Naturalist concepts of equality

The reception of Aristotle's work in the mid-thirteenth century led to a new understanding of equality as a political ideal.Footnote ¹² In the early medieval writings of St. Ambrose and St. Augustine, equality is dealt with as a theological rather than a political ideal. According to their view, inequality is understood as the consequence of the arrival of sin in the world, which takes away the natural equality of men and makes inequality part of the human condition.Footnote ¹³ Temporal government is then thought to provide an element of order in a fallen world, but it is not supposed to promote or restore the natural equality of men. By contrast, Aristotle emphasised the equality of the members of the polis as ‘the government of men free and equal’.Footnote ¹⁴ The dominant thinker of the reception, St. Thomas Aquinas, rejected the republicanism of Aristotle and focused instead on the perfection of political community, and it is in this context that the idea of the equality among communities was conceptualised.

According to Thomas, a perfect community can only be found among autonomous communities where the laws are subordinated to the natural and eternal law of God.Footnote ¹⁵ The critical question is of course how the human law of a community is derived from natural law. Thomas mentions two different methods: derivation and determination. According to the first method legal rules are derived from more general principles of natural law by means of deduction. According to the second method the rules are determined with regard to specific cases as a result of practical reason.Footnote ¹⁶ Both methods can be employed by all communities and result in two different bodies of legal rule depending on the method applied. The ius gentium (the law of nations) consists of ‘all those conclusions which are directly derived from natural law as immediate conclusions’, whereas the ius civile (the civil law of the bounded community) consists of rules ‘which any city determines according to its particular interests’.Footnote ¹⁷ From this follows that ius gentium consists of universal rules common to all perfect communities, whereas the ius civile differ even between perfect communities. Hence, there can be several perfect communities although the civil laws of the communities differ. If several communities are perfect, yet in this way different, then they can be considered to be equals.

Thus, the thomist position on equality in international society is related to the notion of the perfect community understood as a community in which natural law is practiced; such perfect communities ought to be considered as equals and ought to be treated as such. Hence, the common descriptive property to be found among perfect equal communities is compliance with natural law. But as long as not all communities live up to natural law, not all ought to be considered as equals or treated as equals. The result is a notion of a moral hierarchy of communities that seems very much at odds with the modern pluralist, or ‘Westphalian’, understanding of the equality of all states but which was in fact a central theme in the early modern literature.

This notion of equality was later developed and integrated into the modern understanding of international law by Francisco de Vitoria in the 1530s and by Francisco Suarez in the early 1600s. The idea of a universal society of mankind is an important element of this approach. Such a universal society is thought to embrace all perfect communities so that they are united on a higher level and in a moral sense, whereas the legislative powers remain a concern for the bounded community.Footnote ¹⁸ Vitoria and Suarez shared the idea of a perfect community and also accepted the ius gentium as partly a natural legal order, partly a result of agreement between states.Footnote ¹⁹ And while they did conceive of the ius gentium as something common to all political communities of Europe, they did not think that it was shared by all peoples of the world. Especially in Vitoria's times, the relations between his native Spain and the so-called ‘new world’ called for a philosophical and legal response which he sought to provide. Vitoria and Suarez developed a theory of international law of practical relevance for the emerging European states-system. Essentially, their outlook was thomist.

Suarez's protestant follower, Hugo Grotius, accepted the de facto division of self-governing communities and the view that the autonomy of political communities had to be anchored in a wider legal system founded on natural law. But Grotius presented a different theoretical foundation.Footnote ²⁰ He hoped to address problems of international law from a point of view acceptable to both Catholics and Protestants. His approach relied on a concept of universal reason common to all humans, and just like the thomists, Grotius viewed the bounded community as a part of a wider hierarchical legal and philosophical system.Footnote ²¹ Sovereignty was thus understood as an element of a system or norms, and the equality of states therefore still meant equality ‘from above’ through natural law, not ‘from below’ reflecting the views of free and equal citizens.

The early modern understanding of states and the association of states gradually came to involve a new concept of equality, that was formulated largely in opposition to the thomist tradition of thought, and that responded to the practical political problems facing early modern Europe. This new concept of equality was inspired by social contract theory, and based on the idea of states as natural equals. The eighteenth century consensus around this doctrine is founded on the writings of Samuel von Pufendorf and Eméric de Vattel.Footnote ²² The following quotation from de Vattel is illustrative:

Judging from de Vattel states are natural equals in much the same way as individuals are thought to be equals by nature in the state of nature. In other words, equality is natural and pre-political.

Pufendorf argues that the social contract is not primarily about security and order, but about sociability. And this has important implications for the idea of international society, because for Pufendorf the state of nature is not characterised by the absence of law. The fact that states uphold peaceful relations is for him a proof that Hobbes's view of the state of nature as a state of war is wrong, concerning both the life of individuals in the state of nature and concerning the nature of the international relations of states.Footnote ²⁴ Pufendorf argues that international society is hold together by quasi-legal principles (lex imperfecta). The equality of states is due to their capacity to transform lex imperfecta to lex perfecta owing to the powers of the sovereign.Footnote ²⁵

Moreover, in the eighteenth century a body of literature appeared that rejected the theories of Grotius and Pufendorf, and suggested instead a permanent federation of states. Accordingly, Rousseau argued that peace among political communities can only be secured if states form a ‘confederation’ which is a ‘perpetual and irrevocable alliance’.Footnote ²⁶ In his proposal for a ‘Commonwealth of Europe’, Rousseau lists nineteen sovereign powers of Europe to be entitled one vote each in the government of the confederation, and all decisions should be taken with ‘the unanimous consent of the Confederates’. However, Rousseau regards smaller countries and dominions as ‘possessions’, and as such not to be entitled independent status and their own vote.Footnote ²⁷ Kant suggests a federation of republican states.Footnote ²⁸ This idea involves a domestic analogy between individuals as citizens in a republic and states in a republican international society. Accordingly, Kant argues that ‘nations, as states, may be judged like individuals in the natural state of society’.Footnote ²⁹ But in order to be like moral persons states would have to be independent and republican.Footnote ³⁰ Thus, according to both Rousseau and Kant the basis for a theory of equality of states has to be founded on the internal constitution of states, and a permanent confederation of equal states has to be constructed as a necessary means for the achievement of perpetual peace. The principle of equality of states is thus regarded as a moral and political ideal, but it is not thought to be applied on a global scale, and not all states are thought to be equals.

To sum up, the two naturalist approaches differ in at least two significant aspects concerning the justification of equality of states. First, the common descriptive properties are different. The thomist approach focuses upon the notion of a perfect political community and the work of practical reason, whereas authors relying on social contract theory regards states to be natural equals in a pre-political sense. Second, the thomists look for a moral argument in support of equality among political communities. The perfect community is then regarded to be morally superior to other associations, which is the reason for equal treatment. The early modern consensus, represented above by de Vattel, shares a pragmatic account of equality, that is, states are natural equals because states are states. However, the attempt to qualify the content and meaning of equality of states involves hierarchical notions of equality and the ranking of states, such as was suggested by Rousseau.

Constructivist concepts of equality

The political philosophy of Thomas Hobbes revolutionised the concept of equality of states. The state, or commonwealth as Hobbes preferred to call it, is, according to him, the result of human design. In De Cive he illustrates this by comparing the state to ‘a watch, or some such small engine’, meaning that the state is not natural but constructed with intention behind.Footnote ³¹ Hobbes's understanding of the state as a construction, an ‘Artificiall man’, and the concept of equality of fear for the individual persons in the state of nature, makes the Hobbesian idea of equality dramatically different from the notion of pre-political equality to be found in Pufendorf or Vattel. According to Hobbes there is pre-political equality of individual persons, but not of artificial persons. In short, states cannot be in a state of nature. Moreover, the civil laws of the state emanate from the will of the sovereign. Hence, law-making can only take place within the commonwealth, because there has to be a sovereign to make law.Footnote ³² For this reason the thomist understanding of ius gentium as a body of legal rules common to all communities has to be rejected and replaced by concept of international rules agreed upon voluntarily by states. These rules should not be understood of as civil laws or natural laws, but as charters that are ‘donations of the sovereign; and not Laws, but exemptions from Law’.Footnote ³³ This view later led on to the seminal distinction between internal and international law introduced by Jeremy Bentham in the 1780s.Footnote ³⁴

If there is no natural equality of states, a principle of equality of states will have to result from charters, reflecting the will and interests of diverse political communities. Thus, the principle of equality of states has to be constructed. The common descriptive property justifying equality according to this view is sovereignty. This is so because it is the prerogative of sovereigns to decide which political communities that should belong to the family of states and enjoy an equal standing.Footnote ³⁵ Once sovereignty is granted to a political community there is no easy way to change the decision and the fundamental equality remains.

The idea that equality of states derives from sovereignty and the consent of states became the new consensus, and still is. One expression of this is by Lassa Oppenheim (1905):

Oppenheim echoes some of the central elements of the older notions of equality of states. Equality of states means formal and not substantial equality, and states are thought of as belonging to a family of nations. As for international organisations, it is argued by several authors, Oppenheim included, that the principle of equality of states is compatible with a majority vote, unequal representation at least concerning minor issues, and international courts provided they are unanimously accepted. However, international legislative bodies are generally rejected and regarded incompatible with the equality of states. The reason why states are equals, according to Oppenheim, is that they are in fact regarded by each other as sovereigns. The de facto acceptance of equality of states thus implies the de jure commitment for the principle. Similarly, Georg Jellinek argues that sovereignty is based on the ‘self-binding’ of states.Footnote ³⁷ Thus, according to this view, the political act of recognition is of vital importance for the normative principle of equality.

During the late nineteenth century and the early twentieth century, the principle of equality of states became a major concern for publicists, diplomats, and international lawyers. The subject was discussed on several diplomatic occasions of which the most notable was the 1907 Hague Peace Conference. Some delegates at the Conference demanded that states should have equal voting power, regardless of their size and importance in international affairs. Other delegates regarded this as a dangerous practice. Two main arguments were articulated against the principle of equality of states and the application of equal voting power: Firstly, that the principle, being a normative principle with little resemblance to facts, would not protect the small states from great power interventions. Secondly, that if the principle was implemented, including equal voting power, it would render the small states too influential compared to the great powers.Footnote ³⁸ The problem of how to balance the interests of small states and great powers later resulted in a compromise. The Covenant of the League of Nations allowed the great powers to dominate the Council, and the Charter of the UN later granted the great powers a privileged position in the Security Council.Footnote ³⁹

Many international lawyers in the early twentieth century were sceptical to the principle of equality of states for theoretical reasons. Traditionally, the doctrine of equality of states had been founded on natural law theory and the idea of a social contract. Those who rejected the idea of equality of states did so because they rejected natural law theory as well, viewing it as based on a ‘discarded’ political philosophy.Footnote ⁴⁰ An extreme view was presented by Lorimer already in 1886. He claimed that international institutions should be based on the actual interdependence of states and not on formal principles. As a result there should only be ‘relative recognition’ of states based on the factual rather than the formal aspects. According to Lorimer the great powers should be considered equals and should carry out the grading of other states.Footnote ⁴¹ But even if Lorimer sought to rely on empirical criteria, a moral argument was involved, namely, that states should have their due in relation to their relative contribution to world affairs.

The sceptical attitude that is typical of several authors at the time can partly be explained by the impact of analytical jurisprudence, such as legal positivism and legal realism. The fierce attack on the principle of equality of states by P. J. Baker in 1923 is clearly influenced by this particular tradition. Baker regards the doctrine of legal equality of states as a ‘redundant theoretical abstraction’ and ‘not useful in the scientific system of international law’.Footnote ⁴² Baker's main point is that equality of sovereign states is simply another word for political independence. He regards equal voting power among states as an impediment on the independence of states and as an undemocratic practice, since it does not take into account the size of the population of states.Footnote ⁴³

The most important contribution to the literature on equality of states of this period is probably Edwin Dickinson's book The Equality of States in International Law (1920). According to Dickinson there are two different legal ideas involved in the debate. First, there is equality before the law, prescribing that states should be equals under international law, that is, international laws should be regarded as general rules for all subjects whom the rules apply to. According to this view unequal voting power or unequal representation in international organisations does not imply that states are unequal in a legal sense.Footnote ⁴⁴ Accordingly, Baker argues that equality in this sense does not mean that all states must be subjects to exactly the same rights. For instance, some individuals or groups within a society may in fact be entitled to certain rights or privileges that are not given to all. The same can apply to states without interfering with the principle of equality of states.Footnote ⁴⁵ Hence, great powers can retain special rights under international law while at the same time all states are regarded as equals before the law. The privileged position of the permanent members of the UN Security Council can be understood in this way.

The second legal idea of equality prescribes equality of rights for all states.Footnote ⁴⁶ According to this idea there can be no special rights for some states or groups of states, and equal voting power and representation should be applied. But the idea of equality of rights, as Dickinson new it, derives from classical natural law theory or social contract theory, and neither Dickinson nor Baker accept that type of legal philosophy. Dickinson views equality before the law as an essential component of every legal system whereas he regards the notion of equality of rights as merely a normative ideal. And Baker shows that equality of rights is not generally applied in either municipal law or international law. Whereas Baker is negative and even hostile to equality of rights among states, Dickinson is not entirely negative of the ideal as such but he regards it as ‘inapplicable’ to international affairs since he thinks that the preservation of plurality is the central concern. ‘Insistence upon complete political equality’, he argues, ‘is simply another way of denying the possibility of effective international organization’.Footnote ⁴⁷

To recap, the constructivist concept of equality of states led to a new consensus involving at least three central elements: First, the principle of equality of states was derived from sovereignty through recognition; hence, sovereignty became the common descriptive property of the units that were thought to apply to the principle. Second, equality was viewed as a pragmatic rather than a moral principle; that meant a break with older naturalist concepts of equality, particularly thomism. Third, equality of states was limited to equality before the law, whereas the wider notion of equality of rights was generally rejected. Hence, there was a threshold: all sovereign states should enjoy equality before the law.

Kelsen: equality without sovereignty

One of the critics of the new consensus was Hans Kelsen. Kelsen's criticism is of general theoretical importance for two reasons: firstly, because it questions the widespread idea that equality is derived from sovereignty and, secondly, because of the observation that equality before the law is too limited to be meaningful.

As for the question of sovereignty and equality, Kelsen's criticism is founded on his rejection of sovereignty as the basis for international law. He rejects the popular theory that sovereignty is intimately connected to power, and claims that such a theory is metaphysical and a kind of theology ‘derived from a tendency to deify the State’. For Kelsen, state sovereignty means ‘the legal authority of the States under the authority of international law’ and is ‘limitable and limited only by international law’.Footnote ⁴⁸ Kelsen's suggestion is that any principle or legal rule becomes valid only with reference to an appropriate source, such as legislation, custom or treaty. Sovereignty and equality are both rules of that kind, and therefore equality of states cannot be derived from sovereignty.Footnote ⁴⁹ Kelsen's views depend on his epistemology in at least two important respects: First, legal monism which teaches that all states are subjects of the international legal system, and that national legal systems are essentially sub-systems. Second, since law and state are not separated, laws cannot be created by the state.Footnote ⁵⁰

The second point raised by Kelsen is about the meaning and content of equality of states. Initially he does not reject consensus on this point. For instance, he shares the view that states do not have the same rights and duties, but he does that for empirical rather than theoretical reasons. Equality of states is then specified in following way:

Thus, Kelsen seems to accept roughly what has been called equality before the law above. However, he regards this to be ‘an empty and insignificant formula because it is applicable even in case of radical inequalities’. For instance, great powers could enjoy a number of privileges exclusively on the condition that they are great powers, and minor powers could be refused most rights under the condition that they are minor powers, and yet, the principle of equality of states would still be valid. Therefore, Kelsen writes, ‘the principle of legal equality, if nothing but the empty principle of legality, is compatible with any actual inequality’.Footnote ⁵²

Moving on to the theory of international society, the understanding of equality of states is generally limited to equality before the law as a basic rule, whereas sovereignty is thought to be the fundamental rule. Equality thus becomes a ‘corollary principle’ to sovereignty.Footnote ⁵³ The English School is based on an entirely different philosophical foundation than is Kelsen's legal theory; that is, the English School is neither founded on legal monism nor the assumption that state and law cannot be separated. But Kelsen's suggestion that sovereignty and equality are not related is relevant after all.

In The Anarchical Society (1977) Bull is clearly influenced by the legal philosophy of H. L. A. Hart. It is well known that Hart sought to separate politics from law. Hart wanted to avoid the idea that the authority of legal rules depended on political power. Instead Hart argues that legal rules receive their authority from so-called ‘secondary rules’. There are three such ‘secondary rules’: The ‘rule of recognition’ that specifies the features of legal rules; the ‘rule of change’ regulates the procedures according to which legal rules can be enacted; the ‘rule of adjudication’ defines the institutions that can settle legal disputes.Footnote ⁵⁴ According to Hart, international law lacks secondary legal rules as a matter of fact.Footnote ⁵⁵

Bull shares Hart's ideas on these matters and consequently rejects the idea that there is an international legal system of the same kind as national legal systems. However, there is clearly a set of rules that is generally complied with by states and regarded to be binding on them out of ‘habit’ or ‘inertia’. According to Bull states comply with international law due to ‘the fact that they so often judge it in their interests to conform to it’.Footnote ⁵⁶ Bull regards political power to be important for the political order of international society and even in order to make the system of international law effective, but international law does not receive its authority or validity from political power.Footnote ⁵⁷

Thus, Bull's strategy is rather the opposite of Kelsen's. Instead of closing the door for a dualistic concept of state and law, Bull, being influenced by Hart, attempts to separate the two spheres: the legal and the political. In that way he is able to isolate power politics within the political realm. As a consequence the content and the authority of international law are not viewed as a direct result of political power. Sovereignty may play a part in all this, but the rules of sovereignty are not the result of power politics but of international law.Footnote ⁵⁸ Hence, following Bull's arguments on these matters, there is really not the connection between sovereignty and equality which he himself indicates.Footnote ⁵⁹ Perhaps Bull was not aware of this inconsistency himself. Inconsistency is sometimes to be found upon closer scrutiny of Bull's work, and there seems to be more room for normative reflection in his theory of international society than Bull wanted to admit himself.Footnote ⁶⁰

Anyway, once the intimate connection between sovereignty and equality is avoided, the principle of equality becomes a normative principle on its own merits. This means, for instance, that equality in international society must not be limited to equality of sovereign states, but that other units than states can be taken into consideration as well. Rawls's concept of the equality of peoples is one of several interesting ways to approach the issue of equality. However, before paying attention to Rawls's theory the other aspect of the consensus needs to be addressed, that is, the concept of equality before the law.

The best reason why equality before the law is difficult to reject is probably because there seems to be few if any realistic alternatives to it. The challenge to be faced is not to replace equality before the law but to make room for a more inclusive and meaningful concept of equality without disturbing the rigidity of the existing principle.

One way to proceed might be to make use of Peter Singer's distinction between equal consideration of interest and equal treatment. Singer argues that there is no reason to believe that differences of capacity between two persons justify an unequal consideration of their interests. This is so because equality is a normative principle, not a statement about facts. According to Singer, we ought to take into account of interests because they are interests and not because they are articulated by particular persons or groups. This is the principle of equal consideration of interests. The only capacity that is important here is the capacity to have an interest. However, equal consideration of interest does not imply equal treatment. According to Singer, unequal treatment is acceptable if it brings about a less unequal situation for all parties concerned.Footnote ⁶¹

A particular characteristic of equality before the law is that it is thought to be applied symmetrically to all states that, to borrow Kelsen's phrase, ‘have the same capacity of being charged with duties and of acquiring rights’.Footnote ⁶² R. J. Vincent notices that states have lesser or greater capacity of rights but that equality before the law nevertheless secures an equal treatment by the law.Footnote ⁶³ This view, defending consensus, implies that equality is one way or another related to sovereignty, because only sovereign states, weak or strong, can benefit from an equal treatment under international law. However, the capacity may not be attributable only to states, and not all states may in fact possess it. As is noted by Jackson, a state may be a ‘quasi-state’, lacking a number of capacities normally understood as implicated in the notion of sovereign statehood.Footnote ⁶⁴ The fact that a state lacks capacities is not a problem for the principle of equal consideration of interests since only the capacity to have an interest is important, but the focus on sovereignty leads to an unjust exclusion of non-state actors.

Certainly, Singer's notion of the capacity to have an interest is an entirely different idea than that of the capacities referred to by Kelsen and others. However, it does open the door for an equal consideration of interests of communities other than states, such as peoples that are not sovereign states but which nevertheless possess the ‘capacity of being charged with duties and of acquiring rights’. Because, if the legal idea of equal treatment before the law is retained and if at the same time the connection between sovereignty and that legal idea is rejected, the specification of the units to be treated as equals cannot be solved by sovereignty, but still, the concept of a ‘capacity of being charged with duties and of acquiring rights’ can be retained, however not as an alternative to the capacity to have an interest, but rather as something that is required for equal treatment, that is, a necessary condition for equal treatment by the law. Before the rules of equal treatment can be settled – or, in other words, before the specification of the units in question to potentially enjoy equal treatment is made – an equal consideration of interests will have to take place. Understood in this way, equality before the law is more inclusive than originally conceived of.

Rawls: the equality of peoples

In The Law of Peoples (1999) Rawls writes about the equality of peoples rather than the equality of states, thus indicating a shift from states to peoples. Ideally, a people should be a liberal people, according to Rawls. A liberal people should have a ‘reasonably just constitutional democratic government’, share ‘common sympathies’ and possess ‘a moral nature’, that is, ‘a firm attachment to a political (moral) conception of rights and justice’.Footnote ⁶⁵ Liberal peoples are of course not identical but can nevertheless count as equals. Furthermore, Rawls seeks to find a way to tolerate and to include other than liberal peoples into ‘a society of peoples’. To tolerate, in this context, argues Rawls, is ‘to recognize […] nonliberal societies as equal participating members in good standing of the Society of Peoples’. Here Rawls formulates what could be interpreted as a principle of equality of peoples: When different peoples compose a society of peoples they should ‘offer other peoples public reasons to the Society of Peoples for their actions’.Footnote ⁶⁶

According to Rawls, peoples should be at least ‘well-ordered’ in order be considered equals. The category of well-ordered peoples includes both liberal peoples and so-called decent peoples, the latter living up to the threshold. Thus, peoples should be considered as equals and treated as such if they observe human rights, if the people are consulted on major issues, and if a right of dissent is accepted. Moreover, the reasons offered in defence of the internal policies have to be tolerable to other peoples. These are the minimal characteristic of a well-ordered people. The common descriptive property justifying equality is then that peoples should be treated as equals if they live up to the standard of being ‘well-ordered’:

In opposition to the modern consensus on a pragmatic approach to equality, Rawls's theory involves a moral hierarchy. When looking back on the literature, there is a similarity between Rawls's conception of the equalities of peoples and Thomas's theory of the equality of perfect communities.Footnote ⁶⁷ The similarity is due to the fact that both authors view equality of communities or peoples as something to be derived from normative philosophical reasoning independent of actual political conditions. But contrary to the thomist literature that was based on natural law theory, Rawls focuses upon the way principles of justice are constructed. In that sense Rawls is a constructivist.Footnote ⁶⁸ Even if Rawls has opened the door for a collectivistic ontology of peoples when placing so-called ‘decent peoples’ in the category of ideal theory, the view that only individuals are moral persons is really not challenged.Footnote ⁶⁹ Anyway, the task remains to analyse to what extent Rawls's concept of equality of peoples is serviceable for the concept of equality in international society.Footnote ⁷⁰

The distinction between a moral and a pragmatic concept of equality involves the question of hierarchy.Footnote ⁷¹ Those who defend the concept of equality from the moral point of view typically arrive at a notion of relative equality and of a hierarchy of communities, whereas the defence of a pragmatic concept of equality results in a limited concept of equality, such as equality before the law, to be applied to all states. However, what at first seems to be a choice between two theoretical positions – moral hierarchy and an anarchical order of equal and sovereign states – is rather a question of the right reasons for hierarchy. Since the principle of equality before the law allows so much inequality among the units that are supposed to be equals and since it excludes the non-sovereign peoples, the relevant choice is perhaps a choice between, on the one hand, a hierarchy founded on moral arguments and, on the other hand, a hierarchy founded on conditions, such as the distribution of power. When viewing equality as a normative principle, only the first alternative is acceptable. This is why ‘the capacity of being charged with duties and of acquiring rights’ is too low a threshold for a normative concept of equality in international society.

The theory of international society of the English School involves two loosely defined positions: pluralism and solidarism. Briefly stated, pluralists claim the primacy of sovereignty and an adherence to a strict non-intervention policy unless the international pluralism of states is threatened by acts of aggression or war, while solidarists suggest sovereignty to be conditioned and humanitarian interventions to be acceptable.Footnote ⁷² Both sides take little interest in the issue of equality.

Pluralists seem generally to have no problems to accept the consensual position of equality before the law as a safeguard for the legal independence of states. However, the attempt to reduce the normative principle of equality of states to equality before the law does not provide enough guidance for dealing with the degree of inequality that could be compatible with deeper pluralist ideals. As John Williams has argued, the liberal notion of toleration when applied to international society becomes ‘an agreement to disagree on the correct way to order domestic society’, and as a result it ‘establishes a system of tolerance that is too narrowly focused on states and too broad in the leeway it grants states to practice domestic intolerance’.Footnote ⁷³ Hence, equality before the law may turn out to be too limited not only for those who advocate radical change but also for those who argue in defence of pluralism. Moreover, it has been shown that modern international society historically has sought to fulfil two different goals: to establish a regime of toleration or pluralism and to promote a particular understanding of civilisation.Footnote ⁷⁴ If this is true, the traditional view of international pluralism is but one aspect of international society and turns out to propagate rather an idealistic version of liberal international society. Hence, the pluralist position would benefit from a concept of equality that is not implicated in sovereignty and that includes other entities than states.

Solidarists seem generally to accept the state system as a base line, but offer reasons to support a commitment for the humanitarian cause. While solidarists base their thinking a great deal on moral cosmopolitanism and the equality of individuals, they seem unwilling to deal at length with the equality of states, focusing instead on sovereignty and the idea that sovereignty should be conditioned for humanitarian reasons.Footnote ⁷⁵ Viewing equality as a normative principle that is not dependent on sovereignty may prove more serviceable for the solidarist commitment than the problematic task of trying to reconceptualise sovereignty. The progressive ethos of the solidarists involves attempts to open up international society for problem-solving discourses focusing on humanitarian values, the fostering of ‘good international citizenship’ and attacking the ‘totalising project’ of thinking and acting in International Relations.Footnote ⁷⁶ This literature adds concretion and empirical relevancy to Rawls's rather abstract categories when trying to conceive of a moral hierarchy of states and other units to be entrusted with rights and charged with duties.