The increasing commercialisation of sport raises important questions concerning regulation. The development of the European Union (EU) and the internationalization of sporting competition have added an international dimension to this debate. Yet sport is not only a business, it is a social and cultural activity. Can regulation at the EU level reconcile this tension? Adopting a distinctive legal and political analysis, this book argues that the EU is receptive to the claim of sport for special treatment before the law. It investigates the birth of EU sports law and policy by examining the impact of the Bosman ruling and other important European Court of Justice decisions, the relationship between sport and EU competition law, focusing particularly on the broadcasting of sport, the organization of sport and the international transfer system, and the relationship between sport and the EU Treaty, focusing in particular on the impact of the Amsterdam and Nice declarations on sport and the significance of the Helsinki report on sport. This text raises questions concerning the appropriate theoretical tools for analysing European integration.
The natural law themes
Natural law is the corpus of principles, precepts, values and inquiries concerning the nature of law which are traced back to the Greek world and transposed to modernity by the scholastic tradition.1 Undoubtedly, within such a time span, marked by momentous events and inexorable changes, certain variations have surfaced. However, there are still strong identifications and commonalities concerning inquiries and analysis on law and morality or the continuous emphasis on humanity and human solidarity which make this tradition distinct.
The themes whose evolution or transformation over time circumscribed natural law have been introduced by Greek philosophy and this process needs to be considered. A persistent philosophical quest concerns the source of morality. Initially it was thought that morality springs from nature’s normative order. For Homeric Greeks, this is the divine order of Gods and man satisfies his ‘portion’ of that order. Human and divine actions intermingle to procure both teleology and responsibility which is understood to signify the dawn of moral understanding.2 Events hence acquire dual perspectives; the normative and the real are infused for the Greeks3 whereas their bifurcation for the medieval Christian tradition justifies the imperfections of cosmic law against the perfect natural law. Later, the divine necessity of the normative order was replaced by rationality. The rational unity of the universe is the basis for both spirit and matter, consequently the source of moral and physical laws.4 Thus, reasonableness differentiates Greek from Christian ethics predicated on divine provenance.5
The clash between morality and human laws is central in Sophocles’ Antigone and it is a perennial theme in the positivist-naturalist debate on the nature of law. Antigone, animated by her moral beliefs, buries her brother but eventually will be punished for defying the King’s orders.6 For Antigone, iniquitous laws are not laws whereas for others, however unjust, such laws will be enforced because they emanate from the right authority. The ‘is’–‘ought’ distinction has thus been introduced. The conflict between law and nature has received another twist by the Sophists who explored the theme of legal sources.7 Protagoras argues that societies promulgate laws in their process towards civilisation and that laws are necessary for social life. Thus, they are acquired and not given by nature; they have human origin.8 A person can achieve her or his development only within a community and only laws and customs hold a community together. This statement indicates an acknowledgement of the sociability of human nature which in its different manifestations has represented one crucial aspect for legal evolution. Law is a human creation but there exists disagreement on the nature of man. On the one hand, there were those like Socrates who presented man as a social being fulfilled only in a social context and others for whom man is an egoistic and antisocial creature, consequently might is the source for law.9 These themes have informed international relations theory and in connection with law, they have been developed currently by the Critical Legal Studies movement. Another area which the Sophists explored is the basis for morality. Because physis displays permanence and encompasses reality it serves as the source for objectivity in ethics. On the other hand, Callicles denies the existence of objective moral standards in nature which ‘mankind are always disputing about . . . and altering . . .’.10
If rationality as exhibited in nature becomes the moral and legal source, man’s capacity to reason has equally inspired legal and political philosophy since antiquity. For Plato, laws are reasoned thoughts (logismos) embodied in convention.11 His ethical principles derive from a normative natural order, the idea of Forms, which includes human and metaphysical elements.12 The Forms are particularised whereas their aggregation constitutes an organic unity with the Form of God as the final expression. This organic system is the source and explanation of the actual world. Human things are included in the Forms and could reach God. The harmony of the parts and their direction towards their proper end constitutes justice in the individual as in the state.13 Similarly, Aristotle’s vision of nature is ontological and teleological but not metaphysical. Our world is the real one and its purposiveness is realised in the Form of Things. Each thing has an unchanged element, the formal element. This element which is called the essence of the object is teleological, that is, it describes the function of the object by nature. The teleological interpretation of the universe thwarts ethical relativism since principles emanating from nature are objectively valid. Aristotle in his Rhetoric refers to universal law, the law of nature, as ‘binding on all men, even on those who have no association or covenant with each other’.14 The moral aspiration of law in promoting the common good has become another trait of the natural law tradition. For instance, Aristotle sanctioned wars when they serve the ‘good life’ and are precipitated by right judgment, acting thus as a precursor of the Christian just war theory.15
Aristotle solved the conflict between nature and convention by distinguishing potential from actual being. Virtue, being potential or natural, is received by human beings and becomes actual only by habit, education and training. Thus, laws are the actualisation of the potential-natural virtue. The Stoics attributed the disparities between ideal and human law to human decline from the ideal world, which also informs medieval Christian thought. Seneca, for instance, justified the disharmony between institutions with the law of nature as a degeneration from an original state of innocence.16 On the other hand, the Stoics also envisioned a process from human fallibility to an ideal future which has inspired Thomas Aquinas’ natural law theory. Either way, Stoicism facilitated the integration of the ancient and the Christian world.
The Stoics define law as ‘right reason in agreement with nature; it is of universal application, unchanging and everlasting’.17 Nature for the Stoics has descriptive and normative connotations but also a pervasive causality which reveals its teleology.18 In such a system, moral responsibility is attained.19 The universality of law is based upon the common nature of men. All men partake of reason and, therefore, they are equal, which is different from the Christian notion of equality based on a common progenitor. The Roman jus gentium as the forefather of international law signified the extent to which it applied.20 The relation between jus gentium and jus naturale has become a matter of disagreement. Ulpian distinguished jus gentium from natural law.21 Gaius22 or Cicero, on the other hand, identified jus gentium with jus naturale. The linkage is the universality of jus naturale and jus gentium, the former referring to its source and the latter to its application.23 Their reduction into a single concept resolves eventually the quest of their practical and theoretical existence.24
The Christian natural law tradition: St. Thomas Aquinas and John Finnis
As was said above, early Christian writers explained discrepancies between actual and ideal law through a dogmatic theology of the Fall.25 St. Thomas Aquinas liberated man from the vindicatory interpretation of human fallibility and by rediscovering Aristotle, delivered a theory which integrated human and ideal natural law through reason.26 The reconciliation between faith and reason is achieved by the inclusion of lex naturalis into the providential order of God, the lex aeterna.27 As in Aristotle everything had an essence, for St. Thomas Aquinas the essence of man is reason. Being uniquely endowed with reason, man participates actively in eternal law and reason reveals the ends towards which he may direct himself.28 On the other hand, being subject to the same physical laws as other creatures, he also participates passively in Eternal Law.29 Moral order thus springs from the intersection of deontological and ontological order. The two are complementary because reason leads to faith, that is, God, whereas faith recognises reason.30
Law is ‘an ordinance of reason for the common good, made by him who has care of the community, and promulgated’.31 This definition contains a positivistic aspect, enactment and promulgation, but also a naturalistic one, rationality and good intent. For Aquinas, positive law derives its legal appellation from natural law32 but he was in no doubt that iniquitous laws are still laws,33 and that reasonable calculations would enforce obedience to such laws.34 The opposite view that it is invalid has been perpetuated by positivism35 by misinterpreting the distinction between the morality to obey and the morality to promulgate or enforce the law.36 This contention has been challenged by Finnis who, reappraising Aquinas, restates natural law in order to reconcile law and morality.37 He distinguishes the focal from the penumbral meaning of law. The focal meaning is the ideal purpose which law should serve towards the achievement of the common good and it has a moral element. The elevation of a particular instance therein requires ‘a point of view in which legal obligation is treated as at least presumptively a moral obligation’.38 Thus, if humanitarian intervention comes to enjoy the viewpoint of a moral ideal, as was overwhelmingly claimed during the Kosovo operation,39 whereas non-intervention does not, the latter is defective in the focal meaning.40 Legal orders do not always satisfy the ideal order and attribute the quality of law to rules which are outside the fringes of the focal meaning. However, unjust laws are not invalid because Finnis rejects the definitional and accepts the evaluative role of natural law.41
For Finnis, law is an instrument for societal transformation. Its function is to promote basic goods, the self-evident principles of life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness and religion.42 He infers these goods by inward speculation, an intelligent practical reasoning.43 In a similar manner, the policy school projects the basic values of human dignity as self-evident by employing in their case the methodological artifice of a framework for decision-making.44
Accordingly, natural law theory is ‘the set of principles of practical reasonableness in ordering human life and human community’.45 Morality is achieved through the interface of practical reasonableness with the basic goods.46 Human rights emanate from the basic values and, therefore, they are absolute and exceptionless. ‘Not to have one’s life taken directly as a means to any further end’47 is such a right. Exceptionless rights revisit Kant’s Golden Rule that humans should be treated as ends and not as means48 which is rooted in the decalogue and St. Paul’s principle that evil is not to be done that good may come of it.49 Hence the rejection of consequentialism, that one should pursue an act whose consequences are beneficial.50
The imbroglio though is evident. Any humanitarian disaster would create a moral impasse. Intervention to stop a human catastrophe may cause human casualties and become impermissible, whereas the situation is equally lifethreatening for the intended recipients of intervention. Does the pursuit of morality warrant passivity? Does the attribution of absolute character to some rights accentuate individualistic motives?51 Finnis excludes personal feelings or sympathy because reason requires that the basic values should be respected in toto. At a second level of inquiry, if action is morally reprehensible, is omission to act also morally censured? In a situation of humanitarian crisis, inaction to stop human loss may be equated with the action which provokes it. Both can be censured because they equally damage the value of life, irrespective of any beneficial effects which positive action may produce. This conclusion, if true, is illogical. Condemnation of inaction presumes affirmative action but the latter is also condemned.
In order to overcome the impasse, natural law theory introduces the concept of intention which forms part of the just war theory as promulgated by Aquinas which also includes right authority and just cause.52 It is not merely the objective act but also the subjective element, the intention to cause harm, which is important. This refers to the Christian doctrine of ‘double effect’.53 Consequently, it is only the act which intends to harm people which is morally impermissible whereas humanitarian intervention may harm people but has no such intention. In the recent Kosovo case, the moral dilemmas encountered by the protagonists mirrored the different manifestations of natural law tradition that have been developed above. There was a humanitarian catastrophe in progress and human life was the central value to be protected. The Western powers have reaffirmed their belief in the absolute character of this right but were hesitant to act, fearing human casualties. On the other hand, inaction would entail perpetuation of killings. Both sets of possibilities were morally reprehensible. The operation cut the moral Gordian knot appealing to ‘intention’ and consequentialism. NATO’s action may cause casualties but these are side-effects of a morally condonable action against barbarism and there would be the added benefit of the restoration of the threatened values.54 A strong component of the Kosovo operation was also a feeling of sympathy and empathy for the victims of persecution contrary to Finnis’ attempt to exclude our ‘feelings, sympathy and generosity’ to be implicated in the articulation of the value of life.55
Hugo Grotius: international law and humanitarian intervention
The decline of theological explanations which permitted the advancement of secularism and rationalism characterised Grotius’ era as well. For him, law is immutable because it is the product of man’s reason and it would be so ‘even if we should concede that . . . there is no God’.56 Writing at the end of a tradition, Grotius makes references to God as another source of law, distinguishing, however, between the grounds for the existence and those for the knowledge of natural law. God is the creator of human creatures and, therefore, of natural law but knowing the law of nature is independent of believing in God.
Natural law is a command of good reason (recta ratio) ‘which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God’.57 The independence of human reason from God is evident. It delimits God’s authority by delineating the forbidden or permitted acts according to their consonance with good reason.
Human reason is the source of this knowledge and he identifies natural law through an a priori and an a posteriori method. The former concerns the consonance of a rule with man’s reason whereas the latter infers the naturalness of a principle through empirical investigation from the theorem that a universal effect should have a universal cause.58 Only a priori principles as the product of human reason are true natural law principles. The a posteriori principles are not immutable because they belong to human will, formed by general agreement. In international law, the a priori principles pertain to natural law whereas the a posteriori to positive law.59 The conceptual bifurcation of international law sources initiated by Grotius has been revisited by Wolff and Vattel along with Grotius’ rather Aristotelian assumption of ‘societas humana’. Grotius distinguished between contractual societies as the product of human will with the state being the highest contractual society and the universal society of mankind as a bond of kinship between men who have common descent.60 Thus, the universal community of mankind embraces the inter-individual and inter-state relations in a status naturalis.61 The appetitus societatis, the societal nature of human beings, becomes the axiom which generates the natural law principles as the mathematicians deduce propositions from axioms.
Thus Grotius attaches responsibility to humanity to punish malfeasants by waging war.62 If a state commits a crime, it makes itself inferior to any other nation, not only to the recipient of the injury. Any nation which in this sense represents the whole society of mankind is authorised individually or collectively to punish the culprit. As Suarez put it, ‘just as the sovereign prince may punish his own subjects when they offend others, so may he avenge himself on another prince or state which by reason of some offence becomes subject to him; and this vengeance cannot be sought at the hands of another judge, because the prince of whom we are speaking has no superior in temporal affairs’.63 Thus the problem of adjudication created by equal sovereign authorities is solved by the universal society.64
Another issue extrapolated from Grotius’ work is his obsession with peace. He disapproves of any general right to rebellion because it is disruptive and he sanctions measures against threats to public order. Grotius defends the bellum publicum solemne in order to prevent the extension of war.65 War for him is ‘undertaken in order to secure peace’.66
The modern concept of humanitarian intervention follows the same doctrinal and operational pattern either as the societas humana which interposes to restore the forfeited standards of humanity and to protect maltreated individuals or the need to restore peace and order threatened by human rights abuses.
Considering whether there exists just cause for undertaking war on behalf of the subjects of another ruler, Grotius says that if ‘a ruler inflict[s] upon his subjects such treatment as no one is warranted in inflicting, the exercise of the right vested in human society is not precluded. . . . In conformity to this principle Constantine took up arms against Maxentius and Licinius, and other Roman emperors either took up arms against the Persians or threatened to do so unless these should check their persecutions of the Christians on account of religion.’67 Religious solidarity assimilated human considerations in an era when ethnicity remained an inconspicuous political force. Faith functioned as the unitary principle beyond the local jurisdiction and also as the distinctive feature among nations. In Vindicae Contra Tyrannos, the author defends the unity of Christianity and the unity of humanity by justifying intervention ‘in behalf of neighbouring peoples who are oppressed on account of adherence to the true religion, or by any obvious tyranny’.68
Vattel recognises a right to intervention on the above pattern of Grotius without the religious connotations. ‘If a prince, attacking the fundamental laws, gives his people a legitimate reason to resist him, if tyranny becomes so unbearable as to cause the Nation to rise, any foreign power is entitled to help an oppressed people that has requested its assistance.’69
Because humanitarian intervention is prima facie an assault on state sovereignty, it is legitimised by being integrated into a natural law theory which envisages an enveloping human society. As it is explained by Rougier, people live in a triple social organisation: national, international and the société humaine regulated by the droit humain.70 A political society should satisfy, beyond the national and international interests of its members, those interests which are universal. Consequently, humanitarian intervention is the control of a state, ‘au nom de la Société des nations’, over the acts of another sovereign which are ‘contraire aux lois de l’humanité’.71 The concept of intervention to uphold minimum human standards was crystallised in the nineteenth century. Humanitarian considerations following the atrocities carried out by the Ottoman authorities justified the interventions of the Great Powers in Ottoman affairs.72 Hence, France, Great Britain and Russia intervened in Greece (1827–30) when the Treaty of London (6 July 1827) for the protection of Greeks was dishonoured by Turkey.73 In 1860, France was delegated to intervene in Syria to protect the Maronite Christians from being massacred by the Turks.74 This intervention was approved by the Protocol of Paris (1860) which contemplated ‘l’amélioration du soit des populations chrétiennes de tout rite dans l’Empire Ottoman’.75 The European intervention in Bosnia, Herzegovina and Bulgaria (1876–78) was provoked by the harsh treatment of Christians. The Porte rejected the establishment of an International Commission whose mandate was to supervise administrative changes for the benefit of the Christian populations.76 The Concert of Europe later signed the London Protocol (31 March 1877) according to which Turkey was required to adopt the necessary administrative measures for the protection of Christians while the Concert retained its right to take any action should Turkey fail to uphold the minimum standards.77 Turkey rejected the provisions of the Protocol ‘en sa qualité d’Etat indépendant’.78 The impasse ended with the declaration of war by Russia aiming ‘à mettre un terme à la déplorable situation des Chrétiennes sous la domination des Turcs et aux crises permanentes qu’elle provoque’.79 In a previous communication, the Russian government spoke of its resolution to protect ‘the principles that have been recognised as equitable, human, necessary by the whole of Europe’.80 Another incidence, this time in the twentieth century, is that of Macedonia (1903–08, 1912–13) where Greece, Bulgaria and Serbia took action in order to put an end to the Turkification of the Christian populations. In a ‘Note Verbale’ to the British Government, Greece explained that the three Governments ‘ne pouvant plus tolèrer les souffrances de leurs congérières en Turquie’.81
This pattern of interventions taking place in the interests of humanity antagonised sovereignty and has occasionally fallen into periods of hibernation or even disrepute. However, humanitarian interventions revived, particularly after events which shocked the conscience of mankind82 because they betray the deeply felt interests of the international community.83 As it was perhaps said with vision, when ‘the feeling of general interest in humanity increases, and with it a world-wide desire for something approaching justice and an international solidarity, interventions undertaken in the interests of humanity will also doubtless increase. We may therefore conclude that future public opinion and finally international law will sanction an ever increasing number of causes for intervention for the sake of humanity.’84 The Kosovo operation contains those ingredients which reproduce this genre of humanitarian actions. After almost a decade of warfare, horrific atrocities and human rights abuses committed in the territory of the former Yugoslavia and the prospect of another humanitarian crisis looming menacingly in Kosovo, NATO’s action was justified on grounds of morality and human society. For example, the Czech President Václav Havel wrote that the action ‘happened . . . out of respect for the law, for a law that ranks higher than the law which protects the sovereignty of states . . . for human rights’.85 And the French President Jacques Chirac spoke of ‘une conscience universelle de ce que sont les Droits de l’Homme’.86
Peace and human rights
Grotius’ other preoccupation was the maintenance of peace. He sanctions war against recalcitrant members of the international community in order to limit the effects of their actions and preserve peace. The intervention of the Great Powers in the Greek Revolution was dictated ‘no less by sentiments of humanity than by the interest for tranquillity in Europe’.87 The intervention in Bosnia, Herzegovina (1876–78) also invoked ‘les intérêts de la paix générale’.88 The modern articulation of such contingent factors urging for humanitarian actions is offered by the former British Foreign Secretary Douglas Hurd: ‘If we really want a world that is truly more secure, more prosperous and more stable, then humanitarian problems may from time to time be seen not only as a moral issue but as a potential security threat as well.’89
Thus, according to a contemporary construction, human rights violations within a country constitute a threat to international peace and security justifying measures of redress by the international community.90 Such violations can produce an array of complex problems such as refugee flows which may destabilise neighbouring countries, internal dislocation which may cause economic hardship, or they may also export conflict.91 The Representative of Canada to the Security Council followed this approach in the discussions concerning Kosovo. As he said, it is ‘a recognition of the human dimension of international peace and security. . . . Humanitarian and human rights concerns are not just internal matters; they can and must be given new weight in the Council’s definition of security and in its calculus as to when and how the Council should engage.’92
The assimilation of human rights violations with threats to the peace was involved in the imposition of sanctions on South Rhodesia (1968)93 and the arms embargo on South Africa (1977).94 A more recent demonstration of this construction is Resolution 688 (1991) responding to the Iraqi abuses against the Kurds.95 On the basis of this resolution Western powers created safe havens in Northern Iraq.96 Resolution 794 (1992) concerning Somalia97 characterises internal human rights violations without international repercussions as a threat to international peace, whereas Resolution 688 was less explicit on this issue. According to Resolution 794, ‘the magnitude of the humanitarian tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security’.
Resolutions 119998 and 120399 on Kosovo express the alarm of the international community at the ‘continuing grave humanitarian situation throughout Kosovo and the impeding humanitarian catastrophe’ and also affirm that the unresolved situation in Kosovo ‘constitutes a continuing threat to peace and security in the region’. These Resolutions are taken under Chapter VII of the UN Charter which envisages collective enforcement actions but do not contain any such authorisation. The legal basis of the operation then becomes rather opaque with France justifying the NATO action on a perceived mandate by these Resolutions100 whereas NATO’s Secretary General Javier Solana argued for a ‘case by case’ evaluation where ‘it is necessary to act for humanitarian reasons, when a UN Security Council resolution will not be necessary or will not be even appropriate because the UN Charter does not contemplate humanitarian acts’.101 His evaluation of the situation was similar to the aforementioned resolutions that ‘the deterioration of the situation in Kosovo and its magnitude constitute a serious threat to peace and security in the region’ with the added important caveat that following this ‘there are legitimate grounds for the Alliance to threaten, and if necessary, to use force’.102
Social contract theories and humanitarian intervention
Related to the rationalisation and secularisation of natural law is the projection of the individual who is for Grotius the ultimate unit in national and international law.103 States are not anthropomorphic enjoying an autonomous moral standing but are composed of individual human beings.104 We arrive thus at those questions relating to the construct of states and their rights which influence the theory of humanitarian intervention. If man is rational and free, the formation of society is explained only through his free will implied in the social contract. The social contract was the device used to legitimise the authority of secular entities and justify the institutions deemed necessary by man’s reason. It is the configuration of individualism into a political force105 and provides a premise for evaluating social organisations and questioning their justice. Hence, the criterion for humanitarian intervention is the condition of the contract. The contractors enjoy certain natural rights which they agree to transfer to the political community. If the community forfeits these rights, humanitarian intervention, it is argued, will restore the initial contract.106
Modern contractarians such as Rawls follow the tradition of natural law based on equality between human beings as rational entities. Justice is for Rawls ‘the first virtue of social institutions’107 and the principles of justice are those that free and rational persons accept in an initial position of equality.108 The participants, ignorant of their special circumstances, under the veil of ignorance109 choose as principles of justice the Principle of Liberty110 and the Principle of Equality.111 The veil of ignorance thus safeguards certain deprivations for the benefit of disinterestedness and generality. By analogy, the representatives of nations in a position of ignorance, unbiased as to their historical fate,112 choose the principle of equality which is ‘analogous to the equal rights of citizens in a constitutional régime’.113 Self-determination, that is, ‘the right of a people to settle its own affairs without the interference of foreign powers’, is a principle which follows from the primordial choice.114 This accounts for sovereignty and non-intervention is its derivative. Walzer in Just and Unjust Wars115 starts from these premises to proscribe interference because it will undermine the self-determination of a community. He premises his theory on a ‘fit’ between the government and the community based on a somewhat historical approach to political communities. The metaphorical contract he employs reflects the union among the government and the people, ‘the living, the dead, and those who are yet to be born’ which constitutes the state.116 Hence, according to Walzer, a state may be illegitimate at home but its international standing is hypothesised, as if it were legitimate.117 The only remedy against tyrannical regimes is revolution through the domestic process, not foreign intervention. Otherwise, the citizens’ rights to rebellion and to self-determination are curbed.118 Walzer adheres to a rather emotional notion of contract and people’s consent to form political communities, which if broken, can only be restored by the same people whereas in Rawls, there is a correspondence between the causes for internal civil disobedience and external intervention which is the infringement of equal liberty. Civil resistance is a corrective action addressed to the majority and its purpose is to re-establish the shared meaning of justice. Humanitarian intervention similarly reinstates the infringed social contract.119 It seems that Walzer’s theory of social contract resembles that of Grotius’ which conceptualised the existing state of affairs.120 Grotius’ social contract appears as an attempt for the philosophical rationalisation of the status quo,121 whereas for the contractual philosophers it is a means for scrutinising state power. Moreover Grotius tries to minimise the political repercussions of his theory by curtailing any general right of resistance unless a ruler ‘shows himself the enemy of the whole people.’122 Intervention is permitted by Walzer only in extreme cases of enslavement or massacre where the hypothetical ‘fit’ seems to be lacking.123
On the other hand, Rawls is more permissive towards humanitarian intervention. It is only states which satisfy the principles of justice at the national level which enjoy international equal liberty, that is non-intervention.124 Assuming that both just and unjust nations participate in the original position, its hypothetical construction will be destroyed since the parties do not share the appropriate initial position.125 Equality is not only the promulgation but also the substantiation of the original position.126 Parties which do not satisfy national equal liberty are excluded and may be targets of intervention. This position is supported by his articulation of permissible conscription which is ‘for the defence of liberty’ and ‘for those of persons in other societies as well’.127 If non-intervention applies only among states which start from an original position of justice, one should be wary of situations where those principles are abandoned later. Hence, following a common trait, humanitarian intervention is permitted against a state ‘if it severely frustrates the interests of its populace’ since ‘the contractors are concerned . . . with the well-being of persons’.128
In the ‘Law of Peoples’129 Rawls appears more cautious and permits humanitarian intervention exceptionally against situations of tyranny.130 His position approximates Walzer’s theory, although it is more comprehensive than the incident-specific criterion of the latter’s. However, it represents a reversal from his previous position whereby persons are the ultimate moral units and units for appraising societal justice towards a cautious acknowledgement of relativism.131 His aim in international law is peace which a comprehensive concept of justice would threaten.132 Hence, his tolerance of less just societies. For stability and order, there is need to reduce the scope of comprehensive justice to ‘certain fundamental intuitive ideas viewed as latent in the public political culture’133 and increase the systematic adjudication of incommensurable conceptions of justice.134 The same approach informs the positivist envision of the state which is explored in the next chapter. State sovereignty was invented as a shield against any private ideas and understandings which endanger peace with their exhibited propensity for expansion and imposition.