6

THEORIES OF JUSTICE

INTRODUCTION

Some of the earliest thinking about justice is found in Aristotle. It was he who 6–001
distinguished “corrective justice” and “distributive justice”.1 The law of tort is often justified
in terms of corrective justice. Seen in this way its objective is to do justice between the
parties without taking account of larger distributive issues in society as a whole.2 Whether
this can be done is debatable—but this debate must be reserved for later in this
chapter.3Most contemporary writing about justice is about distributive justice, about the
appropriate distribution of goods. In the Nicomachean Ethics, Aristotle puts forward the
view that goods should be distributed to individuals on the basis of their relative
claims.4 Such an idea is but a framework for examining different conceptions of justice:
thus goods might be distributed according to needs5 or desert6 or moral virtue7, etc.

RAWLS AND DISTRIBUTIVE JUSTICE

One of the most interesting modern attempts to defend principles of justice is John 6–002
Rawls’s A Theory of Justice8 as now reformulated in Political Liberalism.9 One cannot
think about justice, one commentator observed,10 without taking a position on
Rawls’s Theory of Justice.
The conception of justice for which Rawls argues demands:

(i) the maximisation of liberty, subject only to such constraints as are essential for the
protection of liberty itself;11
(ii) equality for all, both in the basic liberties of social life and also in distribution of all
other forms of social goods, subject only to the exception that inequalities may be
permitted if they produce the greatest possible benefit for those least well off in a
given scheme of inequality (“the difference principle”); and
(iii) “fair equality of opportunity”12 and the elimination of all inequalities of opportunity
based on birth or wealth.13

Rawls’s theory differs from utilitarianism in three significant ways. First, utilitarians can
accept inequalities, social arrangements in which some benefit at the expense of others,
provided the benefits (or pleasures) exceed the costs (or pains), so that the outcome is
the maximisation of overall welfare level (“the greatest happiness of the greatest
number”). This may be thought unjust.14 Secondly, while utilitarians defend liberty and
political rights, they have no objection to limiting liberty or restricting political rights,
provided doing so would promote greater well-being. Rawls’s first principle (the equal
maximum liberty principle) means that there are some rights, freedom of speech and
association, the right to vote and stand for public office, liberty of conscience and freedom
of thought, freedom of the person and the right to hold personal property, freedom from
arbitrary arrest, which every system must respect. These are rights that may not be
sacrificed to increase the aggregate welfare level. Thirdly, Rawls’s conception of benefits
is different from utilitarianism, which is concerned with welfare. Rawls, by contrast, defines
benefits in terms of “primary goods”15: liberty and opportunity, income and wealth and the
bases of self-respect.16 These need not be considered desirable in themselves, but they
give persons the opportunities rationally to further their own autonomy.17 Rawls does not
stipulate how primary goods should be used by individuals: he implies that they may use
them as they choose, provided in doing so they do not undermine just institutions.
 To arrive at these principles of justice Rawls uses a “refurbished”18 version of the social
contract argument.19 He claims that his principles are those that “free and rational
persons concerned to further their own interests would accept in an initial position of
equality as defining the terms of their association”.20 This argument has only superficial
similarities with the tradition of Hobbes, Locke and Rousseau. The function of the social
contract in their theories is to justify the legitimacy of government and hence our
obedience to it by claiming that we, or our forebears, agreed to establish a particular
political structure. Rawls does not make any such claims: there is no historical or quasi-
historical pact in his writing; nor does he use contractarianism to justify obedience to laws
or governments.21 What he sets out to show is that certain moral principles are binding
upon us because they would be accepted by people like us in the “original position”. As
contrasted with naturalism,22 Rawls does not assume the principles of justice can be
found through the use of reason or in nature. Nor does he think they can be found
empirically or in intuition or within religion. What Rawls hunts out are mutually acceptable
ground rules.
He thus conducts a thought experiment. He imagines a hypothetical forum of individuals
subject to a “veil of ignorance”.23 This precludes them from knowing more or less
everything about their own selves, their conditions, so that they are incapable of distorting
principles to serve their own or other special interests. They would be ignorant of their
own views on the “good life”. They would not know their status, social position, class,
colour, religion, degree of intelligence or strength. They would not even know at what time
or in what place they are living. They would not know to which generation they belong, or
the stage of civilisation of their society. They would know that everyone, themselves
included, has in some degree the characteristics mentioned. What they are ignorant of is
“their own particular aggregation of them”.24 Thus constrained, the parties draw up the
principles not by using moral reasoning, nor by effecting compromises between
competing moral stands. Rather, as Lyons puts it:
“moral notions enter into the contract argument by suggesting constraints on prudential
reasoning (it must not be skewed to serve special interests, for example) and on the
results (which must be general principles, applying to all societies).”25
This aims at guaranteeing that the worst conditions one might find oneself in is the least
undesirable of the alternatives. Given this connecting link, Rawls reasons that his
principles would be preferred to others, since they favour the least advantaged members
of society. It should be pointed out, however, that one can buy into the “original position”
and still not be convinced by Rawls’s principles, and the converse (being convinced by the
principles but not the method of arriving at them) also applies.
Political Liberalism is an attempt to refine the thesis of A Theory of Justice, in large part
in response to criticisms levelled at the first book.
We are now offered a political conception of justice (as distinguished from a
comprehensive religious, philosophical or moral conception of the good). Political
liberalism accepts the “fact of reasonable pluralism”,26 the fact that a diversity of
reasonable yet conflicting and irreconcilable religious, philosophical and moral doctrines
may be affirmed by citizens in the free exercise of their capacity for a conception of the
good.
Political liberalism also emphasises the “fact of oppression”,27 the fact that “a continuing
shared understanding on one comprehensive religious, philosophical or moral doctrine
can be maintained only by the oppressive use of state power”.28
Despite these two facts, Rawls argues that citizens in a constitutional democracy who
hold opposing, even irreconcilable, conceptions of the good can find a shared basis of
reasonable political agreement through “an overlapping consensus”29 concerning a
political conception of justice. Such a political conception of justice would provide fair
terms of social co-operation on the basis of mutual respect and trust that the members of
the society might reasonably be expected to endorse. And it would have priority over the
state’s pursuit of conceptions of the public good,30 so that “justice” may be said to
precede and to constrain the good.
 In Political Liberalism, Rawls postulates a four-stage sequence whereby the two
principles of justice are incorporated into the institutions and policies of a constitutional
democracy.31
The first stage is the “original position”, followed by constitutional, legislative and judicial
stages.32
At the constitutional stage, the general structure of government and the political process
are embodied in the constitution. So are the equal basic liberties of the first principle of
justice. The second principle of justice is not, however, on Rawls’s view, a constitutional
sine qua non for a constitutional democracy. It is his view that the history of successful
constitutions suggests that principles to regulate economic and social inequalities, and
other distributive principles, are generally not suitable as constitutional
restrictions.33Rawls is, of course, referring largely to the American experience.34
The second principle of justice is incorporated only at the legislative stage, and then
only insofar as it is accepted by citizens. Rawls thus has a dualist conception of
constitutional democracy, with what the “People” will initially as a “higher law” than what
subsequently emanates from legislative bodies.35
At the judicial stage, this dualism is protected by the courts, one role of which is to
protect the higher law against challenges and encroachments by ordinary legislation.
Rawls is thus committed to the institutions of judicial review as a necessary feature of a
constitutional democracy.36
Rawls does not see the political conception of justice “as a method of answering the
jurist’s questions”, though he believes it may provide “a guiding framework, which if jurists
find it convincing, may orient their reflections, complement their knowledge and assist
their judgment”.37 There is a nod here in the direction of those concerned with
constitutional interpretation in the United States, but the issues he raises have
implications for those concerned with democracy and adjudication elsewhere too.
The theme is taken up be Cass Sunstein in The Partial Constitution. He puts forward a
theory of “deliberative democracy”. This requires governments to provide public-regarding
reasons concerning the common good for its actions, and prohibits it from furthering only
the “naked preference”38 of private groups or individuals. “Deliberative democracy” has
four core commitments. First, a belief in political deliberation with decisions reflecting
public-regarding reasons.39 Decisions should not merely protect status quo neutrality or
“prepolitical” private rights.40 Secondly, it entails a commitment to citizenship and to
widespread political participation by the citizenry.41 The development of the concept of
citizen’s charters in Britain in the 1990s is far from what Rawls and Sunstein envisage—
these were designed by government and not by the people. A true commitment to
citizenship implies not just a sphere of autonomy outside the state’s interference,42 but
property rights and social programmes that attack poverty43 and the inclusion within
citizenship of groups previously excluded on the basis of “morally irrelevant
characteristics”44 such as race, gender, sexual orientation, disability and, perhaps, age (to
what extent do we recognise the citizenship of children?45). Rawls and Sunstein might
detect some incoherence in New Labour’s “social inclusion” policies, but the commitment
to citizenship more closely approximates to theirs. There is, thirdly, a commitment to
agreement as a regulative ideal for politics46: the goal is agreement among equal citizens
through deliberation concerning public-regarding reasons, not conclusions which note the
different perspectives of “disagreeable people”.47 The final commitment is to political
equality. This prohibits not just disenfranchisement but also disparities in political influence
held by different social groups.48 It does not entail economic equality, but it does rule out
poverty and discrimination, and does require rough equality of opportunity, including in
particular educational opportunity.
Rawls’s theory of justice—as originally conceived in the book of that name—had (and
continues to have) an enormous impact, but it has been subjected to a number of
criticisms.49
The device of the “original position” attracted much criticism. Sandel showed that
Rawls’s account of this and the status of the descriptive premises was far from
clear.50This makes it both easier to attack (there are, for example, inconsistencies), and to
defend. Perhaps the most basic criticism asks why people who are not in the “original
position” should adopt principles chosen by those who were.51 Rawls’s answer is that the
conditions and constraints embodied in the “original position” constitute a model of
procedural fairness, and so should be acceptable to everyone.52 But what if there is a bias
in the “original position” so that principles are not chosen fairly? To Marxists and some
feminists53 such bias is inevitable. Fisk,54 for example, argues that it is impossible to
abstract man from his material circumstances. Rawls’s view of humans is that they are by
nature free and rational beings.55 But to Fisk “once the facts of my historical situation are
clear to me, then the life plans it would be rational for me to choose are considerably
restricted”.56 Fisk applies this reasoning to numerous facets of Rawls’s thought. Thus,
Rawls says that persons in the “original position” will agree that there should be freedom
of thought. But Fisk retorts:
“The thoughts one takes an interest in defending are one’s own rarely in more than the
sense that one is willing to defend them … They are …, by and large, inculcated by
institutions. And these institutions are strengthened by people defending these very
thoughts.”57
Liberals also detect bias in the “original position”. Nagel58 believes it contains a kind of
bias to be found in all contractarian theories. Since parties in the “original position” must
reach a unanimous choice, Rawls assumes that the “thin” theory of primary social goods
is a sufficient basis for them to act in choosing a conception of justice. The theory is “thin”
because parties do not know their full conception of the good, but only that wealth and
self-respect,59 for example, are desirable. If differing “full” conceptions of the good were
allowed, no unanimity in principles would result. But, as Nagel points out, “the
suppression of knowledge required to achieve unanimity is not equally fair to all the
parties, because the primary goods are not equally valuable in pursuit of all conceptions
of the good”.60 For example, Rawls’s model contains a “strong individualistic bias … The
original position seems to presuppose not just a neutral theory of the good, but a liberal,
individualistic conception according to which the best that can be wished for someone is
the unimpeded pursuit of his own path”.61
A number of questions may also be asked about the principles of justice.
First, to what do the principles of justice apply? Rawls’ answer is clear. He sees justice
as a virtue—indeed, the first virtue—of social institutions.62 His theory of justice is a
normative blueprint for institutions. The same principles do not apply to individuals. As
Professor Letsas explains: “People can be cruel, insensitive, mean, generous or caring.
But only the basic structure of society can be just or unjust”.63 But is this an unnecessarily
limited conception of justice, one particularly open to challenge in a world where
individuals feel bound to assist the relief of famine and to offer succour to victims of
disasters particularly in the developing world? Liam Murphy has argued that the view—it
may be characterised as dualistic—is indeed unduly limited. He maintains that “all
fundamental normative principles that apply to the design of institutions apply also to the
conduct of people”. The refusal to extend principles of justice to personal conduct is
“prima facie deficient”.64 The utilitarian would, of course, apply the same principles to
individuals as to institutions.
The “difference principle” has provoked lively debate. To Rawls, the principle represents
“an agreement to regard the distribution of natural talents as a common asset and to
share in the benefits of this distribution whatever it turns out to be”.65 He sees the
distribution of natural talents as a “collective asset” with the result that the “more fortunate
are to benefit only in ways that help those who have lost out”.66 But, so Nozick argues, to
regard people’s natural assets as common property contradicts all that deontological
liberalism affirms in emphasising the inviolability of the individual and the distinction
between persons.67 Is this right? It can be argued that the distribution of natural talents as
a common asset does not violate the difference between persons, because it is not
“persons but only ‘their’ attributes” that “are being used as means to others’
wellbeing”.68Nozick, however, seems to have anticipated this defence. He argues:
“Whether any coherent conception of a person remains when the distinction is so pressed
is an open question. Why we, thick with particular traits, should be cheered that (only)
thus purified men within us are not regarded as means is also unclear.”69 Sandel
constructs another defence for Rawls. Rawls, he argues, “might deny that the difference
principle uses me as a means to others’ ends, not by claiming that my assets rather than
my person are being used, but instead by questioning the sense in which who share in
‘my’ assets are properly described as ‘others’”.70 But, as Sandel concedes, this commits
Rawls to an intersubjective conception of the self, and Rawls clearly rejects such a notion.
Another attempt to explicate the “difference principle” is suggested by Scanlon. In his
view the argument for this principle starts from the idea that “as equal participants in a
system of social co-operation, the members of a society have a prima facie claim to an
equal share in the benefits it creates”.71 But will the wealthy co-operate? What appeal has
the “difference principle” to them? Miller72 is convinced that Rawls must have in mind a
society which has only moderate class conflict, no ruling class,73 and no class-
differentiated basic desires. This he sees as, at the very least, a controversial, and, more
likely, a false set of assumptions.
The priority which Rawls gives to liberty must also be addressed. Rawls claims that a
person in the “original position” will choose the “basic liberties”74 in priority to any
distribution of income, wealth and power because he knows that, by so doing, he will have
the best chance of obtaining for himself the primary goods and of pursuing whatever other
ends fit within his life-plans. Upon the forfeit of liberty, there is no guarantee that he would
value any increase in wealth (to take one example) that this might bring. But it may be that
different cultures put different values on liberty and wealth. Think of the experiences of
countries like Singapore, Malaysia and South Korea, or of the contrast between the Soviet
Union (where there were few liberties in practice) and Russia (where there was glasnost
and starvation).
And what happens when basic liberties conflict? How, if at all, are they to be
reconciled? Scanlon75 has pointed to the conflict between two criteria Rawls uses in
discussing restrictions on the system of liberties. On the one hand, liberty is to be
restricted only for the sake of protecting the overall system of liberties. On the other hand,
a “principle of common interests” is employed, according to which institutions are ranked
by how effectively they guarantee the conditions necessary for all equally to further their
aims, or how efficiently they advance shared ends that will similarly benefit
everyone.76But do the two criteria agree with each other?
It is Hart’s view77 that the “principle of common interests” breaks down in important
cases. He has also shown how Rawls underestimates the difficulty of balancing conflicting
liberties. He maintains that some “criteria” of the value of different liberties must be
invoked in the resolution of conflict between them. But Rawls tends to write as if the
system of basic liberties were “self-contained”, so that conflict within it could be adjusted
without appeal to any other value than liberty and its extent.
Another problem relates to the rationale for giving liberty priority over other social
goods. Rawls argues that once a certain level of well-being has been attained in a society,
even its least well-off members will prefer increments in their liberty to an increase in other
social goods. So, those in the “original position” will not allow liberty to be traded off for
other social goods. But why? Is there any reason why a surrender of liberties made to
secure a large increase in material welfare should be permanent? Why shouldn’t people
when affluence is achieved restore the liberties? Since parties in the “original position” are
ignorant of the character and strength of their desires,78 do they have a disposition to give
a determinate answer to the question of which position (one prioritising liberty or one not
doing so) it would be in their interests to choose? It is doubtful that they are.
Yet another problem concerns the compatibility of the first principle demand for equal
liberty and the second principle justification for inequalities (even significant ones) in
wealth and liberty. Is it not the case that inequalities in wealth and power always produce
inequalities in basic liberty? This is, of course, a question of empirical social theory. Our
historical experience is, as Rawls acknowledges,79 that they do.80 Rawls tries to
circumvent this problem by introducing a distinction between liberty and worth of liberty.
“Liberty”, represented by the complete system of the liberties of equal citizenship,
continues to be distributed in accordance with the first principle: the new social good, “the
worth of liberty” to persons or groups is “proportioned to their capacity to advance their
ends within the framework the system defines”,81 that is in accordance with the second
principle. In this way, Rawls is able to argue that unequal wealth does not cause inequality
of liberties, only inequality of the worth of liberty: “[s]ome have greater authority and
wealth and therefore greater means to achieve their aims”.82 But is it useful to talk about
something as a “liberty” when the majority is not in a position effectively to exercise it?
What Rawls is doing is arbitrarily excluding economic factors from the category of
constraints defining liberty.83 Surely persons in the “original position” have equally good
reason for choosing equality with regard both to liberty and “worth of liberty”.
It might be thought that these are problems surmounted in the restatement of Political
Liberalism. But it is doubtful whether this is so. The “original position” does not (with one
exception84) occupy the prominent status it has in A Theory of Justice. Instead, Rawls
tends to argue from the perspective of this world, and thereby to explain why persons
committed to social co-operation will find overlapping consensus in the principles of
justice. The “original position” is still there, though it may be speculated whether it remains
of significance: if overlapping consensus is reached because people in the real world want
it, there seems no need to construct justice in the “original position”. Unless it is argued
that overlapping consensus is a product of the “original position”. But could Rawls arrive
at such a conclusion without clothing the formerly naked participants so as to make them
much like people who have experienced our world? This would rob the “device of
representation” of any meaningful function.
Nor can it be said that the recasting of “justice as fairness” as a political theory
overcomes the identified problems with the principles of justice. The bias against the
maximisation of aggregate welfare, the predisposition to require that inequalities work to
everyone’s advantage are still present. It is impossible to apply the difference principle
without using normative judgements about equality.85 For example, unequal wage rates
can only be justified if they are to everyone’s advantage and the higher paying positions
are open to all. But what does equal pay mean? Is equality to be related to the unit of
need, or production, or effort, or the value of the work (and, if so, to whom?). Without a
normative judgement as to the appropriate measurement of equality, the second of
Rawls’s principles is impossible to operationalise.
Nothing Rawls says in Political Liberalism encourages a belief that this problem is
solved. The political version of justice articulated in it is no more neutral to competing
moral theories than was the moral version of justice in A Theory of Justice. The emphasis
now on real people and overlapping consensus makes the difference principle even
harder to sustain. Can we believe that consensus could actually be achieved once people
were aware of the normative ambiguities within equality?
These difficulties may explain a shift to the idea of public reason in public debate as the
mechanism for allowing competing views to coexist.86 Rawls’s idea of public reason is
that, in debating issues of basic political structure, we are limited to reasons that flow from
our overlapping consensus about social co-operation. We cannot appeal to reasons we
draw from our religious philosophies or other comprehensive moral systems, because to
do so would undermine commitment to the overlapping consensus. There must be a
common currency of political debate. But can we avoid using comprehensive moral
arguments in political debate? Consider debates in the recent past about the role of the
state, privatisation, the relative merits of direct and indirect taxation, economic regulation.
Are these not issues of basic political structure? Could they be debated without the
disputants expostulating on the merits of free enterprise, of corporatism or socialism?
Rawls seems to believe that reference to comprehensive moral values is permissible only
when it affirms the overlapping consensus. Thus, he says, Martin Luther King was able to
appeal to Brown v Board of Education87 (the Supreme Court case which ordered
desegregation of schools), “to the political values expressed in the Constitution correctly
understood”. But what was contained in this decision was still contentious when King
preached and made his famous speeches: if it hadn’t been, the civil rights movement
would have been unnecessary or at least more easily winnable.88
Rawls supports the idea of public reason by drawing an analogy to rules of evidence
and relevance for decisions by officials such as judges. The rules of hearsay evidence
and that which requires a defendant in a criminal trial to be proved guilty beyond
reasonable doubt are not the same rules of evidence used by a scientific society or a
church council discussing a theological doctrine or a university faculty discussing
educational policy.89 It does not really assist Rawls’s aim of distinguishing the political
from the moral. Positivists90 may be able to distinguish legal and moral argument—they
have criteria to do so—but Rawls has no similar criteria to distinguish political and moral
argument. At best he seems to suggest that what counts as political argument is what
persons in the “original position” would construct as such. This is a normative argument
but it hardly offers descriptive criteria.
Latterly, Rawls extended his arguments to cover international law.91 He attempted to
show how the “law of peoples” can be developed from a generalisation of liberal ideas of
justice, and how it extends to non-liberal as well as liberal societies. He argues that the
idea of the “original position” can be used to model the agreement of representatives of
both liberal and non-liberal societies on a “law of peoples” that respects basic human
rights and is universal in its reach. From the device of representation of liberal societies
(“the original position”), he believes familiar principles, including principles of human
rights, will emerge. Additionally, he purports to show how well-ordered but non-liberal,
hierarchical societies may come to endorse these principles. However, some of the worst
violators of human rights in the recent past were well-ordered hierarchical societies, the
Soviet Union, South Africa, Chile under Pinochet. And some of the worst excesses of
human rights violations, such as ethnic cleansing in Bosnia and Rwanda, took place in
unstable societies where even state boundaries are in doubt.92 It will be observed that in
the international context Rawls pays no attention to the second of his principles. His “law
of peoples” has no egalitarian distributive principle of any sort.93 This commits Rawls to a
laisser-faire global economic order and to demonstrate (ironically) that in the international
context his conception of justice is little different from that of Nozick. But why should
representatives prefer an inegalitarian law of peoples over more egalitarian alternatives?
Rawls is right in part to believe that the “great social evils in poorer societies are likely to
be oppressive government and corrupt elites”,94 but, as Pogge observes, “relative poverty
breeds corruptibility and corruption”,95 and it is “by no means entirely homegrown”.96

NOZICK: JUSTICE AS ENTITLEMENT

Robert Nozick’s Anarchy, State and Utopia97 is one of the most provocative essays in 6–003
political philosophy in recent times. In it he revives the claim long associated with John
Locke98 and Herbert Spencer99 that a “minimal state limited to the narrow functions of
protection against force, theft, fraud, enforcement of contracts, and so on, is justified; and
that the minimal state is inspiring as well as right”.100 He develops a conception of justice
which he calls “entitlement theory”,101 according to which economic goods arise already
encumbered with rightful claims to their ownership. Philosophies which espouse
distributivism (or worse redistributivism) are misconceived. Nozick extols the virtues of
eighteenth-century individualism and nineteenth-century capitalism102—and it may be
thought to have captured the character of the Thatcher-Reagan era. Even so, it came as a
profound shock to many.
First, Nozick seeks to justify the minimal state against the individualist anarchist who
holds that “when the state monopolizes the use of force in a territory and punishes others
who violate its monopoly, and when the state provides protection for everyone by forcing
some to purchase protection to others, it violates moral side constraints on how
individuals may be treated”, thus concluding that the state itself is “intrinsically
immoral”.103 Nozick responds with a thought experiment. He asks us to imagine
individuals in a state of nature with rights (natural rights, of course) who act in their own
interests and generally do “what they are morally required to do”, and then to trace how
associations would arise to protect their rights and how a dominant association within a
territory would emerge which would have two essential features of the state: it would
exercise monopoly over the use of force, and afford universal protection to rights in the
territory. To Nozick what is attractive in this scenario is that the state “grows by an
invisible-hand process and by morally permissible means, without anyone’s rights being
violated”.104
Nozick then proceeds to defend the minimal state against arguments for a more
extensive state. First, that the state is necessary, or is the best instrument, to achieve
distributive justice. Against this Nozick puts forward his “entitlement theory” of justice:
under this a person’s holdings are just if acquired through just original acquisition or just
transfer, or through the rectification of injustices in the first two senses. He claims that “if
each person’s holdings are just, then the total set (distribution) of holdings is just”.105 In
the light of this, Nozick concludes that no state is justified in applying a principle or
principles which aim at some end-results and specify some patterned distribution. The
“entitlement theory” by contrast is “historical”106 and so is unlikely to upset any pattern.
Nozick then sets out to attack the case for state action to promote equality.107 In his view
the state should confine itself to enforcing contracts, prohibiting thefts and taking such
other measures to secure holdings to those entitled to them.
In the final part of the book, Nozick offers a speculative Utopia, “a system of diverse
communities, organised along different lines and perhaps encouraging different types of
characters, and different patterns of abilities and skills”.108 The only possible framework
for such a system is the minimal state which “best realizes the utopian aspirations of
untold dreamers and visionaries”.109 He concludes that such a state “treats us as inviolate
individuals, who may not be used in certain ways by others as means or tools or
instruments or resources: it treats us as persons having individual rights with the dignity
that this constitutes … It allows us, individually and with whom we choose, to choose our
life and realize our ends … aided by the voluntary co-operation of other individuals
possessing the same dignity”.110 He ends: “How dare any state or group of individuals do
more. Or less.”111
Nozick challenges112 the whole concept of distribution. There is “no such meaningful
concept as the goods of society but only the goods of particular individuals and society
has no prima facie right to shuffle those around between individuals.”113 Nozick forces to
ask not how distribution can be other than equal (Rawls’s premise), but why should there
be distribution at all. This is clearly an important question for all concerned with social and
economic justice. For Nozick, “taxation of earnings from labor is on a par with forced
labour”,114 making the government imposing such taxes into a “part owner” of the person
taxed.115 Forced labour is, of course, anathema to Nozick, as it is to most people. But is a
system of income tax in any way comparable? Hart asks: “How can it be right to lump
together, and ban as equally illegitimate things so different in their impact on individual life
as taking some of a man’s income to save others from some great suffering, and killing
him or taking one of his vital organs for the same purpose?116 Taxing is different from
forced labour and slavery in terms of the burden it imposes and the gravity of restrictions.
When we look to Nozick for an argument justifying why the imposition of taxes
constitutes a violation of rights we find none. His objection to taxation is rooted in his
belief in the absolutely inviolable character of property rights.116a Judith Jarvis
Thomson117 for one doubts whether such a belief can be defended. She asks what it is, at
the margins, which sustains the moral invincibility of a property claim, and, conversely,
what it is that justifies the infringement of a property right when we are morally persuaded
to avoid it (for example, taking a drug belonging to another to save a child’s
life).118Property claims are to be sustained, she argues, when, in addition to having
acquired title to an object in suitable ways, we value that object highly: such claims may
be overridden when a life will be lost in the absence of an infringement of rights. This
demonstrates, so she argues, that rights are derivative from human interests and needs,
which in turn suggests that the constraints which rights impose upon redistribution are not
as inflexible as Nozick’s conception of them leads him to believe.119
As indicated above, Nozick’s book is in three parts. The first justifies the minimal “right-
watchman” state against anarchists. But does Nozick succeed? Can a minimal state arise
out of a state of nature without itself transgressing the rights of persons? Can it be shown
that the dominant agency’s procedures of adjudication and enforcement are morally
superior to those of its competitors? If not, their elimination is ethically suspect.120 Nozick
does not provide any independent epistemic criteria for assessing the procedures of the
emergent dominant agency. He argues that independent agencies may be prohibited
provided their clients are suitably compensated. But, as Mack convincingly demonstrates,
the introduction of a compensation principle is inconsistent with the general framework of
deontic rights defended in Anarchy, State and Utopia.121 He “identifies the compensation
principle with an incipient utilitarianism by condoning rights violations in circumstances
where the subject’s well being is enhanced”.122 But to abandon the compensation
principle would jeopardise the anti-anarchist project in Part I.
There is, however, a more basic question relating to that project. Nozick’s objective is to
explain historically the emergence of the state. But is that necessary, for what is important
is not how it emerged—often a matter of historical conjecture—but the moral character of
its present activities. It would be enough to justify the minimal state in the present “time-
frame”123: earlier moral indiscretions are of secondary importance.
The second part of the book is concerned with arguments against the extensive state. It
contains Nozick’s defence of libertarian capitalism. He leaves many questions
unanswered, and makes a number of assumptions which do not seem to stand up to
examination. First, where do persons get their rights from? The many references to
Kant124 suggest their logical basis is deontic rather than teleological. But the process by
which their bearers obtain their authority is not articulated. We are told it is an historical
process. The initial act of appropriation confers unlimited rights of use and disposition.
But, “while some historical method is the moral superiority of any teleological method of
initial acquisition, Nozick has difficulty in specifying precisely which of several possible
methods is to be preferred”.125 Though there is some ambivalence, he comes close to
accepting Locke’s labour theory of property acquisition.126 Locke required that a limit be
placed upon the amount of a resource that could be extracted from nature by anyone:
“enough and as good” had to be left for others to secure. Nozick reformulates this limit in
terms of a certain welfare baseline, though he declines to give attention to where baseline
needs should be fixed.127 As O’Neill points out, the transition from “A mixed his labour
with X” (the classic Lockean formulation) to “A is entitled to (has the right to control) X”
requires justification.128 Nozick believes that we should “hold onto the notions of earning,
producing, entitlement, desert and so forth”.129 But, of course, “holding on” is insufficient.
What is required is an argument. After all, as O’Neill says, “why should not labouring be a
way of losing one’s labour, of improving what is “in the common state?”130 Locke’s
starting-point was that the Earth is common property: Nozick, by contrast, sets out to
explain how what is unowned can become private property.
He offers little in the way of a positive foundation for his view. Instead, he attacks
opposing theses. He argues that these are universally self-refuting: they attempt to realize
either a particular distributive structure (e.g. equality), or a formula which assigns
quantities of economic goods to particular individuals based on some characteristic
possessed by them (e.g. merit, need). Nozick argues that if goods are distributed in
accordance with some examples of either of these principles, the distribution realised (D1)
will in all probability be supplanted in due course by another (D2), by virtue of a voluntary
economic transaction that people engage in subsequent to D1. Any revision to D1 will
require an imposed reversal of the decisions made by individuals after the initial
distribution. This means that people are given goods for their own use but not permitted to
use them, except when by their choice the distributive status quo is maintained. To
Nozick, this seemingly paradoxical result is an inevitable attribute of all patterned or end-
result distributive systems. But Nozick is question-begging. He is assuming that the
recipients of goods under D1 are thereby given absolute rights of use and disposition,
when it is precisely such rights that have to be established.131 Nor, as Jeffrey Paul
maintains, can it be argued that “the liberties of the recipients are infringed by the
continuous reimposition of some distributive pattern, because, ex hypothesis, their
freedom to rescind the desired pattern of distribution, D1, is a freedom implicitly
forbidden by D1”.132 Since Nozick can offer no argument to support the freedom to “flout
such distributive formulae he cannot”, Paul notes, “reject distributivism for inhibiting it”.133
Nozick’s principal argument against distributionist theories of justice rests on their
failure, as he sees it, to cohere with his ideal of individual liberty. The right to property is
an expression of the right to liberty. But for Nozick the right to liberty is defined by
reference to the right to property. How is this circular reasoning to be explained? Reiman
suggests that it rests on the assumption that large-scale ownership has the same
relationship to the liberty of others as small-scale. This ignores the fact that “property
accumulation has threshold effects on liberty, such that small appropriations might nurture
it while large doses can be fatal”.134 Nozick claims that private property increases
freedom: his critics can justifiably claim that it inhibits it.135 If, it can be argued, after a
certain size, property holdings constitute a threat to the liberty of others, then “a morally
sound concept of rights of ownership would have to be designed to prevent the unwanted
threshold effect”.136 Indeed, if, as Nozick says, property rights derive from the right to
liberty, and if it is the case that large-scale property accumulation has negative effects on
liberty, then the right to liberty would, contrary to Nozick’s thesis, demand redistributive
theories of justice. Nozick’s error—a not uncommon one—is to assume that it is possible
to “define the conditions of freedom for single individuals prior to considering the
conditions of freedom for all individuals.”137
There are many more questions. How is the minimal state to be controlled? How is it to
be kept minimal? How are the economically advantaged to be stopped acquiring political
power? The minimal state and an alert citizenry are supposed to stop this happening.
How is destitution to be prevented and relieved? Nozick’s answer, naïve in the extreme,
points to the free operation of the market, voluntary associations and private philanthropy.
The central flaw in Nozick’s arguments is the “abstractness of the individualism they
presuppose”.138 The individuals who conduct Nozick’s thought experiment are neutered in
the sense that they are de-psychologised, taken out of their culture and environment.
Nozick assumes that it is possible to isolate people in this way, whereas in reality people
are constituted by the societies into which they are socialised and live. Lukes rightly
observes of this abstract individualism that it is a “distorting lens which satisfies the
intellect while simplifying the world”. He continues with remarks which this section may
conclude: “Nozick’s world not only excludes the ever-growing role of the state within
contemporary capitalism; it is also radically pre-sociological, without social structure, or
racial or cultural determinants of, and constraints upon, the voluntary acts and exchanges
of its component individuals”.139

CAPABILITIES AND THE FRONTIERS OF JUSTICE

Another approach to social justice is to emphasize human capabilities. This is associated 6–004
particularly with the economist Amartya Sen140 and the philosopher Martha Nussbaum.
For Nussbaum, on whom I will concentrate, there are core human entitlements that should
be respected and implemented by all governments “as a bare minimum of what respect
for human dignity requires”.141 She lists central human capabilities—what people are
actually able to do and to be. These are:142

1. Life: of normal length.

2. Bodily health: good health (including reproductive health); adequate nourishment,
adequate shelter.
 3. Bodily integrity: freedom of movement; security against assault (including sexual
assault and domestic violence); opportunities for sexual satisfaction and choice in
matters of reproduction.
4. Senses, Imagination and Thought. Being able to use the senses, to imagine, think
and reason. Being able to use imagination and thought in connection with
experiencing and producing works and events of one’s own choice, religious, literacy,
musical etc. Being able to use one’s mind in this way, protected by guarantees of
freedom of expression and freedom of religious exercise.
5. Emotions. Being able to have attachments to things and people outside ourselves, to
love, to grieve, to experience longing, gratitude, justified anger.
6. Practical Reason. Being able to form a conception of the good, and to engage in
critical reflection about the planning of one’s life. This entails protection for liberty of
conscience and religious observance.
7. Affiliation. Being able to live with and toward others, to recognize and show concern
for other human beings, to engage in various forms of social interaction, to be able to
imagine the situation of another. Protecting this means protecting institutions that
constitute and nourish such forms of affection, and also protecting freedom of
assembly and political speech. It also entails having the social bases of self-respect
and non-humiliation, being able to be treated as a dignified being whose worth is
equal to that of others. Inherent in this is the absence of discrimination on grounds of
race, sex etc.
8. Other species. Being able to live with concern for and in relation to animals, plants,
and the world of nature.
9. Play. Being able to laugh, play and enjoy recreational activities.
10. Control over One’s Environment, both political and material. Thus, being able to
participate effectively in political choices that govern one’s life; and being able to hold
property and seek enjoyment on an equal basis with others, and freedom from
unwarranted search and seizure.

The list is similar to Finnis’ basic goods of human flourishing,143 though more extensive.
It has close links also with Rawls.144 Nussbaum says “it is a species of a human rights
approach” and is thus “fully universal”.145 Even so there is respect for pluralism. The list is
“open-ended”.146 The items on the list ought to be specified in a “somewhat abstract and
general way”.147 So, different countries can give effect to capabilities differently: she gives
the example of anti-Holocaust legislation in Germany and compares this with the U.S.
which protects Holocaust denial unless there is an imminent threat of public
disorder.148Following Rawls she argues also that the list can be seen as a “module” which
can be “endorsed by people who otherwise have very different conceptions of the ultimate
meaning and purpose of life”.149 She also emphasizes that the goal is “capability and not
functioning”.150 So, in relation to health, people should be given “ample opportunities to
lead a healthy lifestyle, but the choice should be left up to them; they should not be
penalized for unhealthy choices”.151 This view is controversial: debates often focus on the
smoker with lung cancer, the alcoholic in need of a liver transplant. However, the major
liberties that protect pluralism are “central” items: freedom of speech, of association and
of conscience.152
The interest in Nussbaum’s most recent work lies in the way it addresses issues of
social justice as they affect those with physical and mental disabilities, the developing
world and non-human animals. Rawls’ theory, hypothesising a contract for mutual
advantage among approximate equals, cannot accommodate questions of social
justice posed by unequal parties. And so, she asks, how can we extend equal rights of
citizenship (health care, education, political rights and liberties) to those with disabilities.
And how can we do so to all citizens of the world? And how can we bring our treatment of
animals into our notions of social justice? She surprisingly (or should we be surprised)
does not explore another section of the population deprived of the rights and dignity we
associate with social justice, namely children. Are animals really more important?
 Nussbaum aims to globalize the theory of justice. She focuses on the three problem
areas because she says they have been “resistant”.153 But so, of course, have
inequalities of race, sex and sexual orientation, though progress has been made in all
three. She can argue for social justice for those with disabilities because the capabilities
approach starts from conception of the person as a social animal “whose dignity does not
derive entirely from an idealized rationality”.154 Because social contract theories are
premised on the nation state, they cannot, according to Nussbaum, adequately address
justice which talks to the inequalities between the richer and poorer countries. To solve
this:
“We must appreciate the complex interdependencies of citizens in different nations, the
moral obligations of both individuals and nations to other nations, and the role of
transnational entities … in securing to people the most basic opportunities for a fully
human life”.155
Thirdly, because social contractual theories start from the allegedly crucial importance
of human rationality, they deny justice to animals. Nussibaum responds, as many others
have done, by recognizing animal intelligence and by rejecting the idea that “only those
who can join in the formation of the social contract are full-fledged subjects of a theory of
justice”.156 Because the capabilities approach emphasizes “a continuum of types of
capability and functioning”,157 it can offer guidance superior to both utilitarianism and
social contract theories.

JUSTICE AS RIGHTS
For both Rawls and Nozick, there is a clear relationship between justice and rights but it is 6–005
Ronald Dworkin who can be said most clearly to ground justice in rights.
In one sense there is nothing new in this: the idea that political morality and social
choice were to be governed by considerations of the rights of individuals has its heritage
in the writings of Locke158 and Kant,159 as well as in the literature and constitutions of the
American and French revolutions. The emphasis has not gone unchallenged. Bentham
was a trenchant critic, particularly of natural rights.160 So was Marx.161 Today, one of the
central conflicts in legal, moral and political philosophy is between those who espouse
rights-based theories and those, utilitarians in particular, who put forward goal-based
theories.162
The distinction is easy enough to state. A requirement is rights-based when generated
by a concern for some individual interest, and goal-based when propagated by the desire
to further something taken to be of interest to the community as a whole.163 The rights-
based approach does not deny that the interest of a particular individual is not also shared
by others (in the case of human rights, all) in the community, but it would claim that the
interest of each individual qua individual is sufficient to generate the moral requirement.
Whether the distinction between the two approaches can also be drawn is rather more
dubious. Many of the ideals with which we associate rights are dependent upon, indeed
may be constituted by, the existence and maintenance of certain inherent public goods.
So the right to freedom of speech164 would have diminished value in an intolerant society.
To Raz,165 it is a “public good, and inherently so, that this society is a tolerant society, that
it is an educated society, that it is infused with a sense of respect for human beings, etc.
Living in a society with these characteristics is generally of benefit to individuals”.
It is part of the philosophy of those who espouse rights-based theories to insist on the
pre-eminence of rights. Rights are valuable commodities,166 important moral coinage.167In
Feinberg’s words168:
“A world without rights, no matter how full of benevolence and devotion to duty, would
suffer an immense moral impoverishment … A world with claim-rights is one in which all
persons, as actual or potential claimants, are dignified objects of respect”.
Not surprisingly, he concludes that “no amount of love or compassion, or obedience to
higher authority, or noblesse oblige, can substitute for those values”.
 To Dworkin rights are “trumps”.169 They are grounded in a principle of equal concern
and respect. So for a judge to make a mistake about a legal right is “a matter of
injustice”.170 Further, the whole institution of rights rests on the conviction that “the
invasion of a relatively important right” is a “grave injustice”.171 Dworkin sees rights as
trumps over some background justification for political decisions that state a goal for the
community as a whole. Thus, to use one of his well-known, if controversial, examples, “if
someone has a right to publish pornography, this means that it is for some reason wrong
for officials to act in violation of that right, even if they (correctly) believe that the
community as a whole would be better if they did”.172 An individual thus has a right when
there is a good reason for conferring upon him or her a resource or opportunity, even
though there are considerations relating to the public interest which would argue against
this being done. Nevertheless, Dworkin is prepared to concede that interference in the life
of an individual, where there would otherwise be a right, is justified where “special
grounds” can be found.173 But what is meant by saying that the public interest generally is
not advanced by recognising a particular individual’s rights?
There are, Dworkin notes,174 two distinct senses in which a community may be said to
be better off as a whole despite the fact that certain of its members are distinctly worse
off. It may be better off in a utilitarian sense (the average or collective level of welfare in
the community is improved even though the welfare of some falls), or in an ideal sense
(because “it is more just, or in some way closer to an ideal society, whether or not
average welfare is improved”). For example, a policy of affirmative action might be
pursued to reduce social tensions or to make the community more equal and therefore
more just.175
Rights, Dworkin states, are not “gifts” from God. Their institution is “a complex and
troublesome practice that makes the Government’s job of securing the general benefit
more difficult and more expensive, and it would be a frivolous and wrongful practice
unless it served some point”.176 For Dworkin, anyone who professes to “take rights
seriously” must accept the ideas of human dignity and political equality.177 He argues in
favour of a fundamental right to equal concern and respect, and against any general right
to liberty. The right to equal concern and respect is a final and not merely “a prima facie
right”178—one person’s possession or enjoyment of it does not conflict with another’s. But
will it serve as the foundation of a right-based moral theory? Dworkin puts it forward as a
fundamental political right: governments must treat citizens with equal concern and
respect.179 But, as Mackie points out, “this cannot be what is morally fundamental”.180The
right to be treated in a certain way rests on a prior “right to certain opportunities of living”.
Why does Dworkin reject a general right to liberty? It would seem for two reasons: first,
he believes it cannot explain or justify the discrimination we would want to make between
legitimate and illegitimate restrictions of freedom; and, secondly, because the right (or
supposed right) is commonly used to support a right to the free use of property.181 But, as
far as the first reason is concerned, we can discriminate by examining how closely a
certain freedom ties in with a person’s “vital central interests”.182 Part of the importance of
political liberties is that they support core freedoms. Their importance is thus, morally
speaking, derivative, and is contingent and relative to circumstances. Similar arguments
can be used against Dworkin’s second reason. The right to property would be qualified
and restricted by the consideration of how its acquisition and use affect the interests of
those other than the owner.
This still leaves open the question as to where rights come from. It is common to talk of
people “having” rights in much the same way as we talk of their having eyes. The
relationship is altogether different.183 In legal contexts, whether we have a certain right
may be answered by consulting and interpreting the authoritative sources of law. Thus,
whether we have a right to a family life can be answered by consulting the Human Rights
Act 1998 and European jurisprudence.184 In moral matters there are no such ready
sources. So, what “is” there when there “are” rights? As Narveson explains:185 there
“must be certain features or properties of those who ‘have’ them such that we have good
reason to acknowledge the obligation to refrain from interfering with, or possibly to
sometimes help their bearers to do the things they are said to have the right to do, or have
those things they are said to have a right to have”.
Rights are dependent on reasoned argument. What sort of reasoned argument do we
find in a right-based moral theory? For Dworkin, a moral right186 exists against the state
when for “some” reason it would do wrong to treat a person in a certain way, “even though
it would be in the general interest to do so”.187 It is clear that what is “wrong” for the state
to do is what the state has a duty not to do, so that Dworkin appears to define rights in
terms of duties. But why is it “wrong” for the state to act in a particular way? Is it because
the individual has a “right” on which state action of a particular sort would illegitimately
trample? If this is what Dworkin is saying, his argument is inherently circular.188
In addition, Dworkin offers a substantive explanation of the values underlying certain
rights. He sees rights as safeguards, inserted into political and legal morality to prevent
the “corruption”189 of the “egalitarian character of welfarist calculations”190 by the
introduction of “external preferences”.191 Majority preferences should count but only
where these preferences are based on “personal” preferences (what individuals want for
themselves), not “external” preferences (what they want to happen to others).
Utilitarianism, Dworkin argues, assigns critical weight to external preferences: it is,
accordingly, not egalitarian since it will “not respect the right of everyone to be treated with
equal concern and respect”.192 But is this not rather a narrow explanation? It does not
even attempt to explain why rights should prevail over non-welfarist social goals. And, as
Waldron points out, even within a utilitarian framework, the explanation “works only on the
assumption of a fundamental right to equality underlying both the utilitarian considerations
and the particular claims of right that trump them”.193 And he convincingly argues, neither
the trumping metaphor nor the external preferences argument captures the force of this
underlying right. The force is to be found in Dworkin’s initial premise that individuals have
the right to equal concern and respect. But, as has been shown, this cannot be what is
morally fundamental.
That the principle of equal concern and respect is insufficient to justify decisions where
difficult moral choices have to be made is acknowledged, implicitly at least, by Dworkin in
his series of articles “What Is Equality?.”194 The question posed at the outset of these
articles is: “Suppose some community must choose between alternative schemes for
distributing money and other resources to individuals. Which of the possible schemes
treats people as equals?”195 Distributional equality is not concerned with the distribution of
political power, though this is obviously important. It relates to resources, not to
welfare.196 Dworkin argues that there is no way of measuring welfare. Though an initially
attractive goal, it is “incurably problematic”.197 Thus, equality of “success” depends upon
an individual’s preferences and “since people have different sorts of preferences, different
versions of equality of success are in principle available”.198 And equality of “enjoyment”
is relative to individual tastes and goals. Equality of resources, on the other hand, is
measurable.
At the centre of any attractive theoretical development of equality of resources is the
idea of an economic market. We are asked to indulge in a thought experiment (not unlike
Rawls’s). There are shipwreck survivors on a desert island which has “abundant
resources and no native population”,199 and in which likely rescue is many years away.
The assumption is that in these circumstances “no division of resources is an equal
division if, once the division is complete, any immigrant would prefer someone else’s
bundle of resources to his own bundle”.200 Dworkin denotes this the “envy test”.201 It is an
economic, not a psychological, test. Resources are distributed in an imaginary auction.
Each participant/immigrant is given an equal number of tokens (Dworkin suggests
clamshells) and bids for goods on the island. The bidding continues until no one envies
anyone else’s bundle of goods. In this way, “people decide what sorts of lives to pursue
against a background of information about the actual cost their choices impose on other
people and hence on the total stock of resources that may fairly be used by them”.202 The
equality principle thus is used both to explain the envy test and to ensure that everyone
comes to the auction as an equal. It also “creates the conditions for the conduct of the
auction”.203
Both Rawls and Dworkin have to grapple with the gambler, the person who plays his
luck and may end up better off as a result (or, of course, worse off). Dworkin distinguishes
between “option luck” and “brute luck”.204 The former—the gambler’s luck—is, he
believes, integral to personal liberty and is consistent with an equality of resources. Brute
luck is, however, not a matter of choice. As examples of the difference Dworkin contrasts
buying shares which increase in value and being struck by a falling meteorite. Dworkin
would not limit risk-taking (save to prevent for example the total forfeiture of liberty by
selling oneself into slavery205). So “resources gained through a successful gamble should
be represented by the opportunity to take the gamble at the odds in force, and
comparable adjustments [should be] made to the resources of those who have lost
through gambles”.206 Brute luck, on the other hand, is not consistent with equality of
resources: it is not an exercise of liberty. The problem is amenable to solution through
insurance, or at least it is in many standard cases. You can insure your house against fire
but not yourself against being born disabled or even against succumbing to a disability
(acquiring multiple sclerosis, for example).
Dworkin believes he has an answer. Insurance can cope with both kinds of luck: at least
it can in his imaginary auction. For here, Dworkin hypothesises, insurance against
disability will be available “at whatever level of coverage the policy holder chooses to
buy”.207 Nor is there any “reason to think”, so he argues, “that a practice of compensating
the handicapped on the basis of such speculation would be worse, in principle, than the
alternatives, and it would have the merit of aiming in the direction of the theoretical
solution most congenial to equality of resources”.208 The immigrant—to return to
Dworkin’s model participant—will thus be compensated for brute bad luck by means of a
levy of a compulsory insurance premium, and this, so Dworkin argues, will give him the
same resources as those who do not suffer this fate. Dworkin, we should remind
ourselves, has ruled out rooting justice in an equality of welfare, largely on the basis of its
being impracticable. But resources (unlike welfare) are a means to an end, not an end in
themselves. Whether justice is achieved depends upon how resources are used. Would
not new disadvantaged minorities emerge?
And the protection of minorities is, as Dworkin acknowledges, central to any theory of
justice. The reason is simple: majoritarianism can so easily lead to the trampling on the
rights of minorities.209 Dworkin is eager to protect these and to do so through the principle
of equal concern and respect. He discussed this extensively in the context of affirmative
action. His discussion hinged initially210 on two well-known
cases (Sweatt and DeFunis). 211 Sweatt was an African-American refused admission to
the University of Texas Law School because (at that time) Texas state law provided that
only whites could attend. DeFunis was a Jew whom the University of Washington Law
School rejected but who would have been accepted had he been “a black or Filipino”
212 (test scores and college grades were lower for African-Americans and Hispanics
because an affirmative action programme worked in their favour). Dworkin supports the
Supreme Court decision in favour of Sweatt on the grounds that his exclusion violated his
constitutional rights, but is happy with the policy pursued by the University of Washington,
maintaining that no fundamental right of DeFunis was infringed.
What matters, Dworkin says, is whether persons are treated as equals with the same
respect and concern as anyone else. But surely neither Sweatt nor DeFunis were so
treated: in Sweatt’s case this is self-evident, but is DeFunis’s case really any different? His
academic achievements are not being given equal weight with those of other races.
Dworkin’s response is that no one has a right to a Law School place and so it is proper for
those constructing admission policies to have regard to community goals such as racial
balance and the need for lawyers to come from minority groups. But Sweatt, of course,
did not have a right to a place either. However, a fundamental right was violated by Texas
Law School’s criteria (and its state laws). Nor is it enough for DeFunis (or Sweatt) to say
that he felt insulted by the admission practices. “If we wish”, argues Dworkin, “to
distinguish DeFunis from Sweatt on some argument that uses the concept of an insult, we
must show that the treatment of the one, but not the other, is in fact unjust”.213
Dworkin explains this further by distinguishing personal and external preferences. The
former relate to what one wants for oneself: the latter to what one would want to happen
to others.214 The policies pursued by Texas were examples of external preferences. The
distinction may be an important one and Dworkin is not alone in making it215, but does it
assist us in our project to identify fundamental rights as a way of protecting minorities,
particularly oppressed ones? Is the personal/external preference distinction powerful
enough to tell us what is wrong with a despicable practice like racism? In the face of the
Nuremberg laws or the institution of apartheid it looks rather tame. That we are looking for
something altogether different from a wish to exclude external preferences becomes
evident when we realise that oppression may occur as a result of indirect discrimination
where there is no expression of external preference.216 The notion of insult, which
Dworkin dismisses, may go some way towards explaining the wrong experienced by
those discriminated against. But it too only goes part of the way. What is needed is some
explication of why a discriminatory practice is unjust, in many cases even inhuman. And
this leads us back to equal concern and respect and/or forward to the imaginary auction
and equality of resources. Do either of these approaches deal satisfactorily with the
DeFunis predicament? And is it the case that all expression of external preferences is
necessarily bad: what of the external preference that we should have a national health
service, art galleries, universities, a system of free public libraries?
This section began by contrasting rights-based moral theories with consequentialist
ones (of which utilitarianism is the paradigm). But this is to count without the view,
propagated by Hare amongst others, that a mature theory of social utility can indeed
accommodate the protection of certain key rights of individuals. And a discovery that it
could might well run counter to our intuitions, if not our experience, where the social
interest often determines what rights individuals have.217 But Hare himself expresses
surprise that critics of utilitarianism, some of whom like Dworkin lay great weight on the
“right to equal concern and respect”, should “object when utilitarians show this equal
concern by giving equal weight to the equal interests of everybody, a precept which leads
straight to Bentham’s formula and to utilitarianism itself”.218
The problem with this view is that although there may be utilitarian reasons for
respecting justified legal rights, these reasons are not the same as the moral force of such
rights, because they neither exclude direct utilitarian arguments against exercising rights
nor those for interfering with them.219 This view is not uncontentious and
Greenawalt220and Hare221 have responded to it. The debate which has ensued cannot be
pursued here. What it shows is the resilience of utilitarianism (particularly rule-
utilitarianism and the economic analysis of law222). That utilitarianism has been unable to
accommodate rights has not yet been conclusively demonstrated. But even if it could be
shown that utilitarianism could generate rights, it would of course by no means follow that
these rights would have the same content as those upheld within liberal tradition.
If the weakness of utilitarian theories lies in their readiness to sacrifice individual rights
on the altar of maximising happiness, that of rights-based moral theories is, as we have
seen, in the great difficulties they experience in producing arguments for the existence of
rights. Some attempts are being made. Thus, Waldron draws attention to
arguments223which “attempt to show that the denial of rights or the overriding of them in
certain cases is rationally self-defeating, because the denial or the overriding themselves
involves an implicit recognition of the force of human rights.”224 Of these arguments the
most sophisticated is Gewirth’s. He summarises his argument thus225:
“First, every agent holds that the purposes for which he acts are good on whatever
criterion (not necessarily a moral one) enters into his purposes. Second, every actual or
prospective agent logically must therefore hold or accept that freedom and well-being are
necessarily goods for him because they are necessary conditions of his acting for any of
his purposes; hence, he holds that he must have them. Third, he logically must therefore
hold or accept that he has rights to freedom and well-being; for, if he were to deny this, he
would have to accept that other persons may remove or interfere with his freedom and
well-being, so that he may not have them; but this would contradict his belief that
he musthave them. Fourth, the sufficient reason on the basis of which each agent must
claim these rights is that he is a prospective purposive agent, so that he logically must
accept the conclusion that all prospective purposive agents, equally and as such, have
rights to freedom and well-being.”226
The force of this logic is difficult to counter.227 We must surely accept that when we
wish to deny someone a right in the name of a greater social goal or higher moral ideal
that we must justify our actions to him or her. But how would such a person understand
our reasoning if we deny him/ her those interests s/he requires to be able to appreciate
the force of our arguments (at the very least freedom of thought and expression)?

FEMINISM AND JUSTICE

Feminist jurisprudence is considered in a later chapter.228 Much of what is said in this 6–006
section ties in closely with themes adumbrated there. Even so the distinctive contribution
of feminism to justice should not be overlooked. Though herself sympathetic to Rawls’s
heuristic device upon which she believes she can build, Okin has offered a major critique
of his theory of justice, in particular its failure to address justice within the family and the
selection of primary goods.229 She is critical also of a range of theories of justice.230
Other feminists, notably Carol Gilligan, have detected, what they call, a “different
voice”.231 This is to draw attention to a contrast between an ethic of justice and rights and
an ethic of care and relationship. Gilligan believes this is gender-related with the former
associated with male thinking processes, the latter with female ones. As Lyons explains
this,232 those who view the self as “separated” from others are more likely to voice a
morality of justice, and those who see the self as “connected” to others to express a
morality of care.233 The implications of Gilligan’s thesis are tantalising. It could, of course,
be used to justify confining women within the private sphere, and to explain (however
inadequately) why theories of justice have so little penetrated the family, as well as to
argue for greater participation of women in the public arena (and, then, to express
disappointment when nothing of moment changes).
Of importance also is Carole Pateman’s The Sexual Contract,234 in particular her
excavation of the social contract. She argues that the sexual subordination of women in
marriage is both required by, and is an effect of, the social contract. The social contract to
make civil society and the state could not have come into being, she argues, without a
sexual contract which subordinates women in marriage.235 To Pateman, Locke must be
interpreted as more than a critique of patriarchalism236: rather, he must be seen as an
advocate of its relocation. He separated political right from paternal right such that
“masculine right over women is declared non-political”237 but is left intact. Pateman
argues that the liberal foundation of free and equal men in civil society required that
patriarchalism be relocated from the political to the private domain. That may be so, but it
is not clear why liberalism today requires a social contract. Indeed, it may be argued that
not only liberalism, but also women’s subordination, can be sustained without recourse to
such a device.238
Locke required Pateman’s corrective. On one level, Locke’s separation was of the
paternal from the political, but it can also be seen as a separation of the private from the
public, for the public sphere embraces all social life except the domestic. An important
result of this conception of public and private is that the public world (or civil society) is
categorised as separate from the domestic sphere. The principles of association
governing the two spheres are quite distinct: the public is governed by liberal criteria
(rights, property, equality); the private is based on natural ties of sentiment and blood and
marriage relationships—there is no free individualism here, rather natural subordination.
By conceptualising civil society as removed from domestic life, the need to examine the
latter disappears, and only re-emerges when inequalities of gender are scrutinised by
feminist thinkers.239
 Liberal feminism was for long dominant.240 It was rooted in the belief that women are
rights-bearing, autonomous human beings, and in this are no different from men.
Accordingly, they should have equal opportunities and for example receive equal pay.
Critics were concerned that an assimilationist theory of equality was being adopted that
would benefit women only if they acted like men. The limitations of the strategy soon
became apparent241 and the feminist approach to justice, rather as its approach to
questions of jurisprudence more generally, became more radical.
A good example is found in the writings of Iris Marion Young.242 It is her view that it is “a
mistake to reduce social justice to distribution”.243 Rather, she suggests, social justice
means “the elimination of institutionalized domination and oppression”.244 Such a shift
brings out “issues of decision making, division of labor, and culture that bear on social
justice but are often ignored in philosophical discussions”.245 Typically, as we have seen,
theories of justice have no room for a concept of social groups: Young believes that where
there are social group differences, and, as an inevitable concomitant, some groups are
privileged and others oppressed, “social justice requires explicitly acknowledging and
attending to those group differences in order to undermine oppression”.246 This is a theory
of justice that addresses injustice.247 Distributive issues remain important but “the scope
of justice extends beyond them to include the political as such, that is, all aspects of
institutional organization insofar as they are potentially subject to collective
decision”.248But oppression and domination are “the primary terms for conceptualizing
injustice”.249
Whilst liberal feminists emphasise “sameness”, Young focuses on difference. It is a
denial of difference that contributes to social group oppression. Young argues for “a
politics that recognizes rather than represses difference”.250 Oppression can result from
tyranny but most is the result of “everyday practices of a well-intentioned liberal
society”.251 It results from “often unconscious assumptions and reactions of well-meaning
people in ordinary interactions, media and cultural stereotypes, and structural features of
bureaucratic hierarchies and market mechanisms—in short the normal processes of
everyday life”.252 Young’s theory extrapolates from the experiences of oppressed groups
(and not just women) and from the assumption that “basic equality in life situation for all
persons is a moral value”.253
There are five faces of oppression: exploitation; marginalization; powerlessness;
cultural imperialism; and violence. To explain exploitation she draws upon Marx254: “the
central insight expressed in the concept of exploitation … is that … oppression occurs
through a steady process of the transfer of the results of the labor of one social group to
benefit another”.255 Exploitation enacts a structural relation between social groups. In
Marx’s analysis the mediating principle is class:256 for Young it is gender (this has two
aspects—the transfer of the fruits of material labour to men and the transfer of nurturing
and sexual energies to women257), and race.
Marginalization is “perhaps the most dangerous form of oppression”.258 Marginals are
“people the system of labor cannot or will not use”.259 This is the fate of, but not only of,
“racially marked groups”.260 Distributive justice may address material deprivation, but
there is injustice beyond distribution. “The provision of welfare itself produces new
injustice by depriving those dependent on it of rights and freedoms that others have” and
“even when material deprivation is somewhat mitigated by the welfare state,
marginalization is unjust because it blocks the opportunity to exercise capacities in
socially defined and recognized ways”.261 The concept, if not its implications, have been
recognised in Britain by New Labour with its establishment of a Social Exclusion Unit.
Somewhat astonishingly though, one of the intellectual architects of New Labour, Anthony
Giddens, has assimilated the form of exclusion identified here with, what he calls,
“voluntary exclusion”, that is a withdrawal of affluent groups from public institutions.262Part
of marginalization is designation as appropriate subjects for “patronizing, punitive,
demeaning, and arbitrary treatment by the policies and people associated with welfare
bureaucracies. Being a dependent in our society implies being legitimately subject to the
often arbitrary and invasive authority of social service providers and other public and
private administrators, who enforce rules with which the marginal must comply”.263 The
premise is that we must distinguish the “deserving” from the “undeserving” so that we
need to establish whether someone cannot work or will not work. But we could provide
an unconditional basic income264 or other unconditional benefits,265 though whether our
societies would find this acceptable is debatable.266
Powerlessness is a form of oppression which, says Young, is experienced by non-
professionals. The powerless lack “authority, status, and sense of self”.267 They lack also
autonomy and respect. The privilege of professional respectability is seen starkly in the
dynamics of racism and sexism. Young argues that in daily intercourse “women and men
of color must prove their respectability. At first they are often not treated by strangers with
respectful distance or deference. Once people discover that this woman or that Puerto
Rican man is a college teacher or a business executive, however, they often behave more
respectfully … Working-class white men, on the other hand, are often treated with respect
until their working-class status is revealed”.268
To experience cultural imperialism269 is “to experience how the dominant meanings of a
society render the particular perspective of one’s own group invisible at the same time as
they stereotype one’s group and mark it out as the Other”.270 Another feminist to identify
this force of oppression is Nancy Fraser271 who, following Charles Taylor,272 talks of the
“politics of recognition”. Demands for welfare or health care rights are examples of
redistributive claims: “efforts to win public acceptance of gay and lesbian households
exemplify a politics of recognition”.273 The challenge, Fraser argues, is to combine just
claims for redistribution and recognition so that each supports rather than undermines the
other. The injustice of cultural imperialism is that “the oppressed group’s own experience
and interpretation of social life finds little expression that touches the dominant culture,
while that same culture imposes on the oppressed group its experience and its
interpretation of social life”.274
Finally, there is the oppression of systematic violence: sexual assault, domestic
violence, racist attacks, institutional racism by the police. Young asks: “Given the
frequency of such violence in our society, why are theories of justice usually silent about
it?”275 And she observes: “What makes violence a phenomenon of social injustice, and
not merely an individual moral wrong, is its systematic character, its existence as a social
practice”.276 It is the daily knowledge shared by all members of oppressed groups that
they are liable to violation that constitutes the oppression of violence.
The question may be asked as to whether if rights and economic resources were justly
distributed these forms of injustice would still arise. Indeed, it is difficult to envision any of
these faces of oppression being extirpated in the absence of redistributive justice. But it
may be doubted whether this in itself would remove any of the categories of oppression
Young lists. They call for structural and cultural changes: some of these might follow in the
wake of redistributive policies.277 For example, equal pay might lead to an improvement in
the status of women and this to less (even ultimately no) domestic violence. But will equal
pay be achieved in the absence of cultural change?278
A growing body of feminist moral theory279 (of which Young’s is an excellent example)
has challenged the paradigm of moral reasoning as defined by the discourse of justice
and rights. As Young notes:
“This ‘ethics of rights’ corresponds poorly to the social relations typical of family and
personal life, whose moral orientation requires not detachment from but engagement in
and sympathy with the particular parties in a situation; it requires not principles that apply
to all people in the same way, but a nuanced understanding of the particularities of the
social context, and the needs particular people have and express within it”.280
Young’s critique of impartiality is situated within her defence of difference. She argues
that the ideal of impartiality in moral theory “expresses a logic of identity that seeks to
reduce differences to unity. The stances of detachment and dispassion that supposedly
produce impartiality are attained only by abstracting from the particularities of situation,
feeling, affiliation and point of view”.281 Though this critique on one level seems
extravagant (it would seem to require the rejection of rules altogether), its core reveals an
important truth (that the logic of identity denies or represses difference). And she argues,
following postmodernist thinkers282 such as Adorno,283 Derrida284 and Irigaray,285 that:
“Difference … names both the play of concrete events and the shifting differentiation
upon which signification depends. Reason, discourse, is already inserted in a plural
heterogenous world that outruns totalizing comprehension. Any identifiable something
presupposes a something else against which it stands as background, from which it is
differentiated. No utterance can have meaning unless it stands out differentiated
from another. Understood as different, entities, events, meanings, are neither identical nor
opposed. They can be likened in certain respects, but similarity is never sameness, and
the similar can be noticed only through difference. Difference, however, is not absolute
otherness, a complete absence of relationship or shared attributes.”286
The irony of the logic identity is that “by seeking to reduce the differently similar to the
same, it turns the merely different into the absolutely other”.287 It “shoves difference into
dichotomous hierarchical oppositions: essence/accident, good/bad,
288
normal/deviant”. And it privileges the first side of the dichotomy over the second: it is
“unified” whereas the second is “chaotic, unformed” and threatening.289
Young concludes we should move beyond the so-called impartial point of view.290 It is a
“view from nowhere”291 that “carries the perspective, attributes, character, and interests of
no particular subject or set of subjects”.292 The ideal of the impartial transcendental
subject denies difference in three ways. It denies the particularity of situations. In its
requirement of dispassion it seeks to “eliminate heterogeneity in the form of
feeling”.293And it reduces “the plurality of moral subjects to one subjectivity”.294 Rawls,
she argues, may have sought by his hypothesis of the “original position”295 to provide a
better representation of impartiality than utilitarianism, but in her view “the reasoning of
the original position is nevertheless monological”.296
The goal of impartiality may be impossible (“an idealist fiction”297) but it has practical
effects. It serves three ideological functions in particular. It supports the idea of a neutral
state. It legitimates bureaucratic authority and hierarchical decision-making processes,
thus defusing demands for democratic decision-making. It “reinforces oppression by
hypostatizing the point of view of privileged groups into a universal position”.298 This may
suggest nothing more than a shortfall in impartiality, but, if the point of view of oppressed
groups is not heard, can there ever be real impartiality?
Young’s alternative to justice as impartiality is justice as care. A theory which limits
justice to formal and universal principles that define a context in which each person can
pursue their ends without hindering the ability of others to pursue theirs entails “not merely
too limited a conception of social life299 … but too limited a conception of
justice”.300Justice “cannot stand opposed to personal need, feeling, and desire, but
names the institutional conditions that enable people to meet their needs and express
their desires”.301
Instead of a fictional contract, what is required are “real participatory structures in which
actual people, with their geographical, ethnic, gender and occupational differences, assert
their perspectives on social issues that encourage the representation of their distinct
voices”.302 She argues that oppressed groups should have a guaranteed role in policy
formation. Such group representation implies institutional mechanisms and public
resources supporting three activities.

“(1) self-organization of group members so that they achieve collective empowerment and a
respective understanding of their collective experience and interests in the context of the society;
(2) group analysis and group generation of policy proposals in institutionalized contexts where
decision makers are obliged to show that their deliberations have taken group perspectives into
consideration; and
(3) group veto power regarding specific policies that affect a group directly, such as reproductive
rights policy for women, or land use policy for Indian reservations.”303
 There can be no real objection to the second of these activities and, if it were to lead to
impact statements,304 for example, it could prove valuable. The other two activities are
more contentious. The first could so easily lead to vocal but unrepresentative members of
a group propagating their own views. It raises questions also about group identity305: not
all women think alike (especially it may be added when it comes to a question like
reproductive rights306) and the same applies to other “groups”. As far as veto power is
concerned, “the precise mechanisms of accountability and the exact degrees of
representation … matter”.307 The consequences of veto power must also be considered.
Muslims could be seen (in Britain) as an oppressed group and certainly the law of
blasphemy is weighted in favour of a privileged group (Christians). Does it follow, using
Young’s logic, that Salman Rushdie’s Satanic Verses should have been banned and he
himself killed? Does the “politics of difference” reject tolerance of difference?308
The clearest exposition of Young’s theory of justice is in her discussion of affirmative
action. Affirmative action challenged “the primacy of a principle of nondiscrimination and
the conviction that persons should be treated only as individuals and not as members of
groups”.309 She is critical of two liberal assumptions: that a hierarchical division of labour
is unproblematic (and therefore just) and a distribution of positions should be according to
merit. As far as merit is concerned, “a class of powerful people establishes normative
criteria, some of which have the function of affirming its own power and enforcing the
organizational system that makes it possible”.310 In contrast to this ideology, she claims
that decisions that establish and apply criteria of qualification should be made
democratically.
But for Young discrimination in itself is not the problem. Rather it is the oppression
associated with it. Equality (which she defines as “the participation and inclusion of all
groups in institutions and positions”311) can be better served by differential treatment. And
discrimination “tends to present the injustice groups suffer as aberrant, the exception
rather than the rule”.312 Discrimination like injustice more generally is embedded within
structure. For Young then the focus is on how decisions get made, as much, if not more,
as the context of those decisions. So workplace decisions should be made democratically.
Her assumption is that decisions so made would produce structures based on fairness
and justice, rather perhaps as Fuller assumed that compliance with the principles
associated with the “internal morality of law” would produce substantively good legal
systems.313 Can we be sure in either case? Young retains her substantive conception of
justice in tandem with the procedural mechanisms just depicted. This may be an
acknowledgement that those put into decision-making positions may not necessarily
share her views on justice, oppression and domination.

ECONOMIC THEORIES OF LAW AND JUSTICE

Over 100 years ago, Holmes wrote that the man of the future would be “the man of 6–007
statistics and the master of economics”.314 The economic analysis of law took another 70
years to develop but in the last 40 years, at least in the United States,315 has come to
dominate thinking about law, and not just in the more obvious commercial areas.316 On
one level it is a scientific alternative to utilitarianism.317
One of the problems with utilitarianism is the lack of a method for calculating the effect
of a decision or policy on the total happiness of a relevant population. It offers no reliable
technique for measuring change in the level of satisfaction of one individual relative to a
change in the level of satisfaction of another. How is one person’s happiness to be
compared with another’s?318 Problems such as this had led economists to attempt to
make utility arguments more rigorous.
The concept of value employed by economists is a truism: a thing has value (utility) for
a person when that person values it. How much value a thing has for a given person is
said to be “measured” by the maximum that person would be willing to pay for it, or the
minimum the person would be willing to take to give it up.
 Economists support this by two arguments. A concrete illustration may be drawn from
their justification of private property rights. There are, they argue, costs (disutilities) when
there is non-ownership of a scarce good. So, when the total cost of these “external”
disutilities is greater than the cost involved in creating a system of ownership rights, then
that system of property rights is justified by considerations of economic utility. The
soundness of this argument depends on accepting the dominant guiding principle as that
of minimising costs. The second argument concerns “alternative transactions”, that is the
ways in which people deal with resources used for the production of goods. Ownership
rights, it is argued, stabilise these transactions.
The arguments turn on concepts like efficiency, superiority, optimality, allocation and
distribution. The thought of Pareto (1848–1923)319 has been particularly influential. The
most basic notion in the economic analysis of law is efficiency or “Pareto optimality”. A
situation is said to be “Pareto-optimal” if it is impossible to change it without making at
least one person believe he is worse off than before the change. A change is “Pareto-
superior” when at least one person believes he is better off by it, while no one believes he
is worse off. The definitions of “optimality” and “superiority” do not depend on objective
assessments of good, but on subjective ones. Whether persons believe they will be better
off, worse off, or the same, under a proposed change, and how much, is measured by
their willingness to pay for the change, and how much.
The “Pareto superiority” standard only applies where there are no losers. But most
social policies and most rules produce both winners and losers. If government were to act
only where no one was made worse off, there would be very little it could do. Are the
Pareto standards therefore of much value? Are they likely to appeal to a policy-oriented
lawyer?
This is a reason why economists have offered the Kaldor-Hicks test320 as a form of
analysis which purports to justify government actions even when some persons are left
worse off. It requires not that no one be made worse off by a change in the allocation of
resources, but only that the increase in value be sufficiently large that the losers could be
fully compensated. The Kaldor-Hicks test enables us to evaluate social policies and legal
rules that produce winners and losers. The difference between “Pareto-superiority” and
“Kaldor-Hicks efficiency” is “just the difference
between actual and hypotheticalcompensation”. 321 If compensation were actually paid to
losers, the “Kaldor-Hicks efficient move” would become a “Pareto-superior” one.
The question must be asked why compensation is not paid, if it could be. The reasons
given are two-fold. First, some losers deserve to lose. Coleman gives the example of
policies implemented to break up inefficient monopolies.322 Secondly, it may be very
costly to compensate losers. The Kaldor-Hicks test assumes that compensation is to be
costlessly rendered. But there will be transaction costs, so that the payment of
compensation will not be costless. Why losers should be happy with an explanation that
they could have been compensated but were not is left open.
The Kaldor-Hicks approach has a number of limitations. First, unlike “Pareto efficiency”,
“there is no sense of voluntarism”. The efficient solution is “coercively imposed after some
third-party determination of costs and benefits”.323 Secondly, because losers of “efficient”
legal reforms go uncompensated for their losses, “the criterion is capable of generating
quite drastic, capricious and inequitable redistributions of wealth”.324 Thirdly, it is often
claimed that this approach “obviates the need to make inter-personal comparisons of
utility”.325 But, as Veljanovski explains, “this is as much an interpersonal comparison as
one that weighs the gains and losses on the basis of some normative and/or ethical value
judgment regarding the relative ‘worthiness’ of individuals”.326 The approach assumes
that the worth of a £1 is the same to everyone, clearly a false assumption.
A concept thus far missing from this discussion is justice. The omission is a reflection of
the absence of thinking about distributive justice in the writings of economists. But Posner,
the most influential thinker in the law and economics movement, has addressed this
issue.327 He makes both a descriptive and a prescriptive claim about the economics of
justice. The descriptive claim is that the “common law is best explained as if the judges
were trying to maximise economic welfare”.328 Until recently, according to Posner, judges
did not employ sophisticated economic analysis because they had no knowledge of
it.329This may explain why much of the ideological underpinning of classical common law
doctrine was laissez-faire-based.330 The prescriptive claim is about wealth
maximisation.331
The distribution of wealth determines in part both the economic value and the optimal
allocation of resources in an economy. Thus, “to say that a situation is allocatively efficient
is to say only that all the … gains from trade have been exhausted, given
the initialdistribution of wealth among individuals”.332 Under wealth maximisation, judges
are to decide cases according to principles which will maximise society’s total wealth.
Posner argues that wealth maximisation exemplifies both utility and
333
autonomy. Whereas telling judges to maximise utility offers them very little guidance—
utility whether as welfare or happiness is both difficult to discover and to measure—
expecting them to maximise wealth is something they can do.334 Money is easier to
measure than utility. It is also, Posner claims, better than an approach based on
autonomy because it allows for government action the consent for which it would be
impractical to obtain in advance, but which would be forthcoming because, since it
maximises social welfare, nearly everyone would have consented to it if asked, since it
would leave almost everyone better off in the long term.335
There are problems with equating justice with wealth maximisation, and they are not
problems necessarily associated with utilitarianism or an autonomy-based approach. Take
the following example drawn from Veljanovski. If wealth was concentrated in a few who
bought Rolls-Royces and caviar, “allocative efficiency [would] be consistent with the poor
starving and the economy’s productive activity [being] channelled into the manufacture of
those luxury items”.336 On the other hand, with a more equitable distribution of wealth,
productive efforts would go into the generation of more of the basic needs of everyday life.
This means that there are an “infinite number of allocatively efficient outcomes that differ
only with respect to the distribution of welfare among individuals in society”.337 Expressed
in this way, efficiency is “little more than a technocratic principle of unimprovability; there is
no rearrangement of society’s productive activity or allocation of goods and services that
will improve the economic welfare of society given the distribution of wealth upon which
market transactions are based”.338 What this amounts to is a recognition that allocative
efficiency in itself is not capable of generating any social welfare function. As Veljanovski
concedes, normative economics needs a theory of distributive justice which will enable
the analyst to rank “efficient outcomes in terms of their ethical attractiveness”.339 But
economists have been reluctant to commit themselves to this type of thinking. They see
justice as a notion which defies scientific analysis and they find it difficult to set up a social
welfare function which is consistent with the assumptions about efficiency which are so
central to their thinking.
This leads to one of the commonest criticisms of economic theories of law and justice. It
is said340 that the analysis merely reflects a particular ideology and since that ideology is
perceived to be capitalistic and free market in orientation, it is seen to be an apologia for
conservatism. This criticism says that the linchpin of the analysis is that what is efficient
depends upon what people are willing to pay but this in turn is dependent upon what they
are capable of paying: in other words, the more wealth one has, the more one is likely to
increase it. The economic analysis is attacked not just because it lends itself to this
pattern of distribution but because, as Coleman put it,341 “it is that economic analysis
requires and sanctions such patterns of distribution under the guise of pursuing the
presumably desirable goal of efficiency”.
There is some truth in this criticism. Thus, Posner advocates that in order for courts to
promote efficiency they should assign entitlements by “mimicking” the market. Clearly, this
involves assigning rights to resources to those parties who would have purchased them in
an exchange market.
The criticism can be extended further. Again, Coleman makes the point forcibly:

“If rights are assigned in this way, the richer not only get richer, but because their newly acquired
entitlements increase their wealth further, they are in an even better position to increase their
 wealth again by securing more rights on the grounds that their doing so is required by efficiency.
Thus, efficiency not only depends on prior wealth inequalities; pursuing efficiency leads inevitably
to further inequities.”342

It may, however, be argued that this inequality is an incident of the market, not of the
economic analysis of law and justice. In these terms the ideology argument is no more (or
less) an objection to economic analysis of law and justice than it is of markets generally.
The critic may respond that, even if the idea of an efficient market outcome makes sense
when there is an equal initial distribution, once resources are reallocated through trade or
the political process disputes will arise “in which continuing to promote efficiency will serve
only to redistribute wealth further in the direction of the already well-to-do”.343 Proponents
respond that in markets “rational exchanges are made only when they are to the
advantage of both parties”.344 Thus, Coleman makes the point that there is “nothing in
economic analysis ruling out the making of compensatory lump-sum payments by those
who gain entitlements to the losers”. And so, as he claims, “the gain in efficiency need not
create a snowball effect in favour of those who retain rights on efficiency grounds”.345 He
is thus led to the conclusion that there is no bias favouring one economic group in the
economic analysis of law.
This may be a logical conclusion, but how close to the realities of the world is it? What
is envisaged is an abstract economic man. Do human beings actually behave in this way?
And for how long can perfect competition and voluntary exchange last? People in the real
world are not always able to assess what is in their rational self-interest and then act upon
it. In the real world people’s needs change; there are accidents, inventions. There is also
altruism, a concern for the community, an interest in the environment. The economic
argument says that any change in allocation or distribution which does not move things
toward the economic ideal is unjustified. But are there not other goals than economic
ones, for example social goals?
One of the earliest (and still sharpest) critics of the law and economics project was
Leff.346 He argued that the basic intellectual technique of the economic analysis of law is
“the substitution of definitions for both normative and empirical propositions”.347 He saw
the move to the economic analysis of law as “an attempt to get over, or at least to get by,
the complexity thrust upon us by the Realists”.348 In Posner’s Economic Analysis of
Law,he detected a book in which it is “apparently plausible to declare ‘it may be possible
to deduce the basic formal characteristics of law itself from economic theory …’ and then
do it in a two-page chapter”.349 His comment—rather sarcastically—was “what bliss”.
Leff’s point is that the economic analysis of law is a gross over-simplification. It (he refers
to Posner, but what he says may be generalised) centres round a “single-element
touchstone … ‘What people want’ is presented in such a way that while it is in form
empirical it is almost wholly non-falsifiable by anything so crude as fact”.350 The basic
propositions of the economic analysis of law are not, says Leff, empirical propositions at
all. Rather they are “generated by ‘reflection’ on an ‘assumption’ about choice under
scarcity and rational maximization”.351 Leff takes concepts like “efficiency” and “value” and
comments that they have no meaning beyond “since people are rationally self-interested,
what they do shows what they value, and their willingness to pay for what they value is
proof of their rational self-interest”. And, of course, “nothing merely empirical could get in
the way of such a structure because it is definitional. That is why the assumption can
predict how people behave: in these terms there is no other way they can
behave”.352Seen thus, the economic analysis of law is allowing normative propositions to
be expressed in descriptive form, “slipping in” ought propositions almost
surreptitiously.353Amartya Sen observed in 1985 that “We want a canonical form that is
uncomplicated enough to be easily usable in theoretical and empirical analysis. But we
also want an assumption structure that is not fundamentally at odds with the real world,
nor one that makes simplicity take the form of naivety”.354
Another critic is Ronald Dworkin. According to Dworkin, Posner “cannot claim a genuine
Pareto justification for common law decisions, in either hard or easy cases. His relaxed
version of Paretianism is only utilitarianism with all the warts. The voyage of his essay
ends in the one traditional theory he was formerly most anxious to disown”.355 Dworkin
questions whether efficiency should be the goal of law356—today “the vast majority of law
and economics scholarship assumes without hesitation that [this is] the goal of law”357—
and whether wealth is a value.358 For Dworkin it is unclear “why” social wealth is a “worthy
goal”.359 Is it because it is the “only” component of social value?360 Or one component of
social value amongst others?361 Or is it because it is an instrument of value, so that
“improvements in social wealth are not valuable in themselves, but valuable because they
may or will produce other improvements that are valuable in themselves?”.362 What if
slavery is the most efficient wealth maximisation system? Or if wealth creation were
optimised by a system of apartheid?363
Economic models are also indicted for their lack of realism. It may be thought offensive
to reduce the value of human life to monetary computations.364 Thus, famously, and on
more than one occasion, Posner has argued for a market in adoptions.365 As he himself
admits “economists like to think about the unthinkable”.366 Defenders however will point to
the implicit monetary value we put on human life in virtually everything we do. Even so, it
may be questioned whether a single kind of valuation, which imposes commensurability
where none exists, assists our reasoning processes or distorts them.367
Realism may also be lacking from a model of decision making which assumes that
people make decisions that are rational (both in relation to ends and means).368 Ellickson
has challenged the law and economics school to take on board the insights of psychology
and sociology to inject “more realism about both human frailties and the influence of
culture”.369 An example is the work of the cognitive psychologists, Daniel Kahneman and
Amos Tversky. They found that people are myopic in their decisions, may lack skill in
predicting their future tastes, and can be led to erroneous choices by fallible memory and
incorrect evaluation of past experiences.370 And, as Coleman points out, irrational ideas
or prejudices will often persist over time.

CORRECTIVE JUSTICE
It is in discussions about the rationale of tort law that we see corrective justice most 6–008
clearly. Theories of distributive justice do not address the goals of tort law adequately.
Courts do not use the law of tort to correct distributive imbalances, though they may
sometimes appeal to considerations of distributive justice to fortify conclusions reached by
other routes.371 Even if they wanted to do so, they would find distributive considerations
inappropriate where the interests protected were persons’ lives or bodies. The most
fundamental objection is that distributive justice operates on a global level and tort law
locally, between two persons. We do not think if A negligently injures B that C, D and
E should assist B to restore A’s status quo ante.372 The causation requirement of tort law
is also problematic for the distributive approach. It requires that recoverable losses be
caused by human agency, so that a child born with special needs as a result of a doctor’s
negligence may recover considerable damages by way of compensation, but not one born
with similar needs because of a genetic problem. Tort theorists who want tort law to
achieve distributive justice—so that cases like these are not distinguished—advocate the
abolition of tort law and its replacement by social compensation schemes.373
Attempts to explain tort law in terms of corrective justice is more promising. The
underlying premise is that tort law should do justice between the parties, ignoring any
larger distributive issues in the community as a whole. Corrective justice imposes an
obligation on the tortfeasor to compensate his victim for the harm he has done: the victim
has a correlative right to recover for his losses.374 There are causation problems: space
precludes their consideration here.375 There is also the problem of separating the
concerns of corrective and distributive justice. This is not a problem insofar as tort law is
directed towards the protection of life and bodily integrity, for it is clear that these interests
belong to the victim and no one else (it is not therefore subject to considerations of
distributive justice). But where the interest which is the subject of protection is property (in
its broadest sense), considerations of distributive justice are inevitable. The danger is that
a corrective justice-based theory of tort law will collapse into a distributive theory.
There are arguments accordingly posited to demonstrate the independence of
corrective justice from background conceptions of distributive justice. One is offered by
Benson. “A person who, through an external manifestation of will, has brought something
under his or her present and exclusive control prior to others is, relative to those others,
entitled to it in corrective justice”.376 Another by Coleman. He discounts a deviation in
holdings from an ideally just distribution when is not too great. This is particularly so
where the existing system of property contributes to individual well-being and social
stability.377 These justifications, respectively Kantian and functional,378 may not convince.
But it may nevertheless be thought that tort law can be explained in corrective justice
terms.379
A number of thinkers have tried to do this. Some focus on the agency of the tortfeasor.
Thus for Weinrib (for whom corrective justice is the “structure of immediate interaction for
Kantian moral persons”380) if A’s wrongful exercise of agency results in harm to the
person or property of B, A has a duty in corrective justice to compensate B (and B has a
correlative right to be compensated).381 Others have focused on the victim’s loss. As
between a faulty injurer and an innocent victim, it is argued that it is morally preferable
that the injurer should bear the loss. As Perry explains this treats corrective justice as a
form of “localized distributive justice”.382 But why, he asks, should only the person who
has injured the victim pay him compensation: others, equally at fault, who have
fortuitously avoided injuring anyone could equally be required to contribute towards the
compensation. This was recognised by Coleman who advocated an “at-fault pool” under
which all guilty of faulty driving would be required to pay into a pool to compensate
victims, in proportion to the degree of fault and regardless of whether they had caused an
accident.383
Perhaps we should persevere with localized distributive justice. Fletcher did so.384From
a Rawlsian starting-point385 premised upon the right of all to the “maximum amount of
security compatible with a like security for everyone else”,386 he argues that someone
who imposes on another a risk deemed unacceptable is under an obligation to
compensate for loss. Compensation is “a surrogate for the individual’s right to the same
security as enjoyed by others”.387 But why not share the victim’s loss amongst all those
who engaged in the risky behaviour? Does it matter that they didn’t cause any injury?
That they didn’t cause this injury?
If these approaches to corrective justice are not convincing, is there another route?
Perry,388 looking for a moral link between one person’s conduct and another’s loss, finds
it, following Honoré,389 in responsibility. If A chooses to act in a certain way, he should be
fully responsible for any harms he causes (and, though this is not relevant here, whatever
gains result should be his too390). This view is premised upon choice and leads to a
conclusion that there should be strict liability.391 But how real is choice? Perhaps rather
we should be looking to control: could the actor have foreseen and avoided causing the
harm to the victim that he did? However, even if he could have avoided the harm by acting
differently, it does not follow that he should have acted differently. It is impossible to act
without subjecting others to risk. The modern law of negligence recognises this by
providing that foreseeability is a necessary but not a sufficient condition of liability. What is
also required is that the loss is “wrongful”. For Coleman a loss is “wrongful” if it results
from conduct which is wrongful or infringes one of the victim’s rights. The English courts
do not use this language, but in adding to foreseeability and proximity the requirement
that “the situation should be one in which the court considers it fair, just and reasonable
that the law should impose a duty of a given scope upon the one party for the benefit of
the other”392 it may be thought to reach a similar conclusion albeit within the language of
policy.
 J. RAWLS
A Theory of Justice

(Revised edition, 1999)

In working out the conception of justice as fairness one main task clearly is to determine which 6–009
principles of justice would be chosen in the original position. To do this we must describe this
situation in some detail and formulate with care the problem of choice which it presents. … It may be
observed, however, that once the principles of justice are thought of as arising from an original
agreement in a situation of equality, it is an open question whether the principle of utility would be
acknowledged. Offhand it hardly seems likely that persons who view themselves as equals, entitled
to press their claims upon one another, would agree to a principle which may require lesser life
prospects for some simply for the sake of a greater sum of advantages enjoyed by others. Since
each desires to protect his interests, his capacity to advance his conception of the good, no one has
a reason to acquiesce in an enduring loss for himself in order to bring about a greater net balance of
satisfaction. In the absence of strong and lasting benevolent impulses, a rational man would not
accept a basic structure merely because it maximised the algebraic sum of advantages irrespective
of its permanent effect on his own basic rights and interests. Thus it seems that the principle of utility
is incompatible with the conception of social co-operation among equals for mutual advantage. It
appears to be inconsistent with the idea of reciprocity implicit in the notion of a well-ordered society.
…
I shall maintain instead that the persons in the initial situation would choose two rather different
principles: the first requires equality in the assignment of basic rights and duties, while the second
holds that social and economic inequalities, for example inequalities of wealth and authority, are just
only if they result in compensating benefits for everyone, and in particular for the least advantaged
members of society. These principles rule out justifying institutions on the grounds that the hardships
of some are offset by a greater good in the aggregate. It may be expedient but it is not just that some
should have less in order that others may prosper. But there is no injustice in the greater benefits
earned by a few provided that the situation of persons not so fortunate is thereby improved. The
intuitive idea is that since everyone’s well-being depends upon a scheme of co-operation without
which no one could have a satisfactory life, the division of advantages should be such as to draw
forth the willing co-operation of everyone taking part in it, including those less well situated. Yet this
can be expected only if reasonable terms are proposed. The two principles mentioned seem to be a
fair agreement on the basis of which those better endowed, or more fortunate in their social position,
neither of which we can be said to deserve, could expect the willing co-operation of others when
some workable scheme is a necessary condition of the welfare of all. …
The problem of the choice of principles, however, is extremely difficult. I do not expect the answer I
shall suggest to be convincing to everyone. It is, therefore, worth noting from the outset that justice
as fairness, like other contract views, consists of two parts: (1) an interpretation of the initial situation
and of the problem of choice posed there, and (2) a set of principles which, it is argued, would be
agreed to. One may accept the first part of the theory (or some variant thereof), but not the other, and
conversely. The concept of the initial contractual situation may seem reasonable although the
particular principles proposed are rejected. To be sure, I want to maintain that the most appropriate
conception of this situation does lead to principles of justice contrary to utilitarianism and
perfectionism, and therefore that the contract doctrine provides an alternative to these views. Still,
one may dispute this contention even though one grants that the contractarian method is a useful
way of studying ethical theories and of setting forth their underlying assumptions.
Justice as fairness is an example of what I have called a contract theory. Now there may be an
objection to the term “contract” and related expressions, but I think it will serve reasonably well. Many
words have misleading connotations which at first are likely to confuse. The terms “utility” and
“utilitarianism” are surely no exception. They too have unfortunate suggestions which hostile critics
have been willing to exploit; yet they are clear enough for those prepared to study utilitarian doctrine.
The same should be true of the term “contract” applied to moral theories. As I have mentioned, to
understand it one has to keep in mind that it implies a certain level of abstraction. In particular, the
content of the relevant agreement is not to enter a given society or to adopt a given form of
government, but to accept certain moral principles. Moreover, the undertakings referred to are purely
hypothetical: a contract view holds that certain principles would be acceptable in a well-defined initial
situation.
The merit of the contract terminology is that it conveys the idea that principles of justice may be
conceived as principles that would be chosen by rational persons, and that in this way conceptions of
justice may be explained and justified. The theory of justice is a part, perhaps the most significant
part, of the theory of rational choice. … [pp.12–15]

The Original Position and Justification

I have said that the original position is the appropriate initial status quo which insures that the
fundamental agreements reached in it are fair. This fact yields the name “justice as fairness.” It is
clear, then, that I want to say that one conception of justice is more reasonable than another, or
justifiable with respect to it, if rational persons in the initial situation would choose its principles over
those of the other for the role of justice. Conceptions of justice are to be ranked by their acceptability
to persons so circumstanced. Understood in this way the question of justification is settled by working
out a problem of deliberation: we have to ascertain which principles it would be rational to adopt
given the contractual situation. This connects the theory of justice with the theory of rational choice.
If this view of the problem of justification is to succeed, we must, of course, describe in some detail
the nature of this choice problem. A problem of rational decision has a definite answer only if we
know the beliefs and interests of the parties, their relations with respect to one another, the
alternatives between which they are to choose, the procedure whereby they make up their minds,
and so on. As the circumstances are presented in different ways, correspondingly different principles
are accepted. The concept of the original position, as I shall refer to it, is that of the most
philosophically favored interpretation of this initial choice situation for the purposes of the theory of
justice.
But how are we to decide what is the most favored interpretation? I assume, for one thing, that
there is a broad measure of agreement that principles of justice should be chosen under certain
conditions. To justify a particular description of the initial situation one shows that it incorporates
those commonly shared presumptions. One argues from widely accepted but weak premises to more
specific conclusions. Each of the presumptions should by itself be natural and plausible; some of
them may seem innocuous or even trivial. The aim of the contract approach is to establish that taken
together they impose significant bounds on acceptable principles of justice. The ideal outcome would
be that these conditions determine a unique set of principles; but I shall be satisfied if they suffice to
rank the main traditional conceptions of social justice.
One should not be misled, then, by the somewhat unusual conditions which characterize the
original position. The idea here is simply to make vivid to ourselves the restrictions that it seems
reasonable to impose on arguments for principles of justice, and therefore on these principles
themselves. Thus it seems reasonable and generally acceptable that no one should be advantaged
or disadvantaged by natural fortune or social circumstances in the choice of principles. It also seems
widely agreed that it should be impossible to tailor principles to the circumstances of one’s own case.
We should insure further that particular inclinations and aspirations, and persons’ conceptions of their
good do not affect the principles adopted. The aim is to rule out those principles that it would be
rational to propose for acceptance, however little the chance of success, only if one knew certain
things that are irrelevant from the standpoint of justice. For example, if a man knew that he was
wealthy, he might find it rational to advance the principle that various taxes for welfare measures be
counted unjust; if he knew that he was poor, he would most likely propose the contrary principle. To
represent the desired restrictions one imagines a situation in which everyone is deprived of this sort
of information. One excludes the knowledge of those contingencies which sets men at odds and
allows them to be guided by their prejudices. In this manner the veil of ignorance is arrived at in a
natural way. This concept should cause no difficulty if we keep in mind the constraints on arguments
that it is meant to express. At any time we can enter the original position, so to speak, simply by
following a certain procedure, namely, by arguing for principles of justice in accordance with these
restrictions.
It seems reasonable to suppose that the parties in the original position are equal. That is, all have
the same rights in the procedure for choosing principles; each can make proposals, submit reasons
for their acceptance and so on. Obviously the purpose of these conditions is to represent equality
between human beings as moral persons, as creatures having a conception of their good and
capable of a sense of justice. The basis of equality is taken to be similarity in these two respects.
Systems of ends are not ranked in value; and each man is presumed to have the requisite ability to
understand and to act upon whatever principles are adopted. Together with the veil of ignorance,
these conditions define the principles of justice as those which rational persons concerned to
advance their interests would consent to as equals when none are known to be advantaged or
disadvantaged by social and natural contingencies. [pp.15–17]

Two Principles of Justice

I shall now state in a provisional form the two principles of justice that I believe would be chosen in
the original position. …
The first statement of the two principles reads as follows.
First: each person is to have an equal right to the most extensive basic liberty compatible with a
similar liberty for others.
Second: social and economic inequalities are to be arranged so that they are both (a) reasonably
expected to be to everyone’s advantage, and (b) attached to positions and offices open to all. …
 By way of general comment, these principles primarily apply, as I have said, to the basic structure
of society. They are to govern the assignment of rights and duties and to regulate the distribution of
social and economic advantages. As their formulation suggests, these principles presuppose that the
social structure can be divided into two more or less distinct parts, the first principle applying to the
one, the second to the other. They distinguish between those aspects of the social system that define
and secure the equal liberties of citizenship and those that specify and establish social and economic
inequalities. The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and
to be eligible for public office) together with freedom of speech and assembly; liberty of conscience
and freedom of thought; freedom of the person along with the right to hold (personal) property; and
freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties
are all required to be equal by the first principle, since citizens of a just society are to have the same
basic rights.
The second principle applies, in the first approximation, to the distribution of income and wealth
and to the design of organizations that make use of differences in authority and responsibility, or
chains of command. While the distribution of wealth and income need not be equal, it must be to
everyone’s advantage, and at the same time, positions of authority and offices of command must be
accessible to all. One applies the second principle by holding positions open, and then, subject to
this constraint, arranges social and economic inequalities so that everyone benefits.
These principles are to be arranged in a serial order with the first principle prior to the second. This
ordering means that a departure from the institutions of equal liberty required by the first principle
cannot be justified by, or compensated for, by greater social and economic advantages. The
distribution of wealth and income, and the hierarchies of authority, must be consistent with both the
liberties of equal citizenship and equality of opportunity.
[The] two principles (and this holds for all formulations) are a special case of a more general
conception of justice that can be expressed as follows:
All social values—liberty and opportunity, income and wealth, and the bases of self-respect—are to
be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s
advantage.
Injustice, then, is simply inequalities that are not to the benefit of all. …
As a first step, suppose that the basic structure of society distributes certain primary goods, that is,
things that every rational man is presumed to want. These goods normally have a use whatever a
person’s rational plan of life. For simplicity, assume that the chief primary goods at the disposition of
society are rights and liberties, powers and opportunities, income and wealth. […] These are the
social primary goods. Other primary goods such as health and vigor, intelligence and imagination,
are natural goods; although their possession is influenced by the basic structure, they are not so
directly under its control. Imagine, then, a hypothetical initial arrangement in which all the social
primary goods are equally distributed: everyone has similar rights and duties, and income and wealth
are evenly shared. This state of affairs provides a benchmark for judging improvements. If certain
inequalities of wealth and organizational powers would make everyone better off than in this
hypothetical starting situation, then they accord with the general conception.
Now it is possible, at least theoretically, that by giving up some of their fundamental liberties men
are sufficiently compensated by the resulting social and economic gains. The general conception of
justice imposes no restrictions on what sort of inequalities are permissible; it only requires that
everyone’s position be improved. We need not suppose anything so drastic as consenting to a
condition of slavery. Imagine instead that men forego certain political rights when the economic
returns are significant and their capacity to influence the course of policy by the exercise of these
rights would be marginal in any case. It is this kind of exchange which the two principles as stated
rule out; being arranged in serial order they do not permit exchanges between basic liberties and
economic and social gains. The serial ordering of principles expresses an underlying preference
among primary social goods. When this preference is rational so likewise is the choice of these
principles in this order.
In developing justice as fairness I shall, for the most part, leave aside the general conception of
justice and examine instead the special case of the two principles in serial order. The advantage of
this procedure is that from the first the matter of priorities is recognised and an effort made to find
principles to deal with it. One is led to attend throughout to the conditions under which the
acknowledgement of the absolute weight of liberty with respect to social and economic advantages,
as defined by the lexical order of the two principles, would be reasonable. Offhand, this ranking
appears extreme and too special a case to be of much interest; but there is more justification for it
than would appear at first sight. … Furthermore, the distinction between fundamental rights and
liberties and economic and social benefits marks a difference among primary social goods that one
should try to exploit. It suggests an important division in the social system. Of course, the distinctions
drawn and the ordering proposed are bound to be at best only approximations. There are surely
circumstances in which they fail. But it is essential to depict clearly the main lines of a reasonable
conception of justice; and under many conditions anyway, the two principles in serial order may serve
well enough. When necessary we can fall back on the more general conception.
 The fact that the two principles apply to institutions has certain consequences. Several points
illustrate this. First of all, the rights and liberties referred to by these principles are those which are
defined by the public rules of the basic structure. Whether men are free is determined by the rights
and duties established by the major institutions of society. Liberty is a certain pattern of social forms.
The first principle simply requires that certain sorts of rules, those defining basic liberties, apply to
everyone equally and that they allow the most extensive liberty compatible with a like liberty for all.
The only reason for circumscribing the rights defining liberty and making men’s freedom less
extensive than it might otherwise be is that these equal rights as institutionally defined would interfere
with one another.
Another thing to bear in mind is that when principles mention persons, or require that everyone
gain from an inequality, the reference is to representative persons holding the various social
positions, or offices, or whatever, established by the basic structure. Thus in applying the second
principle I assume that it is possible to assign an expectation of well-being to representative
individuals holding these positions. The expectation indicates their life prospects as viewed from their
social station. In general, the expectations of representative persons depend upon the distribution of
rights and duties throughout the basic structure. When this changes, expectations change. I assume,
then, that expectations are connected: by raising the prospects of the representative man in one
position we presumably increase or decrease the prospects of representative men in other positions.
Since it applies to institutional forms, the second principle (or rather the first part of it) refers to the
expectations of representative individuals. … [N]either principle applies to distributions of particular
goods to particular individuals who may be identified by their proper names. The situation where
someone is considering how to allocate certain commodities to needy persons who are known to him
is not within the scope of the principles. They are meant to regulate basic institutional arrangements.
We must not assume that there is much similarity from the standpoint of justice between an
administrative allotment of goods to specific persons and the appropriate design of society. Our
common sense intuitions for the former may be a poor guide to the latter.
Now the second principle insists that each person benefit from permissible inequalities in the basic
structure. This means that it must be reasonable for each relevant representative man defined by this
structure, when he views it as a going concern, to prefer his prospects with the inequality to his
prospects without it. One is not allowed to justify differences in income or organizational powers on
the ground that the disadvantages of those in one position are outweighed by the greater advantages
of those in another. Much less can infringements of liberty be counterbalanced in this way. Applied to
the basic structure, the principle of utility would have us maximize the sum of expectations of
representative men (weighted by the number of persons they represent, on the classical view); and
this would permit us to compensate for the losses of some by the gain of others. Instead, the two
principles require that everyone benefit from economic and social inequalities. It is obvious, however,
that there are indefinitely many ways in which all may be advantaged when the initial arrangement of
equality is taken as a benchmark. How then are we to choose among these possibilities? The
principles must be specified so that they yield a determinate conclusion. [pp.52–56]

The Veil of Ignorance

The idea of the original position is to set up a fair procedure so that any principles agreed to will be
just. The aim is to use the notion of pure procedural justice as a basis of theory. Somehow we must
nullify the effects of specific contingencies which put men at odds and tempt them to exploit social
and natural circumstances to their own advantage. Now in order to do this I assume that the parties
are situated behind a veil of ignorance. They do not know how the various alternatives will affect their
own particular case and they are obliged to evaluate principles solely on the basis of general
considerations.393
It is assumed, then, that the parties do not know certain kinds of particular facts. First of all, no one
knows his place in society, his class position or social status; nor does he know his fortune in the
distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does
anyone know his conception of the good, the particulars of his rational plan of life, or even the special
features of his psychology such as his aversion to risk or liability to optimism or pessimism. More
than this, I assume that the parties do not know the particular circumstances of their own society.
That is, they do not know its economic or political situation, or the level of civilization and culture it
has been able to achieve. The persons in the original position have no information as to which
generation they belong. These broader restrictions on knowledge are appropriate in part because
questions of social justice arise between generations as well as within them, for example, the
question of the appropriate rate of capital saving and of the conservation of natural resources and the
environment of nature. There is also, theoretically anyway, the question of a reasonable genetic
policy. In these cases too, in order to carry through the idea of the original position, the parties must
not know the contingencies that set them in opposition. They must choose principles the
consequences of which they are prepared to live with whatever generation they turn out to belong to.
 As far as possible, then, the only particular facts which the parties know is that their society is
subject to the circumstances of justice and whatever this implies. It is taken for granted, however,
that they know the general facts about human society. The understand political affairs and the
principles of economic theory; they know the basis of social organization and the laws of human
psychology. Indeed, the parties are presumed to know whatever general facts affect the choice of the
principles of justice. There are no limitations on general information, that is, on general laws and
theories, since conceptions of justice must be adjusted to the characteristics of the systems of social
co-operation which they are to regulate, and there is no reason to rule out these facts. It is, for
example, a consideration against a conception of justice that in view of the laws of moral psychology,
men would not acquire a desire to act upon it even when the institutions of their society satisfied it.
For in this case there would be difficulty in securing the stability of social co-operation. It is an
important feature of a conception of justice that it should generate its own support. That is, its
principles should be such that when they are embodied in the basic structure of society men tend to
acquire the corresponding sense of justice. Given the principles of moral learning, men develop a
desire to act in accordance with its principles. In this case a conception of justice is stable. This kind
of general information is admissible in the original position. [pp.118–119]

Background Institutions for Distributive Justice

The main problem of distributive justice is the choice of a social system. The principles of justice
apply to the basic structure and regulate how its major institutions are combined into one scheme.
Now, the idea of justice as fairness is to use the notion of pure procedural justice to handle the
contingencies of particular situations. The social system is to be designed so that the resulting
distribution is just however things turn out. To achieve this end it is necessary to set the social and
economic process within the surroundings of suitable political and legal institutions. Without the
proper arrangement of these background institutions the outcome of the distributive process will not
be just. Background fairness is lacking. I shall give a brief description of these background
institutions as they might exist in a properly organised democratic state that allows private ownership
of capital and natural resources. These arrangements are familiar, but it may be useful to see how
they fit the two principles of justice. Modifications for the case of a socialist regime will be considered
briefly later.
First of all, I assume that the basic structure is regulated by a just constitution that secures the
liberties of equal citizenship (as described in the preceding chapter). Liberty of conscience and
freedom of thought are taken for granted, and the fair value of political liberty is maintained. The
political process is conducted, as far as circumstances permit, as a just procedure for choosing
between governments and for enacting legislation. I assume also that there is fair (as opposed to
formal) equality of opportunity. This means that in addition to maintaining the usual kinds of social
overhead capital, the government tries to insure equal chances of education and culture for persons
similarly endowed and motivated either by subsidizing private schools or by establishing a public
school system. It also enforces and underwrites equality of opportunity in economic activities and in
the free choice of occupation. This is achieved by policing the conduct of firms and private
associations and by preventing the establishment of monopolistic restrictions and barriers to the
more desirable positions. Finally, the government guarantees a social minimum either by family
allowances and special payments for sickness and employment, or more systematically by such
devices as a graded income supplement (a so-called negative income tax).
In establishing the background institutions the government may be thought of as divided into four
branches. Each branch consists of various agencies, and activities thereof, charged with preserving
certain social and economic conditions. These divisions do not overlap with the usual organization of
government but are to be understood as different functions. The allocation branch, for example, is to
keep the price system workably competitive and to prevent the formation of unreasonable market
power. Such power does not exist as long as markets cannot be made more competitive consistent
with the requirements of efficiency and the facts of geography and the preferences of households.
The allocation branch is also charged with identifying and correcting, say by suitable taxes and
subsidies and by changes in the definition of property rights, the more obvious departures from
efficiency caused by the failure of prices to measure accurately social benefits and costs. To this end
suitable taxes and subsidies may be used, or the scope and definition of property rights may be
revised. The stabilization branch, on the other hand, strives to bring about reasonably full
employment in the sense that those who want to work can find it and the free choice of occupation
and the deployment of finance is supported by strong effective demand. These two branches
together are to maintain the efficiency of the market economy generally.
The social minimum is the responsibility of the transfer branch. … The essential idea is that the
workings of this branch takes needs into account and assigns them an appropriate weight with
respect to other claims. A competitive price system gives no consideration to needs and therefore it
cannot be the sole device of distribution. There must be a division of labor between the parts of the
social system in answering to the common sense precepts of justice. Different institutions meet
different claims. Competitive markets properly regulated secure free choice of occupation and lead to
an efficient use of resources and allocation of commodities to households. They set a weight on the
conventional precepts associated with wages and earnings, whereas the transfer branch guarantees
a certain level of well-being and honors the claims of need. … Certain precepts tend to be associated
with specific institutions. It is left to the background system as a whole to determine how these
precepts are balanced. Since the principles of justice regulate the whole structure, they also regulate
the balance of precepts. In general, then, this balance will vary in accordance with the underlying
political conception.
It is clear that the justice of distributive shares depends on the background institutions and how
they allocate total income, wages and other income plus transfers. There is with reason strong
objection to the competitive determination of total income, since this ignores the claims of need and
an appropriate standard of life. From the standpoint of the legislative stage it is rational to insure
oneself and one’s descendants against these contingencies of the market. Indeed, the difference
principle presumably requires this. But once a suitable minimum is provided by transfers, it may be
perfectly fair that the rest of total income be settled by the price system, assuming that it is
moderately efficient and free from monopolistic restrictions, and unreasonable externalities have
been eliminated. Moreover, this way of dealing with the claims of need would appear to be more
effective than trying to regulate income by minimum wage standards, and the like. It is better to
assign to each branch only such tasks as are compatible with one another. Since the market is not
suited to answer the claims of need, these should be met by a separate arrangement. Whether the
principles of justice are satisfied, then, turns on whether the total income of the least advantaged
(wages plus transfers) is such as to maximize their long-run expectations (consistent with the
constraints of equal liberty and fair equality of opportunity).
Finally, there is a distribution branch. Its task is to preserve an approximate justice in distributive
shares by means of taxation and the necessary adjustments in the rights of property. Two aspects of
this branch may be distinguished. First of all, it imposes a number of inheritance and gift taxes, and
sets restrictions on the rights of bequest. The purpose of these levies and regulations is not to raise
revenue (release resources to government) but gradually and continually to correct the distribution of
wealth and to prevent concentrations of power detrimental to the fair value of political liberty and fair
equality of opportunity. For example, the progressive principle might be applied at the beneficiary’s
end. Doing this would encourage the wide dispersal of property which is a necessary condition, it
seems, if the fair value of the equal liberties is to be maintained. The unequal inheritance of wealth is
no more inherently unjust than the unequal inheritance of intelligence. It is true that the former is
presumably more easily subject to social control; but the essential thing is that as far as possible
inequalities founded on either should satisfy the difference principle. Thus inheritance if permissible
provided that the resulting inequalities are to the advantage of the least fortunate and compatible with
liberty and fair equality of opportunity. … Fair equality of opportunity means a certain set of
institutions that assures similar chances of education and culture for persons similarly motivated and
keeps positions and offices open to all on the basis of qualities and efforts reasonably related to the
relevant duties and tasks. It is these institutions that are put in jeopardy when inequalities of wealth
exceed a certain limit; and political liberty in likewise tends to lose its value, and representative
government to become such in appearance only. The taxes and enactments of the distribution
branch are to prevent this limit from being exceeded. Naturally, where this limit lies is a matter of
political judgment guided by theory, good sense and plain hunch, at least within a wide range. On this
sort of question the theory of justice has nothing specific to say. Its aim is to formulate the principles
that are to regulate the background institutions.
The second part of the distribution branch is a scheme of taxation to raise the revenues that justice
requires. Social resources must be released to the government so that it can provide for the public
goods and make the transfer payments necessary to satisfy the difference principles. This problem
belongs to the distribution branch since the burden of taxation is to be justly shared and it aims at
establishing just arrangements. Leaving aside many complications, it is worth noting that a
proportional expenditure tax may be part of the best tax scheme. For one thing, it is preferable to an
income tax (of any kind) at the level of common sense precepts of justice, since it imposes a levy
according to how much a person takes out of the common store of goods and not according to how
much he contributes (assuming here that income is fairly earned). Again, a proportional tax on total
consumption (for each year say) can contain the usual exemptions for dependents, and so on; and it
treats everyone in a uniform way (still assuming that income is fairly earned). It may be better,
therefore, to use progressive rates only when they are necessary to preserve the justice of the basic
structure with respect to the first principle of justice and fair equality of opportunity, and so to forestall
accumulations of property and power likely to undermine the corresponding institutions. Following
this rule might help to signal an important distinction in questions of policy. And if proportional taxes
should also prove more efficient, say because they interfere less with incentives, this might make the
case for them decisive if a feasible scheme could be worked out. As before, these are questions of
political judgment and not part of a theory of justice. And in any case we are here considering such a
proportional tax as part of an ideal scheme for well-ordered society in order to illustrate the content of
the two principles. It does not follow that, given the injustice of existing institutions, even steeply
progressive income taxes are not justified when all things are considered. In practice, we must
usually choose between several unjust, or second best, arrangements; and then we look to nonideal
theory to find the least unjust scheme. Sometimes this scheme will includes measures and policies
that a perfectly just system would reject. Two wrongs can make a right in the sense that the best
available arrangement may contain a balance of imperfections, an adjustment of compensating
injustices.
The two parts of the distribution branch derive from the two principles of justice. The taxation of
inheritance and income at progressive rates (when necessary), and the legal definition of property
rights, are to secure the institutions of equal liberty in a property-owning democracy and the fair value
of the rights they establish. Proportional expenditure (or income) taxes are to provide revenue for
public goods, the transfer branch and the establishment of fair equality of opportunity in education,
and the like, so as to carry out the second principle. No mention has been made at any point of the
traditional criteria of taxation such as that taxes are to be levied according to benefits received or the
ability to pay. The reference to common sense precepts in connection with expenditure taxes is a
subordinate consideration. The scope of these criteria is regulated by the principles of justice. Once
the problem of distributive shares is recognized as that of designing background institutions, the
conventional maxims are seen to have no independent force, however appropriate they may be in
certain delimited cases. To suppose otherwise is not to take a sufficiently comprehensive point of
view. It is evident also that the design of the distribution branch does not presuppose the utilitarian’s
standard assumptions about individual utilities. Inheritance and progressive income taxes, for
example, are not predicated on the idea that individuals have similar utility functions satisfying the
diminishing marginal principle. The aim of the distribution branch is not, of course, to maximize the
net balance of satisfaction but to establish just background institutions. Doubts about the shape of
utility functions are irrelevant. This problem is one for the utilitarian, not for contract theory.
So far I have assumed that the aim of the branches of government is to establish a democratic
regime in which land and capital are widely though not presumably equally held. Society is not so
divided that one fairly small sector controls the preponderance of productive resources. When this is
achieved and distributive shares satisfy the principles of justice, many socialist criticisms of the
market economy are met. But it is clear that, in theory anyway, a liberal socialist regime can also
answer to the two principles of justice. We have only to suppose that the means of production are
publicly owned and that firms are managed by workers’ councils say, or by agents appointed by
them. Collective decisions made democratically under the constitution determine the general features
of the economy, such as the rate of saving and the proportion of society’s production devoted to
essential public goods. Given the resulting economic environment, firms regulated by market forces
conduct themselves much as before. Although the background institutions will take a different form,
especially in the case of the distribution branch, there is no reason in principle why just distributive
shares cannot be achieved. The theory of justice does not by itself favor either form of regime. As we
have seen, the decision as to which system is best for a given people depends upon their
circumstances, institutions, and historical traditions.
Some socialists have objected to all market institutions as inherently degrading, and they have
hoped to set up an economy in which men are moved largely by social and altruistic concerns. In
regard to the first, the market is not indeed an ideal arrangement, but certainly given the requisite
background institutions, the worst aspects of so-called wage slavery are removed. The question then
becomes one of the comparison of possible alternatives. It seems improbable that the control of
economic activity by the bureaucracy that would be bound to develop in a socially regulated system
(whether centrally directed or guided by the agreements reached by industrial associations) would be
more just on balance than control exercised by means of prices (assuming as always the necessary
framework). To be sure a competitive scheme is impersonal and automatic in the details of its
operation; its particular results do not express the conscious decision of individuals. But in many
respects this is a virtue of the arrangement; and the use of the market system does not imply a lack
of reasonable human autonomy. A democratic society may choose to rely on prices in view of the
advantages of doing so, and then to maintain the background institutions which justice requires. This
political decision, as well as the regulation of these surrounding arrangements, can be perfectly
reasoned and free.
Moreover the theory of justice assumes a definite limit on the strength of social and altruistic
motivation. It supposes that individuals and groups put forward competing claims, and while they are
willing to act justly, they are not prepared to abandon their interests. There is no need to elaborate
further that this presumption does not imply that men are selfish in the ordinary sense. Rather a
society in which all can achieve their complete good, or in which there are no conflicting demands
and the wants of all fit together without coercion into a harmonious plan of activity, is a society in a
certain sense beyond justice. It has eliminated the occasions when the appeal to the principles of
right and justice is necessary. I am not concerned with this ideal case, however desirable it may be.
We should note though that even here the theory of justice has an important theoretical role: it
defines the conditions under which the spontaneous coherence of the aims and wants of individuals
is neither coerced nor contrived but expresses a proper harmony consistent with the ideal good. The
main point is that the principles of justice are compatible with quite different types of regime. [pp.242–
249]

J. RAWLS
Political Liberalism

(1993)

Since there is no reasonable religious, philosophical, or moral doctrine affirmed by all citizens, the 6–010
conception of justice affirmed in a well-ordered democratic society must be a conception limited to
what I shall call “the domain of the political” and its values. The idea of a well-ordered democratic
society must be framed accordingly. I assume, then, that citizens’ overall views have two parts: one
part can be seen to be, or to coincide with, the publicly recognized political conception of justice; the
other part is a (fully or partially) comprehensive doctrine to which the political conception is in some
manner related. The point to stress is that, as I have said, citizens individually decide for themselves
in what way the public political conception all affirm is related to their own more comprehensive
views.
With this understood, I note briefly how a well-ordered democratic society meets a necessary (but
certainly not sufficient) condition of realism and stability. Such a society can be well-ordered by a
political conception of justice so long as, first, citizens who affirm reasonable but opposing
comprehensive doctrines belong to an overlapping consensus: that is, they generally endorse that
conception of justice as giving the content of their political judgments on basic institutions; and
second, unreasonable comprehensive doctrines (these, we assume, always exist) do not gain
enough currency to undermine society’s essential justice. These conditions do not impose the
unrealistic—indeed, the utopian—requirement that all citizens affirm the same comprehensive
doctrine, but only, as in political liberalism, the same public conception of justice.
The idea of an overlapping consensus is easily misunderstood given the idea of consensus used in
everyday politics. Its meaning for us arises thus: we suppose a constitutional democratic regime to
be reasonably just and workable, and worth defending. Yet given the fact of reasonable pluralism,
how can we frame our defense of it so that it can win sufficiently wide support to achieve stability?
To this end, we do not look to the comprehensive doctrines that in fact exist and then draw up a
political conception that strikes some kind of balance of forces between them. To illustrate: in
specifying a list of primary goods, say, we can proceed in two ways. One is to look at the various
comprehensive doctrines actually found in society and specify an index of such goods so as to be
near to those doctrines’ center of gravity, so to speak; that is, so as to find a kind of average of what
those who affirmed those views would need by way of institutional claims and protections and all-
purpose means. Doing this might seem the best way to insure that the index provides the basic
elements necessary to advance the conceptions of the good associated with existing doctrines and
thus improve the likelihood of securing an overlapping consensus.
This is not how justice as fairness proceeds; to do so would make it political in the wrong way.
Rather, it elaborates a political conception as a freestanding view working from the fundamental idea
of society as a fair system of co-operation and its companion ideas. The hope is that this idea, with
its index of primary goods arrived at from within, can be the focus of a reasonable overlapping
consensus. We leave aside comprehensive doctrines that now exist, or that have existed, or that
might exist. The thought is not that primary goods are fair to comprehensive conceptions of the good
associated with such doctrines, by striking a fair balance among them, but rather fair to free and
equal citizens as those persons who have those conceptions.
The problem, then, is how to frame a conception of justice for a constitutional regime such that
those who support, or who might be brought to support, that kind of regime might also endorse the
political conception provided it did not conflict too sharply with their comprehensive views. This leads
to the idea of a political conception of justice as a freestanding view starting from the fundamental
ideas of a democratic society and presupposing no particular wider doctrine. We put no doctrinal
obstacles to its winning allegiance to itself, so that it can be supported by a reasonable and enduring
overlapping consensus. [pp.38–40]

Three Features of an Overlapping Consensus

There are at least four objections likely to be raised against the idea of social unity founded on an
overlapping consensus on a political conception of justice. I begin with perhaps the most obvious of
these, namely, that an overlapping consensus is a mere modus vivendi. …
Some will think that even if an overlapping consensus were sufficiently stable, the idea of political
unity founded on an overlapping consensus must still be rejected, since it abandons the hope of
political community and settles instead for a public understanding that is at bottom a mere modus
vivendi. To this objection, we say that the hope of political community must indeed be abandoned, if
by such a community we mean a political society united in affirming the same comprehensive
doctrine. This possibility is excluded by the fact of reasonable pluralism together with the rejection of
the oppressive use of the state power to overcome it. The substantive question concerns the
significant features of such a consensus and how these features affect social concord and the moral
quality of public life. I turn to why an overlapping consensus is not a mere modus vivendi.
A typical use of the phrase “modus vivendi” is to characterize a treaty between two states whose
national aims and interests put them at odds. In negotiating a treaty each state would be wise and
prudent to make sure that the agreement proposed represents an equilibrium point: that is, that the
terms and conditions of the treaty are drawn up in such a way that it is public knowledge that it is not
advantageous for either state to violate it. The treaty will then be adhered to because doing so is
regarded by each as in its national interest, including its interest in its reputation as a state that
honors treaties. But in general both states are ready to pursue their goals at the expense of the other,
and should conditions change they may do so. This background highlights the way in which such a
treaty is a mere modus vivendi. A similar background is present when we think of social consensus
founded on self-or group interests, or on the outcome of political bargaining: social unity is only
apparent, as its stability is contingent on circumstances remaining such as not to upset the fortunate
convergence of interests.
That an overlapping consensus is quite different from a modus vivendi is clear from our model
case. In that example, note two aspects: first, the object of consensus, the political conception of
justice, is itself a moral conception. And second, it is affirmed on moral grounds, that is, it includes
conceptions of society and of citizens as persons, as well as principles of justice, and an account of
the political virtues through which those principles are embodied in human character and expressed
in public life. An overlapping consensus, therefore, is not merely a consensus on accepting certain
authorities, or on complying with certain institutional arrangements, founded on a convergence of
self- or group interests. All those who affirm the political conception start from within their own
comprehensive view and draw on the religious, philosophical, and moral grounds it provides. The fact
that people affirm the same political conception on those grounds does not make their affirming it any
less religious, philosophical, or moral, as the case may be, since the grounds sincerely held
determine the nature of their affirmation.
The preceding two aspects of an overlapping consensus—moral object and moral grounds—
connect with a third aspect, that of stability. This means that those who affirm the various views
supporting the political conception will not withdraw their support of it should the relative strength of
their view in society increase and eventually become dominant. So long as the three views are
affirmed and not revised, the political conception will still be supported regardless of shifts in the
distribution of political power. Each view supports the political conception for its own sake, or on its
own merits. The test for this is whether the consensus is stable with respect to changes in the
distribution of power among views. This feature of stability highlights a basic contrast between an
overlapping consensus and a modus vivendi, the stability of which does depend on happenstance
and a balance of relative forces. …

An Overlapping Consensus not Indifferent or Skeptical

I turn to a second objection to the idea of an overlapping consensus on a political conception of

justice: namely, that the avoidance of general and comprehensive doctrines implies indifference or
skepticism as to whether a political conception of justice can be true, as opposed to reasonable in
the constructivist sense. This avoidance may appear to suggest that such a conception might be the
most reasonable one for us even when it is known not to be true, as if truth were simply beside the
point. In reply, it would be fatal to the idea of a political conception to see it as skeptical about, or
indifferent to, truth, much less as in conflict with it. Such skepticism or indifference would put political
philosophy in opposition to numerous comprehensive doctrines, and thus defeat from the outset its
aim of achieving an overlapping consensus.
We try, so far as we can, neither to assert nor to deny any particular comprehensive religious,
philosophical, or moral view, or its associated theory of truth and the status of values. Since we
assume each citizen to affirm some such view, we hope to make it possible for all to accept the
political conception as true or reasonable from the standpoint of their own comprehensive view,
whatever it may be. Properly understood, then, a political conception of justice need be no more
indifferent, say, to truth in philosophy and morals than the principle of toleration, suitably understood,
need be indifferent to truth in religion. Since we seek an agreed basis of public justification in matters
of justice, and since no political agreement on those disputed questions can reasonably be expected,
we turn instead to the fundamental ideas we seem to share through the public political culture. From
these ideas we try to work out a political conception of justice congruent with our considered
convictions on due reflection. Once this is done, citizens may within their comprehensive doctrines
regard the political conception of justice as true, or as reasonable, whatever their view allows.
Some may not be satisfied with this; they may reply that, despite these protests, a political
conception of justice must express indifference or skepticism. Otherwise it could not lay aside
fundamental religious, philosophical, and moral questions because they are politically difficult to
settle, or may prove intractable. Certain truths, it may be said, concern things so important that
differences about them have to be fought out, even should this mean civil war. To this we say first
that questions are not removed from the political agenda, so to speak, solely because they are a
source of conflict. We appeal instead to a political conception of justice to distinguish between those
questions that can be reasonably removed from the political agenda and those that cannot. Some
questions still on the agenda will be controversial, at least to some degree; this is normal with
political issues.
To illustrate: from within a political conception of justice let us suppose we can account both for
equal liberty of conscience, which takes the truths of religion off the political agenda, and the equal
political and civil liberties, which by ruling out serfdom and slavery take the possibility of those
institutions off the agenda. But controversial issues inevitably remain: for example, how more exactly
to draw the boundaries of the basic liberties when they conflict (where to set “the wall between
church and state”); how to interpret the requirements of distributive justice even when there is
considerable agreement on general principles for the basic structure; and finally, questions of policy
such as the use of nuclear weapons. These cannot be removed from politics. But by avoiding
comprehensive doctrines we try to bypass religion and philosophy’s profoundest controversies so as
to have some hope of uncovering a basis of a stable overlapping consensus.
Nevertheless, in affirming a political conception of justice we may eventually have to assert at least
certain aspects of our own comprehensive religious or philosophical doctrine (by no means
necessarily fully comprehensive). This will happen whenever someone insists, for example, that
certain questions are so fundamental that to insure their being rightly settled justifies civil strife. The
religious salvation of those holding a particular religion, or indeed the salvation of a whole people,
may be said to depend on it. At this point we may have no alternative but to deny this, or to imply its
denial and hence to maintain the kind of thing we had hoped to avoid. …
A third objection is the following: even if we grant that an overlapping consensus is not a modus
vivendi, as I have defined it, some may say that a workable political conception must be general and
comprehensive. Without such a doctrine on hand, there is no way to order the many conflicts of
justice that arise in public life. The deeper the conceptual and philosophical bases of those conflicts,
the objection continues, the more general and comprehensive the level of philosophical reflection
must be if their roots are to be laid bare and an appropriate ordering found. It is useless, the
objection concludes, to try to work out a political conception of justice expressly for the basic
structure apart from any comprehensive doctrine. …
This partially comprehensive view might be explained as follows. We do best not to assume that
there exist generally acceptable answers for all or even for many questions of political justice. Rather,
we must be prepared to accept the fact that only a few questions we are moved to ask can be
satisfactorily resolved. Political wisdom consists in identifying those few, and among them the most
urgent.
That done, we must frame the institutions of the basic structure so that intractable conflicts are
unlikely to arise; we must also accept the need for clear and simple principles, the general form and
content of which we hope can be publicly understood. A political conception is at best but a guiding
framework of deliberation and reflection which helps us reach political agreement on at least the
constitutional essentials and the basic questions of justice. If it seems to have cleared our view and
made our considered convictions more coherent; if it has narrowed the gap between the
conscientious convictions of those who accept the basic ideas of a constitutional regime, then it has
served its practical political purpose.
This remains true even if we cannot fully explain our agreement: we know only that citizens who
affirm the political conception, and who have been raised in and are familiar with the fundamental
ideas of the public political culture, find that, when they adopt its framework of deliberation, their
judgments converge sufficiently so that political co-operation on the basis of mutual respect can be
maintained. They view the political conception as itself normally sufficient and may not expect, or
think they need, greater political understanding than that.
Here we are bound to ask: how can a political conception of justice express values that, under the
reasonably favorable conditions that make democracy possible, normally outweigh whatever other
values are likely to conflict with them? One reason is this. The most reasonable political conception
of justice for a democratic regime will be, broadly speaking, liberal. This means that it protects the
familiar basic rights and assigns them a special priority; it also includes measures to insure that all
citizens have sufficient material means to make effective use of those basic rights. Faced with the
fact of reasonable pluralism, a liberal view removes from the political agenda the most divisive
issues, serious contention about which must undermine the bases of social co-operation.
The virtues of political co-operation that make a constitutional regime possible are, then, very great
virtues. I mean, for example, the virtues of tolerance and being ready to meet others halfway, and the
virtue of reasonableness and the sense of fairness. When these virtues are widespread in society
and sustain its political conception of justice, the constitute a very great public good, part of society’s
political capital. Thus, the values that conflict with the political conception of justice and its sustaining
virtues may be normally outweighed because they come into conflict with the very conditions that
make social cooperation possible on a footing of mutual respect.
The other reason political values normally win out is that severe conflicts with other values are
much reduced. This is because when an overlapping consensus supports the political conception,
this conception is not viewed as incompatible with basic religious, philosophical, and moral values.
We need not consider the claims of political justice against the claims of this or that comprehensive
view; nor need we say that political values are intrinsically more important than other values and that
is why the latter are overridden. Having to say that is just what we hope to avoid, and achieving an
overlapping consensus enables us to do so.
To conclude: given the fact of reasonable pluralism, what the work of reconciliation by public
reason does, thus enabling us to avoid reliance on general and comprehensive doctrines, is two
things: first, it identifies the fundamental role of political values in expressing the terms of fair social
co-operation consistent with mutual respect between citizens regarded as free and equal; and
second, it uncovers a sufficiently inclusive concordant fit among political and other values seen in a
reasonable overlapping consensus. …

Steps to Constitutional Consensus

The last difficulty is that an overlapping consensus is utopian: that is, there are not sufficient political,
social, or psychological forces either to bring about an overlapping consensus (when one does not
exist), or to render one stable (should one exist).
There are two stages. The first stage ends with a constitutional consensus, the second with an
overlapping consensus. The constitution at the first stage satisfies certain liberal principles of political
justice. As a constitutional consensus, these principles are accepted simply as principles and not as
grounded in certain ideas of society and person of a political conception, much less in a shared
public conception. And so the consensus is not deep. …
How might a constitutional consensus come about? Suppose that at a certain time, because of
various historical events and contingencies, certain liberal principles of justice are accepted as a
mere modus vivendi, and are incorporated into existing political institutions. This acceptance has
come about, let us say, in much the same way as the acceptance of the principle of toleration came
about as a modus vivendi following the Reformation: at first reluctantly, but nevertheless as providing
the only workable alternative to endless and destructive civil strife. Our question, then, is this: how
might it happen that over time the initial acquiescence in a constitution satisfying these liberal
principles of justice develops into a constitutional consensus in which those principles themselves
are affirmed?
At this point, a certain looseness in our comprehensive views, as well as their not being fully
comprehensive, may be particularly significant. To see this, let us return to our model case. One way
in which that example may be atypical is that two of the three doctrines were described as fully
general and comprehensive: a religious doctrine of free faith and the comprehensive liberalism of
Kant or Mill. In these cases the acceptance of the political conception was said to be derived from
and to depend solely on the comprehensive doctrine. But how far in practice does the allegiance to a
principle of political justice actually depend on the knowledge of or the belief in its derivation from a
comprehensive view rather than on seeming reasonable in itself or as being viewed as part of a
pluralist view, which is the third doctrine in our model case?
There are several possibilities. Distinguish three cases: in the first the political principles are
derived from a comprehensive doctrine; in the second they are not derived from but are compatible
with that doctrine; and in the third, they are incompatible with it. In everyday life we have not usually
decided, or even thought much about, which of these cases hold. To decide among them would raise
highly complicated questions; and it is not clear that we need to decide among them. Most peoples’
religious, philosophical, and moral doctrines are not seen by them as fully general and
comprehensive, and these aspects admit of variations of degree. There is lots of slippage, so to
speak, many ways for liberal principles of justice to cohere loosely with those (partially)
comprehensive views, and many ways within the limits of political principles of justice to allow for the
pursuit of different (partially) comprehensive doctrines.
This suggests that many if not most citizens come to affirm the principles of justice incorporated
into their constitution and political practice without seeing any particular connection, one way or the
other, between those principles and their other views. It is possible for citizens first to appreciate the
good those principles accomplish both for themselves and those they care for, as well as for society
at large, and then to affirm them on this basis. Should an incompatibility later be recognised between
the principles of justice and their wider doctrines, then they might very well adjust or revise these
doctrines rather than reject those principles. …
Our next task is to describe the steps whereby a constitutional consensus on certain principles of
basic political rights and liberties and on democratic procedures becomes an overlapping consensus
as earlier defined.
 What are the forces that push a constitutional consensus toward an overlapping consensus, even
supposing a full overlapping consensus is never achieved but at best only approximated? I mention
some of these forces as they relate to depth, breadth, and how specific, or how narrow, the class of
conceptions in the focus.
As for depth, once a constitutional consensus is in place, political groups must enter the public
forum of political discussion and appeal to other groups who do not share their comprehensive
doctrine. This fact makes it rational for them to move out the narrower circle of their own views and to
develop political conceptions in terms of which they can explain and justify their preferred policies to
a wider public so as to put together a majority. As they do this, they are led to formulate political
conceptions of justice. These conceptions provide the common currency of discussion and a deeper
basis for explaining the meaning and implications of the principles and policies each group endorses.
Again, new and fundamental constitutional problems inevitably arise, even if only occasionally.
Consider, for example, the Reconstruction amendments following the crisis of the Civil War. Debate
over those and other fundamental amendments forced competing groups to work out political
conceptions that contained fundamental ideas in the light of which the constitution as so far
understood could be changed. A constitutional consensus at the level of principles viewed apart from
any underlying conception of society and citizen—each group having its own reasons—is a
consensus taken literally. It lacks the conceptual resources to guide how the constitution should be
amended and interpreted.
A last reason relates to depth. In a constitutional system with judicial review, or review conducted
by some other body, it will be necessary for judges, or the officers in question, to develop a political
conception of justice in the light of which the constitution, in their view, is to be interpreted and
important cases decided. Only so can the enactments of the legislature be declared constitutional or
unconstitutional; and only so have they a reasonable basis for their interpretation of the values and
standards the constitution ostensibly incorporates. Plainly these conceptions will have an important
role in the politics of constitutional debates.
Let us next look at considerations relating to breadth. The main one is that a purely political and
procedural constitutional consensus will prove too narrow. For unless a democratic people is
sufficiently unified and cohesive, it will not enact the legislation necessary to cover the remaining
constitutional essentials and basic matters of justice, and conflict will arise about these. There must
be fundamental legislation that guarantees liberty of conscience and freedom of thought generally
and not merely of political speech and thought. Equally there must be legislation assuring freedom of
association and freedom of movement; and beyond this, measures are required to assure that the
basic needs of all citizens can be met so that they can take part in political and social life.394
About this last point, the idea is not that of satisfying needs as opposed to mere desires and wants;
nor is it that of redistribution in favor of greater equality. The constitutional essential here is rather
that below a certain level of material and social well-being, and of training and education, people
simply cannot take part in society as citizens, much less equal citizens. What determines the level of
well-being and education below which this happens is not for a political conception to say. One must
look to the society in question. But that does not mean that the constitutional essential itself is not
perfectly clear: it is what his required to give due weight to the idea of society as a fair system of co-
operation between free and equal citizens, and not to regard it, in practice if not in speech, as so
much rhetoric.
The main point under breadth, then, is that the rights and liberties and procedures included in a
constitutional consensus cover but a limited part of the fundamental political questions that will be
debated. There are forces tending to amend the constitution in certain ways to cover further
constitutional essentials, or else to enact the necessary legislation with much the same effect. In
either case, groups will tend to develop broad political conceptions covering the basic structure as a
whole in order to explain their point of view in a politically consistent and coherent way.
Finally, how specific is the consensus, or how wide is the range of the liberal conceptions defining
it? Here there are two considerations. One concerns the range of views that can plausibly be
elaborated from the fundamental ideas of society and person found in the public culture of a
constitutional regime. Justice as fairness works from the fundamental ideas of society as a fair
system of cooperation together with the conception of the person as free and equal. These ideas are
taken as central to the democratic ideal. Are there other ideas equally central, and if there are, would
they give rise to ideals and principles markedly different from those of justice as fairness? We might
conjecture that, other things equal, a political conception elaborated from such central ideas would
certainly be typical of the focal class of an overlapping consensus, should such a consensus ever be
reached.
The second consideration is that different social and economic interests may be assumed to
support different liberal conceptions. The differences between conceptions expresses, in part, a
conflict between these interests. Let us define the relevant interests for each conception as those
that it would encourage and be supported by in a stable basic structure regulated by it. The width of
the range of liberal conceptions will be determined by the degree of opposition among these
interests. …
 In order for justice as fairness to specify the center of the focal class, it would seem the following
two conditions must hold:

(a) it is correctly based on more central fundamental ideas; and

(b) it is stable in view of the interests that support it and are encouraged by it.

Thus, if the liberal conceptions correctly framed from fundamental ideas of a democratic public
culture are supported by and encourage deeply conflicting political and economic interests, and if
there be no way of designing a constitutional regime so as to overcome that, a full overlapping
consensus cannot, it seems, be achieved.
I have outlined in this and the previous section how an initial acquiescence in a liberal conception
of justice as a mere modus vivendi could change over time first into a constitutional consensus and
then into an overlapping consensus. In this process I have supposed that the comprehensive
doctrines of most people are not fully comprehensive, and this allows scope for the development of
an independent allegiance to the political conception that helps to bring about a consensus. This
independent allegiance in turn leads people to act with evident intention in accordance with
constitutional arrangements, since they have reasonable assurance (based on past experience) that
others will also comply. Gradually, as the success of political co-operation continues, citizens gain
increasing trust and confidence in one another. This is all we need say in reply to the objection that
the idea of overlapping consensus is utopian. [pp.145–168]

R. NOZICK
Anarchy, State and Utopia

(1974)

The fundamental question of political philosophy, one that precedes questions about how the state 6–011
should be organized is, whether there should be any state at all. Why not have anarchy. Since
anarchist theory, if tenable, undercuts the whole subject of political philosophy, it is appropriate to
begin political philosophy with an examination of its major theoretical alternative. Those who consider
anarchism not an unattractive doctrine will think it possible that political philosophy ends here as well.
Others impatiently will await what is to come afterwards. Yet … archists and anarchists alike, those
who spring gingerly from the starting point as well as those reluctantly argued away from it, can
agree that beginning the subject to political philosophy with state-of-nature theory has
an explanatorypurpose. […]
More to the point, especially for deciding what goals one should try to achieve, would be to focus
upon a nonstate situation in which people generally satisfy moral constraints and generally act as
they ought. Such an assumption is not wildly optimistic; it does not assume that all people act exactly
as they should. Yet this state-of-nature situation is the best anarchic situation one reasonable could
hope for. Hence investigating its nature and defects is of crucial importance to deciding whether there
should be a state rather than anarchy. If one could show that the state would be superior even to this
most favored situation of anarchy, the best that realistically can be hoped for, or would arise by a
process involving no morally impermissible steps, or would be an improvement if it arose, this would
provide a rationale for the state’s existence; it would justify the state.[pp. 4–5]
The night-watchman state of classical liberal theory, limited to the functions of protecting all its
citizens against violence, theft, and fraud, and to the enforcement of contracts, and so on, appears to
be redistributive. We can imagine at least one social arrangement intermediate between the scheme
of private protective associations and the night-watchman state. Since the night-watchman state is
often called a minimal state, we shall call this other arrangement the ultraminimal state. An
ultramininal state maintains a monopoly over all use of force except that necessary in immediate self-
defence, and so excludes private (or agency) retaliation for wrong and exaction of compensation; but
it provides protection and enforcement services only to those who purchase its protection and
enforcement policies. People who don’t buy a protection contract from the monopoly don’t get
protected. The minimal (night-watchman) state is equivalent to the ultraminimal state conjoined with
a (clearly redistributive) Friedsmanesque voucher plan, financed from tax revenues. Under this plan
all people, or some (for example, those in need), are given tax-funded vouchers that can be used
only for their purchase of a protection policy from the ultraminimal state.
Since the night-watchman state appears redistributive to the extent that it compels some people to
pay for the protection of others, its proponents must explain why this redistributive function of the
state is unique. If some redistribution is legitimate in order to protect everyone, why is redistribution
not legitimate for other attractive and desirable purposes as well? What rationale specifically selects
protective services as the sole subject of legitimate redistributive activities?
[pp.26–27]
A system of private protection, even when one protective agency is dominant in a geographical
territory, appears to fall short of a state. It apparently does not provide protection for everyone in its
territory, as does a state, and it apparently does not possess or claim the sort of monopoly over the
use of force necessary to a state. In our earlier terminology, it apparently does not constitute a
minimal state, and it apparently does not even constitute an ultraminimal state.
These very ways in which the dominant protective agency or association in a territory apparently
falls short of being a state provide the focus of the individualist anarchist’s complaint against the
state. For he holds that when the state monopolizes the use of force in a territory and punishes
others who violate its monopoly, and when the state provides protection for everyone by forcing
some to purchase protection for others, it violates moral side constraints on how individuals may be
treated. Hence, he concludes, the state itself is intrinsically immoral. The state grants that under
some circumstances it is legitimate to punish persons who violate the rights of others, for it itself does
so. How then does it arrogate to itself the right to forbid private exaction of justice by other non-
aggressive individuals whose rights have been violated? What right does the private exacter of
justice violate that is not violated also by the state when it punishes? When a group of persons
constitute themselves as the state and begin to punish, and forbid others from doing likewise, is there
some right these others would violate that they themselves do not? By what right, then, can the state
and its officials claim a unique right (a privilege) with regard to force and enforce this monopoly? If
the private exacter of justice violates no one’s rights, then punishing him for his actions (actions state
officials also perform) violates his rights and hence violates moral side constraints. Monopolizing the
use of force then, on this view, is itself immoral, as is redistribution through the compulsory tax
apparatus of the state. Peaceful individuals minding their own business are not violating the rights of
others. It does not constitute a violation of someone’s rights to refrain from purchasing something for
him (that you have not entered specifically into an obligation to buy). Hence, so the argument
continues, when the state threatens someone with punishment if he does not contribute to the
protection of another, it violates (and its officials violate) his rights. In threatening him with something
that would be a violation of his rights if done by a private citizen, they violate moral constraints.
To get to something recognizable as a state we must show (1) how an ultraminimal state arises out
of the system of private protective associations; and (2) how the ultraminimal state is transformed
into the minimal state, how it gives rise to that “redistribution” for the general provision of protective
services that constitutes it as the minimal state. To show that the minimal state is morally legitimate,
to show it is not immoral itself, we must show also that these transitions in (1) and (2) each are
morally legitimate. In the rest of Part I of this work we show how each of these transitions occurs and
is morally permissible. We argue that the first transition, from a system of private protective agencies
to an ultraminimal state, will occur by an invisible-hand process in a morally permissible way that
violates no one’s rights. Secondly, we argue that the transition from an ultraminimal state to
a minimal state morally must occur. It would be morally impermissible for persons to maintain the
monopoly in the ultraminimal state without providing protective services for all, even if this requires
specific “redistribution.” The operators of the ultraminimal state are morally obliged to produce the
minimal state. … We argue that no state more powerful or extensive than the minimal state is
legitimate or justifiable; … [pp.51–53]
The principle of compensation requires that people be compensated for having certain risky
activities prohibited to them. It might be objected that either you have the right to forbid these
people’s risky activities or you don’t. If you do, you needn’t compensate the people for doing to them
what you have a right to do; and if you don’t, then rather than formulating a policy of compensating
people for your unrightful forbidding, you ought simply to stop it. In neither case does the appropriate
course seem to be to forbid and then compensate. But the dilemma, “either you have a right to forbid
it so you needn’t compensate, or you don’t have a right to forbid it so you should stop,” is too short. It
may be that you do have a right to forbid an action but only provided you compensate those to whom
it is forbidden.
[p.83]
A protective agency dominant in a territory does satisfy the two crucial necessary conditions for
being a state. It is the only generally effective enforcer of a prohibition on others’ using unreliable
enforcement procedures (calling them as it sees them), and it over-sees these procedures. And the
agency protects those nonclients in its territory whom it prohibits from using self-help enforcement
procedures on its clients, in their dealing with its clients, even if such protection must be financed (in
apparent redistributive fashion) by its clients. It is morally required to do this by the principle of
compensation, which requires those who act in self-protection in order to increase their own security
to compensate those they prohibit from doing risky acts which might actually have turned out to be
harmless, for the disadvantages imposed upon them.
We noted … that whether the provision of protective services for some by others was
“redistributive” would depend upon the reasons for it. We now see that such provision need not be
redistributive since it can be justified on other than redistributive grounds, namely, those provided in
the principle of compensation. (Recall that “redistributive” applies to reasons for a practice or
institution, and only elliptically and derivatively to the institution itself.) To sharpen this point, we can
imagine that protective agencies offer two types of protection policies: those protecting clients
against risky private enforcement of justice and those not doing so but protecting only against theft,
assault, and so forth (provided these are not done in the course of private enforcement of justice).
Since it is only with regard to those with the first type of policy that others are prohibited from
privately enforcing justice, only they will be required to compensate the persons prohibited private
enforcement for the disadvantages imposed upon them. The holders of only the second type of
policy will not have to pay for the protection of others, there being nothing here to compensate these
others for. Since the reasons for wanting to be protected against private enforcement of justice are
compelling, almost all who purchase protection will purchase this type of protection, despite its extra
costs, and therefore will be involved in providing protection for the independents.
We have discharged our task of explaining how a state would arise from a state of nature without
anyone’s rights being violated. The moral objections of the individualist anarchist to the minimal state
are overcome. It is not an unjust imposition of a monopoly; the de facto monopoly grows by an
invisible-hand process and by morally permissible means, without anyone’s rights being violated and
without any claims being made to a special right that others do not possess. And requiring the clients
of the de facto monopoly to pay for the protection of those they prohibit from self-help enforcement
against them, far from being immoral, is morally required by the principle of compensation. … [pp.113
–115].
What is the explanation of how a minimal state arises? The dominant protective association with
the monopoly element is morally required to compensate for the disadvantages it imposes upon
those it prohibits from self-help activities against its clients. However, it actually might fail to provide
this compensation. Those operating an ultraminimal state are morally required to transform it into a
minimal state, but they might choose not to do so. We have assumed that generally people will do
what they are morally required to do. Explaining how a state could arise from a state of nature
without violating anyone’s rights refutes the principled objections of the anarchist. But one would feel
more confidence if an explanation of how a state would arise from a state of nature also specified
reasons why an ultraminimal state would be transformed into a minimal one, in addition to moral
reasons, if it specified incentives for providing the compensation or the causes of its being provided
in addition to people’s desire to do what they ought. We should note that even in the event that no
nonmoral incentives or causes are found to be sufficient for the transition from an ultraminimal to a
minimal state, and the explanation continues to lean heavily upon people’s moral motivations it does
not specify people’s objective as that of establishing a state. Instead, persons view themselves as
providing particular other persons with compensation for particular prohibitions they have imposed
upon them. The explanation remains an invisible-hand one.
[p.119]

R. DWORKIN
A Trump Over Utility

(1981) 395

This essay considers the question of how the right to moral independence might be defended, both in 6–012
its abstract form and in the more concrete conception we discussed in considering public display of
pornography. This question is important beyond the relatively trivial problem of obscenity itself, the
right has other and more important applications, and the question of what kinds of arguments support
a claim of right is an urgent question in political theory.
Rights (I have argued elsewhere)396 are best understood as trumps over some background
justification for political decisions that states a goal for the community as a whole. If someone has a
right to moral independence, this means that it is for some reason wrong for officials to act in
violation of that right, even if they (correctly) believe that the community as a whole would be better
off if they did. Of course, there are many different theories in the field about what makes a community
better off on the whole; many different theories, that is, about what the goal of political action should
be. One prominent theory (or rather group of theories) is utilitarianism in its familiar forms, which
suppose that the community is better off if its members are on average happier or have more of their
preferences satisfied. Another, and in certain ways different, theory is the theory we found in the
Williams strategy,397 which argues that the community is better off if it provides the most desirable
conditions for human development. There are of course many other theories about the true goal of
politics, many of them much more different from either of these two theories than these are from
each other. To some extent, the argument in favour of a particular right must depend on which of
these theories about desirable goals has been accepted; it must depend, that is, on what
general background justification for political decisions the right in question proposes to trump. In the
following discussion I shall assume that the background justification with which we are concerned is
some form of utilitarianism, which takes, as the goal of politics, the fulfilment of as many of peoples’
goals for their own lives as possible. This remains, I think, the most influential background
justification, at least in the informal way in which it presently figures in politics in the Western
democracies.
 Suppose we accept then that, at least in general, a political decision is justified if it promises to
make citizens happier, or to fulfill more of their preferences, on average, than any other decision
could. Suppose we assume that the decision to prohibit pornography altogether does, in fact, meet
that test, because the desires and preferences of publishers and consumers are outweighed by the
desires and preferences of the majority, including their preferences about how others should lead
their lives. How could any contrary decision, permitting even the private use of pornography, then be
justified?
Two modes of argument might be thought capable of supplying such a justification. First, we might
argue that, though the utilitarian goal states one important political ideal, it is not the only important
ideal, and pornography must be permitted in order to protect some other ideal that is, in the
circumstances more important. Second, we might argue that further analysis of the grounds that we
have for accepting utilitarianism as a background justification in the first place—further reflection of
why we wish to pursue that goal—shows that utility must yield to some right of moral independence
here. The first form of argument is pluralistic: it argues for a trump over utility on the ground that
though utility is always important, it is not the only thing that matters, and other goals or ideals are
sometimes more important. The second supposes that proper understanding of what utilitarianism is,
and why it is important, will itself justify the right in question.
I do not believe that the first, or pluralistic, mode of argument has much prospect of success, at
least as applied to the problem of pornography. But I shall not develop the argument now that would
be necessary to support that opinion. I want instead to offer an argument in the second mode, which
is, in summary, this. Utilitarianism owes whatever appeal it has to what we might call its egalitarian
cast. […] Suppose some version of utilitarianism provided that the preferences of some people were
to count for less than those of others in the calculation how best to fulfill most preferences overall
either because these people were in themselves less worthy or less attractive or less well loved
people, or because the preferences in question combined to form a contemptible way of life. This
would strike us as flatly unacceptable, and in any case much less appealing than standard forms of
utilitarianism. In any of its standard versions, utilitarianism can claim to provide a conception of how
government treats people as equals, or, in any case, how government respects the fundamental
requirement that it must treat people as equals. Utilitarianism claims that people are treated as
equals when the preferences of each, weighted only for intensity, are balanced in the same scales,
with no distinctions for persons or merit. The corrupt version of utilitarianism just described, which
gives less weight to some persons than to others, or discounts some preferences because these are
ignoble, forfeits that claim. But if utilitarianism in practice is not checked by something like the right of
moral independence (and by other allied rights) it will disintegrate, for all practical purposes, into
exactly that version.
Suppose a community of many people including Sarah. If the constitution sets out a version of
utilitarianism which provides in terms that Sarah’s preferences are to count for twice as much as
those of others, then this would be the unacceptable, non-egalitarian version of utilitarianism. But
now suppose that the constitutional provision is the standard form of utilitarianism, that is, that it is
neutral towards all people and preferences, but that a surprising number of people love Sarah very
much, and therefore strongly prefer that her preferences count for twice as much in the day-to-day
political decisions made in the utilitarian calculus. When Sarah does not receive what she would
have if her preferences counted for twice as much as those of others, then these people are
unhappy, because their special Sarah-loving preferences, are unfulfilled. If these special preferences
are themselves allowed to count, therefore, Sarah will receive much more in the distribution of goods
and opportunities than she otherwise would. I argue that this defeats the egalitarian cast of the
apparently neutral utilitarian constitution as much as if the neutral provision were replaced by the
rejected version. Indeed, the apparently neutral provision is then self-undermining because it gives a
critical weight, in deciding which distribution best promotes utility, to the views of those who hold the
profoundly un-neutral (some would say anti-utilitarian) theory that the preferences of some should
count for more than those of others.
The reply that a utilitarian anxious to resist the right to moral independence would give to this
argument is obvious: utilitarianism does not give weight to the truth of that theory, but just the fact
that many people (wrongly) hold that theory and so are disappointed when the distribution the
government achieves is not the distribution they believe is right. It is the fact of their disappointment,
not the truth of their views, that counts, and there is no inconsistency, logical or pragmatic, in that.
But this reply is too quick. For there is in fact a particularly deep kind of contradiction here.
Utilitarianism must claim […] truth for itself, and therefore must claim the falsity of any theory that
contradicts it. It must itself occupy, that is, all the logical space that its content requires. But neutral
utilitarianism claims […] that no one is, in principle, any more entitled to have any of his preferences
fulfilled than anyone else is. It argues that the only reason for denying the fulfillment of one person’s
desires, whatever these are, is that more and more intense desires must be satisfied instead. It
insists that justice and political morality can supply no other reason. This is […] the neutral
utilitarian’s case for trying to achieve a political structure in which the average fulfillment of
preferences is as high as possible. The question is not whether a government can achieve that
political structure if it counts political preferences like the preferences of the Sarah lovers398 or
whether the government will in fact then have counted any particular preference twice and so
contradicted utilitarianism in that direct way. It is rather whether the government can achieve all this
without implicitly contradicting that case.
Suppose the community contains a Nazi, for example, whose set of preferences includes the
preference that Aryans have more and Jews less of their preferences fulfilled just because of who
they are. A neutral utilitarian cannot say that there is no reason in political morality for rejecting or
dishonoring that preference, for not dismissing it as simply wrong, for not striving to fulfill it with all the
dedication that officials devote to fulfilling any other sort of preference. For utilitarianism itself
supplies such a reason: its most fundamental tenet is that peoples’ preferences should be weighed
on an equal basis in the same scales, that the Nazi theory of justice is profoundly wrong, and that
officials should oppose the Nazi theory and strive to defeat rather than fulfill it. A neutral utilitarian is
in fact barred, for reasons of consistency, from taking the same politically neutral attitude to the
Nazi’s political preference that he takes to other sorts of preferences. But then he cannot make the
case just described in favor of highest average utility computing taking that preference into account.
I do not mean to suggest, of course, that endorsing someone’s right to have his preference
satisfied automatically endorses his preference as good or noble. The good utilitarian, who says that
the push-pin player is equally entitled to satisfaction of that taste as the poet is entitled to the
satisfaction of his, is not for that reason committed to the proposition that a life of push-pin is as good
as a life of poetry. Only vulgar critics of utilitarianism would insist on that inference. The utilitarian
says only that nothing in the theory of justice provides any reason why the political and economic
arrangements and decisions of society should be any closer to those the poet would prefer than
those the push-pin player would like. It is just a matter, from the standpoint of political justice, of how
many people prefer the one to the other and how strongly. But he cannot say that about the conflict
between the Nazi and the neutral utilitarian opponent of Nazism, because the correct political theory,
his political theory, the very political theory to which he appeals in attending to the fact of the Nazi’s
claim, does speak to the conflict. It says that what the neutral utilitarian prefers is just and accurately
describes what people are, as a matter of political morality, entitled to have, but that what the Nazi
prefers is deeply unjust and describes what no one is entitled, as a matter of political morality, to
have. But then it is contradictory to say, again as matter of political morality, that the Nazi is as much
entitled to the political system he prefers as is the utilitarian.
The point might be put this way. Political preferences, like the Nazi’s preference, are on the same
level—purport to occupy the same space—as the utilitarian theory itself. Therefore, though the
utilitarian theory must be neutral between personal preferences like the preferences for push-pin and
poetry, as a matter of the theory of justice, it cannot, without contradication, be neutral between itself
and Nazism. It cannot accept at once a duty to defeat the false theory that some peoples’
preferences should count for more than other peoples’ and a duty to strive to fulfill the political
preferences, of those who passionately accept that false theory, as energetically as it strives for any
other preferences. The distinction on which the reply to my argument rests, the distinction between
the truth and the fact of the Nazi’s political preferences, collapses, because if utilitarianism counts the
fact of these preferences it has denied what it cannot deny, which is that justice requires it to oppose
them.
We could escape this point, of course, by distinguishing two different forms or levels of
utilitarianism. The first would be presented simply as a thin theory about how a political constitution
should be selected in a community whose members prefer different kinds of political theories. The
second would be a candidate for the constitution to be so chosen; it might argue for a distribution that
maximised aggregate satisfaction of personal preferences in the actual distribution of goods and
opportunities, for example. In that case the first theory would argue only that the preferences of the
Nazi should be given equal weight with the preferences of the second sort of utilitarian in the choice
of a constitution, because each is equally entitled to the constitution he prefers, and there would be
no contradiction in that proposition. But of course the neutral utilitarian theory we are now
considering is not simply a thin theory of that sort. It proposes a theory of justice as a full political
constitution, not simply a theory about how to choose one, and so it cannot escape contradiction
through modesty.
Now the same argument holds (though perhaps less evidently) when the political preferences are
not familiar and despicable, like the Nazi theory, but more informal and cheerful, like the preferences
of the Sarah lovers who think that her preferences should be counted twice. The latter might, indeed,
be Sarahocrats who believe that she is entitled to the treatment they recommend by virtue of birth or
other characteristics unique to her. But even if their preferences rise from special affection rather
than from political theory, these preferences nevertheless invade the space claimed by neutral
utilitarianism and so cannot be counted without defeating the case utilitarianism provides. My
argument, therefore, comes to this. If utilitarianism is to figure as part of an attractive working political
theory, then it must be qualified so as to restrict the preferences that count by excluding political
preferences of both the formal and informal sort. One very practical way to achieve this restriction if
provided by the idea of rights as trumps over unrestricted utilitarianism. A society committed to
utilitarianism as a general background justification which does not in terms disqualify any preferences
might achieve that disqualification by adopting a right to political independence: the right that no
one suffer disadvantage in the distribution of goods or opportunities on the ground that others think
he should have less because of who he is or is not, or that others care less for him than they do for
other people. The right of political independence would have the effect of insulating Jews from the
preference of Nazis, an those who are not Sarah from the preferences of those who adore her.
The right of moral independence […] can be defended in a parallel way. Neutral utilitarianism
rejects the idea that some ambitions that people might have for their own lives should have less
command over social resources and opportunities than others, except as this is the consequence of
weighing all preferences on an equal basis in the same scales. It rejects the argument, for example,
that some peoples’ conception of what sexual experience should be like, and of what part fantasy
should play in that experience, and of what the character of that fantasy should be, are inherently
degrading or unwholesome. But then it cannot […] count the moral preferences of those who do hold
such opinions in the calculation whether individuals who form some sexual minority, including
homosexuals and pornographers, should be prohibited from the sexual experiences they want to
have. The right of moral independence is part of the same collection of rights as the right of political
independence, and it is to be justified as a trump over an unrestricted utilitarian defense of prohibitory
laws against pornography, in a community of those who find offense just in the idea that their
neighbors are reading dirty books, in much the same way as the latter right is justified as a trump
over a utilitarian justification of giving Jews less or Sarah more in a society of Nazis or Sarah lovers.
It remains to consider whether the abstract right to moral independence, defended in this way,
would nevertheless permit restriction of public display of pornography in a society whose preferences
against that display were backed by the mixed motives […]. This is a situation in which the egalitarian
cast of utilitarianism is threatened from not one but two directions. To the extent to which the motives
in question are moral preferences about how others should behave, and these motives are counted,
then the neutrality of utilitarianism is compromised. But to the extent to which these are the rather
different sort of motives we reviewed, which emphasize not how others should lead their lives, but
rather the character of the sexual experience people want for themselves, and these motives are
disregarded, the neutrality of utilitarianism is compromised in the other direction, for it becomes
unnecessarily inhospitable to the special and important ambitions of those who then lose control of a
crucial aspect of their own self-development. The situation is therefore not an appropriate case for a
prophylactic refusal to count any motive whenever we cannot be sure that that motive is unmixed
with moralism, because the danger of unfairness lies on both sides rather than only on one. The
alternative […] is at least better than that. This argues that restriction may be justified even though
we cannot be sure that the preferences people have for restriction are untinged by the kind of
preferences we should exclude, provided that the damage done to those who are affected adversely
is not serious damage, even in their own eyes. Allowing restrictions on public display is in one sense
a compromise; but it is a compromise recommended by the right of moral independence, once the
case for that right is set out, not a compromise of that right.

Hart’s objections

There are then, good grounds for those who accept utilitarianism as a general background 6–013
justification for political decisions also to accept […] a right of moral independence in the form that I
argued […] would support or permit the major recommendations of the Williams Report. I shall end
this essay by considering certain objections that Professor H. L. A. Hart has made399 to a similar
argument that I made […] about the connection between utilitarianism and these rights.400 Hart’s
objections show what I think is a comprehensive misunderstanding of this argument, which my earlier
statement, as I now see, encouraged, and it might therefore be helpful, as insurance against a similar
misunderstanding now, to report these objections and my reasons for thinking that they misconceive
my argument.
I suggested, in my earlier formulation, that if a utilitarian counts preferences like the preferences of
the Sarah lovers, then this is a “form” of double-counting because, in effect, Sarah’s preferences are
counted twice, once on her own account, and once through the second-order preferences of others
that incorporate her preferences by reference. Hart says that this is a mistake, because in fact no
one’s preferences are counted twice, and it would undercount the Sarah lovers’ preferences, and so
fail to treat them as equals, if their preferences in her favor were discarded. There would be
something in this last point if votes rather than preferences were in issue, because if someone
wished to vote for Sarah’s success rather than his own, his role in the calculation would be
exhausted by this gift, and if his vote was then discarded he might well complain that he had been
cheated of his equal power over political decision. But preferences (as these figure in utilitarian
calculations) are not like votes in that way. Someone who reports more preferences to the utilitarian
computer does not (except trivially) diminish the impact of other preferences he also reports; he
rather increases the role of his preferences overall, compared with the role of other peoples’
preferences, in the giant calculation. So someone who prefers Sarah’s success to the success of
people generally, and through the contribution of that preference to an unrestricted utilitarian
calculation secures more for her, does not have any less for himself—for the fulfillment of his more
personal preferences—than someone else who is indifferent to Sarah’s fortunes.
I do not think that my description, that counting his preferences in favor of Sarah is a form of
double counting, is misleading or unfair. But this description was meant to summarize the argument,
not to make it, and I will not press that particular characterization. […] Hart makes more substantial
points about a different example I used, which raised the question of whether homosexuals have the
right to practice their sexual tastes in private. He thinks I want to say “that if, as a result of
[preferences that express moral disapproval of homosexuals] tipping the balance, persons are
denied some liberty, say to form some sexual relations, those so deprived suffer because by this
result their concept of a proper or desirable form of life is desposed by others, and this is tantamount
to treating them as inferior to or of less worth than others, or not deserving of equal concern and
respect.”401
But this misstates my point. It is not the result […] of the utilitarian calculation that causes or
achieves the fact that homosexuals are despised by others. It is rather the other way round: if
someone is denied liberty of sexual practice in virtue of a utilitarian justification that depends critically
on other peoples’ moralistic preferences, then he suffers disadvantage in virtue of the fact that his
concept of a proper life is already despised by others. Hart says that the “main weakness” in my
argument—the feature that makes it “fundamentally wrong”—is that I assume that if someone’s
liberty is restricted this must be interpreted as a denial of his treatment as an equal. But my argument
is that this is not inevitably or even usually so, but only when the constraint is justified in some way
that depends on the fact that others condemn his convictions or values. Hart says that the
interpretation of denial of liberty as a denial of equal concern is “least credible” in exactly the case I
discuss, that is, when the denial is justified through a utilitarian argument, because (he says) the
message of that justification is not that the defeated minority or their moral convictions are inferior,
but only that they are too few to outweigh the preferences of the majority, which can only be achieved
if the minority is in fact denied the liberty it wishes. But once again this ignores the distinction I want
to make. If the utilitarian justification for denying liberty of sexual practice to homosexuals can
succeed without counting the moralistic preferences of the majority in the balance (as it might if there
was good reason to believe what is in fact incredible, that the spread of homosexuality fosters violent
crime) then the message of prohibition would, indeed, be only the message Hart finds, which might
be put this way: “It is impossible that everyone be protected in all his interests, and the interests of
the minority must yield, regrettably, to the concern of the majority for its safety.” There is (at least in
my present argument) no denial of treatment as an equal in that message. But if the utilitarian
justification cannot succeed without relying on the majority’s moralistic preferences about how the
minority should live, and the government nevertheless urges that justification, then the message is
very different and, in my view, nastier. It is exactly that the minority must suffer because others find
the lives they propose to lead disgusting, which seems no more justifiable, in a society committed to
treating people as equals, than the proposition we earlier considered and rejected, as incompatible
with equality, that some people must suffer disadvantage under the law because others do not like
them.
Hart makes further points. He suggests, for example, that it was the “disinterested” political
preferences of liberals that tipped the balance in favor of repealing laws against homosexual
relationships in 1967 in England, and asks how anyone could object that counting those preferences
at that time offended anyone’s rights to be treated as an equal. But this question misunderstands my
point in a fundamental way. I do not argue—how could anyone argue?—that citizens in a democracy
should not campaign and vote for what they think is just. The question is not whether people should
work for justice, but rather what test we and they should apply to determine what is just. Utilitarianism
holds that we should apply this test: we should work to achieve the maximum possible satisfaction of
the preferences we find distributed in our community. If we accepted this test in an unrestricted way,
then we would count the attractive political convictions of the 60s liberals simply as data, to be
balanced against the less attractive convictions of others, to see which carried the day in the contest
of number and intensity. Conceivably the liberal position would have won this contest. Probably it
would not have.
But I have been arguing that this is a false test, which in fact undermines the case for utilitarianism,
if political preferences of either the liberals or their opponents are counted and balanced to determine
when justice requires. That is why I recommend, as part of any overall political theory in which
utilitarianism figures as a background justification, rights to political and moral independence. But the
liberals who campaigned in the interests of homosexuals in England in the 60’s most certainly did not
embrace the test I reject. They of course expressed their own political preferences in their votes and
arguments, but they did not appeal to the popularity of these preferences as providing an argument
in itself for what they wanted, as the unrestricted utilitarian argument I oppose would have
encouraged them to do. Perhaps they appealed instead to something like the right of moral
independence. In any case they did not rely on any argument inconsistent with that right. Nor is it
necessary for us to rely on any such argument to say that what they did was right, and treated people
as equals. The proof is this: the case for reform would have been just as strong in political theory
even if there had been very few or no heterosexuals who wanted reform, though of course reform
would not then have been practically possible. If so, then we cannot condemn the procedure that in
fact produced reform on the ground that that procedure offended anyone’s right to independence.
Hart’s misunderstanding here was no doubt encouraged by my own description of how rights like
the right to moral independence function in a constitutional system, like that of the United States,
which uses rights as a test of the legality of legislation. I said that a constitutional system of this sort
is valuable when the community as a whole harbors prejudices against some minority or convictions
that the way of life of that minority is offensive to people of good character. In that situation, the
ordinary political process is antecedently likely to reach decisions that would fail the test we have
constructed, because these decisions would limit the freedom of the minority and yet could not be
justified, in political theory, except by assuming that some ways of living are inherently wrong or
degrading, or by counting the fact that the majority thinks them so as itself part of the justification.
Since these repressive decisions would then be wrong, for the reasons I offer, the constitutional right
forbids them in advance.
Of course the decision for reform that Hart describes would not—could not—be a decision justified
only on these offending grounds. Even if the benign liberal preferences figured as data rather than
argument, as I think they should not, no one would be in a position to claim the right to moral or
political independence as a shield against the decision that was in fact reached. But someone might
have been led to suppose, by my discussion, that what I condemn is any political process that would
allow any decision to be taken if peoples’ reasons for supporting one decision rather than another are
likely to lie beyond their own personal interests. I hope it is now plain why this is wrong. That position
would not allow a democracy to vote for social welfare programs, or foreign aid, or conservation for
later generations. Indeed, in the absence of an adequate constitutional system, the only hope for
justice is precisely that people will vote with a disinterested sense of fairness. I condemn a political
process that assumes that the fact that people have such reasons is itself part of the case in political
morality for what they favor. Hart’s heterosexual liberals may have been making the following
argument to their fellow citizens. “We know that many of you find the idea of homosexual
relationships troubling and even offensive. Some of us do as well. But you must recognize that it
would deny equality, in the form of moral independence, to count the fact that we have these feelings
as a justification for penal legislation. Since that is so, we in fact have no justification for the present
law, and we ought, in all justice, to reform it.” Nothing in this argument counts the fact that either the
liberals or those they address happen to have any particular political preferences or convictions as
itself an argument: the argument is made by appeal to justice not to the fact that many people want
justice. There is nothing in that argument that fails to treat homosexuals as equals. Quite the
contrary. But that is just my point.
I shall consider of the remaining objections Hart makes together. He notices my claim, that the
rights people have depend on the background justification and political institutions that are also in
play, because the argument for any particular right must recognize that right as part of a complex
package of other assumptions and practices that it trumps. But he finds this odd. It may make sense
to say, he remarks, that people need rights less under some forms of government than others. But
does it make sense to say that they have less rights in one situation rather than another? He also
objects to my suggestion […] that rights that have long been thought to be rights to liberty, like the
right of homosexuals to freedom of sexual practice or the right of pornographers to look at what they
like in private, are in fact (at least in the circumstances of modern democracies) rights to treatment as
an equal. That proposition, which Hart calls “fantastic,” would have the consequence, he says, that a
tyrant who had forbidden one form of sexual activity or the practice of one religion would actually
eliminate the evil rather than increase it if he broadened his ban to include all sex and all religions,
and in this way removed the inequality of treatment. The vice in prohibitions of sexual or religious
activity, he says, is in fact that these diminish liberty, not equal liberty; adding a violation of equality to
the charge makes equality an empty and idle idea with no work to do.
These different objections are plainly connected, because they suppose that whatever rights
people have are at least in large part timeless rights necessary to protect enduring and important
interests fixed by human nature and fundamental to human development, like interests in the choice
of sexual partners and acts and choice of religious convictions. That is a familiar theory of what rights
are and what they are for […]. I did say that this theory is unlikely to produce a defense of the right I
have been considering, which is the right of moral independence as applied to the use of
pornography, because it seems implausible that any important human interests are damaged by
denying dirty books or films. But that is not much of an argument against the general fundamental-
interests theory of rights, because those who accept that theory might be ready to concede (or
perhaps even to insist) that the appeal to rights in favor of pornographers is an error that cheapens
the idea of rights, and that there is nothing in political morality that condemns the prohibition of
pornography altogether if that is what will best fulfill the preferences of the community as a whole.
My aim is to develop a theory of rights that is relative to the other elements of a political theory, and
to explore how far that theory might be constructed from the exceedingly abstract (but far from
empty) idea that government must treat people as equals. Of course that theory makes rights relative
in only one way. I am anxious to show how rights fit into different packages, so that I want to see, for
example, what rights should be accepted as trumps over utility if utility is accepted, as many people
think it should be accepted, as the proper background justification. That is an important question
because at least an informal kind of utilitarianism has for some time been accepted in practical
politics. It has supplied, for example, the working justification of most of the constraints on our liberty
through law that we accept as proper. But it does not follow from this investigation that I must
endorse […] the package of utilitarianism together with the rights that utilitarianism requires as the
best package that can be constructed. In fact I do not. Though rights are relative to packages, one
package might still be chosen over others as better, and I doubt that in the end any package based
on any familiar form of utilitarianism will turn out to be best. Nor does it follow from my argument that
there are no rights that any defensible package must contain—no rights that are in this sense natural
rights—though the argument that there are such rights, and the explanation of what these are, must
obviously proceed in a rather different way from the route I followed in arguing for the right to moral
independence as a trump over utilitarian justifications.
But if rights figure in complex packages of political theory, it is both unnecessary and too crude to
look to rights for the only defense against either stupid or wicked political decisions. No doubt Hitler
and Nero violated whatever rights any plausible political theory would provide; but it is also true that
the evil these monsters caused could find no support even in the background justification of any such
theory. Suppose some tyrant (an Angelo402 gone even more mad) did forbid sex altogether on
penalty of death, or banned all religious practice in a community whose members were all devout.
We should say that what he did (or tried to do) was insane or wicked or that he was wholly lacking in
the concern for his subjects which is the most basic requirement that political morality imposes on
those who govern. Perhaps we do not need the idea of equality to explain that last requirement. […]
But neither do we need the idea of rights.
We need rights, as a distinct element in political theory, only when some decision that injures some
people nevertheless finds prima facie support in the claim that it will make the community as a whole
better off on some plausible account of where the community’s general welfare lies. But the most
natural source of any objection we might have to such a decision is that, in its concern with the
welfare or prosperity or flourishing of people on the whole, or in the fulfillment of some interest
widespread within the community, the decision pays insufficient attention to its impact on the
minority; and some appeal to equality seems a natural expression of an objection from that source.
We want to say that the decision is wrong, in spite of its apparent merit, because it does not take the
damage it causes to some into account in the right way and therefore does not treat these people as
equals entitled to the same concern as others.
Of course, that charge is never self-validating. It must be developed through some theory about
what equal concern requires, or, as in the case of the argument I offered, about what the background
justification itself supposes that equal concern requires. Others will inevitably reject any such theory.
Someone may claim, for example, that equal concern requires only that people be given what they
are entitled to have when their preferences are weighted in the scales with the preferences, including
the political and moral preferences, of others. In that case (if I am correct that the right to sexual
freedom is based on equality) he would no longer support that right. But how could he? Suppose the
decision to ban homosexuality even in private is the decision that is reached by the balance of
preferences that he thinks respects equality. He could not say that, though the decision treats
homosexuals as equals, by giving them all that equal concern for their situation requires, the decision
is nevertheless wrong because it invades their liberty. If some constraints on liberty can be justified
by the balance of preferences, why not this one?403 Suppose he falls back on the idea that sexual
freedom is a fundamental interest. But does it treat people as equals to invade their fundamental
interests for the sake of minor gains to a very large number of other citizens? Perhaps he will say
that it does, because the fundamental character of the interests invaded have been taken into
account in the balancing process, so that if these are outweighed the gains to others, at least in the
aggregate, were shown to be too large in all fairness to be ignored. But if this is so, then deferring to
the interests of the outweighed minority would be giving the minority more attention than equality
allows, which is favoritism. How can be then object to the decision the balancing process reached?
So if anyone really does think that banning homosexual relationships treats homosexuals as equals,
when this is the decision reached by an unrestricted utilitarian balance, he seems to have no very
persuasive grounds left to say that that decision nevertheless invades their rights. My hypothesis,
that the rights which have traditionally been described as consequences of a general right to liberty
are in fact the consequences of equality instead, may in the end prove to be wrong. But it is not, as
Hart says it is, “fantastic.” [pp.199–212]

R. DWORKIN
What is Equality? Part 2: Equality of Resources
 (1981) 404

I. The Auction

[…] I shall assume that equality of resources is a matter of equality in whatever resources are owned 6–014
privately by individuals. Equality of political power, including equality of power over publicly or
commonly owned resources, is therefore treated as a different issue, reserved for discussion on
another occasion. This distinction is, of course, arbitrary on any number of grounds. From the
standpoint of any sophisticated economic theory, an individual’s command over public resources
forms part of his private resources. Someone who has power to influence public decisions about the
quality of the air he or she breathes, for example, is richer than someone who does not. So an overall
theory of equality must find a means of integrating private resources and political power.
Private ownership, moreover, is not a single, unique relationship between a person and a material
resource, but an open-textured relationship many aspects of which must be fixed politically. So the
question of what division of resources is an equal division must to some degree include the question
of what powers someone who is assigned a resource thereby gains, and that in turn must include the
further question of his right to veto whatever changes in those powers might be threatened through
politics. […]
I argue that an equal division of resources presupposes an economic market of some form, mainly
as an analytical device but also, to a certain extent, as an actual political institution. That claim may
seem sufficiently paradoxical to justify the following preliminary comments. The idea of a market for
goods has figured in political and economic theory, since the eighteenth century, in two rather
different ways. It has been celebrated, first, as a device for both defining and achieving certain
community-wide goals variously described as prosperity, efficiency, and overall utility. It has been
hailed, second, as a necessary condition of individual liberty, the condition under which free men and
women may exercise individual initiative and choice so that their fates lie in their own hands. The
market, that is, has been defended both through arguments of policy, appealing to the overall,
community-wide gains it produces, and arguments of principle that appeal instead to some supposed
right to liberty.
But the economic market, whether defended in either or both of these ways, has during this same
period come to be regarded as the enemy of equality, largely because the forms of economic market
systems developed and enforced in industrial countries have permitted and indeed encouraged vast
inequality in property. Both political philosophers and ordinary citizens have therefore pictured
equality as the antagonist or victim of the values of efficiency and liberty supposedly served by the
market, so that wise and moderate politics consists in striking some balance or trade-off between
equality and these other values, either by imposing constraints on the market as an economic
environment, or by replacing it, in part or altogether, with a different economic system.
I shall try to suggest, on the contrary, that the idea of an economic market, as a device for setting
prices for a vast variety of goods and services, must be at the center of any attractive theoretical
development of equality of resources. The main point can be shown most quickly by constructing a
reasonably simple exercise in equality of resources, deliberately artificial so as to abstract from
problems we shall later have to face. Suppose a number of shipwreck survivors are washed up on a
desert island which has abundant resources and no native population, and any likely rescue is many
years away. These immigrants accept the principle that no one is antecedently entitled to any of
these resources, but that they shall instead be divided equally among them. (They do not yet realize,
let us say, that it might be wise to keep some resources as owned in common by any state they
might create.) They also accept (at least provisionally) the following test of an equal division of
resources, which I shall call the envy test. No division of resources is an equal division if, once the
division is complete, any immigrant would prefer someone else’s bundle of resources to his own
bundle.
Now suppose some one immigrant is elected to achieve the division according to that principle. It
is unlikely that he can succeed simply by physically dividing the resources of the island into nidentical
bundles of resources. The number of each kind of the nondivisible resources, like milking cows,
might not be an exact multiple of n, and even in the case of divisible resources, like arable land,
some land would be better than others, and some better for one use than another. Suppose,
however, that by a great deal of trial and error and care the divider could create n bundles of
resources, each of which was somewhat different from the others, but was nevertheless such that he
could assign one to each immigrant and no one would in fact envy anyone else’s bundle.
The distribution might still fail to satisfy the immigrants as an equal distribution, for a reason that is
not caught by the envy test. Suppose (to put the point in a dramatic way) the divider achieved his
result by transforming all the available resources into a very large stock of plovers’ eggs and pre-
phylloxera claret (either by magic or trade with a neighboring island that enters the story only for that
reason) and divides this glut into identical bundles of baskets and bottles. Many of the immigrants—
let us say all but one—are delighted. But if that one hates plovers’ eggs and pre-phylloxera claret he
will feel that he has not been treated as an equal in the division of resources. The envy test is met—
he does not prefer any one’s bundle to his own—but he prefers what he would have had under some
fairer treatment of the initially available resources.
A similar, though less dramatic, piece of unfairness might be produced even without magic or
bizarre trades. For the combination of resources that composes each bundle the divider creates will
favor some tastes over others, compared with different combinations he might have composed. That
is, different sets of n bundles might be created by trial and error, each of which would pass the envy
test, so that for any such set that the divider chooses, someone will prefer that he had chosen a
different set, even though that person would not prefer a different bundle within that set. Trades after
the initial distribution may, of course, improve that person’s position. But they will be unlikely to bring
him to the position he would have had under the set of bundles he would have preferred, because
some others will begin with a bundle they prefer to the bundle they would have had in that set, and
so will have no reason to trade to that bundle.
So the divider needs a device that will attack two distinct foci of arbitrariness and possible
unfairness. The envy test cannot be satisfied by any simple mechanical division of resources. If any
more complex division can be found that will satisfy it, many such might be found, so that the choice
amongst these would be arbitrary. The divider needs some form of auction or other market procedure
in order to respond to these problems. I shall describe a reasonably straightforward procedure that
would seem acceptable if it could be made to work, though as I shall describe it it will be impossibly
expensive of time. Suppose the divider hands each of the immigrants an equal and large number of
clamshells, which are sufficiently numerous and in themselves valued by no one, to use as counters
in a market of the following sort. Each distinct item on the island (not including the immigrants
themselves) is listed as a lot to be sold, unless someone notifies the auctioneer (as the divider has
now become) of his or her desire to bid for some part of an item, including part, for example, of some
piece of land, in which case that part becomes itself a distinct lot. The auctioneer then proposes a set
of prices for each lot and discovers whether that set of prices clears all markets, that is, whether
there is only one purchaser at that price and all lots are sold. If not, then the auctioneer adjusts his
prices until he reachers a set that does clear the markets.405 But the process does not stop then,
because each of the immigrants remains free to change his bids even when an initially market-
clearing set of prices is reached, or even to propose different lots. But let us suppose that in time
even this leisurely process comes to an end, everyone declares himself satisfied, and goods are
distributed accordingly.
Now the envy test will have been met. No one will envy another’s set of purchases because, by
hypothesis, he could have purchased that bundle with his clamshells instead of his own bundle. Nor
is the choice of sets of bundles arbitrary. Many people will be able to imagine a different set of
bundles meeting the no-envy test that might have been established, but the actual set of bundles has
the merit that each person played, through his purchases against an initially equal stock of counters,
an equal role in determining the set of bundles actually chosen. No one is in the position of the
person in our earlier example who found himself with nothing but what he hated. Of course, luck
plays a certain role in determining how satisfied anyone is with the outcome, against other
possibilities he might envision. If plovers’ eggs and old claret were the only resources to auction, then
the person who hated these would be as badly off as in our earlier example. He would be unlucky
that the immigrants had not washed up on an island with more of what he wanted (though lucky, of
course, that it did not have even less). But he could not complain that the division of the actual
resources they found was unequal.
He might think himself lucky or unlucky in other ways as well. It would be a matter of luck, for
example, how many others shared various of his tastes. If his tastes or ambitions proved relatively
popular, this might work in his favor in the auction, if there were economies of scale in the production
of what he wanted. Or against him, if what he wanted was scarce. If the immigrants had decided to
establish a regime of equality of welfare, instead of equality of resources, then these various pieces
of good or bad luck would be shared with others, because distribution would be based, not on any
auction of the sort I described, in which luck plays this role, but on a strategy of evening out
differences in whatever concept of welfare had been chosen. Equality of resources, however, offers
no similar reason for correcting for the contingencies that determine how expensive or frustrating
someone’s preferences turn out to be.406
Under equality of welfare, people are meant to decide what sorts of lives they want independently
of information relevant to determining how much their choices will reduce or enhance the ability of
others to have what they want.407 That sort of information becomes relevant only at a second,
political level at which administrators then gather all the choices made at the first level to see what
distribution will give each of these choices equal success under some concept of welfare taken as
the correct dimension of success. Under equality of resources, however, people decide what sorts of
lives to pursue against a background of information about the actual cost their choices impose on
other people and hence on the total stock of resources that may fairly be used by them. The
information left to an independent political level under equality of welfare is therefore brought into the
initial level of individual choice under equality of resources. The elements of luck in the auction are in
fact pieces of information of a crucial sort; information that is acquired and used in that process of
choice.
So the contingent facts of raw material and the distribute of tastes are not grounds on which
someone might challenge a distribution as unequal. They are rather background facts that determine
what equality of resources, in these circumstances, is. Under equality of resources, no test for
calculating what equality requires can be abstracted from these background facts and used to test
them. The market character of the auction is not simply a convenient or ad hoc device for resolving
technical problems that arise for equality of resources in very simple exercises like our desert island
case. It is an institutionalized form of the process of discovery and adaptation that is at the center of
the ethics of that ideal. Equality of resources supposes that the resources devoted to each person’s
life should be equal. That goal needs a metric. The auction proposes what the envy test in fact
assumes, that the true measure of the social resources devoted to the life of one person is fixed by
asking how important, in fact, that resource is for others. It insists that the cost, measured in that way,
figure in each person’s sense of what is rightly his and in each person’s judgment of what life he
should lead, given that command of justice. Anyone who insists that equality is violated by any
particular profile of initial tastes, therefore, must reject equality of resources, and fall back on equality
of welfare.
Of course it is sovereign in this argument, and in this connection between the market and equality
of resources, that people enter the market on equal terms. The desert island auction would not have
avoided envy, and would have no appeal as a solution to the problem of dividing the resources
equally, if the immigrants had struggled ashore with different amounts of money in their pocket, which
they were free to use in the auction, or if some had stolen clamshells from others. We must not lose
sight of that fact, either in the argument that follows or in any reflections on the application of that
argument to contemporary economic systems. But neither should we lose sight … of the important
theoretical connection between the market and the concept of equality in resources.
There are, of course, other and very different sorts of objection that might be made to the use of an
auction, even an equal auction of the sort I described. It might be said, for example, that the fairness
of an auction supposes that the preferences people bring to the auction, or form in its course, are
authentic—the true preferences of the agent rather than preferences imposed upon him by the
economic system itself. Perhaps an auction of any sort, in which one person bids against another,
imposes an illegitimate assumption that what is valuable in life is individual ownership of something
rather than more cooperative enterprises of the community or some group within it as a whole.
Insofar as this (in part mysterious) objection is pertinent here, however, it is an objection against the
idea of private ownership over an extensive domain of resources, which is better considered under
the title of political equality, not an objection to the claim that a market of some sort must figure in any
satisfactory account of what equality in private ownership is.

II. The Project

Since the device of an equal auction seems promising as a technique for achieving an attractive
interpretation of equality of resources in a simple context, like the desert island, the question arises
whether it will prove useful in developing a more general account of that ideal. We should ask
whether the device could be elaborated to provide a scheme for developing or testing equality of
resources in a community that has a dynamic economy, with labor, investment, and trade. What
structure must an auction take in such an economy—what adjustments or supplements must be
made to the production and trade that would follow such an auction—in order that the results
continue to satisfy our initial requirement that an equal share of the resources be available to each
citizen?
Our interest in this question is three-fold. First, the project provides an important test of the
coherence and completeness of the idea of equality of resources. Suppose no auction or pattern of
post-auction trade could be described whose results could be accepted as equality in any society
much more complex or less artificial than a simple economy of consumption. Or that no auction could
produce equality without constraints and restrictions which violate independent principles of justice.
This would tend to suggest, at least, that there is no coherent ideal of equality of resources. Or that
the ideal is not politically attractive after all.
We might discover, on the contrary, less comprehensive gaps or defects in the idea. Suppose, for
example, that the design for the auction we develop does not uniquely determine a particular
distribution, even given a stipulated set of initial resources and a stipulated population with fixed
interests and ambitions, but is rather capable of producing significantly different outcomes depending
on the order of decisions, arbitrary choices about the composition of the initial list of options, or other
contingencies. We might conclude that the ideal of equality of resources embraces a variety of
different distributions, each of which satisfies the ideal, and that the ideal is therefore partially
indeterminate. This would show limitations on the power of the ideal to discriminate between certain
distributions, but would not for that reason show that the ideal is either incoherent or practically
impotent. So it is worth trying to develop the idea of an equal auction as a test of the theoretical
standing and power of the political ideal.
Second, a fully developed description of an equal auction, adequate for a more complex society,
might provide a standard for judging actual institutions and distributions in the real world. Of course
no complex, organic society would have, in its history, anything remotely comparable to an equal
auction. But we can nevertheless ask, for any actual distribution, whether it falls within the class of
distributions that might have been produced by such an auction over a defensible description of initial
resources. Or, if it is not, how far it differs from or falls short of the closest distribution within this
class. The device of the auction might provide, in other words, a standard for judging how far an
actual distribution, however it has been achieved, approaches equality of resources at any particular
time.
Third, the device might be useful in the design of actual political institutions. Under certain
(perhaps very limited) circumstances, when the conditions for an equal auction are at least roughly
met, then an actual auction might be the best means of reaching or preserving equality of resources
in the real world. This will be true, particularly, when the results of such an auction are antecedently
indeterminate in the way just described, so that any result the auction reaches will respect equality of
resources even though it is not known, in advance, which result would be reached. In such a case it
may be fairer to conduct an actual auction than to choose, through some other political means, one
rather than another of the results that an auction might produce. Even in such a case it will rarely be
possible or desirable to conduct an actual auction in the design our theoretical investigations
recommend. But it may be possible to design an auction surrogate—an economic or political
institution having sufficient of the characteristics of a theoretical equal auction so that the arguments
of fairness recommending an actual auction were it feasible also recommend the surrogate. The
economic markets of many countries can be interpreted, even as they stand, as forms of auctions.
(So, too, can many forms of democratic political process.) Once we have developed a satisfactory
model of an actual auction we can use that model to test these institutions, and reform them to bring
them closer to the model.
Nevertheless our project is in the main, within the present essay, entirely theoretical. Our interest is
primarily in the design of an ideal, and of a device to picture that ideal and test its coherence,
completeness, and appeal. We shall therefore ignore practical difficulties, like problems of gathering
information, which do not impeach these theoretical goals, and also make simplifying counterfactual
assumptions which do not subvert them. But we should try to notice which simplifications we are
making, because they will be of importance, particularly as to the third and most practical application
of our projects, at any later stage, at which we consider second-best compromises of our ideal in the
real world.

III. Luck and Insurance

If the auction is successful as described, then equality of resources holds for the moment among the
immigrants. But perhaps only for the moment, because if they are left alone, once the auction is
completed, to produce and trade as they wish, then the envy test will shortly fail. Some may be more
skillful than others at producing what others want and will trade to get. Some may like to work, or to
work in a way that will produce more to trade, while others like not to work or prefer to work at what
will bring them less. Some will stay healthy while others fall sick, or lightning will strike the farms of
others but avoid theirs. For any of these and dozens of other reasons some people will prefer the
bundle others have in say, five years, to their own.
We must ask whether (or rather how far) such developments are consistent with equality of
resources, and I shall begin by considering the character and impact of luck on the immigrants’ post-
auction fortunes. I shall distinguish, at least for the moment, between two kinds of luck. Option luck is
a matter of how deliberate and calculated gambles turn out—whether someone gains or loses
through accepting an isolated risk he or she should have anticipated and might have declined. Brute
luck is a matter of how risks fall out that are not in that sense deliberate gambles. If I buy a stock on
the exchange that rises, then my option luck is good. If I am hit by a falling meteorite whose course
could not have been predicted, then my bad luck is brute (even though I could have moved just
before it struck if I had any reason to know where it would strike). Obviously the difference between
these two forms of luck can be represented as a matter of degree, and we may be uncertain how to
describe a particular piece of bad luck. If someone develops cancer in the course of a normal life,
and there is no particular decision to which we can point as a gamble risking the disease, then we
will say that he has suffered brute bad luck. But if he smoked cigarettes heavily then we may prefer
to say that he took an unsuccessful gamble.
Insurance, so far as it is available, provides a link between brute and option luck, because the
decision to buy or reject catastrophe insurance is a calculated gamble. Of course, insurance does not
erase the distinction. Someone who buys medical insurance and is hit by an unexpected meteorite
still suffers brute bad luck, because he is worse off than if he had bought insurance and not needed
it. But he has had better option luck than if he had not bought the insurance, because his situation is
better in virtue of his not having run the gamble of refusing to insure.
Is it consistent with equality of resources that people should have different income or wealth in
virtue of differing option luck? Suppose some of the immigrants plant valuable but risky crops while
others play it safer, and that some of the former buy insurance against uncongenial weather while
others do not. Skill will play a part in determining which of these various programs succeed, of
course, and we shall consider the problems this raises later. But option luck will also play a part.
Does its role threaten or invade equality of resources?
Consider, first, the difference in wealth between those who play it safe and those who gamble and
succeed. Some people enjoy, while others hate, risks; but this particular difference in personality is
comprehended in a more general difference between the kinds of lives that different people wish to
lead. The life chosen by someone who gambles contains, as an element, the factor of risk; someone
who chooses not to gamble has decided that he prefers a safer life. We have already decided that
people should pay the price of the life they have decided to lead, measured in what others give up in
order that they can do so. That was the point of the auction as a device to establish initial equality of
resources. But the price of a safer life, measured in this way, is precisely forgoing any chance of the
gains whose prospect induces others to gamble. So we have no reason to object, against the
background of our earlier decisions, to a result in which those who decline to gamble have less than
some of those who do not.
But we must also compare the situation of those who gamble and win with that of those who
gamble and lose. We cannot say that the latter have chosen a different life and must sacrifice gains
accordingly; for they have chosen the same lives as those who won. But we can say that the
possibility of loss was part of the life they chose—that it was the fair price of the possibility of gain.
For we might have designed our initial auction so that people could purchase (for example) lottery
tickets with their clamshells. But the price of those tickets would have been some amount of other
resources (fixed by the odds and the gambling preferences of others) that the shells would otherwise
have bought, and which will be wholly forgone if the ticket does not win.
The same point can be made by considering the arguments for redistribution from winners to
losers after the event. If winners were made to share their winnings with losers, then no one would
gamble, as individuals, and the kind of life preferred by both those who in the end win and those who
lose would be unavailable. Of course, it is not a good argument, against someone who urges
redistribution in order to achieve equality of resources, that redistribution would make some forms of
life less attractive or even impossible. For the demands of equality (we assume in this essay) are
prior to other desiderata, including variety in the kinds of life available to people. (Equality will in any
case make certain kinds of lives—a life of economic and political domination of others, for example—
impossible.) In the present case, however, the difference is apparent. For the effect of redistribution
from winners to losers in gambles would be to deprive both of lives they prefer, which indicates, not
simply that this would produce an unwanted curtailment of available forms of life, but that it would
deprive them of an equal voice in the construction of lots to be auctioned, like the man who hated
both plovers’ eggs and claret but was confronted only with bundles of both. They both want gambles
to be in the mix, either originally or as represented by resources with which they can take risks later,
and the chance of losing is the correct price, measured on the metric we have been using, of a life
that includes gambles with a chance of gain.
We may, of course, have special reasons for forbidding certain forms of gambles. We may have
paternalistic reasons for limiting how much any individual may risk, for example. We may also have
reasons based in a theory of political equality for forbidding someone to gamble with his freedom or
his religious or political rights. The present point is more limited. We have no general reason for
forbidding gambles altogether in the bare fact that in the event winners will control more resources
than losers, any more than in the fact that winners will have more than those who do not gamble at
all. Our initial principle, that equality of resources requires that people pay the true cost of the lives
that they lead, warrants rather than condemns these differences.
We may (if we wish) adjust our envy test to record that conclusion We may say that in computing
the extent of someone’s resources over his life, for the purpose of asking whether anyone else
envies those resources, any resources gained through a successful gamble should be represented
by the opportunity to take the gamble at the odds in force, and comparable adjustments made to the
resources of those who have lost through gambles. The main point of this artificial construction of the
envy test, however, would be to remind us that the argument in favor of allowing differences in option
luck to affect income and wealth assumes that everyone has in principle the same gambles available
to him. Someone who never had the opportunity to run a similar risk, and would have taken the
opportunity had it been available, will still envy some of those who did have it.
Nor does the argument yet confront the case of brute bad luck. If two people lead roughly the
same lives, but one goes suddenly blind, then we cannot explain the resulting differences in their
incomes either by saying that one took risks that the other chose not to take, or that we could not
redistribute without denying both the lives they prefer. For the accident has (we assume) nothing to
do with choices in the pertinent sense. It is not necessary to the life either has chosen that he run the
risk of going blind without redistribution of funds from the other. This is a fortiori so if one is born blind
and the other sighted.
But the possibility of insurance provides, as I suggested, a link between the two kinds of luck. For
suppose insurance against blindness is available, in the initial auction, at whatever level of coverage
the policy holder chooses to buy. And also suppose that two sighted people have, at the time of the
auction, equal chance of suffering an accident that will blind them, and know that they have. Now if
one chooses to spend part of his initial resources for such insurance and the other does not, or if one
buys more coverage than the other, then this difference will reflect their different opinions about the
relative value of different forms or components of their prospective lives. It may reflect the fact that
one puts more value on sight than the other. Or, differently, that one would count monetary
compensation for the loss of his sight as worthless in the face of such a tragedy while the other, more
practical, would fix his mind on the aids and special training that such money might buy. Or simply
that one minds or values risk differently from the other, and would, for example, rather try for a
brilliant life that would collapse under catastrophe than a life guarded at the cost of resources
necessary to make it brilliant.
But in any case the bare idea of equality of resources, apart from any paternalistic additions, would
not argue for redistribution from the person who had insured to the person who had not if, horribly,
they were both blinded in the same accident. For the availability of insurance would mean that,
though they had both had brute bad luck, the difference between them was a matter of option luck,
and the arguments we entertained against disturbing the results of option luck under conditions of
equal antecedent risk hold here as well. But then the situation cannot be different if the person who
decided not to insure is the only one to be blinded. For once again the difference is a difference in
option luck against a background of equal opportunity to insure or not. If neither had been blinded,
the man who had insured against blindness would have been the loser. His option luck would have
been bad—though it seems bizarre to put it this way—because he spent resources that, as things
turned out, would have been better spent otherwise. But he would have no claim, in that event, from
the man who did not insure and also survived unhurt.
So if the condition just stated were met—if everyone had an equal risk of suffering some
catastrophe that would leave him or her handicapped, and everyone knew roughly what the odds
were and had ample opportunity to insure—then handicaps would pose no special problem for
equality of resources. But of course that condition is not met. Some people are born with handicaps,
or develop them before they have either sufficient knowledge or funds to insure on their own behalf.
They cannot buy insurance after the event. Even handicaps that develop later in life, against which
people do have the opportunity to insure, are not randomly distributed through the population, but
follow genetic tracks, so that sophisticated insurers would charge some people higher premiums for
the same coverage before the event. Nevertheless the idea of a market in insurance provides a
counterfactual guide through which equality of resources might face the problem of handicaps in the
real world.
Suppose we can make sense of and even give a rough answer to the following question. If
(contrary to fact) everyone had at the appropriate age the same risk of developing physical or mental
handicaps in the future (which assumes that no one has developed these yet) but that the total
number of handicaps remained what it is, how much insurance coverage against these handicaps
would the average member of the community purchase? We might then say that but for (uninsurable)
brute luck that has altered these equal odds, the average person would have purchased insurance at
that level, and compensate those who do develop handicaps accordingly, out of some fund collected
by taxation or other compulsory process but designed to match the fund that would have been
provided through premiums if the odds had been equal. Those who develop handicaps will then have
more resources at their command than others, but the extent of their extra resources will be fixed by
the market decisions that people would supposedly have made if circumstances had been more
equal than they are. Of course, this argument does involve the fictitious assumption that everyone
who suffers handicaps would have bought the average amount of insurance, and we may wish to
refine the argument and the strategy so that that no longer holds. But it does not seem an
unreasonable assumption for this purpose as it stands.
Can we answer the counterfactual question with sufficient confidence to develop a program of
compensation of that sort? We face a threshold difficulty of some importance. People can decide
how much of their resources to devote to insurance against a particular catastrophe only with some
idea of the life they hope to lead, because only then can they decide how serious a particular
catastrophe would be, how far additional resources would alleviate the tragedy, and so forth. But
people who are born with a particular handicap, or develop one in childhood, will of course take that
circumstance into account in the plans they make. So in order to decide how much insurance such a
person would have bought without the handicap we must decide what sort of life he would have
planned in that case. But there may be no answer, even in principle, to that question.
We do not need, however, to make counterfactual judgments that are so personalized as to
embarrass us for that reason. Even if people did all have equal risk of all catastrophes, and
evaluated the value and importance of insurance differently entirely due to their different ambitions
and plans, the insurance market would nevertheless be structured through categories designating
the risks against which most people would insure in a general way. After all, risks of most
catastrophes are now regarded by the actual insurance market as randomly distributed, and so we
might follow actual insurance practice, modified to remove the discriminations insurers make when
they know that one group is more likely, perhaps for genetic reasons, to suffer a particular kind of
brute bad luck. It would make sense to suppose, for example, that most people would make roughly
the same assessment of the value of insurance against general handicaps, such as blindness or the
loss of a limb, that affect a wide spectrum of different sorts of lives. […]
We would, in any case, pay great attention to matters of technology, and be ready to adjust our
sums as technology changed. People purchase insurance against catastrophes, for example, against
a background of assumptions about the remedial medical technology, or special training, or
mechanical aids that are in fact available, and about the cost of these remedies. People would seek
insurance at a higher level against blindness, for example, if the increased recovery would enable
them to purchase a newly discovered sight-substitute technology, than they would if that increased
recovery simply swelled a bank account they could not, in any case, use with much satisfaction.
Of course, any judgments that the officials of a community might make about the structure of the
hypothetical insurance market would be speculative and open to a variety of objections. But there is
no reason to think, certainly in advance, that a practice of compensating the handicapped on the
basis of such speculation would be worse, in principle, than the alternatives, and it would have the
merit of aiming in the direction of the theoretical solution most congenial to equality of resources.
We might now remind ourselves of what these alternatives are. The regime of equality of welfare,
contrary to initial impressions, does a poor job of either explaining or guiding our impulse to
compensate the severely handicapped with extra resources. It provides, in particular, no upper bound
to compensation so long as any further payment would improve the welfare of the wretched; but this
is not, as it might seem, generous, because it leaves the standard for actual compensation to the
politics of selfishness broken by sympathy, politics that we know will supply less than any defensible
hypothetical insurance market would offer.
Consider another approach to the problem of handicaps under equality of resources. Suppose we
say that any person’s physical and mental powers must count as part of his resources, so that
someone who is born handicapped starts with less by way of resources than others have, and should
be allowed to catch up, by way of transfer payments, before what remains is auctioned off in any
equal market. People’s powers are indeed resources, because these are used, together with material
resources, in making something valuable out of one’s life. Physical powers are resources for that
purpose in the way that aspects of one’s personality, like one’s conception of what is valuable in life,
are not. Nevertheless the suggestion, that a design of equality of resources should provide for an
initial compensation to alleviate differences in physical or mental resources, is troublesome in a
variety of ways. It requires, for example, some standard of “normal” powers to serve as the
benchmark for compensation. But whose powers should be taken as normal for this purpose? It
suffers, moreover, from the same defect as the parallel recommendation under equality of welfare. In
fact, no amount of initial compensation could make someone born blind or mentally incompetent
equal in physical or mental resources with someone taken to be “normal” in these ways. So the
argument provides no upper bound to initial compensation, but must leave this to a political
compromise likely to be less generous, again, than what the hypothetical insurance market would
command.
Quite apart from these practical and theoretical inadequacies, the suggestion is troublesome for
another reason. Though powers are resources, they should not be considered resources whose
ownership is to be determined through politics in accordance with some interpretation of equality of
resources. They are not, that is, resources for the theory of equality in exactly the sense in which
ordinary material resources are. They cannot be manipulated or transferred, even so far as
technology might permit. So in this way it misdescribes the problem of handicaps to say that equality
of resources must strive to make people equal in physical and mental constitution so far as this is
possible. The problem is, rather, one of determining how far the ownership of independent material
resources should be affected by differences that exist in physical and mental powers, and the
response of our theory should speak in that vocabulary.
It might be wise […] to bring our story of the immigrants up to date. By way of supplement to the
auction, they now establish a hypothetical insurance market which they effectuate through
compulsory insurance at a fixed premium for everyone based on speculations about what the
average immigrant would have purchased by way of insurance had the antecedent risk of various
handicaps been equal. […]
But now a question arises. Does this decision place too much weight on the distinction between
handicaps, which the immigrants treat in this compensatory way, and accidents touching preferences
and ambitions (like the accident of what material resources are in fact available, and of how many
other people share a particular person’s taste)? The latter will also affect welfare, but they are not
matters for compensation under our scheme. Would it not now be fair to treat as handicaps eccentric
tastes, or tastes that are expensive or impossible to satisfy because of scarcity of some good that
might have been common? We might compensate those who have these tastes by supposing that
everyone had an equal chance of being in that position and then establishing a hypothetical
insurance market against that possibility.
A short answer is available. Someone who is born with a serious handicap faces his life with what
we concede to be fewer resources, just on that account, than others do. This justifies compensation,
under a scheme devoted to equality of resources, and though the hypothetical insurance market
does not right the balance—nothing can—it seeks to remedy one aspect of the resulting unfairness.
But we cannot say that the person whose tastes are expensive, for whatever reason, therefore has
fewer resources at his command. For we cannot state (without falling back on some version of
equality of welfare) what equality in the distribution of tastes and preferences would be. Why is there
less equality of resources when someone has an eccentric taste that makes goods cheaper for
others, than when he shares a popular taste and so makes goods more expensive for them? The
auction, bringing to bear information about the resources that actually exist and the competing
preferences actually in play, is the only true measure of whether any particular person commands
equal resources. If the auction has in fact been an equal auction, then the man of eccentric tastes
has no less than equal material resources, and the argument that justifies a compensatory
hypothetical auction in the case of handicaps has no occasion even to begin. It is true that this
argument produces a certain view of the distinction between a person and his circumstances, and
assigns his tastes and ambitions to his person, and his physical and mental powers to his
circumstances. That is the view of a person I sketched in the introductory section, of someone who
forms his ambitions with a sense of their cost to others against some presumed initial equality of
economic power, and though this is different form the picture assumed by equality of welfare, it is a
picture at the center of equality of resources.
In one way, however, my argument might well be thought to overstate the distinction between
handicaps and at least certain sorts of what are often considered preferences. Suppose someone
finds he has a craving (or obsession or lust or, in the words of an earlier psychology, a “drive”) that he
wishes he did not have, because it interferes with what he wants to do with his life and offers him
frustration or even pain if it is not satisfied. This might indeed be some feature of his physical needs
that other people would not consider a handicap at all: for example, a generous appetite for sex. But
it is a “preference” (if that is the right word) that he does not want, and it makes perfect sense to say
that he would be better off without it. For some people these unwanted tastes include tastes they
have (perhaps unwittingly) themselves cultivated, such as a taste for a particular sport or for music of
a sort difficult to obtain. They regret that they have these tastes, and believe they would be better off
without them, but nevertheless find it painful to ignore them. These tastes are handicaps; though for
other people they are rather an essential part of what gives value to their lives.
Now these cases do not present, for particular people, borderline cases between ambitions and
handicaps. The distinction required by equality of resources is the distinction between those beliefs
and attitudes that define what a successful life would be like, which the ideal assigns to the person,
and those features of body or mind or personality that provide means or impediments to that
success, which the ideal assigns to the person’s circumstances. Those who see their sexual desires
or their taste for opera as unwanted disadvantages will class these features of their body or mind or
personality firmly as the latter. These are, for them, handicaps, and are therefore suitable for the
regime proposed for handicaps generally. We may imagine that everyone has an equal chance of
acquiring such a craving by accident. We may then ask—with as much or as little intelligibility as in
the case of blindness—whether people generally would purchase insurance against that risk, and if
so at what premium and what level of coverage. It seems unlikely that many people would purchase
such insurance, at the rates of premium likely to govern if they sought it, except in the case of
cravings so severe and disabling as to fall under the category of mental disease. But that is a
different matter. The important point, presently, is that the idea of an insurance market is available
here, because we can imagine people who have such a craving not having it, without thereby
imagining them to have a different conception of what they want from life than what in fact they do
want. So the idea of the imaginary insurance auction provides at once a device for identifying
cravings and distinguishing them from positive features of personality, and also for bringing these
cravings within the general regime designed for handicaps. [pp.283–304]

I.M. YOUNG
Defining Injustice as Domination and Oppression

(1990)408

Because distributive models of power, rights, opportunity, and self-respect work so badly, justice 6–015
should not be conceived primarily on the model of the distribution of wealth, income, and other
material goods. Theorizing about justice should explicitly limit the concept of distribution to material
goods, like things, natural resources, or money. The scope of justice is wider than distributive issues.
Though there may be additional nondistributive issues of justice, my concerns […] focus on issues of
decisionmaking, division of labor, and culture.
Political thought of the modern period greatly narrowed the scope of justice as it had been
conceived by ancient and medieval thought. Ancient thought regarded justice as the virtue of society
as a whole, the well-orderedness of institutions that foster individual virtue and promote happiness
and harmony among citizens. Modern political thought abandoned the notion that there is a natural
order to society that corresponds to the proper ends of human nature. Seeking to liberate the
individual to define “his” own ends, modern political theory also restricted the scope of justice to
issues of distribution and the minimal regulation of action among such self-defining individuals.409
While I hardly intend to revert to a full-bodied Platonic conception of justice, I nevertheless think it
is important to broaden the understanding of justice beyond its usual limits in contemporary
philosophical discourse. Agnes Heller410 proposes one such broader conception in what she calls an
incomplete ethico-political concept of justice. According to her conception, justice names not
principles of distribution, much less some particular distributive pattern. This represents too narrow
and substantive a way of reflecting on justice. Instead, justice names the perspectives, principles,
and procedures for evaluating institutional norms and rules. Developing Habermas’s communicative
ethics, Heller suggests that justice is primarily the virtue of citizenship, of persons deliberating about
problems and issues that confront them collectively in their institutions and actions, under conditions
without domination or oppression, with reciprocity and mutual tolerance of difference. She proposes
the following test of the justice of social or political norms:

Every valid social and political norm and rule (every law) must meet the condition that the foreseeable
consequences and side effects the general observance of that law (norm) exacts on the satisfaction of the
needs of each and every individual would be accepted by everyone concerned, and that the claim of the norm
to actualize the universal values of freedom and/or life could be accepted by each and every individual,
regardless of the values to which they are committed.411

In the course of this book I shall raise some critical questions about the ideas of citizenship,
agreement, and universality embedded in the radically democratic ideal which Habermas and Heller,
along with others, express. Nevertheless, I endorse and follow this general conception of justice
derived from a conception of communicative ethics. The idea of justice here shifts from a focus on
distributive patterns to procedural issues of participation in deliberation and decisionmaking. For a
norm to be just, everyone who follows it must in principle have an effective voice in its consideration
and be able to agree to it without coercion. For a social condition to be just, it must enable all to meet
their needs and exercise their freedom; thus justice requires that all be able to express their needs.
As I understand it, the concept, of justice coincides with the concept of the political. Politics
includes all aspects of institutional organization, public action, social practices and habits, and
cultural meanings insofar as they are potentially subject to collective evaluation and decisionmaking.
Politics in this inclusive sense certainly concerns the policies and actions of government and the
state, but in principle can also concern rules, practices, and actions in any other institutional context.
The scope of justice, I have suggested, is much wider than distribution, and covers everything
political in this sense. This coheres with the meaning of justice claims of the sort mentioned at the
outset of this chapter. When people claim that a particular rule, practice, or cultural meaning is wrong
and should be changed, they are often making a claim about social injustice. Some of these claims
involve distributions, but many also refer to other ways in which social institutions inhibit or liberate
persons.
Some writers concur that distribution is too narrow a focus for normative evaluation of social
institutions, but claim that going beyond this distributive focus entails going beyond the norms of
justice per se. Charles Taylor412, for example, distinguishes questions of distributive justice from
normative questions about the institutional framework of society. Norms of justice help resolve
disputes about entitlements and deserts within a particular institutional context. They cannot evaluate
that institutional context itself, however, because it embodies a certain conception of human nature
and the human good. According to Taylor, confusions arise in theoretical and political discussion
when norms of distributive justice are applied across social structures and used to evaluate basic
structures. For example, both right and left critics of our society charge it with perpetrating injustices,
but according to Taylor the normative perspective from which each side speaks involves a project to
construct different institutional forms corresponding to specific conceptions of the human good, a
project beyond merely articulating principles of justice.
From a somewhat different perspective, Seyla Benhabib413 suggests that a normative social
theory which evaluates institutions according to whether they are free from domination, meet needs,
and provide conditions of emancipation entails going beyond justice as understood by the modern
tradition. Because this broader normative social theory entails a critique of culture and socialization in
addition to critiques of formal rights and patterns of distribution, it merges questions of justice with
questions of the good life.
 I am sympathetic with both these discussions, as well as with Michael Sandel’s related argument
for recognizing the “limits” of justice and the importance of conceptualizing normative aspects of the
self in social contexts that lie beyond those limits.414 But while I share these writers’ general critique
of liberal theories of distributive justice, I see no reason to conclude with Taylor and Sandel that this
critique reveals the limits of the concept of justice which a normative social philosophy must
transcend. I disagree to some extent, moreover, with Taylor’s and Benhabib’s suggestion that such a
wider normative social philosophy merges questions of justice with questions of the good life.
Like many other writers cited earlier in this chapter, Taylor assumes that justice and distribution are
coextensive, and therefore that broader issues of institutional context require other normative
concepts. Many Marxist theorists who argue that justice is a merely bourgeois concept take a similar
position. Whether normative theorists who focus attention on issues of decisionmaking, division of
labor, culture, and social organization beyond the distribution of goods call these issues of justice or
not is clearly a matter of choice. I can give only pragmatic reasons for my own choice.
Since Plato “justice” has evoked the well-ordered society, and it continues to carry those
resonances in contemporary political discussion. Appeals to justice still have the power to awaken a
moral imagination and motivate people to look at their society critically, and ask how it can be made
more liberating and enabling. Philosophers interested in nurturing this emancipatory imagination and
extending it beyond questions of distribution should, I suggest, lay claim to the term justice rather
than abandon it.
To a certain extent Heller, Taylor, and Benhabib are right that a postmodern turn to an enlarged
conception of justice, reminiscent of the scope of justice in Plato and Aristotle, entails more attention
to the definition of ends than the liberal conception of justice allows. Nevertheless, questions of
justice do not merge with questions of the good life. The liberal commitment to individual freedom,
and the consequent plurality of definitions of the good, must be preserved in any reen-larged
conception of justice. The modern restriction of the concept of justice to formal and instrumental
principles was meant to promote the value of individual self-definition of ends, or “plans of life,” as
Rawls calls them. In displacing reflection about justice from a primary focus on distribution to include
all institutional and social relations insofar as they are subject to collective decision, I do not mean to
suggest that justice should include all moral norms in its scope. Social justice in the sense I intend
continues to refer only to institutional conditions, and not to the preferences and ways of life of
individuals or groups.
Any normative theorist in the postmodern world is faced with a dilemma. On the one hand, we
express and justify norms by appealing to certain values derived from a conception of the good
human life. In some sense, then, any normative theory implicitly or explicitly relies on a conception of
human nature415. On the other hand, it would seem that we should reject the very idea of a human
nature as misleading or oppressive.
Any definition of a human nature is dangerous because it threatens to devalue or exclude some
acceptable individual desires, cultural characteristics, or ways of life. Normative social theory,
however, can rarely avoid making implicit or explicit assumptions about human beings in the
formulation of its vision of just institutions. Even though the distributive paradigm carries an
individualist conception of society, which considers individual desires and preferences private matters
outside the sphere of rational discourse, it assumes a quite specific conception of human nature. It
implicitly defines human beings as primarily consumers, desirers, and possessors of goods416. C. B.
Macpherson417 argues that in presupposing such a possessively individualist view of human nature
the original liberal theorists hypostatized the acquisitive values of emergent capitalist social relations.
Contemporary capitalism, which depends more upon widespread indulgent consumption than its
penny-pinching Protestant ancestor, continues to presuppose an understanding of human beings as
primarily utility maximizers418.
The idea of human beings that guides normative social theorizing under the distributive paradigm
is an image, rather than an explicit theory of human nature. It makes plausible to the imagination
both the static picture of social relations entailed by this distributive paradigm and the notion of
separate individuals already formed apart from social goods. Displacing the distributive paradigm in
favor of a wider, process-oriented understanding of society, which focuses on power, decisionmaking
structures, and so on, likewise shifts the imagination to different assumptions about human beings.
Such an imaginative shift could be as oppressive as consumerist images if it is made too concrete.
As long as the values we appeal to are abstract enough, however, they will not devalue or exclude
any particular culture or way of life.
Persons certainly are possessors and consumers, and any conception of justice should presume
the value of meeting material needs, living in a comfortable environment, and experiencing
pleasures. Adding an image of people as doers and actors419 helps to displace the distributive
paradigm. As doers and actors, we seek to promote many values of social justice in addition to
fairness in the distribution of goods: learning and using satisfying and expansive skills in socially
recognized settings; participating in forming and running institutions, and receiving recognition for
such participation; playing and communicating with others, and expressing our experience, feelings,
and perspective on social life in contexts where others can listen. Certainly many distributive
theorists of justice would recognize and affirm these values. The framework of distribution, however,
leads to a deemphasizing of these values and a failure to inquire about the institutional conditions
that promote them.
This is how I understand the connection between justice and the values that constitute the good
life. Justice is not identical with the concrete realization of these values in individual lives; justice, that
is, is not identical with the good life as such. Rather, social justice concerns the degree to which a
society contains and supports the institutional conditions necessary for the realization of these
values. The values comprised in the good life can be reduced to two very general ones: (1)
developing and exercising one’s capacities and expressing one’s experience420, and (2) participating
in determining one’s action and the conditions of one’s action421. These are universalist values, in
the sense that they assume the equal moral worth of all persons, and thus justice requires their
promotion for everyone. To these two general values correspond two social conditions that define
injustice: oppression, the institutional constraint on self-development, and domination, the
institutional constraint on self-determination.
Oppression consists in systematic institutional processes which prevent some people from learning
and using satisfying and expansive skills in socially recognized settings, or institutionalized social
processes which inhibit people’s ability to play and communicate with others or to express their
feelings and perspective on social life in contexts where others can listen. While the social conditions
of oppression often include material deprivation or maldistribution, they also involve issues beyond
distribution […]
Domination consists in institutional conditions which inhibit or prevent people from participating in
determining their actions or the conditions of their actions. Persons live within structures of
domination if other persons or groups can determine without reciprocation the conditions of their
action, either directly or by virtue of the structural consequences of their actions. Thorough social and
political democracy is the opposite of domination.[…]
I think the concepts of oppression and domination overlap, but there is nevertheless reason to
distinguish them. Oppression usually includes or entails domination, that is, constraints upon
oppressed people to follow rules set by others. But each face of oppression also involves inhibitions
not directly produced by relations of domination. As should become clear in that chapter, moreover,
not everyone subject to domination is also oppressed. Hierarchical decision-making structures
subject most people in our society to domination in some important aspect of their lives. Many of
those people nevertheless enjoy significant institutionalized support for the development and
exercise of their capacities and their ability to express themselves and be heard. [pp.33–38]

The Faces of Oppression

Exploitation

The central function of Marx’s theory of exploitation is to explain how class structure can exist in the
absence of legally and normatively sanctioned class distinctions.422 In precapitalist societies
domination is overt and accomplished through directly political means. In both slave society and
feudal society the right to appropriate the product of the labor of others partly defines class privilege,
and these societies legitimate class distinctions with ideologies of natural superiority and inferiority.
Capitalist society, on the other hand, removes traditional juridically enforced class distinctions and
promotes a belief in the legal freedom of persons. Workers freely contract with employers and
receive a wage; no formal mechanisms of law or custom force them to work for that employer or any
employer. Thus the mystery of capitalism arises: when everyone is formally free, how can there be
class domination? Why do class distinctions persist between the wealthy, who own the means of
production, and the mass of people, who work for them? The theory of exploitation answers this
question.
Profit, the basis of capitalist power and wealth, is a mystery if we assume that in the market goods
exchange at their values. The labor theory of value dispels this mystery. Every commodity’s value is
a function of the labor time necessary for its production. Labor power is the one commodity which in
the process of being consumed produces new value. Profit comes from the difference between the
value of the labor performed and the value of the capacity to labor which the capitalist purchases.
Profit is possible only because the owner of capital appropriates any realized surplus value.
In recent years Marxist scholars have engaged in considerable controversy about the viability of
the labor theory of value this account of exploitation relies on423. John Roemer424, for example,
develops a theory of exploitation which claims to preserve the theoretical and practical purposes of
Marx’s theory, but without assuming a distinction between values and prices and without being
restricted to a concept of abstract, homogeneous labor. My purpose here is not to engage in
technical economic disputes, but to indicate the place of a concept of exploitation in a conception of
oppression.
 Marx’s theory of exploitation lacks an explicitly normative meaning, even though the judgment that
workers are exploited clearly has normative as well as descriptive power in that theory425. C. B.
Macpherson426 reconstructs this theory of exploitation in a more explicitly normative form. The
injustice of capitalist society consists in the fact that some people exercise their capacities under the
control, according to the purposes, and for the benefit of other people. Through private ownership of
the means of production, and through markets that allocate labor and the ability to buy goods,
capitalism systematically transfers the powers of some persons to others, thereby augmenting the
power of the latter. In this process of the transfer of powers, according to Macpherson, the capitalist
class acquires and maintains an ability to extract benefits from workers. Not only are powers
transferred from workers to capitalists, but also the powers of workers diminish by more than the
amount of transfer, because workers suffer material deprivation and a loss of control, and hence are
deprived of important elements of self-respect. Justice, then, requires eliminating the institutional
forms that enable and enforce this process of transference and replacing them with institutional forms
that enable all to develop and use their capacities in a way that does not inhibit, but rather can
enhance, similar development and use in others.
The central insight expressed in the concept of exploitation, then, is that this oppression occurs
through a steady process of the transfer of the results of the labor of one social group to benefit
another. The injustice of class division does not consist only in the distributive fact that some people
have great wealth while most people have little.427 Exploitation enacts a structural relation between
social groups. Social rules about what work is, who does what for whom, how work is compensated,
and the social process by which the results of work are appropriated operate to enact relations of
power and inequality. These relations are produced and reproduced through a systematic process in
which the energies of the have-nots are continuously expended to maintain and augment the power,
status, and wealth of the haves.
Many writers have cogently argued that the Marxist concept of exploitation is too narrow to
encompass all forms of domination and oppression.428 In particular, the Marxist concept of class
leaves important phenomena of sexual and racial oppression unexplained. Does this mean that
sexual and racial oppression are nonexploitative, and that we should reserve wholly distinct
categories for these oppressions? Or can the concept of exploitation be broadened to include other
ways in which the labor and energy expenditure of one group benefits another, and reproduces a
relation of domination between them?
Feminists have had little difficulty showing that women’s oppression consists partly in a systematic
and unreciprocated transfer of powers from women to men. Women’s oppression consists not merely
in an inequality of status, power, and wealth resulting from men’s excluding them from privileged
activities. The freedom, power, status, and self-realization of men is possible precisely because
women work for them. Gender exploitation has two aspects, transfer of the fruits of material labor to
men and transfer of nurturing and sexual energies to women.
Christine Delphy429, for example, describes marriage as a class relation in which women’s labor
benefits men without comparable remuneration. She makes it clear that the exploitation consists not
in the sort of work that women do in the home, for this might include various kinds of tasks, but in the
fact that they perform tasks for someone on whom they are dependent. Thus, for example, in most
systems of agricultural production in the world, men take to market the goods women have produced,
and more often than not men receive the status and often the entire income from this labor.
With the concept of sex-affective production, Ann Ferguson430; identifies another form of the
transference of women’s energies to men. Women provide men and children with emotional care and
provide men with sexual satisfaction, and as a group receive relatively little of either from men431.
The gender socialization of women makes us tend to be more attentive to interactive dynamics than
men, and makes women good at providing empathy and support for people’s feelings and at
smoothing over interactive tensions. Both men and women look to women as nurturers of their
personal lives, and women frequently complain that when they look to men for emotional support
they do not receive it432. The norms of heterosexuality, moreover, are oriented around male
pleasure, and consequently many women receive little satisfaction from their sexual interaction with
men433.
Most feminist theories of gender exploitation have concentrated on the institutional structure of the
patriarchal family. Recently, however, feminists have begun to explore relations of gender exploitation
enacted in the contemporary workplace and through the state. Carol Brown argues that as men have
removed themselves from responsibility for children, many women have become dependent on the
state for subsistence as they continue to bear nearly total responsibility for childrearing.434 This
creates a new system of the exploitation of women’s domestic labor mediated by state institutions,
which she calls public patriarchy.
In twentieth-century capitalist economies the workplaces that women have been entering in
increasing numbers serve as another important site of gender exploitation. David
Alexander435argues that typically feminine jobs involve gender-based tasks requiring sexual labor,
nurturing, caring for others’ bodies, or smoothing over workplace tensions. In these ways women’s
energies are expended in jobs that enhance the status of, please, or comfort others, usually men;
and these gender-based labors of waitresses, clerical workers, nurses, and other caretakers often go
unnoticed and undercompensated.
To summarize, women are exploited in the Marxist sense to the degree that they are wage
workers. Some have argued that women’s domestic labor also represents a form of capitalist class
exploitation insofar as it is labor covered by the wages a family receives. As a group, however,
women undergo specific forms of gender exploitation in which their energies and power are
expended, often unnoticed and unacknowledged, usually to benefit men by releasing them for more
important and creative work, enhancing their status or the environment around them, or providing
them with sexual or emotional service.
Race is a structure of oppression at least as basic as class or gender. Are there, then, racially
specific forms of exploitation? There is no doubt that racialized groups in the United States,
especially Blacks and Latinos, are oppressed through capitalist superexploitation resulting from a
segmented labor market that tends to reserve skilled, high-paying, unionized jobs for whites. There is
wide disagreement about whether such superexploitation benefits whites as a group or only benefits
the capitalist class436, and I do not intend to enter into that dispute here.
However one answers the question about capitalist superexploitation of racialized groups, is it
possible to conceptualize a form of exploitation that is racially specific on analogy with the gender-
specific forms just discussed? I suggest that the category of menial labor might supply a means for
such conceptualization. In its derivation “menial” designates the labor of servants. Wherever there is
racism, there is the assumption, more or less enforced, that members of the oppressed racial groups
are or ought to be servants of those, or some of those, in the privileged group. In most white racist
societies this means that many white people have dark- or yellow-skinned domestic servants, and in
the United States today there remains significant racial structuring of private household service. But
in the United States today much service labor has gone public: anyone who goes to a good hotel or a
good restaurant can have servants. Servants often attend the daily—and nightly—activities of
business executives, government officials, and other high-status professionals. In our society there
remains strong cultural pressure to fill servant jobs—bellhop, porter, chambermaid, busboy, and so
on—with Black and Latino workers. These jobs entail a transfer of energies whereby the servers
enhance the status of the served.
Menial labor usually refers not only to service, however, but also to any servile, unskilled, low-
paying work lacking in autonomy, in which a person is subject to taking orders from many people.
Menial work tends to be auxiliary work, instrumental to the work of others, where those others
receive primary recognition for doing the job. Laborers on a construction site, for example, are at the
beck and call of welders, electricians, carpenters, and other skilled workers, who receive recognition
for the job done. In the United States explicit racial discrimination once reserved menial work for
Blacks, Chicanos, American Indians, and Chinese, and menial work still tends to be linked to Black
and Latino workers437. I offer this category of menial labor as a form of racially specific exploitation,
as a provisional category in need of exploration.
The injustice of exploitation is most frequently understood on a distributive model. For example,
though he does not offer an explicit definition of the concept, by “exploitation” Bruce Ackerman
seems to mean a seriously unequal distribution of wealth, income, and other resources that is group
based and structurally persistent438. John Roemer’s definition of exploitation is narrower and more
rigorous: “An agent is exploited when the amount of labor embodied in any bundle of goods he could
receive, in a feasible distribution of society’s net product, is less than the labor he expended”439. This
definition too turns the conceptual focus from institutional relations and processes to distributive
outcomes.
Jeffrey Reiman argues that such a distributive understanding of exploitation reduces the injustice
of class processes to a function of the inequality of the productive assets classes own. This misses,
according to Reiman, the relationship of force between capitalists and workers, the fact that the
unequal exchange in question occurs within coercive structures that give workers few options440.
The injustice of exploitation consists in social processes that bring about a transfer of energies from
one group to another to produce unequal distributions, and in the way in which social institutions
enable a few to accumulate while they constrain many more. The injustices of exploitation cannot be
eliminated by redistribution of goods, for as long as institutionalized practices and structural relations
remain unaltered, the process of transfer will re-create an unequal distribution of benefits. Bringing
about justice where there is exploitation requires re-organization of institutions and practices of
decisionmaking, alteration of the division of labor, and similar measures of institutional, structural,
and cultural change.
Marginalization
Increasingly in the United States racial oppression occurs in the form of marginalization rather than
exploitation. Marginals are people the system of labor cannot or will not use. Not only in Third World
capitalist countries, but also in most Western capitalist societies, there is a growing underclass of
people permanently confined to lives of social marginality, most of whom are racially marked—Blacks
or Indians in Latin America, and Blacks, East Indians, Eastern Europeans, or North Africans in
Europe.
Marginalization is by no means the fate only of racially marked groups, however. In the United
States a shamefully large proportion of the population is marginal: old people, and increasingly
people who are not very old but get laid off from their jobs and cannot find new work; young people,
especially Black or Latino, who cannot find first or second jobs; many single mothers and their
children; other people involuntarily unemployed; many mentally and physically disabled people;
American Indians, especially those on reservations.
Marginalization is perhaps the most dangerous form of oppression. A whole category of people is
expelled from useful participation in social life and thus potentially subjected to severe material
deprivation and even extermination. The material deprivation marginalization often causes is
certainly unjust, especially in a society where others have plenty. Contemporary advanced capitalist
societies have in principle acknowledged the injustice of material deprivation caused by
marginalization, and have taken some steps to address it by providing welfare payments and
services. The continuance of this welfare state is by no means assured, and in most welfare state
societies, especially the United States, welfare redistributions do not eliminate large-scale suffering
and deprivation.
Material deprivation, which can be addressed by redistributive social policies, is not, however, the
extent of the harm caused by marginalization. Two categories of injustice beyond distribution are
associated with marginality in advanced capitalist societies. First, the provision of welfare itself
produces new injustice by depriving those dependent on it of rights and freedoms that others have.
Second, even when material deprivation is somewhat mitigated by the welfare state, marginalization
is unjust because it blocks the opportunity to exercise capacities in socially defined and recognized
ways. I shall explicate each of these in turn.
Liberalism has traditionally asserted the right of all rational autonomous agents to equal
citizenship. Early bourgeois liberalism explicitly excluded from citizenship all those whose reason
was questionable or not fully developed, and all those not independent441. Thus poor people,
women, the mad and the feebleminded, and children were explicitly excluded from citizenship, and
many of these were housed in institutions modeled on the modern prison: poorhouses, insane
asylums, schools.
Today the exclusion of dependent persons from equal citizenship rights is only barely hidden
beneath the surface. Because they depend on bureaucratic institutions for support or services, the
old, the poor, and the mentally or physically disabled are subject to patronizing, punitive, demeaning,
and arbitrary treatment by the policies and people associated with welfare bureaucracies. Being a
dependent in our society implies being legitimately subject to the often arbitrary and invasive
authority of social service providers and other public and private administrators, who enforce rules
with which the marginal must comply, and otherwise exercise power over the conditions of their lives.
In meeting needs of the marginalized, often with the aid of social scientific disciplines, welfare
agencies also construct the needs themselves. Medical and social service professionals know what
is good for those they serve, and the marginals and dependents themselves do not have the right to
claim to know what is good for them442. Dependency in our society thus implies, as it has in all liberal
societies, a sufficient warrant to suspend basic rights to privacy, respect, and individual choice.
Although dependency produces conditions of injustice in our society, dependency in itself need not
be oppressive. One cannot imagine a society in which some people would not need to be dependent
on others at least some of the time: children, sick people, women recovering from childbirth, old
people who have become frail, depressed or otherwise emotionally needy persons, have the moral
right to depend on others for subsistence and support.
An important contribution of feminist moral theory has been to question the deeply held
assumption that moral agency and full citizenship require that a person be autonomous and
independent. Feminists have exposed this assumption as inappropriately individualistic and derived
from a specifically male experience of social relations, which values competition and solitary
achievement443. Female experience of social relations, arising both from women’s typical domestic
care responsibilities and from the kinds of paid work that many women do, tends to recognize
dependence as a basic human condition444. Whereas on the autonomy model a just society would
as much as possible give people the opportunity to be independent, the feminist model envisions
justice as according respect and participation in decisionmaking to those who are dependent as well
as to those who are independent445. Dependency should not be a reason to be deprived of choice
and respect, and much of the oppression many marginals experience would be lessened if a less
individualistic model of rights prevailed.
Marginalization does not cease to be oppressive when one has shelter and food. Many old people,
for example, have sufficient means to live comfortably but remain oppressed in their marginal status.
Even if marginals were provided a comfortable material life within institutions that respected their
freedom and dignity, injustices of marginality would remain in the form of uselessness, boredom, and
lack of self-respect. Most of our society’s productive and recognized activities take place in contexts
of organized social co-operation, and social structures and processes that close persons out of
participation in such social cooperation are unjust. Thus while marginalization definitely entails
serious issues of distributive justice, it also involves the deprivation of cultural, practical, and
institutionalized conditions for exercising capacities in a context of recognition and interaction.
The fact of marginalization raises basic structural issues of justice, in particular concerning the
appropriateness of a connection between participation in productive activities of social co-operation,
on the one hand, and access to the means of consumption, on the other. As marginalization is
increasing, with no sign of abatement, some social policy analysts have introduced the idea of a
“social wage” as a guaranteed socially provided income not tied to the wage system. Restructuring of
productive activity to address a right of participation, however, implies organizing some socially
productive activity outside of the wage system446, through public works or self-employed collectives.

Powerlessness

As I have indicated, the Marxist idea of class is important because it helps reveal the structure of
exploitation: that some people have their power and wealth because they profit from the labor of
others. For this reason I reject the claim some make that a traditional class exploitation model fails to
capture the structure of contemporary society. It remains the case that the labor of most people in the
society augments the power of relatively few. Despite their differences from nonprofessional workers,
most professional workers are still not members of the capitalist class. Professional labor either
involves exploitative transfers to capitalists or supplies important conditions for such transfers.
Professional workers are in an ambiguous class position, it is true, because, they also benefit from
the exploitation of nonprofessional workers.
While it is false to claim that a division between capitalist and working classes no longer describes
our society, it is also false to say that class relations have remained unaltered since the nineteenth
century. An adequate conception of oppression cannot ignore the experience of social division
reflected in the colloquial distinction between the “middle class” and the “working class,” a division
structured by the social division of labor between professionals and nonprofessionals. Professional
are privileged in relation to nonprofessionals, by virtue of their position in the division of labor and the
status it carries. Nonprofessionals suffer a form of oppression in addition to exploitation, which I call
powerlessness.
In the United States, as in other advanced capitalist countries, most workplaces are not organized
democratically, direct participation in public policy decisions is rare, and policy implementation is for
the most part hierarchical, imposing rules on bureaucrats and citizens. Thus most people in these
societies do not regularly participate in making decisions that affect the conditions of their lives and
actions, and in this sense most people lack significant power. At the same time, domination in
modern society is enacted through the widely dispersed powers of many agents mediating the
decisions of others. To that extent many people have some power in relation to others, even though
they lack the power to decide policies or results. The powerless are those who lack authority or
power even in this mediated sense, those over whom power is exercised without their exercising it;
the powerless are situated so that they must take orders and rarely have the right to give them.
Powerlessness also designates a position in the division of labor and the concomitant social position
that allows persons little opportunity to develop and exercise skills. The powerless have little or no
work autonomy, exercise little creativity or judgment in their work, have no technical expertise or
authority, express themselves awkwardly, especially in public or bureaucratic settings, and do not
command respect. Powerlessness names the oppressive situations Sennett and Cobb describe in
their famous study of working-class men.447
This powerless status is perhaps best described negatively: the powerless lack the authority,
status, and sense of self that professionals tend to have. The status privilege of professionals has
three aspects, the lack of which produces oppression for nonprofessionals.
First, acquiring and practicing a profession has an expansive, progressive character. Being
professional usually requires a college education and the acquisition of a specialized knowledge that
entails working with symbols and concepts. Professionals experience progress first in acquiring the
expertise, and then in the course of professional advancement and rise in status. The life of the
nonprofessional by comparison is powerless in the sense that it lacks this orientation toward the
progressive development of capacities and avenues for recognition.
Second, while many professionals have supervisors and cannot directly influence many decisions
or the actions of many people, most nevertheless have considerable day-to-day work autonomy.
Professionals usually have some authority over others, moreover—either over workers they
supervise, or over auxiliaries, or over clients. Nonprofessionals, on the other hand, lack autonomy,
and in both their working and their consumer-client lives often stand under the authority of
professionals.
Though based on a division of labor between “mental” and “manual” work, the distinction between
“middle class” and “working class” designates a division not only in working life, but also in nearly all
aspects of social life. Professionals and nonprofessionals belong to different cultures in the United
States. The two groups tend to live in segregated neighborhoods or even different towns, a process
itself mediated by planners, zoning officials, and real estate people. The groups tend to have different
tastes in food, decor, clothes, music, and vacations, and often different health and educational
needs. Members of each group socialize for the most part with others in the same status group.
While there is some intergroup mobility between generations, for the most part the children of
professionals become professionals and the children of nonprofessionals do not.
Thus, third, the privileges of the professional extend beyond the workplace to a whole way of life. I
call this way of life “respectability.” To treat people with respect is to be prepared to listen to what they
have to say or to do what they request because they have some authority, expertise, or influence.
The norms of respectability in our society are associated specifically with professional culture.
Professional dress, speech, tastes, demeanor, all connote respectability. Generally professionals
expect and receive respect from others. In restaurants, banks, hotels, real estate offices, and many
other such public places, as well as in the media, professionals typically receive more respectful
treatment than nonprofessionals. For this reason nonprofessionals seeking a loan or a job, or to buy
a house or a car, will often try to look “professional” and “respectable” in those settings.
The privilege of this professional respectability appears starkly in the dynamics of racism and
sexism. In daily interchange women and men of color must prove their respectability. At first they are
often not treated by strangers with respectful distance or deference. Once people discover that this
woman or that Puerto Rican man is a college teacher or a business executive, however, they often
behave more respectfully toward her or him. Working-class white men, on the other hand, are often
treated with respect until their working-class status is revealed.
I have discussed several injustices associated with powerlessness: inhibition in the development of
one’s capacities, lack of decisionmaking power in one’s working life, and exposure to disrespectful
treatment because of the status one occupies. These injustices have distributional consequences,
but are more fundamentally matters of the division of labor. The oppression of powerlessness brings
into question the division of labor basic to all industrial societies: the social division between those
who plan and those who execute.

Cultural Imperialism

Exploitation, marginalization, and powerlessness all refer to relations of power and oppression that
occur by virtue of the social division of labor—who works for whom, who does not work, and how the
content of work defines one institutional position relative to others. These three categories refer to
structural and institutional relations that delimit people’s material lives, including but not restricted to
the resources they have access to and the concrete opportunities they have or do not have to
develop and exercise their capacities. These kinds of oppression are a matter of concrete power in
relation to others—of who benefits from whom, and who is dispensable.
Recent theorists of movements of group liberation, notably feminist and Black liberation theorists,
have also given prominence to a rather different form of oppression, which following Lugones and
Spelman448 I shall call cultural imperialism. To experience cultural imperialism means to experience
how the dominant meanings of a society render the particular perspective of one’s own group
invisible at the same time as they stereotype one’s group and mark it out as the Other.
Cultural imperialism involves the universalization of a dominant group’s experience and culture,
and its establishment as the norm. Some groups have exclusive or primary access to what Nancy
Fraser449 calls the means of interpretation and communication in a society. As a consequence, the
dominant cultural products of the society, that is, those most widely disseminated, express the
experience, values, goals, and achievements of these groups. Often without noticing they do so, the
dominant groups project their own experience as representative of humanity as such. Cultural
products also express the dominant group’s perspective on and interpretation of events and
elements in the society, including other groups in the society, insofar as they attain cultural status at
all.
An encounter with other groups, however, can challenge the dominant group’s claim to universality.
The dominant group reinforces its position by bringing the other groups under the measure of its
dominant norms. Consequently, the difference of women from men, American Indians or Africans
from Europeans, Jews from Christians, homosexuals from heterosexuals, workers from
professionals, becomes reconstructed largely as deviance and inferiority. Since only the dominant
group’s cultural expressions receive wide dissemination, their cultural expressions become the
normal, or the universal, and thereby the unremarkable. Given the normality of its own cultural
expressions and identity, the dominant group constructs the differences which some groups exhibit
as lack and negation. These groups become marked as Other.
The culturally dominated undergo a paradoxical oppression, in that they are both marked out by
stereotypes and at the same time rendered invisible. As remarkable, deviant beings, the culturally
imperialized are stamped with an essence. The stereotypes confine them to a nature which is often
attached in some way to their bodies, and which thus cannot easily be denied. These stereotypes so
permeate the society that they are not noticed as contestable. Just as everyone knows that the earth
goes around the sun, so everyone knows that gay people are promiscuous, that Indians are
alcoholics, and that women are good with children. White males, on the other hand, insofar as they
escape group marking, can be individuals.
Those living under cultural imperialism find themselves defined from the outside, positioned,
placed, by a network of dominant meanings they experience as arising from elsewhere, from those
with whom they do not identify and who do not identify with them. Consequently, the dominant
culture’s stereotyped and inferiorized images of the group must be internalized by group members at
least to the extent that they are forced to react to behavior of others influenced by those images. This
creates for the culturally oppressed the experience that W.E.B. Du Bois called “double
consciousness”—’“this sense of always looking at one’s self through the eyes of others, of measuring
one’s soul by the tape of a world that looks on in amused contempt and pity”450. Double
consciousness arises when the oppressed subject refuses to coincide with these devalued,
objectified, stereotyped visions of herself or himself. While the subject desires recognition as human,
capable of activity, full of hope and possibility, she receives from the dominant culture only the
judgment that she is different, marked, or inferior.
The group defined by the dominant culture as deviant, as a stereotyped Other, is culturally different
from the dominant group, because the status of Otherness creates specific experiences not shared
by the dominant group, and because culturally oppressed groups also are often socially segregated
and occupy specific positions in the social division of labor. Members of such groups express their
specific group experiences and interpretations of the world to one another, developing and
perpetuating their own culture. Double consciousness, then, occurs because one finds one’s being
defined by two cultures: a dominant and a subordinate culture. Because they can affirm and
recognize one another as sharing similar experiences and perspectives on social life, people in
culturally imperialized groups can often maintain a sense of positive subjectivity.
Cultural imperialism involves the paradox of experiencing oneself as invisible at the same time that
one is marked out as different. The invisibility comes about when dominant groups fail to recognize
the perspective embodied in their cultural expressions as a perspective. These dominant cultural
expressions often simply have little place for the experience of other groups, at most only mentioning
or referring to them in stereotyped or marginalized ways. This, then, is the injustice of cultural
imperialism: that the oppressed group’s own experience and interpretation of social life finds little
expression that touches the dominant culture, while that same culture imposes on the oppressed
group its experience and interpretation of social life.
[…]

Violence

Finally, many groups suffer the oppression of systematic violence. Members of some groups live with
the knowledge that they must fear random, unprovoked attacks on their persons or property, which
have no motive but to damage, humiliate, or destroy the person. In American society women, Blacks,
Asians, Arabs, gay men, and lesbians live under such threats of violence, and in at least some
regions Jews, Puerto Ricans, Chicanos, and other Spanish-speaking Americans must fear such
violence as well. Physical violence against these groups is shockingly frequent. Rape Crisis Center
networks estimate that more than one-third of all American women experience an attempted or
successful sexual assault in their lifetimes. Manning Marable451 catalogues a large number of
incidents of racist violence and terror against blacks in the United States between 1980 and 1982. He
cites dozens of incidents of the severe beating, killing, or rape of Blacks by police officers on duty, in
which the police involved were acquitted of any wrongdoing. In 1981, moreover, there were at least
five hundred documented cases of random white teenage violence against Blacks. Violence against
gay men and lesbians is not only common, but has been increasing in the last five years. While the
frequency of physical attack on members of these and other racially or sexually marked groups is
very disturbing, I also include in this category less severe incidents of harrassment, intimidation, or
ridicule simply for the purpose of degrading, humiliating, or stigmatizing group members.
Given the frequency of such violence in our society, why are theories of justice usually silent about
it? I think the reason is that theorists do not typically take such incidents of violence and harrassment
as matters of social injustice. No moral theorist would deny that such acts are very wrong. But unless
all immoralities are injustices, they might wonder, why should such acts be interpreted as symptoms
of social injustice? Acts of violence or petty harrassment are committed by particular individuals,
often extremists, deviants, or the mentally unsound. How then can they be said to involve the sorts of
institutional issues I have said are properly the subject of justice?
What makes violence a face of oppression is less the particular acts themselves, though these are
often utterly horrible, than the social context surrounding them, which makes them possible and even
acceptable. What makes violence a phenomenon of social injustice, and not merely an individual
moral wrong, is its systemic character, its existence as a social practice.
 Violence is systemic because it is directed at members of a group simply because they are
members of that group. Any woman, for example, has a reason to fear rape. Regardless of what a
Black man has done to escape the oppressions of marginality or powerlessness, he lives knowing he
is subject to attack or harrassment. The oppression of violence consists not only in direct
victimization, but in the daily knowledge shared by all members of oppressed groups that they
are liable to violation, solely on account of their group identity. Just living under such a threat of
attack on oneself or family or friends deprives the oppressed of freedom and dignity, and needlessly
expends their energy.
Violence is a social practice. It is a social given that everyone knows happends and will happen
again. It is always at the horizon of social imagination, even for those who do not perpetrate it.
According to the prevailing social logic, some circumstances make such violence more “called for”
than others. The idea of rape will occur to many men who pick up a hitch-hiking woman; the idea of
hounding or teasing a gay man on their dorm floor will occur to many straight male college students.
Often several persons inflict the violence together, especially in all-male groupings. Sometimes
violators set out looking for people to beat up, rape, or taunt. This rule-bound, social, and often
premeditated character makes violence against groups a social practice.
Group violence approaches legitimacy, moreover, in the sense that it is tolerated. Often third
parties find it unsurprising because it happens frequently and lies as a constant possibility at the
horizon of the social imagination. Even when they are caught, those who perpetrate acts of group-
directed violence or harrassment often receive light or no punishment. To that extent society renders
their acts acceptable.
An important aspect of random, systemic violence is its irrationality. Xenophobic violence differs
from the violence of states or ruling-class repression. Repressive violence has a rational, albeit evil,
motive: rulers use it as a coercive tool to maintain their power. Many accounts of racist, sexist, or
homophobic violence attempt to explain its motivation as a desire to maintain group privilege or
domination. I do not doubt that fear of violence often functions to keep oppressed groups
subordinate, but I do not think xenophobic violence is rationally motivated in the way that, for
example, violence against strikers is.
On the contrary, the violation of rape, beating, killing, and harrassment of women, people of color,
gays, and other marked groups is motivated by fear or hatred of those groups. Sometimes the motive
may be a simple will to power, to victimize those marked as vulnerable by the very social fact that
they are subject to violence. If so, this motive is secondary in the sense that it depends on a social
practice of group violence. Violence-causing fear or hatred of the other at least partly involves
insecurities on the part of the violators; its irrationality suggests that unconscious processes are at
work. […]
Cultural imperialism, moreover, itself intersects with violence. The culturally imperialized may reject
the dominant meanings and attempt to assert their own subjectivity, or the fact of their cultural
difference may put the lie to the dominant culture’s implicit claim to universality. The dissonance
generated by such a challenge to the hegemonic cultural meanings can also be a source of irrational
violence.
Violence is a form of injustice that a distributive understanding of justice seems ill equipped to
capture. This may be why contemporary discussions of justice rarely mention it. I have argued that
group-directed violence is institutionalized and systemic. To the degree that institutions and social
practices encourage, tolerate, or enable the perpetration of violence against members of specific
groups, those institutions and practices are unjust and should be reformed. Such reform may require
the redistribution of resources or positions, but in large part can come only through a change in
cultural images, stereotypes, and the mundane reproduction of relations of dominance and aversion
in the gestures of everyday life. [pp.48–63]

S. M. OKIN
Justice as Fairness: For Whom?

(1989) 452

I turn to Rawls’s theory of justice as fairness, to examine not only what it explicitly says and does not 6–016
say, but also what it implies, on the subjects of gender, women, and the family.
There is strikingly little indication, throughout most of A Theory of Justice, that the modern liberal
society to which the principles of justice are to be applied is deeply and pervasively gender-
structured. Thus an ambiguity runs throughout the work, which is continually noticeable to anyone
reading it from a feminist perspective. On the one hand, as I shall argue, a consistent and
wholehearted application of Rawls’s liberal principles of justice can lead us to challenge
fundamentally the gender system of our society. On the other hand, in his own account of his theory,
this challenge is barely hinted at, much less developed. After critiquing Rawls’s theory for its neglect
of gender, I shall ask two related questions: What effects does a feminist reading of Rawls have on
some of his fundamental ideas […]; and what undeveloped potential does the theory have for
feminist critique, and in particular for our attempts to answer the question, Can justice co-exist with
gender?
Central to Rawls’s theory of justice is a construct […]. Rawls argues that the principles of justice
that should regulate the basic institutions of society are those that would be arrived at by persons
reasoning in what is termed “the original position.” His specifications for the original position are that
“the parties” who deliberate there are rational and mutually disinterested, and that while no limits are
placed on the general information available to them, a “veil of ignorance” conceals from them all
knowledge of their individual characteristics and their social position. Though the theory is presented
as a contract theory, it is so only in an odd and metaphoric sense, since “no one knows his situation
in society nor his natural assets, and therefore no one is in a position to tailor principles to his
advantage.” Thus they have “no basis for bargaining in the usual sense.” This is how, Rawls
explains, “the arbitrariness of the world … [is] corrected for,” in order that the principles arrived at will
be fair. Indeed, since no one knows who he is, all think identically and the standpoint of any one party
represents that of all. Thus the principles of justice are arrived at unanimously. […] First, let us see
how the theory treats women, gender, and the family.

Justice for All?

Rawls, like almost all political theorists until very recently, employs in A Theory of Justice supposedly
generic male terms of reference.453 Men, mankind, he, and his are interspersed with gender-neutral
terms of reference such as individual and moral person. Examples of intergenerational concern are
worded in terms of “fathers” and “sons,” and the difference principle is said to correspond to “the
principle of fraternity.”454 This linguistic usage would perhaps be less significant if it were not for the
fact that Rawls self-consciously subscribes to a long tradition of moral and political philosophy that
has used in its arguments either such “generic” male terms or more inclusive terms of reference
(“human beings,” “persons,” “all rational beings as such”), only to exclude women from the scope of
its conclusions. […] There is a blindness to the sexism of the tradition in which Rawls is a participant,
which tends to render his terms of reference more ambiguous than they might otherwise be. A
feminist reader finds it difficult not to keep asking, Does this theory of justice apply to women?
This question is not answered in the important passages listing the characteristics that persons in
the original position are not to know about themselves, in order to formulate impartial principles of
justice. In a subsequent article, Rawls has made it clear that sex is one of those morally irrelevant
contingencies that are hidden by the veil of ignorance.455 But throughout A Theory of Justice, while
the list of things unknown by a person in the original position includes “his place in society, his class
position or social status, … his fortune in the distribution of natural assets and abilities, his
intelligence and strength, and the like, … his conception of the good, the particulars of his rational
plan of life, even the special features of his psychology,”456 “his” sex is not mentioned. Since the
parties also “know the general facts about human society,”457 presumably including the fact that it is
gender-structured both by custom and still in some respects by law, one might think that whether or
not they knew their sex might matter enough to be mentioned. […]
The ambiguity is exacerbated by the statement that those free and equal moral persons in the
original position who formulate the principles of justice are to be thought of not as “single individuals”
but as “heads of families” or “representatives of families.”458 Rawls says that it is not necessary to
think of the parties as heads of families, but that he will generally do so. The reason he does this, he
explains, is to ensure that each person in the original position cares about the well-being of some
persons in the next generation. These “ties of sentiment” between generations, which Rawls regards
as important for the establishment of intergenerational justice—his just savings principle—, would
otherwise constitute a problem because of the general assumption that the parties in the original
position are mutually disinterested. In spite of the ties of sentiment within families, then, “as
representatives of families their interests are opposed as the circumstances of justice imply.”459
The head of a family need not necessarily, of course, be a man. Certainly in the United States, at
least, there has been a striking growth in the proportion of female-headed households during the last
several decades. But the very fact that, in common usage, the term “female-headed household” is
used only in reference to households without resident adult males implies the assumption that any
present male takes precedence over a female as the household or family head. Rawls does nothing
to contest this impression when he says of those in the original position that “imagining themselves to
be fathers, say, they are to ascertain how much they should set aside for their sons by noting what
they would believe themselves entitled to claim of their fathers.”460 He makes the “heads of families”
assumption only in order to address the problem of justice between generations, and presumably
does not intend it to be a sexist assumption. Nevertheless, he is thereby effectively trapped into the
public/domestic dichotomy and, with it, the conventional mode of thinking that life within the family
and relations between the sexes are not properly regarded as part of the subject matter of a theory of
social justice.
 Let me here point out that Rawls, for good reason, states at the outset of his theory that the
family is part of the subject matter of a theory of social justice. “For us” he says, “the primary subject
of justice is the basic structure of society, or more exactly, the way in which the major social
institutions distribute fundamental rights and duties and determine the division of advantages from
social co-operation.” The political constitution and the principal economic and social arrangements
are basic because “taken together as one scheme, [they] define men’s rights and duties and
influence their life prospects, what they can expect to be and how well they can hope to do. The
basic structure is the primary subject of justice because its effects are so profound and present from
the start” (emphasis added).461 Rawls specifies “the monogamous family” as an example of such
major social institutions, together with the political constitution, the legal protection of essential
freedoms, competitive markets, and private property.462 Although this initial inclusion of the family as
a basic social institution to which the principles of justice should apply is surprising in the light of the
history of liberal thought, with its dichotomy between domestic and public spheres, it is necessary,
given Rawls’s stated criteria for inclusion in the basic structure. It would scarcely be possible to deny
that different family structures, and different distributions of rights and duties within families, affect
men’s “life prospects, what they can expect to be and how well they can hope to do,” and even more
difficult to deny their effects on the life prospects of women. There is no doubt, then, that in Rawls’s
initial definition of the sphere of social justice, the family is included and the public/domestic
dichotomy momentarily cast in doubt. However, the family is to a large extent ignored, though
assumed, in the rest of the theory.

The Barely Visible Family

In Part 1 of A Theory of Justice, Rawls derives and defends the two principles of justice—the
principle of equal basic liberty, and the “difference principle” combined with the requirement of fair
equality of opportunity. […]
In Part 2, Rawls discusses at some length the application of his principles of justice to almost all
the institutions of the basic social structure that are set out at the beginning of the book. The legal
protection of liberty of thought and conscience is defended, as are democratic constitutional
institutions and procedures; competitive markets feature prominently in the discussion of the just
distribution of income; the issue of the private or public ownership of the means of production is
explicitly left open, since Rawls argues that his principles of justice might be compatible with certain
versions of either.463 But throughout all these discussions, the issue of whether the monogamous
family, in either its traditional or any other form, is a just social institution, is never raised. When
Rawls announces that “the sketch of the system of institutions that satisfy the two principles of justice
is now complete,”464 he has paid no attention at all to the internal justice of the family. In fact, apart
from passing references, the family appears in A Theory of Justice in only three contexts: as the link
between generations necessary for the just savings principle; as an obstacle to fair equality of
opportunity (on account of the inequalities among families); and as the first school of moral
development. It is in the third of these contexts that Rawls first specifically mentions the family as a
just institution—not, however, to consider whether the family “in some form” is a just institution but
to assume it.465
Clearly, however, by Rawls’s own reasoning about the social justice of major social institutions, this
assumption is unwarranted. […] The central tenet of the theory, after all, is that justice as fairness
characterizes institutions whose members could hypothetically have agreed to their structure and
rules from a position in which they did not know which place in the structure they were to occupy. The
argument of the book is designed to show that the two principles of justice are those that individuals
in such a hypothetical situation would agree upon. But since those in the original position are the
heads or representatives of families, they are not in a position to determine questions of justice within
families. As Jane English has pointed out, “By making the parties in the original position heads of
families rather than individuals, Rawls makes the family opaque to claims of justice.”466 As far as
children are concerned, Rawls makes an argument from paternalism for their temporary inequality
and restricted liberty.467 (This, while it may suffice in basically sound, benevolent families, is of no
use or comfort in abusive or neglectful situations, where Rawls’s principles would seem to require
that children be protected through the intervention of outside authorities.) But wives (or whichever
adult member[s] of a family are not its “head”) go completely unrepresented in the original position. If
families are just, as Rawls later assumes, then they must become just in some different way
(unspecified by him) from other institutions, for it is impossible to see how the viewpoint of their less
advantaged members ever gets to be heard.
[…] The “heads of families” assumption, far from being neutral or innocent, has the effect of
banishing a large sphere of human life—and a particularly large sphere of most women’s lives—from
the scope of the theory.
During the discussion of the distribution of wealth, for example, it seems to be assumed that all the
parties in the original position expect, once the veil of ignorance is removed, to be participants in the
paid labor market. Distributive shares are discussed in terms of household income, but reference to
“individuals” is interspersed into this discussion as if there were no difference between the advantage
or welfare of a household and that of an individual.468 This confusion obscures the fact that wages
are paid to employed members of the labor force, but that in societies characterized by gender (all
current societies) a much larger proportion of women’s than men’s labor is unpaid and is often not
even acknowledged as labor. It also obscures the fact that the resulting disparities in the earnings of
men and women, and the economic dependence of women on men, are likely to affect power
relations within the household, as well as access to leisure, prestige, political power, and so on,
among its adult members. Any discussion of justice within the family would have to address these
issues. […]
Later, in Rawls’s discussion of the obligations of citizens, his assumption that justice is agreed on
by heads of families in the original position seems to prevent him from considering another issue of
crucial importance: women’s exemption from the draft. He concludes that military conscription is
justifiable in the case of defense against an unjust attack on liberty, so long as institutions “try to
make sure that the risks of suffering from these imposed misfortunes are more or less evenly shared
by all members of society over the course of their life, and that there is no avoidable class bias in
selecting those who are called for duty” (emphasis added).469 The complete exemption of women
from this major interference with the basic liberties of equal citizenship is not even mentioned.
In spite of two explicit rejections of the justice of formal sex discrimination in Part 1, then, Rawls
seems in Part 2 to be heavily influenced by his “family heads” assumption. He does not consider as
part of the basic structure of society the greater economic dependence of women and the sexual
division of labor within the typical family, or any of the broader social ramifications of this basic
gender structure. Moreover, in Part 3, where he takes as a given the justice of the family “in some
form,” he does not discuss any alternative forms. Rather, he sounds very much as though he is
thinking in terms of traditional, gendered family structure and roles. The family, he says, is “a small
association, normally characterized by a definite hierarchy, in which each member has certain rights
and duties.” The family’s role as moral teacher is achieved partly through parental expectations of the
“virtues of a good son or a good daughter.” In the family and in other associations such as schools,
neighborhoods, and peer groups, Rawls continues, one learns various moral virtues and ideals,
leading to those adopted in the various statuses, occupations, and family positions of later life. “The
content of these ideals is given by the various conceptions of a good wife and husband, a good friend
and citizen, and so on.”470 Given these unusual departures from the supposedly generic male terms
of reference used throughout the book, it seems likely that Rawls means to imply that the goodness
of daughters is distinct from the goodness of sons, and that of wives from that of husbands. A fairly
traditional gender system seems to be assumed.
Rawls not only assumes that “the basic structure of a well-ordered society includes the family in
some form” (emphasis added); he adds that “in a broader inquiry the institution of the family might be
questioned, and other arrangements might indeed prove to be preferable.”471 But why should it
require a broader inquiry than the colossal task in which A Theory of Justice is engaged, to raise
questions about the institution and the form of the family? Surely Rawls is right in initially naming it as
one of those basic social institutions that most affect the life chances of individuals and should
therefore be part of the primary subject of justice. The family is not a private association like a church
or a university, which vary considerably in the type and degree of commitment each expects from its
members, and which one can join and leave voluntarily. For although one has some choice (albeit a
highly constrained one) about marrying into a gender-structured family, one has no choice at all
about being born into one. Rawls’s failure to subject the structure of the family to his principles of
justice is particularly serious in the light of his belief that a theory of justice must take account of “how
[individuals] get to be what they are” and “cannot take their final aims and interests, their attitudes to
themselves and their life, as given.”472 For the gendered family, and female parenting in particular,
are clearly critical determinants in the different ways the two sexes are socialized—how men and
women “get to be what they are.”
If Rawls were to assume throughout the construction of his theory that all human adults are
participants in what goes on behind the veil of ignorance, he would have no option but to require that
the family, as a major social institution affecting the life chances of individuals, be constructed in
accordance with the two principles of justice. […] [pp.89–87]
The significance of Rawls’s central, brilliant idea, the original position, is that it forces one to
question and consider traditions, customs, and institutions from all points of view, and ensures that
the principles of justice will be acceptable to everyone, regardless of what position “he” ends up in.
The critical force of the original position becomes evident when one considers that some of the most
creative critiques of Rawls’s theory have resulted from more radical or broad interpretations of the
original position than his own. The theory, in principle, avoids both the problem of domination that is
inherent in theories of justice based on traditions or shared understandings and the partiality of
libertarian theory to those who are talented or fortunate. For feminist readers, however, the problem
of the theory as stated by Rawls himself is encapsulated in that ambiguous “he.” […] Rawls […] fails
entirely to address the justice of the gender system, which, with its roots in the sex roles of the family
and its branches extending into virtually every corner of our lives, is one of the fundamental
structures of our society. If, however, we read Rawls in such a way as to take seriously both the
notion that those behind the veil of ignorance do not know what sex they are and the requirement
that the family and the gender system, as basic social institutions, are to be subject to scrutiny,
constructive feminist criticism of these contemporary institutions follows. So, also, do hidden
difficulties for the application of a Rawlsian theory of justice in a gendered society.
I shall explain each of these points in turn. But first, both the critical perspective and the incipient
problems of a feminist reading of Rawls can perhaps be illuminated by a description of a cartoon I
saw a few years ago. Three elderly, robed male justices are depicted, looking down with
astonishment at their very pregnant bellies. One says to the others, without further elaboration:
“Perhaps we’d better reconsider that decision.” This illustration graphically demonstrates the
importance, in thinking about justice, of a concept like Rawls’s original position, which makes us
adopt the positions of others—especially positions that we ourselves could never be in. It also
suggests that those thinking in such a way might well conclude that more than formal legal equality of
the sexes is required if justice is to be done. As we have seen in recent years, it is quite possible to
enact and uphold “gender-neutral” laws concerning pregnancy, abortion, childbirth leave, and so on,
that in effect discriminate against women. The United States Supreme Court decided in 1976, for
example, that “an exclusion of pregnancy from a disability-benefits plan providing general coverage
is not a gender-based discrimination at all.”473 One of the virtues of the cartoon is its suggestion that
one’s thinking on such matters is likely to be affected by the knowledge that one might become “a
pregnant person.” The illustration also points out the limits of what is possible, in terms of thinking
ourselves into the original position, as long as we live in a gender-structured society. While the
elderly male justices can, in a sense, imagine themselves as pregnant, what is a much more difficult
question is whether, in order to construct principles of justice, they can imagine themselves as
women. This raises the question of whether, in fact, sex is a morally irrelevant and contingent
characteristic in a society structured by gender.
Let us first assume that sex is contingent in this way, though I shall later question this assumption.
Let us suppose that it is possible, as Rawls clearly considers it to be, to hypothesize the moral
thinking of representative human beings, as ignorant of their sex as of all the other things hidden by
the veil of ignorance. It seems clear that, while Rawls does not do this, we must consistently take the
relevant positions of both sexes into account in formulating and applying principles of justice. In
particular, those in the original position must take special account of the perspective of women, since
their knowledge of “the general facts about human society” must include the knowledge that women
have been and continue to be the less advantaged sex in a great number of respects. In considering
the basic institutions of society, they are more likely to pay special attention to the family than virtually
to ignore it. Not only is it potentially the first school of social justice, but its customary unequal
assignment of responsibilities and privileges to the two sexes and its socialization of children into sex
roles make it, in its current form, an institution of crucial importance for the perpetuation of sex
inequality.
In innumerable ways, the principles of justice that Rawls arrives at are inconsistent with a gender-
structured society and with traditional family roles. The critical impact of a feminist application of
Rawls’s theory comes chiefly from his second principle, which requires that inequalities be both “to
the greatest benefit of the least advantaged” and “attached to offices and positions open to all.”
474This means that if any roles or positions analogous to our current sex roles—including those of
husband and wife, mother and father—were to survive the demands of the first requirement, the
second requirement would prohibit any linkage between these roles and sex. Gender, with its
ascriptive designation of positions and expectations of behavior in accordance with the inborn
characteristic of sex, could no longer form a legitimate part of the social structure, whether inside or
outside the family. Three illustrations will help to link this conclusion with specific major requirements
that Rawls makes of a just or well-ordered society.
First, after the basic political liberties, one of the most essential liberties is “the important liberty of
free choice of occupation.”475 It is not difficult to see that this liberty is compromised by the
assumption and customary expectation, central to our gender system, that women take far greater
responsibility for housework and child care, whether or not they also work for wages outside the
home. In fact, both the assignment of these responsibilities to women—resulting in their asymmetric
economic dependence on men—and the related responsibility of husbands to support their wives
compromise the liberty of choice of occupation of both sexes. But the customary roles of the two
sexes inhibit women’s choices over the course of a lifetime far more severely than those of men; it is
far easier in practice to switch from being a wage worker to occupying a domestic role than to do the
reverse. While Rawls has no objection to some aspects of the division of labor, he asserts that, in a
well-ordered society, “no one need be servilely dependent on others and made to choose between
monotonous and routine occupations which are deadening to human thought and sensibility” and
that work will be “meaningful for all.”476 These conditions are far more likely to be met in a society
that does not assign family responsibilities in a way that makes women into a marginal sector of the
paid work force and renders likely their economic dependence upon men. Rawls’s principles of
justice, then, would seem to require a radical rethinking not only of the division of labor within families
but also of all the nonfamily institutions that assume it.
Second, the abolition of gender seems essential for the fulfillment of Rawls’s criterion for political
justice. For he argues that not only would equal formal political liberties be espoused by those in the
original position, but that any inequalities in the worth of these liberties (for example, the effects on
them of factors like poverty and ignorance) must be justified by the difference principle. Indeed, “the
constitutional process should preserve the equal representation of the original position to the degree
that this is practicable.”477 While Rawls discusses this requirement in the context of class
differences, stating that those who devote themselves to politics should be “drawn more or less
equally from all sectors of society,”478 it is just as clearly and importantly applicable to sex
differences. The equal political representation of women and men, especially if they are parents, is
clearly inconsistent with our gender system. The paltry number of women in high political office is an
obvious indication of this. These levels of representation of any other class constituting more than a
majority of the population would surely be perceived as a sign that something is grievously wrong
with the political system. But as British politician Shirley Williams recently said, until there is “a
revolution in shared responsibilities for the family, in child care and in child rearing,” there will not be
“more than a very small number of women … opting for a job as demanding as politics.”479
Finally, Rawls argues that the rational moral persons in the original position would place a great
deal of emphasis on the securing of self-respect or self-esteem. They “would wish to avoid at almost
any cost the social conditions that undermine self-respect,” which is “perhaps the most important” of
all the primary goods.480 In the interests of this primary value, if those in the original position did not
know whether they were to be men or women, they would surely be concerned to establish a
thoroughgoing social and economic equality between the sexes that would protect either sex from
the need to pander to or servilely provide for the pleasures of the other. They would emphasize the
importance of girls’ and boys’ growing up with an equal sense of respect for themselves and equal
expectations of self-definition and development. They would be highly motivated, too, to find a means
of regulating pornography that did not seriously compromise freedom of speech. In general, they
would be unlikely to tolerate basic social institutions that asymmetrically either forced or gave strong
incentives to members of one sex to serve as sex objects for the other.
There is, then, implicit in Rawls’s theory of justice a potential critique of gender-structured social
institutions, which can be developed by taking seriously the fact that those formulating the principles
of justice do not know their sex. At the beginning of my brief account of this feminist critique,
however, I made an assumption that I said would later be questioned—that a person’s sex is, as
Rawls at times indicates, a contingent and morally irrelevant characteristic, such that human beings
really can hypothesize ignorance of this fact about them. First, I shall explain why, unless this
assumption is a reasonable one, there are likely to be further feminist ramifications for a Rawlsian
theory of justice, in addition to those I have just sketched out. I shall then argue that the assumption
is very probably not plausible in any society that is structured along the lines of gender. I reach the
conclusions not only that our current gender structure is incompatible with the attainment of social
justice, but also that the disappearance of gender is a prerequisite for the complete development of a
nonsexist, fully human theory of justice.
Although Rawls is clearly aware of the effects on individuals of their different places in the social
system, he regards it as possible to hypothesize free and rational moral persons in the original
position who, temporarily freed from the contingencies of actual characteristics and social
circumstances, will adopt the viewpoint of the “representative” human being. He is under no illusions
about the difficulty of this task: it requires a “great shift in perspective” from the way we think about
fairness in everyday life. But with the help of the veil of ignorance, he believes that we can “take up a
point of view that everyone can adopt on an equal footing,” so that “we share a common standpoint
along with others and do not make our judgments from a personal slant.” The result of this rational
impartiality or objectivity, Rawls argues, is that, all being convinced by the same arguments,
agreement about the basic principles of justice will be unanimous. He does not mean that those in
the original position will agree about all moral or social issues—“ethical differences are bound to
remain”—but that complete agreement will be reached on all basic principles, or “essential
understanding.” A critical assumption of this argument for unanimity, however, is that all the parties
have similar motivations and psychologies (for example, he assumes mutually disinterested
rationality and an absence of envy) and have experienced similar patterns of moral development,
and are thus presumed capable of a sense of justice. Rawls regards these assumptions as the kind
of “weak stipulations” on which a general theory can safely be founded.481
The coherence of Rawls’s hypothetical original position, with its unanimity of representative human
beings, however, is placed in doubt if the kinds of human beings we actually become in society differ
not only in respect to interests, superficial opinions, prejudices, and points of view that we can
discard for the purpose of formulating principles of justice, but also in their basic psychologies,
conceptions of the self in relation to others, and experiences of moral development. A number of
feminist theorists have argued in recent years that, in a gender-structured society, the different life
experiences of females and males from the start in fact affect their respective psychologies, modes
of thinking, and patterns of moral development in significant ways.482 Special attention has been
paid to the effects on the psychological and moral development of both sexes of the fact,
fundamental to our gendered society, that children of both sexes are reared primarily by women. It
has been argued that the experience of individuation—of separating oneself from the nurturer with
whom one is originally psychologically fused—is a very different experience for girls than for boys,
leaving the members of each sex with a different perception of themselves and of their relations with
others. In addition, it has been argued that the experience of being primary nurturers (and of growing
up with this expectation) also affects the psychological and moral perspective of women, as does the
experience of growing up in a society in which members of one’s sex are in many ways subordinate
to the other sex. Feminist theorists have scrutinized and analyzed the different experiences we
encounter as we develop, from our actual lived lives to our absorption of their ideological
underpinnings, and have filled out in valuable ways Simone de Beauvoir’s claim that “one is not born,
but rather becomes, a woman.”483
What seems already to be indicated by these studies, despite their incompleteness so far, is that in
a gender-structured society there is such a thing as the distinct standpoint of women, and that this
standpoint cannot be adequately taken into account by male philosophers doing the theoretical
equivalent of the elderly male justices depicted in the cartoon. The formative influence of female
parenting on small children, especially, seems to suggest that sex difference is even more likely to
affect one’s thinking about justice in a gendered society than, for example, racial difference in a
society in which race has social significance, or class difference in a class society. The notion of the
standpoint of women, while not without its own problems, suggests that a fully human moral or
political theory can be developed only with the full participation of both sexes. At the very least, this
will require that women take their place with men in the dialogue in approximately equal numbers and
in positions of comparable influence. In a society structured along the lines of gender, this cannot
happen.
In itself, moreover, it is insufficient for the development of a fully human theory of justice. For if
principles of justice are to be adopted unanimously by representative human beings ignorant of their
particular characteristics and positions in society, they must be persons whose psychological and
moral development is in all essentials identical. This means that the social factors influencing the
differences presently found between the sexes—from female parenting to all the manifestations of
female subordination and dependence—would have to be replaced by genderless institutions and
customs. Only children who are equally mothered and fathered can develop fully the psychological
and moral capacities that currently seem to be unevenly distributed between the sexes. Only when
men participate equally in what have been principally women’s realms of meeting the daily material
and psychological needs of those close to them, and when women participate equally in what have
been principally men’s realms of larger scale production, government, and intellectual and artistic life,
will members of both sexes be able to develop a more complete human personality than has hitherto
been possible. Whereas Rawls and most other philosophers have assumed that human psychology,
rationality, moral development, and other capacities are completely represented by the males of the
species, this assumption itself has now been exposed as part of the male-dominated ideology of our
gendered society.
What effect might consideration of the standpoint of women in gendered society have on Rawls’s
theory of justice? It would place in doubt some assumptions and conclusions, while reinforcing
others. For example, the discussion of rational plans of life and primary goods might be focused
more on relationships and less exclusively on the complex activities that he values most highly, if it
were to take account of, rather than to take for granted, the traditionally more female contributions to
human life.484 Rawls says that self-respect or self-esteem is “perhaps the most important primary
good,” and that “the parties in the original position would wish to avoid at almost any cost the social
conditions that undermine [it].”485 Good early physical and especially psychological nurturance in a
favorable setting is essential for a child to develop self-respect or self-esteem. Yet there is no
discussion of this in Rawls’s consideration of the primary goods. Since the basis of self-respect is
formed in very early childhood, just family structures and practices in which it is fostered and in which
parenting itself is esteemed, and high-quality, subsidized child care facilities to supplement them,
would surely be fundamental requirements of a just society. On the other hand, those aspects of
Rawls’s theory, such as the difference principle, that require a considerable capacity to identify with
others, can be strengthened by reference to conceptions of relations between self and others that
seem in gendered society to be more predominantly female, but that would in a gender-free society
be more or less evenly shared by members of both sexes.
These arguments have led to mixed conclusions about the potential usefulness of Rawls’s theory
of justice from a feminist viewpoint, and about its adaptability to a genderless society. Rawls himself
neglects gender and, despite his initial statement about the place of the family in the basic structure,
does not consider whether or in what form the family is a just institution. It seems significant, too, that
whereas at the beginning of A Theory of Justice he explicitly distinguishes the institutions of the basic
structure (including the family) from other “private associations” and “various informal conventions
and customs of everyday life,” in his most recent work he distinctly reinforces the impression that the
family belongs with those “private” and therefore nonpolitical associations, for which he suggests the
principles of justice are less appropriate or relevant.486 He does this, moreover, despite the fact that
his own theory of moral development rests centrally on the early experience of persons within a
family environment that is both loving and just. Thus the theory as it stands contains an internal
paradox. Because of his assumptions about gender, he has not applied the principles of justice to the
realm of human nurturance, a realm that is essential to the achievement and the maintenance of
justice.
On the other hand, I have argued that the feminist potential of Rawls’s method of thinking and his
conclusions is considerable. The original position, with the veil of ignorance hiding from its
participants their sex as well as their other particular characteristics, talents, circumstances, and
aims, is a powerful concept for challenging the gender structure. Once we dispense with the
traditional liberal assumptions about public versus domestic, political versus nonpolitical spheres of
life, we can use Rawls’s theory as a tool with which to think about how to achieve justice between the
sexes both within the family and in society at large. [pp.101–109]