ABSTRACT
In this chapter I will try to address one of the most pressing questions of our time, which is how we can respect the fact that there are widely divergent ontologies and ways of life that must be articulated in international law, within the constitutions of nation states, and ultimately in continental communities such as the European community and the African community. In “The Law of Peoples” John Rawls boldly argued that recognition of ontologically different world views (particularly in relation to religion) would necessarily entail that a law of the peoples could not be rooted in liberal principles, particularly in a specific conception of moral individual agency. Famously, Rawls’ respect for pluralism led him to reject a global veil of ignorance, precisely because such a hypothetical experiment in the imagination implicates what Rawls himself viewed as a liberal representation of personhood and justice. I begin with Rawls’ attempt to envision what a reasonable Islamic state might look like, as part of his effort to develop a law of the peoples that would truly respect pluralism. I agree with Seyla Benhabib’s many powerful criticisms of Rawls’ own conception of the law of the peoples, particularly as it is insensitive to the devastation of empire and the horrific realities of colonialism. Indeed I will endorse Benhabib’s notion of democratic iterations and jurisgenerative politics as both descriptively accurate and ethically encompassing of the struggles around legal pluralism in South Africa. Both Benhabib and I advocate a cosmopolitan federation. I want to argue that we should leave it an open question of whether or not such a federation should rest in a law of the peoples rather than cosmopolitan right (ius cosmopoliticum). There is a terrible irony in the Roman Law use of ius gentium which is that within legal systems influenced by Roman law, including Roman Dutch Law in South Africa, ius gentium is the law of the other. In Roman law the civil law covered the citizens of Rome, the customary law-ius gentium-was the law for those outside the reach of the civil law-all of Rome’s conquered peoples. Under the apartheid system the people’s law (ius gentium) was the customary laws of the majority black population. As Benhabib has reminded us, “‘the other’ is not elsewhere” (87). Nor is the law of the peoples, at least not in the nation state of South Africa. The status of customary law, and indeed what constitutes customary law, remains a burning question in South Africa. Rawls’ attempt to respect pluralism, then, has a broader reach than his own conceptualization of a law of the peoples. How
to ethically and politically grapple with pluralism-legal pluralism as well as policultural pluralism (to use the telling phrase of John and Jean Comaroff)—is crucial if we are to develop an overlapping consensus on principles of international law and the foundational principles of a nation state’s constitution, such as that in South Africa. I will contend that Benhabib’s notion of jurisgenerative politics is rich enough to address policulturalism even when ontological diversity actually challenges the dominance of some of the most deeply held views of what the project of secular modernity demands of the structure of law, be it international or national. Let me start with some of the salient points of Rawls’ article “The Law of Peoples” and then move to how some of Rawls’ insights need to be deepened to fully grasp the challenges of the status of the customary law within the nation state of South Africa.
