need to be constrained) unclear.This opens up the possibility that the other basic rights are prior to democratic rights and morefundamental to justice. This asymmetry encourages us in the direction that Rawls takes in The Law of

Peoples, as we saw, but without any fully worked-out justification for the lesser importance ofdemocratic rights.

Second, this view is theoretically unsatisfying because it leaves an awkward split betweennegative liberties of individuals and positive rights of collective self-governance. This split iscounterintuitive because individual and collective SD should be connected, and disconnecting themleads to extremes. On the one side, some democratic revolutionaries have seen the collective aseverything and the individual as nothing, as noted by critics such as Arend and Berlin.921 On the otherside, libertarian thinkers tend to view democratic processes to merely convenient instruments, or evenmake them look like ad hoc additions to individual negative liberties. This does not provide a firmbasis for democratic values: the individual and collective levels need to fit coherently together.

Third, the proto-libertarian solution of limiting majorities by (implicitly more fundamental)individual rights cannot give us all the intuitively needed constraints on majority rule. In particular, itcannot explain why we should forbid laws that corrupt collective decision-making itself. In theAmerican case, Douglas’s pure majoritarian doctrine of “popular sovereignty” allowed majorities tovote for highly immoral laws that banned some residents from ever being recognized as citizens. Butin other cases, it could concern a majority voting to enslave all the citizens, or at least to abandontheir right to periodic democratic consent to a dictator-in-perpetuity. This is roughly what happenedwhen the Germans in the 1930s elected the Nazi party, and then through a series of acts, thegovernment of the Weimar Republic made Hitler’s “emergency powers” perpetual. And it may beslowly happening again in Russia, Venezuela, and Guatemala. But what right prior to the rights ofpopular sovereignty would be violated by, say, a constitutional amendment to give all power to ahereditary monarchy?

Murray Rothbard, a libertarian critic of democracy, pressed this point and insisted that itcreated “an inescapable contradiction” for democratic theories of legitimacy. For if a democracy can“vote into power a dictator who will end further elections” then democracy can legitimate otherforms of rule; but if it cannot, then it is “no longer a democracy, because the majority of voters canno longer rule.”922 Yet is must be incoherent for such a decision to be legitimate: for if it could be,then the people (or a supermajority of them) must have some kind of authority that can negate itself.

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The core of the problem, which Rothbard does not discern, is that a legitimate authority cannotundermine the basis of its own authority in this way, for this is a pragmatic contradiction. While thesheer power of agency can often arbitrarily reverse prior actions or even decide to destroy itself, abasic source of right or rightful authority can never terminate itself this way. For then we would havea legitimate agency (La) making a decision d such that d (if legitimate) entails that the very agencymaking d is not legitimate. In predicate logic, this is: (La 6 Ld) & (Ld 6 ¬La), which entails that ¬La.Hence legitimate democratic authority cannot vote itself out of existence.

Taking stock, we can see now that all the problems we have examined since the start of thischapter are closely related. Legitimate authority, like reason, has to remain logically consistent withthe intentional content of its own deliverances in a way that mere causal power or instrumental abilityto bring about some end does not: a goal can be achieved in a way that terminates the power to bringit about (as in suicide bombing), but justification can never justify some conclusion that, if true orwarranted, undermines the justification just given of it. Because of this fundamental differencebetween might and right again, the most basic rights – closest to the ultimate grounds of persons’rights at level 1 (e.g. for Kant, a capacity for rational, free, responsibility-making choice) – must beinalienable. Rights to use or dispose of this or that piece of mere property are by definition alienablebecause property is sellable or giveable, but the agency that can rightfully make contracts to buy andsell cannot itself be sellable in the same way. Similarly, the rights to life and liberty are classicallyheld to be inalienable because actions to dispose or sell them for material gains or pleasures woulddeny the individual’s rights to choose actions as part of directing her own life: as we saw in ChapterFive, a right R is inalienable when actions that would alienate R have intentional contents that wouldundermine their own agential authority (or void the legitimacy of the process used to choose andenact them). Now we have just found that if there is a right to popular sovereignty, it must have thissame inalienable character. Contra Rothbard, this is not an arbitrary limit on the power of majorities;rather, it follows from the very ground of the people’s human right to collective self-determination,from which the rights of majorities are only derivative legal rights. From this we start to see that alegitimate democratic authority of a people to act collectively in making law for themselves, directlyor through their representatives, is not simply checked or limited by individual rights whose basis isprior to and distinct from the basis of the right to popular sovereignty. On the contrary, if the right topopular sovereignty is inalienable, its ground must be closely connected with the ground of theinalienable individual rights.

This connection will explain why the (non-basic) human rights to revolution and secession areonly remedial: the political authority of the state is not disposable like a piece of property underprivate ownership; it can be overruled by the people acting directly only when the state has voidedthat authority by violating individual or collective rights that must remain valid if its own authority todecide anything is valid, because the have the same ground. So the RBS principle that played such akey role in Chapter Six must have its root in the same source of legitimate agency that connects theinalienable rights. The same connection then lets us avoid the fallacy of pure majoritarianism and thetheoretical aporia resulting from a weak libertarian – merely instrumental or derivative – right todemocratic popular sovereignty limited by individual rights that constitute a kind of ‘higher law’ witha more fundamental status. On the contrary, the analysis just given builds on the Linkage-theory inChapter Five to show that any plausible collective right to democracy can only be justified by somebasis that both makes this right to democracy inalienable and also justifies the other inalienable rightsand liberties of individuals. People who believe in democracy must therefore accept and defend sucha joint ground for democratic rights and individual liberties.

Precisely this insight forms the heart of Abraham Lincoln’s arguments against SenatorStephen Douglas’s pure majoritarianism, both in the Lincoln-Douglas debates and in related speeches

923I mean that Lincoln’s argument is a transcendental deduction of the right to liberty as presupposed in theright to democracy. The term “transcendental” of course has a different meaning as applied to American“Transcendentalists” like Thoreau and Emerson, who tended to take the higher-law approach despite being directlyor indirectly influenced by Hegelian thought..

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going back four years earlier. It is remarkable that a self-taught lawyer with no formal schoolingbeyond 6th grade could figure this out. Of course his version is not articulated with the kind ofphilosophical apparatus I employ in this section; but most of my analysis can be reconstructed fromLincoln’s arguments, and especially in his 1854 speech at Peoria, in which he argues that

(a) that the democratic right of people forming a new state to shape its constitution through theircollective input and approval depends on the equal right of individuals to liberty in their privatematters and autonomy in their decisions to cooperate with others; and

(b) that the this inherent right of individuals to self-governance entails a democratic right to“equal voice” in making arguments and decisions regarding political policy, law, and collectivepolitical action.

In other words, we find a biconditional interdependence between democracy and individual civilliberties. This argument can be summarized in diagram form as follows:

If any act of the people or their elected Then any law violating the inherentlegislature are authoritative or legitimate... dignity of individuals is wrong,

including any law allowing slavery.

Then the moral presuppositions of democratic popular sovereignty must be true.These include that inviolable value of each individual person’s autonomy, which makes tyranny wrong and requires government by free consent.

This argument is rather innovative in American political philosophy because of its transcendental-legal strategy.923 Lincoln did not adopt the neo-Augustianian arguments of abolitionists like HenryDavid Thoreau, Charles Sumner, Frederick Douglass, or William Henry Seward that the USConstitution – like all human-made law – is trumped by a “higher law” written on the hearts ofhuman persons in the form of innate conscience. Although he had sympathy for the abolitionists’moral convictions, Lincoln was not happy with the implication in their approach that individuals canalways reject human positive law in favor of their personal convictions regarding the higher law.Instead Lincoln held that moral convictions have to be tested in deliberative processes that cancoordinate people through constitutional laws: we cannot simply impose our moral ideals on otherswithout respecting the need for constitutional order. This is obviously a Linkage-style sentiment.

So Lincoln began by assuming the right to democratic popular sovereignty accepted by hisinterlocutors (especially Senator Douglas) and argued that this collective right presupposes otherindividual liberties, because it depends on the same basis as these other liberties. To generalize hisview: any kind of sovereign authority or right of decision-making (e.g. the right of a people toparticipate in shaping their state constitution) contradicts itself if it makes decisions (or laws) thatviolate the very basis of its own authority or right to rule. Such decisions are, in effect, their ownreductios: if they are appropriately made, then the authority of their makers to make them is voided,

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in which case they are not appropriate made all. The inference here follows the familiar theorem inpredicate logic which says that if Px 6 Qx and Qx 6 ¬Px, then ¬Px. So Lincoln’s point is valid.

II.5. The Democratic Principle and Inalienable Fundamental Rights. The diagram ofLincoln’s central argument should remind us of the relation between democratic rights and otherrights in Jürgen Habermas’s theory, as sketched in Chapter Five. While the focus there was on humanrights, here we are considering rival conceptions of democratic processes in hopes of coming up withconditions both for a strong transnational government and for its member-states. Habermas critiquesWalzer’s sort of pure majoritarian notion of collective autonomy in his own original solution to the"tyranny of the majority" problem. As we saw (Chap. 5 §....), Habermas's account of collective self-determination focuses on the insight that rational inquiry undertaken by individuals who aim at truthfor its own sake through sharing different points of view and analysis, or discussion between peoplewho value better-warranted conclusions over other material goals, have motives that lead them tocare about the best evidence and arguments. These concerns enable them to cooperate on the basis ofrules of dialectic that tend to lead towards conclusions that are ideally favored by the best arguments.So their interactions can be guided by norms such as those ruling out the various informal fallacies,which an interlocutor could wish to commit only if motivated by a strategic goal other than reachingthe best-warranted conclusion. Cooperation based on such norms implicit in the goal ofcommunication seeking truth (in factual domains) or rightness (in practical domains) is inherentlynon-coercive and non-manipulative, whereas force that prevents free participation in debate orsophistical trickery and deceptive communication is manipulative and autonomy-undermining. Habermas refers to truth, warrant, or rightness as forms of “validity” at which different types ofrational dialogue naturally aim.

This analysis of the conditions implicit in different types of communicative action provides away to explain a sense of legitimate majority rule: when it results from a deliberative process inwhich the participants follow the norms of validity-seeking communication – a process which istherefore designed to elicit the best-warranted conclusions – the majority’s vote represents thedeliverances of a collective process that are most likely to be valid (in Habermas’s technical sense). Such conclusions thus have an objective value that the mere desires of a majority do not. This resultis like the idea in Condorcet’s famous Jury Theorem: majority decision should follow from a processdesigned as much as possible to consider relevant information impartially with sound criticalanalysis. Majority rule in this sense is no mere tyranny of majority preference; rather, it is theautonomy-preserving, non-manipulative rule of collectively adjudicated practical reasoning. This isconception is thus much closer to classical republican ideals of a society guided by wise citizens whocare more for the common good than for their private material interests. While it sets a high ideal forlegitimate democracy, it clearly meets the test posed by the tyranny of the majority problem.

This kind of deliberative ideal for democratic processes also helps clarify Lincoln’s idea thatthe basis of other individual freedoms and civil liberties is implicit in the grounds of rights to popularsovereignty. For the main reasons to institute democracy in the deliberative-republican sense are that(ideally) it should give each person and equal chance to contribute to collective law-making andpolicy-formation, facilitate informed judgments about public goods to guide collective action tosecure such goos, and also to enable solidarity through a sense of cooperative participation in a justprocess that respects each participant as an independent critical reasoner. This was Habermas’sreason for holding that the other basic “categories of rights” including individual civil liberties followfrom the same premises from which he deduces the right to popular sovereignty – namely, the idea oforganizing society through the rule of law combined with the Discourse Principle (D) requiring thateach person be respected in his or her capacity as a potential participant in rational discourses aiming

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to discover valid practical norms (either in the moral or legal sphere). Together, these two premisesentail the need for collective deliberation in the practical realm aimed at norms that can legitimatelygovern human interaction and (when necessary) justify coercive enforcement of various kinds,including police powers (a version of Linkage).

For Habermas, like Lincoln, legitimate democracy requires constitutional order, but it also hasmoral preconditions which limit the sorts of laws and policies that majorities can choose throughtheir representatives in the branches of government at any level – or even in pre-institutional acts oforiginary sovereignty. Moreover, these limits apply to the originary right to democracy itself, whichcannot be voted away without practical self-contradiction (just as in voting for a slave constitutionaccording to Lincoln’s argument). Thus for both Habermas and Lincoln, the most fundamentalhuman rights, including the right to collective action though democratic debate leading to decision bymajority vote (with fair agenda-setting procedures) are inalienable because they follow immediatelyfrom the same capacities for reasoning and autonomy that enable us to enter into private contracts:we cannot legitimately choose to surrender our capacity to engage in communicative cooperationaimed at valid conclusions because the ability to guide our lives through our choices is justified ingeneral by the natural orientation of choice towards practical reasoning (as opposed to sheer causalinfluences). Moreover, we are finite, embodied agents entering into histories of communities,including some that partly defined by law and even territorial boundaries. Because our actions haveexternal effects on others, we cannot rightfully abandon our membership in all human communitiesand decide to have no nationality in order to be an entirely free anarchical sovereign of our ownfiefdom: we all depend on an order of basic institutions and practices.

Thus remarkably, Linkage sheds light on why some rights are inalienable: in order to belegitimate exercises of our (autonomy-based) right to plan and decide for our own lives, the choicesin which we would sell or give away some part of our most fundamental rights would have to employthe very powers of agency (which enable moral responsibility) whose value is denied or violated inthe content of these decisions. In short, the process of making such decisions, individually orcollectively, employs originary, proto-democratic sovereignty that is transcendentally connected tothe most basic rights. More formally: a human right is inalienable when any agent A’s decision toalienate (sell or give up) any part of its core scope would void the moral basis of A’s right to makethat very decision, rendering it arbitrary. Or more deeply, we could regard this formal feature as asymptom of the inalienable right’s transcendental justification as a constitutive precondition ofautonomous agency, much as Kant held.

The inherent limits to legitimate outcomes of democratic processes, then, are not ad hoc

additions grafted onto a pure majoritarian core; they are conceptually connected with a broader set oflimits inherent in conditions of autonomous agency. Nor should we conceive such limits to popularsovereignty – say as enshrined in a Bill of Rights or similar constitutional charter – as discerned byprivate access to a ‘higher law’ that is entirely unlinked, or conceptually prior to the need fordemocratic embodiment of rights in institutional structures. Instead, on the deliberative approach withLinkage, the process of collective law-making should be constitutionally designed with its moralpurpose and necessary limits to its products in view. Thus as we saw in Chapter Five, the system ofhuman rights including rights to individual liberties and popular sovereignty is unified into anintegrated whole, the coherence of which provides an objective basis for adjudicating limits to theextensions of various rights when they are embodied in positive law, or the boundaries of theirapplications in practice (including exceptions needed within their normal scopes of application).

This approach to democratic legitimacy provides what is needed for a global version of theConsolidation Argument, because it is sufficiently general to abstract from particular levels ofgovernment. It therefore implies that democratic processes can be legitimately extend to

924Beitz, “Cosmopolitanism and Global Justice,” p.17. However, notice that my formulation does not ruleout the possibility of emergent group rights (not reducible without remainder to individual rights). Remaining neutralon this fraught question, it only says that if there are such group rights, still legitimate government must also enjoythe content of individual natural persons.

925Ellis, “War, Revolution, and Humanitarian Intervention,” p.23.

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transnational levels; and its account of originary sovereignty implies that separate peoples can cometogether to form a new level of government even when they are not constituted formally as ‘onepeople’ in any institutionalized procedure. In light of these points, we can now restate the DemocraticPrinciple initially introduced in Chapter Five in a more detailed form that takes account of Lincoln’scontribution and the need for sufficient coordinative power:

The Democratic Principle of Legitimacy (DP): Any government at level L is legitimate only if (a)it can generally secure, to a minimum acceptable extent, the most central public goods for thesake of which it exists; (b) it enjoys the consent of individual persons represented in thisgovernment, as informed by their concern for common goods, their educated practical reasoning,and their participation in ongoing and free debate in a public sphere including sufficient access toobjective and impartial sources of information about goods and interests; (c) its actions, policies,and laws are generally in accord with the moral presuppositions of legitimate popular sovereignty(such as equal basic individual liberties).

Clause (a) links legitimacy to minimal effectiveness in the way that Buchanan and Keohane defend,as we saw. Clause (b) reflects the core cosmopolitan ideal that governments must ultimately beanswerable to each natural person who is a member of their legal order, and not (only) to groups ofnatural persons or corporate entities.924 Clause (c) recasts the insight of the Enlightenment (tracing toEP) in a new form which implies that popular support for oppression of minorities, even short ofenslavement or massacre, is no legitimate expression of popular sovereignty at all, and hence confersno authority whatsoever on a government that defends or institutionalizes such practices. The samegoes for the use of original or extralegal popular sovereignty in revolution: as Ellis notes, when a newgovernment is seeking to end repression, there is no right to rebel against it in order to maintain grossinjustice against segments of the population.925 By the same logic, there is no originary right to rebelagainst a just government in order to be able to commit atrocities that this government would outlaw.This is the main reason why the Confederacy of southern states had no moral right to the revolutionthey attempted in 1861. The same applies to majority choice of permanent dictatorship or choice toaccept an "emergency" rule that can perpetuate itself indefinitely (for example, the last act of theWeimar Republic). Such acts violate the inalienability of originary democratic right: they aretantamount to practical contradictions.

Revisions to Walzer’s Criteria. To come full circle, we now have an account that canreplace Walzer’s communitarian conception of legitimate sovereignty. The communitarian approachmight be able to avoid problems such as communal tyranny and an unlimited right to secession-at-will if it recognized moral preconditions of good communal relations and consensual decision-making, some of which are arguably implicit in the communicative aspects of Aristotelian culturalintegrity. But this would bring it much closer to the deliberative model inspired by the civicrepublican tradition. And rightly so, for it is no longer evident that cultures can develop in relativeisolation from other cultures in the internet age, or that we can identify cultures without networks ofcommunication about values in which participation is partly voluntary. As Habermas argues, even

926Habermas, “Remarks on Legitimation through Human Rights,” p.124.

927See the masterful account of the conference and Wilson's dilemmas in Macmillan 2001, especially 11-13.

928Walzer, Just and Unjust Wars, p.93.

929Ibid, p.96.

930Ibid, p.97.

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participating in the global economy brings cultures into the system of modern law that involves thecategory of legal citizens.926

Hence just war criteria for armed intervention in civil wars must be revised to take account ofDP. Walzer's Millian treatment of secession and civil war fail because he starts with a conception ofself-determination that is so much weaker than DP, as we see in three more specific problems. First,he is left with the impossible task (given conflicting anthropological criteria) of determining whichgroups constitute authentic peoples – the very dilemma in which Wilson famously found himself atthe Paris peace conference after World War I.927 There is no value-neutral way to make thesedistinctions; even simplistic criteria such as shared religion, language, and ethnic identification oftenconflict or yield counterintuitive results. This makes it difficult to determine when a secessionmovement "in fact represents a distinct community,"928 and thus deserves to be protected fromforeign intervention to help the existing government quell the secession.

Second, Walzer’s premises lead to counterintuitive claims for neutrality. Against interveningin civil wars, Walzer also suggests that "once a community is effectively divided, foreign powers canhardly serve the cause of self-determination by acting militarily within its borders."929 But that is anon-sequitur; clearly if one of two distinct communities will only become self-governing if it isprotected from domination by the other community, then intervention to assist the threatened groupwould promote self-determination. Once this concept is coherently understood in deliberative-democratic terms, it is clear that often self-determination will be promoted or impeded depending onwhich side or party wins a civil war. For example, legitimate self-governance would have beendramatically weakened by a Confederate victory in the US Civil War. But Walzer’s criterion wouldimply, absurdly, that no foreign nation could have helped Lincoln against the Confederacy: since ithad control of several states, Walzer would have to consider it a self-determining community, eventhough its purpose violated the core moral preconditions of popular sovereignty.

Finally, Walzer’s view that foreign powers must start with a strong presumption for neutralityabout the merits of the opposing sides in a civil war and try to preserve or restore "integrity to thelocal struggle"930 makes chance, fortune, and contingency the final arbiter of who can authenticallyclaim to represent a people. This reduces legitimacy to causal power, as if the luck-laden outcome ofarmed clashes will somehow determine the true will of a culture (or tell us whether there are two"peoples" with different wills) as long as its purity is kept untainted. By contrast, the Habermasianversion of the DP tells us to consider whether either side in the conflict clearly aims to uphold or torepress the right to deliberative democracy and the individual liberties that figure among its moralpreconditions. The deliberative-democratic approach is coherent, whereas the Millian one is not.

Basic Criteria for Legitimate Democracy. In conclusion, there are strong grounds forholding that legitimate government must include some level of popular sovereignty in the form ofdeliberative democracy (facilitated by free medias) with regular and free elections among multipleparties or candidates representing a wide array of views. Given its dependence on EP, the mostelementary notion of collective self-determination cannot be adequately developed or implementedwithout more substantively democratic rights. Similarly, the civil liberties and negative freedoms that

931Buchanan and Keohane, “The Preventative Use of Force,” p.30.

932Cohen, “Is there a Human Right to Democracy?” p.241.

933Ibid, p.242.

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some liberal theories have regarded as more fundamental to political legitimacy than democraticrights cannot actually be justified or legitimately implemented without democratic rights. They sharethe same grounds, and democratic processes are needed for each nation to specify the scope of thebasic rights that all just constitutional orders must secure to their citizens and residents. As Buchananand Keohane argue, echoing Habermas’s principles U and D, “Those who wield power must alsooffer justifications of their actions to those who are affected by them.”931 Habermas’s analysisrequires us to add: ‘and show that these justifications are widely accepted on reasonable bases by allthose affected.’ Only well-designed democratic processes operating in a sufficiently well-educatedpublic can suffice for this showing.

Rawls remains correct that we can distinguish between more and less legitimate non-liberal“peoples” or social orders, and such distinctions should matter in international relations; but he iswrong to think that rights to popular sovereignty are any less basic or that they are, in effect,voluntarily waivable on cultural grounds. It is not just that full or ideal legitimacy requiresdemocratic processes; a government does not reach that threshold of legitimacy needed for it todeserve full recognition in the global system unless it secures at least a recognizable modicum ofdemocratic rights to its people. This is because it cannot meaningfully claim to represent them, orexpress their values, purposes, and aspirations, without democratic proof of wide acceptance of itspolicies and priorities by adequately informed citizens. In what follows, I will therefore accept as astarting point for institutional evaluation Joshua Cohen’s proposal that

Three dimensions of a right to participate are suggested by an account of democracy founded on thisconception of persons as equals [in political capacity]:1. equal rights of participation, including rights of voting, association, and office-holding, as well as rightsof political expression;2. A strong presumption in favor of equally weighted votes3. equal opportunities for effective political influence.932

These are a good approximation to the non-basic human rights comprised within the basic humanright to popular sovereignty or equal political participation. As Cohen notes, the third (which issimilar to Rawls’s “fair value of political liberties”) emphasizes that individual citizens are notmerely an audience for arguments and appeals who weigh them when voting; democratic citizens“are also agents, participants, speakers, who may aim to reshape both the terms of the political debateand its results, by running for office and seeking to influence the views of candidates, the outcome ofelections, and the interelection conduct of politics.”933 Here Cohen’s account converges with thewider deliberative tradition, to which he has contributed in other essays. Arguably this traditionimplies three further rights that are at least partly derivative from the conditions for being able toparticipate as a reasonable interlocutor in rational debates that must often involve assessing differentkinds of value-claims:

934Obviously the minimal requirements I suggest here for an open and objective education suited todemocracy can be informed by Nussbaum’s list of basic combined capabilities that are essential for a minimallyworthwhile life – something that all cultures worthy of being called cultures should try to provide to all theirmembers. I do not call this a liberal education because that label has the wrong connotations in this context. But it isat least an education that frees the mind from utter dogmatism. For an interesting argument that minority groups andnon-western cultures need such an education in order to be able to navigate the globalized economy, see Joel Spring,The Universal Right to Education (Erlbaum Associates, 2000), esp. ch.4.

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4. a right to objectively informative education (as more than minimal literacy, including at leastintroductions to science; to literature and art forms; to objective histories of peoples, religionsand ways of life; basic information about one’s nation’s government; and to human rights);934

5. a right to freedom of information through inexpensive, universally accessible sources (e.g.uncensored internet, uncensored public libraries, protection of private conversations);

6. and a right to public medias that are not only free from direct political control, but alsosufficiently objective and informative.

Perhaps items 5 and 6 are better conceived as parts of the same right; but either way, all six of theserights must be fully secured in the constitution, social norms, and basic structure for a society to befully democratic. Accordingly, we can employ these rights as criteria for membership in a league ofdemocracies, as I will explain further in the next and final chapter. Without democratic processesprotected by individual liberties and public education aimed at objective knowledge and developmentof critical thinking capacities, a government’s claim to express a shared culture and community arenever enough, because governments can easily abuse such justifications, turning them into mererationalizations for domination of significant segments of their nations or even their entirepopulations. And if an informed people really do choose domination for themselves, their choicethereby ceases to be an expression of collective autonomy in any case.

4

Starting from interpretations of self-determination, then, we have confirmed the result inChapter Five that the RBS principle must be strengthened into DP. Only democratic governmentsmay legitimately wield the political power to coordinate human actions through coercively enforcedlaw that has to be consolidated, according to CP, for such governments to secure the public goods forthe sake of which they are created. Both of the main premises in the Consolidation Argument are nowvindicated. Moreover, we have seen that there are vital public goods in several categories that requiregovernment coordinative power at a global level. Hence the encompassing master argument for theDemocratic League developed in this book is sound, as long as we can complete the last step –namely, showing that such a League (as a new level of government) is feasible without proportionalcosts. But before turning to this topic in the next chapter, we must consider how the recognition ofbasic rights to democratic popular sovereignty should affect the conception of just causes forhumanitarian intervention under the collective duties of R2P developed in the prior chapter. For whendemocracy, like sufficient governing power, is recognized as a second-order public good, weappreciate that in the long-term, its suppression or denial in some nations threatens its practice inother nations. Dictatorial government also makes more likely the kind of atrocities that lead to civilwars with massive death-tolls and a need for ameliorative intervention that could have been avoidedby an earlier transition to a stable, pluralistic democracy.

III. Expanding Just Causes for Intervention to Intractable Tyranny

935The moral force of this principle, of course, does not depend on the claim that the British colonies inNorth America were, in 1776, actually in this state. We might not be convinced by the list of grievances in theDeclaration of Independence, yet still agree with Jefferson and Locke that any people who really had suchgrievances would have just cause to revolt by force.

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III.1. Introduction: Justified Revolution Against Dictatorship. In Chapter Six, we sawthat just war theory and international law have both developed to the point of recognizing thatmassive atrocities violating fundamental rights to life, liberty, basic security and bodily integrity,subsistence, homeland property (in the case of ethnic cleansing) and national membership are justgrounds for armed intervention to stop them when necessary, given the ineffectiveness of other lessviolent means. We recognized the enormous importance of this reform and several ways in which itpoints towards the need for a League of Democracies to judge such cases and undertake swiftintervention when atrocities are beginning or about to start – as well as to support the economicdevelopment and conflict-resolution work that may prevent such atrocities beforehand, and toundertake nation-building following armed conflict to prevent conditions of disorder that lead toanother round of war.

Yet these insights codified in the R2P doctrine outlined in the ICISS report do not go farenough. The arguments in Chapter Five for a basic human right to democracy, which were justconfirmed in §II of this chapter, suggest that any form of prolonged rule that systematically deprivesthe people in general, or large segments of the adult population, of the right to free political dialogueand binding votes, might also present just cause for coercive pressures – if not outright militaryintervention – from the community of democratic nations. Any regime that continually squashes itspeople’s own legitimate efforts to bring about democratic reforms, as China did so violently in 1989and with near-total repression of political activism ever since, loses its moral legitimacy – even if thebasic rights its systemically violates are not those with the absolute highest moral priority, but onestep down from that (or out from the center). For as we have seen, without democracy, people haveno control over how or whether any of their own human rights are assured in stable fashion, andeveryone’s rights around the world are thereby rendered that much less secure. This is the principalreason that people living under dictatorial regimes that refuse to democratize have a right torevolution by armed force – at least if necessary as a last resort.

This should not seem like an extreme step for anyone who accepts as valid the moral groundthat was cited by Jefferson in 1776 for the American revolution: namely, the Lockean doctrine thatthe denial of democracy is just grounds for revolution. This was a thesis about just cause forrevolutionary war: as a last resort, when peaceful means to reform have been tried and refused by adictatorship that crushes out protests and calls to democratize by a “long train of abuses” bent onmaintaining power without popular deliberative authorization, a people has rightful cause to usearmed violence to overthrow such a dictatorship in favor of a democratic order (as long as they areable to do so proportionally etc).935 Of course, there are many other cases in which the same moralbasis has been plausibly claimed: the second French Revolution of 1789, the Haitian revolution of1791, the many revolutions in Europe during 1848, the Mexican Revolution of 1910, and manyothers that either failed to bring democracy immediately (such as the Young Turk Revolution of1908, or the Spanish resistance to Franco in the late1930s), or which failed completely (such as theHungarian Revolution of 1956). It is virtually impossible for any contemporary defender of humanrights to dismiss the moral grounds on which such revolutions, like many similar wars forindependence from colonial rule, were based (even if she questions how well the facts of a particularcase meet such moral standards). Call this the democratic revolution premise (DR).

936Iraqis actually have some limited democratic rights: they can elect a President and representatives in theirnational parliament from among candidates approved by the unelected ruling council and the unelected SupremeImam. Although this is significantly more than the Chinese people have, and Iranians have used these limited rightsto some effect, these legal rights do not meet the demands of the human right to democracy: they do not fall withinthe range of culturally-varying but legitimate juridifications of that basic “category of right” in Habermas’s sense.

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But autocratic attempts to deny the people’s rights to collective self-rule through their jointreasoning and decision-making was a central justifying grievance in all these cases. But we saw, inthe foregoing critique of Walzer’s conception of state sovereignty, that legitimate causes for internalrevolution must also be legitimate grounds for armed HI to aid such a revolutionary movement –though both are limited by the other criteria for just war. This is the symmetry thesis (ST), whichholds because a regime that violates its people’s rights badly enough to justify an internalrevolutionary movement embodies none of their collective natural sovereignty. It follows by simplesyllogism that systemic repression of democratic rights can justify foreign intervention to help suchrevolutionary movements, or to encourage democratization in other ways (for convenience, call thishumanitarian intervention for democratic regime-change – HID):

1. DR [supported by DP, and the intuitive force of historical cases]2. DR 6 HID [by ST]3. HID [from 1, 2, modes ponens]

Thus intervention by military or non-military means to support transition to democracy away from aregime that its own people would be justified in overthrowing does not violate any legitimate nationalsovereignty (even though it has to meet other demanding conditions to be just all-things-considered).The ruling regime cannot complain if it is overthrown, even if the people may justly complain whenthe intervening powers are incapable of ‘winning the peace’ through just reconstruction – eitherbecause of limits to their own resources and wisdom (as in Afghanistan), or because of internalschisms (as in Iraq) or both.

This verdict has quite significant implications, especially given how widely it is thought that a right to revolution may exist even when a military dictatorship, monarchy, or theocracy backed bymilitary force is not utterly tyrannical in the sense that it regularly violates every kind of human right,subjecting its people to virtually arbitrary rule by fear of authorities (like the “Stasi” secret police inEast Germany during the Cold War, or the regime in North Korea, for example). Walzer and manyothers who restrict just cause for armed HI to massive atrocities or extreme and systematic crimesagainst humanity would quickly concede that the people in China have a right to overthrow theirmilitary dictatorship by armed force if they could plausibly carry this out in a way likely to lead to astable democracy rather than prolonged chaos and civil war. Likewise Rawls would have agreed thata democratic movement seeking to overthrow the theocracy in Saudi Arabia or Iraq today, whichwould probably meet most of his conditions for a decent hierarchical regime, could legitimatelyresort to force against the Republican Guard forces that uphold that theocracy if they could satisfy theother criteria for just revolution.936 It is widely held, in effect, that the systematic and prolongedrefusal to allow democratic freedoms in order to maintain total control by a small elite is sufficient tojustify internal revolutionary movements. But when this is combined with ST, they entail thatexternal pressures and intervention may also be legitimate to bring about a sustainable transition todemocracy in such nations – perhaps including by armed force in the worst or longest running cases(when the other conditions for HI are met).

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III.2. The Slow Atrocity of Intractable Tyranny and its Link with Fast Atrocities.

Three Levels of Political Evil. In what follows, I will not defend this strongest claim thatsupporting a democratic revolution against entrenched dictatorship is always a just cause for militaryintervention (if the other criteria for just war can be met). Instead, I will defend a more moderatethesis based on a working distinction between three levels of political evil, which I label as follows:

1. Extreme Tyranny with ongoing reign of terror, ongoing mass atrocity crimes or extremecrimes against humanity, such as mass ethnic cleansing or genocide (e.g. Syria under Assad;Darfur region of Sudan under Bashir; China under Mao; Ukraine under Stalin).

2. Entrenched Tyranny without the most extreme atrocities, with prolonged reign of terrorinvolving secret police, lack of most civil liberties, control of most communications (e.g.China and Burma/Myanmar under their current military dictatorships; Libya under Qaddafi,Iraq under Hussein for much of his rule).

3. Entrenched Dictatorships denying many civil liberties along with democratic rights, butwithout a prolonged reign of terror (e.g. Saudi Arabia; arguably Cuba in last 20 years).

Of course these distinctions are abstractions and there will be many borderline cases. For example,North Korea is on the worst end of Entrenched Tyranny, and arguably if millions of deaths resultthere every decade from starvation, it enters the category of Extreme Tyranny, even if these deathsare not directly willed by the regime (but merely allowed to happen by neglect). The R2P doctrinerecognizes the seriousness of such atrocities by noting that mass deaths can also predictably resultfrom refusal of aid after a natural disaster. Similarly, Hussein’s regime in Iraq probably rose to thelevel of Extreme Tyranny for when he killed thousands of Kurds in poison gas attacks and impressedhundreds of thousands of young teenagers to fight against Iran. One might also argue that morepassive albeit entrenched dictatorships in nations like Bahrain or Qatar move towards tyranny whenthey conduct a reign of terror against their Shi’a residents or take passports of tens of thousands of‘guest workers’ to keep them in labor bondage status. One might also argue that China is on the softend of Entrenched Tyranny, close to ordinary dictatorship (but few Westerners realize quite howsystemic the denial of most civil liberties is in China, and how deep the fear of the police runs, giventhe absence of impartial courts and use of familiar terror tactics such as threatening family members).My rough hierarchy also does not contain a category for failing states or areas where chaos rules, e.g.much of Somalia, much of the D.R. Congo, parts of northern Nigeria, and parts of the Sinai – thiswill have to be added in, for they often allow military groups to conduct reigns of terror in their smallregions, or even mass atrocity crimes (as we have seen with ISIS in northern Syria and northwestIraq, and with Boku Haram in Nigeria). We could make the hierarchy more refined if we had a moredetailed weighted scorecard for nations on a wide range of human rights factors – there are someattempts in this direction, but none are yet close to adequate for use in a more detailed update to theR2P doctrine.

Nevertheless, these rough distinctions will be sufficient for my purpose here, which is toargue that we need to expand Walzer’s list of just causes for military intervention from level 1 downto level 2: such long-term tyrannies are a great plague on Earth; even when they are not attemptinggenocide or mass ethnic cleansing, their evil is so great that it constitutes just cause for armedintervention when that is the only way to change it (or to help a nascent internal resistance succeed).We have a collective responsibility to protect all human beings on Earth from such regimes, bymilitary force as a last resort, when such force offers a feasible way to bring about sustainable changeto a more just regime.

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Now strictly, the basic human right to democracy implies a right to revolution withinentrenched ordinary dictatorships as well; who would deny people in such condition a right to takeback their original sovereignty and form a new government more consistent with the moralconditions for legitimate power? But this remedial right is clearest under tyranny (levels 1 and 2) inwhich other rights besides the right to democracy are systemically violated; accordingly, it is easier todefend (pace Walzer) the right to employ military force, at least as a (reasonably) last resort, tooverthrow entrenched tyrannies than to stop ordinary entrenched dictatorships. Non-military forms ofpressure may be justified against the latter as well, but not arguing for the right to military inteventionagainst ordinary entrenched dictatorships is my concession to political realism and the continuingpower of nation-states. The oppression constituted by long-term dictatorship and gross unfairness oftotal rule by a small elite (e.g. Bahrain again, Vietnam’s current one-party rule, and perhapsMugabe’s regime in Zimbabwe) rightly provoke deep-seated anger and widespread alienation byofficial disrespect and disregard for the concerns and needs of the vast majority. But these conditionsare noticeably better than a state of terror, dehumanizing abuses and torture, or mind-control thatdefaces individual identity which characterize tyrannies like North Korea, the military rule in Burmaup until recent liberalizations, or the mass brainwashing of child soldiers by a warlord like CharlesTaylor in East Africa or the Lords Resistance Army from Uganda. Such regimes may go for decadeswithout episodes of sudden mass killings or mass cleansing/expelling some minority group; then theinfinite horror or shock we feel in response to such mass atrocity crimes is missing in response tosuch entrenched tyrannies. But the terror imposed by such regimes is still a systemic violation of fundamental human dignity; they still epitomize arbitrary power without right, without consent. Assuch, they make life intolerable for most of their subjects and systematically impair everything thatmakes flourishing community and civic friendship possible, preventing the development of manybasic capabilities needed for their citizens to lead fully meaningful lives. It is terrible enough whenutter poverty or natural disaster impose such conditions on human beings by accident or through theneglect and failure of those with power and means to correct the roots of such ills. But a ruler whoimposes such horrors on his subjects intentionally loses his right to life, let alone his right to rule; hiscrime is far worse than high treason. Thus the ancient norm of natural law that tyrants may be justlyslain by anyone with the opportunity.

Despite the borderline cases then, the rough distinction between these three levels of politicalevil maps salient moral differences that can help clarify appropriate thresholds for intervention underR2P. There is a significant difference the kinds of lives people could lead under Malaysia’s slowly-reforming dictatorship versus under the East-German Stasi. While Mugabe’s regime in Zimbabwehas been tyrannical in some respects, and committed atrocities such as forced relocation of thousands,along with negligent destruction of its economy, it was not as bad for most as Trujillo’s reign ofterror in the Dominican Republic. While Castro has imprisoned many political prisoners and denieddemocratic rights, there is a clear difference between life in Cuba even in the 1960s and in Haitiduring the reign of terror by the Tonton Macoutes (which was clearly within level 2). Similarly,Pinochet’s regime during the Dirty War on his own people in Chile was far worse than the elite rulein Kuwait, where most residents are not citizens. If any group had been able to overthrow Pinochet byforce and kill all of his leading officers, no one could reasonably have objected, even if such arevolution cost thousands of lives, just as did the war against Franco. By contrast, thousands of deathswould probably not be worth it to democratize Kuwait (assuming that was even culturally possiblegiven the relations between groups there).

Expanding R2P to Address Entrenched Tyrannies. The debate here, then, concerns themiddle category (level 2) of entrenched tyrannies that far exceed ordinary dictatorship in systemicviolence yet stop short of sudden mass atrocities. While the ICISS standard pushed the envelope by

937Walzer, "The Moral Standing of States," p.220, p.228.

938Luban, “The Romance of the Nation-State,” p.243.

939Ellis, “War, Revolution, and Humanitarian Intervention,” p.24.

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including conditions of total state collapse and natural disaster leading to risks of mass starvationamong just causes for forceful international intervention in domestic affairs, I contend that long-termtyrannies are at least as great a problem as these cases. We should consider them seriously forinclusion within the R2P doctrine, and can certainly do so without risk of massively inflating the justcauses for intervention in ways that would undermine support for R2P.

Following Caney’s analysis, the claim that entrenched tyranny may be sufficient grounds forintervention is perhaps strongest when a majority of the regime's subjects would not only revolt ifthey could, but also welcome military assistance from foreign governments to bolster their effort toforce regime-change (and regime-improvement). This seems more likely under entrenched tyrannythan under ordinary dictatorship, because the evils suffered are that much more outrageous in theformer. But is this counterfactual hard to know? Walzer clearly errs in following Mill's belief that if arevolutionary movement against a native dictator has enough "active and visible" popular support tojustify their request for foreign assistance, then they also will not need such assistance to succeed (atleast if foreign governments leave things alone).937 This is an argument by false dilemma; as Lubansays, Walzer just "dismisses the ability of sheer force to stifle the political process because forcecannot prevail against the united community, while if the community is not united [against thedictatorship] intervention would be wrong."938History also displays many cases in which anentrenched tyranny that few of its subjects dared to challenge has fallen partly due to foreignintervention that freed massive internal opposition to reveal its clear wish: this was clearly the casewhen NATO air strikes stopped Qaddafi’s intended destruction of Benghazi (even though Libya hasbeen divided since Qaddafi’s fall). Similarly, when pressures other than ‘hot’ military engagementended the Soviet grip on Eastern Europe, the swift and brutal fall the Ceauşescu regime in Romaniarevealed how widely and deeply that regime was hated (this is only one of several poignant examplesfrom that period). In such cases, huge support for revolution existed for quite some time before theregime's collapse, but the people were terrorized into silence. Even when they are silenced, though,we often have sufficient evidence to infer what a majority would judge if they could: as Ellisremarks, it was completely obvious in the early 1980s that the Soviet-backed regime in Poland "didnot properly represent the Polish people."939

A game-theoretical understanding of collective action problems facing revolutionariessupports Luban's point: successful tyrannies can close every feasible route for political opponents toorganize sufficiently to constitute a "united" opposition, or to inspire confidence in enough citizens toget a mass movement going. Cooperating to start a large protest movement is a kind of AssuranceGame, in which it helps a lot to see that enough others have gathered in the main city square: smarttyrannies like the regime in Beijing know this and prevent their oppressed people from coordinating

in this way (e.g. by blocking certain search terms from the internet and severely punishing the first totry to get a protest going). It is often easy enough (especially with human intelligence from theground) to tell the difference between such cases and others in which the affected population is muchmore ambivalent – for example, perhaps in Cuba or Saudi Arabia today, where it is not clear that amajority of citizens oppose their long-term dictatorships. The proposal to regard long-term tyranny asjust cause for intervention is certainly not meant to encourage a return to colonial mandates; so wegenerally should not argue that ‘we’ (people in democratic nations) know better what these folks needor should want. There may be exceptions to this limitation when the regime conducts such extreme

940There are plenty of fictional examples graphically illustrating the same point, such as the total controlestablished by the regime in the movie V for Vendetta, or the way that hobbits are conquered through division andkept divided under Saruman's rule as portrayed in "The Scouring of the Shire" in Tolkien's Return of the King. Inboth these cases, heroes from outside have to rally the people to resistance (meeting the assurance threshold).

941Walzer, Preface to Just and Unjust Wars, 4th ed., p.xvi

942Ibid, p.xviii. Consider Care and Oxfam being expelled from Zimbabwe and being prevented from evencoming into Burma or North Korea. Walzer often places undue hope on the influence of NGOs. But as I have arguedNGOs are not currently answerable to any democratic system of global governance, and their potential to act as avoice for peoples in non-democratic nations depends on having some regular democratic forum, like a UDL, inwhich that voice can help shape global policy.

943Walzer, “The Politics of Rescue,” p.75.

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and near-universal brainwashing that its people knowledge of their alternatives is almost completelyeliminated (as in North Korea) or dramatically distorted (as for young men raised by the Taliban): thecrimes against young people constituted by such violations of their basic right to education – whichare worse than receiving no formal education – may well justify intervention even when a majority ofthose affected could not approve is prospectively, but only retrospectively after recovering from theform of mental possession practiced on them.

But even if we set aside these complex cases, it is clear in many others where an intractabletyranny is despised by a large supermajority who are kept quiet by terror, that revolution withoutoutside military aid may be virtually impossible.940 The last several decades have given us moreoccasions to worry about almost hopeless resistance movements that cannot succeed against brutaldictators than about fledgling revolutions losing their integrity or failing to develop their own virtuesbecause of too much foreign aid. In Walzer's words, they "value freedom enough to risk their livesfor it,"941 but that is not enough: they lack sufficient coordination, weapons, and training. Forexample, clearly if the Free Syrian Army in 2012 and early 2013 had possessed an air force likeAssad’s, it would have won. In such cases, NGOs also cannot help the resistance sufficiently, sincethe most effective aid organizations are expelled or prevented from operating.942 Looking back inAmerican history, the famous revolution of 1776 took place in much more congenial circumstances,yet the Americans still needed French help to succeed.

Given these stark realities, it is morally simplistic to say that liberation from entrenchedtyranny requires "local initiatives" to succeed on their own while the international community must"wait for the popular struggles."943 The human cost of decades of inaction against such intractabletyrannies often outweighs the admitted risks of intervention, even if these tyrants are not currentlyusing mass famine, ethnic cleaning, or genocide, as weapons against their enemies. Accidentallyaltering a culture's internal or authentic growth by influencing its revolutionaries is a risk that pales incomparison with the opportunity-cost of inaction, which is at least a continuation of the enormoussuffering and poverty caused by the world's worst tyrannies (in some cases, the cost is far higher, aswe see with the rise of ISIS due to inaction against Assad). Moreover, such ‘cultural risks’ wouldbecome smaller if a broad league of democracies with no particular national interests to serve couldundertake the intervention, support the successor government in its inception, and see through thepost-war reconstruction and peace-building processes. A UDL could also do a better job of protectingNGOs by criminalizing the confiscation and obstruction of emergency aid, and developing a legalframework to govern NGO operations in at-risk nations. Again, this is not to say that intervention inall the cases I mention would be proportional to the risks, or that other requirements for just warcould be met, but only that the systemic oppressions of intractable tyrannies present just cause.

944Again (it cannot be repeated often enough): I am not asserting that intervention by (say) a coalition ofdemocratic nations would have been proportional to the risk-weighted costs in all or even most of these cases. I amsimply rejecting Walzer's view that intervention in such cases would be unjust even if the proportionality criterionwas easily met (unless some other foreign power had already intervened to support the dictatorship).

945For a description of horrors in Liberia, Congo, Sierra Leone, Sudan, and Uganda most recent war, seeJeff Koinange's CNN online report (Koinange 2006).

946See the Human Rights Watch report at https://www.hrw.org/africa/eritrea.

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In sum, just causes for humanitarian intervention include intractable tyrannies (in mytechnical sense), even if they are not committing extreme crimes against humanity. For suchtyrannical regimes are still guilty of mass persecution (a crime against humanity); they engage intypes of oppression that should (in Walzer’s words) shock the conscience of all civilized peoples.Building on my prior example, here is a longer list of examples that fall within this broader threshold,but which would not meet Walzer’s more demanding conditions or the similar criteria in the R2Pdoctrine (focusing on genocide, mass enslavement, or mass ethnic cleansing/mass expulsion):944

• Programs of systematic rape, mutilation of women, hostage-taking to terrorize family members,and wide persecution to repress political opposition (Uganda, Sudan, Congo, Liberia, Haiti).945

• War crimes against one's own citizens, such as using chemical or biological weapons on them(Hussein in Iraq), or forcing civilians to serve as human shields (Hezbollah in Lebanon).

• War crimes involving terrorism, such as intentionally targeting innocent civilians with rockets orsuicide bombers or taking civilian hostages (Hezbollah, Hamas, Al Qaeda, ISIS, Boku Haram).

• Crimes against children, such as brainwashing youth to serve as child warriors, or toleratingmassive child prostitution or child slave labor (Liberia, Congo, Somalia, Cambodia, the Talibanin Afghanistan and Pakistan).

• Crimes against humanitarian aid efforts, such as attacking international relief workers; plunderingcharity stocks intended to relieve famine or provide for basic needs in times of crisis; causingmass death by preventing emergency relief (Somalia, Sudan, Burma, Eritrea today).

• Massive repression of all liberties for one division of society to the point of total control bythreats of extreme violence, such as honor killings, acid attacks, and removal of former rights toproperty and choice of career in the treatment of women (the Taliban, Syria, Yemen).

• Regimes of apartheid or mass reduction of part of the population to second-class status (at best),resulting in constant and very significant strategic advantages for the first-class members in everysort of social interaction (South Africa before Nelson Mandela’s presidency; China’s treatment ofUyghur Muslims; oppression of Russians, Uzbeks, Balochs and others in Turkmenistan).

• Violent repression of political opponents by disappearance, torture, death squads, kidnappingrelatives, indefinite arrest, maiming (Eritrea; Chad under Habré; Zimbabwe and Burma; Haitiunder Duvaliers and military junta; Turkmenistan; Chile, Argentina, Brazil, and El Salvadorunder military rule; Libya under Qaddafi; and former Communist regimes in Eastern Europe).

• Indefinite mass conscription combined with arbitrary arrest with indefinite detentions forthousands; near-complete repression of free press and free expression; and resulting floods ofrefugees (Eritrea today).946

947It is interesting how well my examples line up with a “10 Worst Dictators” list of a few years ago: seehttp://www.actionforourplanet.com/#/top-10-oppressive-dictators/4551850993.

948This line could potentially clarified by a more complete account of cultural goods, but for purposes ofinternational law, the paradigm cases are already evident enough.

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• Repression of democratic revolutionary uprisings by terror, bombing from the air, and hiringforeign mercenaries to assault one's own people (Qaddafi in Libya).947

This list is obviously incomplete, but I believe it is sufficiently unified to avoid the danger ofoverreaching and finding just cause for intervention in every form of social inequity criticizable froma liberal point of view. It attempts to identify "Orwellian" forms of tyranny that go well beyondsimple departures from equal civil liberties, driving hundreds of thousands of people into refugeecamps, forcing large portions of the population to live in terror, manipulating and abusing people en

mass, turning all semblance of thriving culture into a sham, corrupting preexisting cultures beyondrecognition, or cutting people off from the most basic historical, social, and scientific informationabout the world. Although it is difficult to reduce to a simple formula, there is still a clear differencebetween what Rawls calls a decent non-liberal state and a nihilistic nightmare in which 2+2=5 if thesecret police say so.948

Notice that part of what marks an entrenched tyranny off from less extreme types ofdictatorship (ranging all the way to fairly benevolent dictatorships, e.g. in Singapore and Jordan) isthe great extent to which the most of the basic structure of the affected society (in my extendedRawlian sense) is either (a) very unstable because central features of it can easily be changed forstrategic purposes at any time by the small ruling elite; or (b) corrupted in order to dehumanizecertain groups to the point of making life for them virtually intolerable. To that extent, these regimescause a sense of radical insecurity similar to that we find in extreme tyrannies like that of Idi Amin inUganda, even if they do not kill hundreds of thousands. For at least some large segments of thepopulation in intractable tyrannies, life seems pervaded by a sense of insanity: as for Romans underthe Caligula, your fate can turns on the whim of a vicious madman. While more ordinarydictatorships have a modicum of continuing structures that restrains arbitrary power to some extent,in entrenched tyrannies, there are no such limits: in that respect, they are like the absolute monarchiesof some medieval nations. Moreover, in tyrannies, these absolute powers are abused to enormous,ongoing harm that often cannot be alleviated by internal resistance (that is why they are intractable).Often, as in Eritrea today, it is more feasible for victims to spend thousands of dollars to flee theirhome nation rather than to organize any semblance of serious resistance.

It is an offense to all decent people on Earth that such regimes exist to mar so many lives insuch extraordinary and totally unnecessary ways, grinding on for decade after horrendous decade,waiting for strongmen to die. And in an era when the free peoples of Earth could put a decisive end tosuch massive evils, it is an even graver offense to their victims that we simply leave them to theirbitter fate while we blithely go on with everyday life as if nothing were grossly amiss.

III.3. Further threshold problems (questions & objections). Of course, extending the R2Pthreshold to include entrenched tyrannies must face a series of predictable objections. (1) The first isthe slippery-slope objection: why not go further and criminalize any systemic denial of basicdemocratic rights, or substantial gender inequality, or systemic denials of religious liberty, or failuresto uphold the right to basic education and access to information provided by free medias, and so on?In other words, why redraw the line at intractable tyranny and say that other large-scale violations ofwhat many take to be basic rights – violations that are even written into a society’s basic structure –

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are not sufficient cause for armed humanitarian intervention (even if they may be just cause for othertypes of political pressure)? But if we go that far, the objection says, we leave far too little room fortolerance of cultural difference. In response, I agree that there are types of serious and systemicviolations of basic rights that, while falling short of tyranny the sense I’ve described, deservecondemnation and opposition by whatever order is in place to uphold international law. My examplesof crimes against children suggest that sometimes these wrongs can be so severe that they border onenslavement, making the imposing regime a tyranny.

As I argued in response to Cohen, though, there is a difference between the weightiness ofhuman rights or their centrality to the overall scheme and the their status as basic (and thus invariantin abstract conditions) rather than non-basic (and thus more widely varying in legitimate legalarticulations). The threshold question concerns the former, namely how urgent and central certainrights are. I have argued that although rights to life, bodily integrity, basic security, classical liberty(freedom from enslavement), and minimal subsistence are most central in this sense, the right todemocracy follows immediately after these in moral weight because of its role in holding the wholescheme of human rights together with its legal and social interpretation and application. Thusdemocratic rights deserves to be included in the criteria for international recognition of nationalgovernments as legitimate, and enforced by the world community of legitimate nations when it istotally erased by tyrannical regimes.

This right may be morally on the same level as rights to objectively informative educationthat develops critical powers, to equal liberty of religious exercise, to gender equality before the law,and to equal freedom of speech (and related media freedoms), because these are also basic human

rights: every legitimate system of law and social practices must give expression to these rights inways that respect their core scope. But within legal and social orders (level 3), these rights are stillnot politically as central as the right to freedom from tyranny (in which even minimal security ofone's family rests on the fancy or paranoia of rulers who care nothing for the common good).Freedom from the despotism of absolute dictatorship is more crucial to schemes of legal rights fortwo reasons. First, without freedom from tyranny, one has little prospect of exercising several otherbasic rights, for example, the right to gender equality in employment or property ownership, or theright to publish one's views: the value of these rights depends on freedom from despotism almost asmuch as it depends on life, physical security, and minimal food and shelter. Under tyranny, there ishardly any genuine rule of law, even in the market.

Second, like the rights to life and mental integrity, without freedom from tyranny, one cannotwork to change one's culture(s) and social values to move towards establishment of other basic rights,such as freedom from racial or gender discrimination, or a free press, or free and fair multipartyelections. For example, people in Russia may suffer from infringement of some of these rights, butthey are not completely unable to address such problems (although Putin is pushing his nation backtowards dictatorship). In Egypt, Jordan, Kazakhstan, or Cambodia, there may be plenty of systemicrights violations, but the people are not totally unable to speak or move the opinions of theirgovernors. While we might think their societies and cultural norms are repressive in several respects,we cannot say that the rights-violations come simply from a government and its agents that are in astate of permanent war (hot or cold) with the general public in these nations. In these cases, Walzer isright that they would not necessarily welcome interveners as liberators – even if the interveners camefrom nations with similar ethnic and religious backgrounds and no history of hostility towards them –

949See Frida Ghitis, "A Place where Muslims love America," New Jersey Star-Ledger, May 30, 2010.

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if the interveners’ main aim was to force deep changes in cultural values. In Kosovo, by contrast, theAmerican flag is still widely flown.949

(2) But even if we can draw a principles line between basic democratic rights and other basichuman rights that remain politically less central to legitimacy, what about other cases in which broadfailure to secure people’s central human rights to any adequate degree results less from tyrannicalregimes than from other causes of lawless chaos, rampant disease, or lethal poverty, etc.? Forexample, while various militias have terrorized the countryside of the Democratic Republic of Congo(especially in the east of the DRC in recent years), their local despotisms and atrocities result largelyfrom the lack of a central government that is strong enough and free enough from corruption togovern such a huge nation competently. As in Somalia, we may consider the DRC a nearly-failedstate. Or in Haiti, even if tyranny is past and the government is no longer totally incompetent, pastscares of entrenched dictatorship, environmental devastation, and natural disasters such as the 2010earthquake have left most of the population so desperately impoverished that it is very challenging tomake any meaningful progress in education and health, even with massive aid efforts. But surely thepeople of Haiti would object if their government were placed in ‘receivership’ by the internationalcommunity or being taken over by foreign governments for its’ people’s good.

I reply that my proposed revision of the R2P threshold is compatible with recognizing thatproblems other than tyranny can be the main cause of massive suffering and even mass death that callinto question a government’s legitimacy. But the two cases noted are different. Where governmentsare massively failing, with a power vacuum and widespread chaos as a result, the community ofstable nations (even beyond the scope of a legitimate UDL) has a strong duty the step in. This right,or even duty, of intervention to restore failing states has been recognized by African Union missionsin Somalia and a high number of U.N. peacekeeping and ‘enforcement’ missions in the DRC. Theproblem is that these missions have been too small: a much larger investment of personnel,equipment, infrastructure investment, efforts to build a responsible civil service, and forcibledisarmament of violent militias would be needed to meet the need. Our existing UN system andregional bodies like the AU are unable to meet these huge needs because they lack the sort ofcoordination via binding majority votes and enforcement powers of an independent executive that theproposed Democratic League would have. They also cannot address problems in world market forcesthat, in the cases of the DRC, are part of the motive for rogue militias to control territory and evenforce local residents into slave labor.

Problems and natural disaster and dire poverty, on the other hand, are generally not groundsfor intervention with military force unless, as the current R2P standard recognizes, the government ispreventing relief aid that is needed to save tens or hundreds of thousands of lives. That thecommunity of stable nations, now including many developing nations that are still not among therichest third, should be doing much more to alleviate the worst poverty in the world’s poorest nations,and to meet the new Sustainable Development Goals, cannot be gainsaid. But cost-effective ways ofdoing this depend on coordination that could reach throughout the world economy, e.g. through a‘Tobin’ tax on capital movements, or through a small tax on international sales or shipping, andregulations that provide more incentives to trade with the poorest nations. A UDL would be far moreable than the UN system and our ad-hoc network of aid agencies to institute a program that got to theroot of such problems in nations like Haiti or Zambia precisely because it could assure contributingnations that there contributions, along with receipts from such minimal global taxes, would besufficient for the job. For example, Clunies-Ross and Huq have mapped out an effective program forthe world’s poorest nations to raise incomes to at least $2 a day for the very worst off along with a

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minimal medical safety net to provide the security needed for families to invest and becomeproductive: it would cost, in 2013 dollars, about $300 billion per year until the resulting growthreduced the need. Such a figure is not unattainable: small international transfer taxes could raise $100billion per year if they were managed by a responsible and accountable government. Especially if itwere joined by other wealthy non-democratic nations in the effort, a broad UDL could raise another$150 billion per annum for this purpose, joined with $50 billion from the non-profit sector. It wouldbe a huge lift, but along with efforts to improve governance and investments in infrastructure in thepoorest nations, it could succeed in eradicating absolute poverty from Earth. While I have notenvisioned this as the first priority for a Democratic League, a central point in favor of such a leagueis that its members could collectively decide whether they should take up such a mission. While it isnot a task for military intervention, then, ending absolute poverty is a mission that a league ofdemocracies could take up with prospects of success well-exceeding the prospects under the currentglobal order.

IV. Summary of the Global Consolidation Argument for a Democratic League

Chapters Six and Seven together have argued that genuine enforcement of the most politicallybasic human rights is a global public good that is essential to a just global order. The categories ofjust cause and legitimate authority in just war theory force us to ask whether crimes against humanityand long-term tyranny are grounds for humanitarian intervention. This chapter has argued that, inlight of Locke's account of justified revolution and related deliberative conceptions of self-determination, entrenched tyranny is a just cause for intervention aimed at regime change andreconstruction. Accordingly, the R2P doctrine in international law should recognize that intractabletyrannies whose subjects would overthrow them if they could organize may legitimately be dislodgedby force as long as other ad bellum, in bello, and post-bellum conditions can be met by theintervening authority. But if so, then we have to determine what type of governing authority would bemost effective and legitimate in declaring and waging humanitarian wars to stop mass atrocity crimesand end tyrannical domination.

Then the Consolidation Argument (CA) takes on even greater rational force. We can now putall its pieces together. Because adequate securing of human rights involves global public goods(Chap. 5), the stronger the content of human rights that are considered basic to the legitimacy of anynational state, the more cogently the Coordination Principle supports the conclusion that only aleague of many nations can consolidate sufficient resources to uphold these rights:

The Global Consolidation Argument

[1] There are numerous global public goods that cannot be achieved in a stable or reliable waywithout coordination through law or enforceable policy at the global level. {Chap. 4}[1a] These GPGs include the articulation and adequate protection of basic human rights{Chap. 5}

[2] The Coordination Principle (CP) {a precept of instrumental reason supported by game theory– see Chap. 2}

[3] There is strong prima facie reason to establish government at the global level with theenumerated powers necessary to secure the GPGs, and especially implementation of basishuman rights public. {from 1 and 2 by modes ponens (mp)}

[4] The Democratic Principle of Legitimacy (DP) {Chaps. 5 & 7}[5] There is strong prima facie reason to make the new government at the global level

democratically answerable to all the people who will be its members. {from 3 and 4 by modes

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ponens (mp)}[6] There are no sufficient reasons against such a global government: there is a feasible way to

structure it that does not create insurmountable new problems or cause harms that are notworth the price to secure the GPGs.

[7] Because such a global government must be consolidate some of the current powers of nationaland regional governments {from 3} but it must also be democratically answerable to theindividual citizens of these units to be federated in the new global institutions {from 4}, itsunits must themselves be democratic: the global government must be a league of democracies.

[8] Hence, we should create and maintain a global league of democracies with all the enumeratedpowers necessary to secure key GPGs, and especially basic human rights. {from 5, 6, and 7 bysufficient reason}.

There are only two steps in this final CA that need further explanation. While remarks relevant tostep [6] have been scattered through the foregoing chapters, a more thorough effort to answer extantand likely objections to a Democratic League must still be given in the next and final chapter. Thiswill require a more detailed outline of a proposed institutional structure for the UDL along with somethoughts on how we could get from our present predicament to founding such an institution.

[7] is a new step that is relevant only to the global version of CP with DP (if we kept to aweaker standard of legitimacy, it would instead say that the units of a global league could only begovernments meeting the weaker RBS condition). Yet the Supremacy and Direct Relation conditionswe found in Hamilton’s federalist analysis (see Chap.2) strongly support this point that the Leagueempowered according to CP must have a direct relation to individual persons as its members. Then,given the Democratic Principle defended in this chapter (building on the Linkage theory of humanrights in Chapter Five), only direct democratic representation of the peoples of the League’s member-nations could give such a League legitimacy across the world. But no national government could giveits residents a direct vote on their representatives and executive leaders in the League, combined withfree debate among parties standing in such an election facilitated by open media coverage protectedby independent courts, while denying these very same rights to the same citizens in their nationalelections. Candidates in national elections could simply align themselves with parties fieldingcandidates for League offices in order to get around such national limitations.

If that is correct, then step 7 is sound, and only a league of democracies from every continentrepresenting diverse cultures can satisfy the demands of both the CP and DP. In any alternativeinstitution without the unity of political will made possible by such a Democratic League, thecoordination necessary for successful intervention will rarely be achieved or sustained on fair terms,and the risks of unintended social harms from intervention will be increased. Genocide andpersecution will occur unchecked again, and tyranny will continue to ruin the lives of millions ofpeople on Earth even now that Cold War is long over, and the lion's share of power and resources arein the hands of the growing list of the world's democracies. To allow this when we can prevent it isthe ultimate disgrace of this selfish generation: it is mortal sin against the memory of all past victimsof totalitarianism, and against the original intentions of the UN's framers and the committee thatwrote the UDHR.