Rawls’ Theory of Justice and its Communitarian Critique

John Rawls did not merely add a theory of justice to the existing stock. He reset the terms of the subject so completely that Nozick, his sharpest opponent, conceded the point in the act of attacking him: political philosophers must now either work within the framework Rawls provided or explain why not.

• A Theory of Justice revived normative political philosophy at a moment when behaviouralism had very nearly declared it dead, and it did so by taking the oldest question in the discipline and answering it with a genuinely new method.
• The achievement is a reconciliation: Rawls set out to show that liberty and equality are not competitors but can be derived together from a single procedure, which is what neither the libertarian nor the socialist tradition had managed.
• Almost every school then attacked him — libertarians, communitarians, socialists, Marxists, feminists and capability theorists — and the striking feature of that reception is that the critics built their own positions out of the objection. The field is still organised around him.

The Problem He Set Himself

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• The target is classical utilitarianism. The greatest happiness of the greatest number ignores the interests of the least advantaged, because an aggregate can be maximised while some are made to bear the cost.
• Utility is also incompatible, on Rawls’s account, with the idea of society as a fair system of cooperation among free and equal persons for mutual advantage, and with the reciprocity implicit in a well-ordered society.
• His alternative is Kantian. Persons are to be treated as ends and not merely as means, and human dignity operates as a categorical imperative that cannot be traded against aggregate benefit.

“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”

• Three consequences follow directly, and together they define the theory’s character.
  • Justice denies that the loss of freedom for some is made right by a greater good shared by others.
  • It does not permit sacrifices imposed on a few to be outweighed by a larger sum of advantages enjoyed by many.
  • In a just society the liberties of equal citizens are settled, and the rights secured by justice are not subject to political bargaining or the calculus of social interests.
• This makes the theory deontological — rights constrain the pursuit of good rather than being derived from it. Human dignity determines the standard of rights, and rights determine what may count as good. Profit maximisation is permitted, but not at the cost of dignity.

Pure Procedural Justice

Rawls describes his own method precisely, and the vocabulary is worth getting right because it is frequently misused.

• Rawls places justice as fairness in the third category. There is no criterion of the just distribution independent of the procedure that produces it — which is why the design of the procedure carries the entire argumentative weight.
• His challenge, then, is to show that the principles emerging are universal and ultimate rather than a restatement of his own convictions. That requires the procedure to be purely rational, involving no pre-existing conception of justice drawn from any ideology.
• The device he uses to achieve this is a thought experiment, and understanding it requires three concepts: primary goods, the original position, and the veil of ignorance.

The Original Position

• Rawls revives the social contract tradition, but with a decisive modification: the original position is a device of representation, not a historical event or a state of nature. It is a way of modelling what fairness requires, not a claim about the past.
• Its purpose is to establish that the principles of justice are voluntary — chosen rather than imposed — and based on reason rather than on interest or tradition.
• The parties have specific characteristics, and each one does work in the argument.
  • They are not Hobbesian. They possess moral reasoning and an inherent sense of justice — they are not blank slates driven by appetite.
  • They are mutually disinterested: not altruistic, not envious, simply indifferent to one another’s welfare. Rawls builds the theory on the weakest plausible motivational assumption, which is why the result is stronger than one derived from assumed benevolence.
  • They nonetheless recognise that living together requires agreement on basic principles of cooperation.
  • Their task is to settle the distribution of primary goods.

Primary Goods

• Primary goods are the things any rational person wants whatever else they want — rights, liberties, opportunities, income, wealth, and the social bases of self-respect.
• The distinction from secondary goods is what makes the theory liberal. Secondary goods are people’s rational plans — their particular conceptions of a good life, their chosen careers and commitments.
• Rawls distributes primary goods only. He does not attempt to say what is good for anyone — the individual retains full authority over that. The state’s obligation runs to the means, not the ends.
• This is the move that lets the theory claim neutrality between ways of life while still being substantively redistributive.

The Veil of Ignorance

• The parties choose behind a veil of ignorance, stripped of knowledge of their own particulars.
  • They do not know their class, social status, natural talents, intelligence, strength, conception of the good, or their generation. They may turn out rich or poor, advantaged or disadvantaged, of any sex.
  • They do know general facts — the basics of economics, psychology and social organisation — and they retain a sense of justice.
• The exclusion is not arbitrary. What the veil removes is precisely the morally irrelevant information that would otherwise let someone tailor principles to their own advantage. Fairness is engineered by ignorance.
• The consequence Rawls is driving at is that a rational person behind the veil will choose neither liberty alone, as the libertarian expects, nor equality alone, as the socialist expects, but both — which is how he arrives at something close to a social-democratic welfare state from purely contractarian premises.

Maximin and Reflective Equilibrium

Maximin Reasoning

Rawls argues that under the extreme uncertainty of the original position the rational strategy is maximin — maximise the minimum.

• Any rational person will want to maximise the benefit of any advantage they may turn out to have.
• Any rational person will equally want to minimise the impact of any disadvantage they may turn out to have.
• The rational person therefore considers both positions: what if I am best off, and what if I am worst off?
• The choice is then for the option whose worst outcome is better than any alternative’s.
• The reasoning becomes concrete when run in both directions.
  • Someone who assumes they are talented and therefore rejects equality will be catastrophically exposed if the veil lifts and they are among the least advantaged — at which point they will wish they had agreed to a social minimum.
  • Someone who assumes they will be badly off and therefore takes equality while ignoring liberty will find themselves worst off in the other sense if the veil lifts and they are among the most advantaged.
• The parties are therefore risk-averse, and their risk aversion is rational rather than psychological — it follows from the structure of a one-shot choice under total uncertainty with the stakes being one’s entire life.

Reflective Equilibrium

• The parties do not merely calculate. They deliberate over their moral judgements, testing principles against considered convictions and revising in both directions until the two cohere.
• The state reached is reflective equilibrium — a condition in which inconsistencies among moral judgements have been removed and the principles arrived at match our firmest intuitions.
• This is Rawls’s answer to the charge of arbitrariness: the principles are not deduced from nothing, but checked against “our common sense and firmest convictions.” It is also, as critics noticed, the point at which the theory’s claimed neutrality becomes hardest to defend, since somebody’s convictions have to supply the test.

The Two Principles

Rawls refines his formulations throughout the book. The final statement is:

First: “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.”

Second: “Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.”

Lexical Priority

• The principles are ordered lexically — in the sequence 1, then 2b, then 2a. This is a strict ordering, not a weighting.
• A principle does not come into play until those before it are either fully met or do not apply.
• The practical consequences are severe and are the point of the device.
  • Basic liberties cannot be traded for greater social advantages under 2(b) or greater economic advantages under 2(a). No amount of prosperity justifies curtailing a basic liberty.
  • Fair equality of opportunity must be satisfied before the difference principle operates — a society cannot buy off unequal access to office by compensating the excluded.
• The ordering is what makes Rawls a liberal rather than a socialist: liberty is not merely one good among several, it is prior.

The Just Savings Principle

• The qualifier attached to the difference principle addresses justice between generations. Each generation must preserve the gains of culture and civilisation and put aside a suitable amount of capital accumulation.
• Without it, the difference principle would license the present generation in consuming everything, since the worst-off in the present would benefit. The principle is Rawls’s acknowledgement that the least advantaged of the future have standing too.

Democratic Equality and the Natural Lottery

• Rawls calls his position democratic equality, and it rests on a claim about what talent actually is.
• The natural distribution of talents is neither just nor unjust. It is not unjust that a person is born with particular abilities into a particular position — those are simply natural facts.
  • What is just or unjust is how institutions deal with those facts. Justice is therefore a property of social institutions, and it lies within human capacity to change them.
• This underwrites his rejection of possessive individualism. What a person possesses is not attributable to their own talent alone.
  • There is a distinction between pure talent and advantage. Being born into a supportive family, attending a good school, encountering the right opportunity — these are matters of chance that shape outcomes as much as effort does.
  • Since nobody deserves their starting point, nobody has an unqualified moral claim to everything that flows from it.
• The Indian application of this reasoning is direct. Yogendra Yadav and Satish Deshpande have argued that merit should be assessed against a disadvantage index — measuring achievement relative to circumstances rather than in absolute terms, which is Rawls’s distinction between talent and advantage converted into an admissions instrument.
• Rawls also observes that inequality is a receding target: every time one form is offset, a new one becomes visible.
  • Formal equality before law was established, and it emerged that many still could not live with dignity.
  • Equality of opportunity was added, and it emerged that there was no level playing field on which opportunity could operate.
  • Affirmative action therefore appears just, because it matches the conception of justice the earlier stages were reaching for.
• The theory thus justifies progressive taxation, the welfare state and social security — not as charity but as what the parties would have chosen.

Why Both Sides Would Agree

Rawls needs the settlement to be stable, which means it must be acceptable to the advantaged as well as the disadvantaged.

• Why the well-off accept it: it is fair; it was their own rational choice behind the veil; it is the best available way to maximise their advantage consistent with agreement; and welfare provision functions as social insurance, which anyone may need at any time.
• Why the badly off accept it: it is just; they too accepted it behind the veil; and the rational strategy is to take the option whose worst consequence is better than the alternatives’.
• Why not straightforward socialism:
  • Rawls argues equal division would leave everyone worse off, since it is unproductive — the equal sharing of poverty.
  • The difference principle is instead the best possible use of inequality: not unfair to the talented and hardworking, and leaving society with more resources with which to help the poor.
• The image he uses is that society is a chain in which the weakest link matters as much as the strongest, and that reasonable persons will not refuse each other fair terms of cooperation.

Political Liberalism: Rawls Revises Rawls

Rawls’s own later criticism of his earlier work is more searching than most of what his opponents wrote, and any serious treatment has to include it.

• The defect he identified is that A Theory of Justice did not properly account for reasonable pluralism fact of reasonable pluralism. It assumed a well-ordered society sharing a deep moral code — and that assumption does not hold.
• A modern democratic society is marked not merely by a plurality of doctrines but by a plurality of incompatible yet reasonable comprehensive doctrines. No single one is affirmed by citizens generally, and none is likely to be.
• Reasonable people disagree for identifiable reasons, which Rawls calls the burdens of judgement: evidence is conflicting and complex; different weights are legitimately attached to different considerations; concepts are vague; and experience shapes assessment.
• The correction is that a theory of justice must be political, not comprehensive.
  • A comprehensive doctrine applies across a wide range of subjects and includes conceptions of value in human life, personal virtue and character.
  • A political conception is worked up for a specific subject — the basic structure of society — and draws its fundamental ideas from the public political culture of a democracy: that society is a fair system of cooperation over time, and that citizens are free and equal.
• Rawls did not renounce justice as fairness. He still held it the best theory of justice. What he had got wrong was his account of how citizens could accept it.

Overlapping Consensus

• The solution is an overlapping consensus: each reasonable comprehensive doctrine endorses the political conception from its own standpoint.
• Citizens work toward liberal principles from mutually incompatible perspectives, and respect for those principles rests on the overlap between them rather than on shared foundations.
• The political conception is freestanding — its justification does not depend on any comprehensive view, and it is worked up from ideas already implicit in a democratic public culture.
• The contrast that clarifies it is with a modus vivendi, a balance of power resting on mutual self-interest. A modus vivendi collapses when the balance shifts; an overlapping consensus is stable for the right reasons, because each party affirms it on grounds internal to their own doctrine.
• The accompanying civic virtue is toleration: citizens must respect the strongly held convictions of others even while participating in a process that produces legislation inconsistent with those convictions.
  • This requires a double perspective on one’s own beliefs — first-personally binding, and third-personally one view among several about which reasonable people differ.
  • The citizen may argue vigorously from their convictions during the process, and is then obliged to accept the democratically reached outcome as legitimate.
• Rawls is careful about the limits of the claim.
  • He does not assert that an overlapping consensus is achievable in every liberal society, or that once established it must endure.
  • Citizens may have too little in common to converge; unreasonable doctrines may spread until they overwhelm liberal institutions.
  • Where it is possible, it is the best support for stability a free society can achieve.

The Law of Peoples: Global Justice

The Law of Peoples extends the method to international relations, and what is most notable is how little of the domestic theory Rawls carries across.

• The parties are peoples, not states — a deliberate change, because Rawls denies them the traditional sovereign right to unrestricted war.
• The procedure is repeated at a second level: representatives of liberal peoples, behind an appropriate veil, settle the principles governing their association — the Society of Peoples.
• The eight principles they select are:
  • Peoples are free and independent, and their freedom is to be respected by others.
  • Peoples are equal parties to their own agreements.
  • Peoples have a right of self-defence but no right to war for other reasons.
  • Peoples are to observe a duty of non-intervention.
  • Peoples are to honour treaties and undertakings.
  • Peoples are to observe restrictions in the conduct of war.
  • Peoples are to honour human rights.
  • Peoples have a duty to assist other peoples living under conditions that prevent a just or decent political and social regime.
• The taxonomy of peoples is where the argument becomes contentious.
  • Decent hierarchical peoples do not grant full political equality but consult their citizens and secure rights to life, liberty, property and formal equality. Liberal peoples should tolerate them, because respecting other outlooks is itself a liberal commitment and refusal would only breed resentment.
  • Outlaw states are prepared to wage war for their own advantage and do not respect human rights.
  • Burdened societies are prevented by historical, social and economic circumstance from becoming well-ordered. The object of foreign policy is to bring them into the Society of Peoples, granting them the scope for self-management.
• Human rights in this scheme are a minimum — freedom from slavery, from massacre, and liberty of conscience — and are not equivalent to the full set of liberal rights.
• The crucial omission is deliberate: there is no global difference principle. Rawls does not treat international inequality as a problem requiring correction, and imposes no duty of redistribution beyond a basic minimum. Once a society is functioning, the duty of assistance is discharged.
• Many readers expected the difference principle to be globalised and were disappointed. The cosmopolitan objection is that if arbitrary contingencies of birth cannot justify inequality within a society, nationality is the most arbitrary contingency of all — and Rawls’s own premises therefore require a global application he declines to make.
• Sen’s alternative starts from the same dissatisfaction, and goes further than Rawls on redistribution.
  • The question about globalisation is whether its benefits are distributed acceptably — and the remedy is not to abolish the market economy but to add social security to it.
  • He links justice to freedom instrumentally: economic progress is not properly achievable without civic freedoms such as expression and association.
  • Governments that protect rights tend to see development more widely shared, and are less exposed to the corruption that diverts it.

The Critiques

Nozick: The Entitlement Theory

• Nozick accepts Rawls’s importance and rejects almost everything else. His charge is that Rawls compromises liberty for the sake of equality, which offends against human dignity.
• For the libertarian, liberty is absolute and self-justifying — it requires no further justification, and from it follows self-ownership: a person owns themselves and therefore owns what they produce.
• His alternative is the entitlement theory, built on three principles.
  • Justice in acquisition — how unowned things may justly come to be held.
  • Justice in transfer — how holdings may justly pass from one person to another.
  • Rectification — what is owed where the first two were violated.
• The theory is historical, not patterned. Whatever arises from a just situation by just steps is itself just, whatever pattern results. There is no distribution to be aimed at, only a history to be checked.
• The consequence is a minimal state — a revival of Locke‘s night-watchman — confined to protection against force, theft and fraud, and the enforcement of contracts. It has no role in distributive justice.
• His most quoted charge is that taxation for redistributive purposes is on a par with forced labour: seizing the product of n hours’ work is like seizing n hours from the person.
• Rectification is the weak joint in his own theory, and he knows it. He admits historical injustices occurred but resists stretching the past too far into the present, on the ground that doing so creates more problems than it solves.
  • This is a serious difficulty for any society built on conquest, dispossession or slavery, since a rigorously applied rectification principle would license redistribution more radical than anything Rawls proposed.
• He allows one clear exception. Where a person asserts a property right in a way that puts many lives in danger — the owner of a village’s only well barring access to water — the state may intervene.
• The standing assessment is that Nozick supplies a powerful critique rather than a comparably developed theory: the entitlement framework is elegant and its historical principles are, in practice, unusable, because no actual holding can trace a clean pedigree.

The Communitarian Critique

Communitarianism is a reaction against the liberal conception of the person, and it should not be confused with communalism, which is a different reaction to the same target.

• Why it arose. Liberalism’s emphasis on the autonomy of the self was necessary to release people from custom and tradition, but its consequences accumulated: isolation, psychological strain, and the erosion of collective life.
  • Putnam‘s Bowling Alone names the phenomenon as the decline of social capital — the observation that a society, like a factory, requires investment to keep running, and that falling participation is a form of disinvestment.
  • Arendt had warned that the absence of civic participation opens the way to totalitarianism.
  • The movement has a practical face, associated with Amitai Etzioni, expressed in resident welfare associations, community policing and neighbourhood organisation.
• The philosophical objection is about the self. The liberal atomistic individual is an abstraction; the real person is a situated or embedded self, whose community’s traditions and values are constitutive of personality and of the conception of right and wrong.
  • The formula is that the self is not prior to its ends; it is constituted by them. We do not look at reality with naked eyes but through the lens the community supplies.
  • Even choices experienced as free — of career, of commitment — are substantially shaped by community rather than selected from nowhere.
• On community. Liberals treat community as no more than an aggregate of individuals and the common good as the sum of individual goods. Communitarians take an organic view in which the common good is a single thing that is the source of good for everyone.
• On rights. Liberals hold that a universal conception of justice is available to anyone reasoning correctly. Communitarians defend community-specific rights.
• On the state. Liberals require neutrality between conceptions of the good, keeping divisive questions of religion and culture in the private sphere and pursuing uniformity, universal citizenship and a uniform set of rights in public.
  • Communitarians reply that a person entering the public sphere does not leave their community at home, so community must be reckoned with there too. The disagreement over religious dress in public institutions is the standard illustration: liberals resist accommodation, communitarians support it.
• Kymlicka frames the dispute accurately from the liberal side: communitarians believe the value of community is not sufficiently recognised in liberal theories of justice or in the public culture of liberal societies.
• The tradition has forerunners — Aristotle, Rousseau, Hegel, and T.H. Green, who argued that people attain knowledge of the common good in association with their community, and that the state exists for its realisation.

Sandel

• Sandel, in Liberalism and the Limits of Justice, attacks Rawls on two grounds — the conception of the self and of community.
• His central charge is that Rawls presupposes an unencumbered self, prior to and independent of its ends. Real selves are encumbered — located in time and place, embedded in a network of social relations, and constituted by attachments they did not choose.
• The parties behind the veil are therefore disconnected and disembodied, and the Rawlsian view of the person is, in his phrase, woefully impoverished.
• He extends the point to rationality itself: Rawls’s conception of what is rational is not free of his own community’s assumptions. What appears rational in one society need not appear rational in another — which undercuts the claim to universality from the inside.
• His second target is state neutrality. On many social and political questions the state cannot in fact be neutral, and the pretence of neutrality is not costless.
  • Neutrality may be invoked to protect racist or fundamentalist movements whose success would foreclose the democratic possibilities of historically subordinated groups.
  • Democracy’s tendency is inclusive — it brings in those previously excluded. A neutrality that permits its own subversion defeats that tendency.
  • Sandel therefore argues for state intervention to secure justice, in place of the liberal posture of abstention.

MacIntyre

• MacIntyre, in After Virtue, ridicules the liberal notion of individuals as autonomous moral agents operating disconnected from social context.
• Individuals flourish, on his account, only within socially established cooperative human activity designed to develop human excellence — the framework he calls a practice.
• His sharper charge is that liberals are committed to moral relativism, since detaching themselves from any particular standpoint in the name of tolerance leaves them unable to defend any particular view of justice or to develop a unified conception of the good.
• The result is that liberalism has been unable to build genuine communities or to specify the moral obligations members of a society owe one another.

Taylor

• Taylor questions the premise of atomistic individualism, arguing that human agency, rights and freedom exist only in a social context, and that modern political theory has failed to account for the reciprocal relations between individuals and society.
• In Sources of the Self he argues that human agency is intelligible only on the premise that persons are embodied individuals engaged simultaneously in self-interpretation and constant interaction with others.
• Through that process they criticise and transform themselves, reinterpreting their rights and obligations, guided by moral sources — secular, religious, literary and philosophical — which the liberal account has no place for.

Walzer

• Walzer is the only communitarian to advance a positive theory rather than a critique, and Spheres of Justice is that theory.
• He rejects the universalist aspiration outright: the search for a theory of justice applicable to all cultures is misguided, because there is no principle of justice available outside the community — outside its history and culture.
• His formulation of the method is exact: different goods ought to be distributed differently, for different reasons, by different agents — differences that arise inevitably from different historical and cultural backgrounds.
• No system of justice can be evaluated as inherently just or unjust. Evaluation is possible only on the basis of the social meanings attached to the goods at stake.
  • His own example is uncomfortable and he intends it to be: as long as all members of a society share the social meanings of the caste system, justice would consist in being true to those meanings.
  • He notes that the system persists in India substantially because most people do not find a problem with it and treat it as common sense.
  • This is the objection to Walzer as much as it is his thesis. If shared meanings are the final court of appeal, a theory of justice loses the standpoint from which to condemn a settled injustice, and the internal critic has no ground to stand on.
• His positive principle is complex equality, as distinct from simple equality.
  • No citizen’s standing in one sphere, with regard to one social good, may be undercut by their standing in another sphere with regard to some other good.
  • Modern society contains several distributive spheres — money, office, political power, education, health, kinship, honour — each with its own appropriate criterion.
  • Dominance is prevented not by equalising holdings but by keeping the boundaries between spheres intact: money properly rules in the sphere of commodities and must not rule in health or politics; kinship belongs in love and becomes nepotism in office; profit and loss belong in the market and corrupt the family.
  • If boundaries hold, one person’s pre-eminence in wealth may be offset by another’s prestige and a third’s office, producing an equality in which no one decisively outranks anyone else.
• Two objections are standard.
  • There is no reliable method of comparing non-economic goods with income and wealth. Telling an underpaid scientist or teacher that esteem compensates is poor consolation.
  • Walzer offers no mechanism for persuading those dominant in a sphere to respect its boundaries. The scheme embodies a strong moral philosophy without an equally strong political one.

Cohen: The Marxist Objection

• G.A. Cohen, in Rescuing Justice and Equality, attacks Rawls from the egalitarian left, and the objection is unusually precise.
• Rawls restricts the principles of justice to the basic structure of society — the major institutions — and leaves personal choices within those institutions untouched. Cohen argues this conceals exploitation, because what the worst off actually receive depends on everyday behaviour, not only on institutional design.
• The theory pulls in two directions. It assumes citizens can develop a commitment to prioritising the worst off, but then confines that commitment to the structure, permitting the talented to bargain for incentives within it.
• If the talented genuinely accepted the difference principle as a matter of personal ethos, they would not demand the incentive payments the principle is invoked to justify — so the inequality Rawls defends is generated by an attitude his own theory ought to condemn.
• Related socialist criticism is blunter: democratic equality built on the difference principle is a vulgar justification of inequality — not a theory of justice but a theory of injustice with a redistributive fringe.

The Feminist Objection

• Okin and Pateman attack Rawls for separating the personal from the political and thereby exempting the family from the theory of justice.
• Rawls accepts the family as part of the basic structure for which principles of justice are chosen, yet does not think it necessary to examine injustices inside the family structure — which is the contradiction the critique fastens on.
• Okin argues that a gender-free society is a precondition for the outcome Rawls wants: the abolition of gender is necessary to fulfil his own objective of political justice, and his theory requires rethinking the division of labour within households.
  • Her repair works within the Rawlsian frame rather than against it: deny the parties any knowledge of their sex, and require them to evaluate the family as part of the basic structure. The result would be a genuinely humanist conception of justice.
• Pateman presses harder. The sexual contract underlying the original contract is not discussed by Rawls; only men contract, and women are born into subjection. Representation in the original position is sexless, which conceals rather than corrects the asymmetry.
• Gilligan, in In a Different Voice, shifts the ground from justice to care.
  • Morality can be articulated in two registers — justice and care — and the tradition has treated the first as the whole of the subject.
  • Principles of justice are individualist, prioritising the claims of individuals over relationships; the ethics of care foregrounds human connectedness, self-sacrifice and obligation to others.
  • Justice runs on rationality; care runs on emotion, and a society preferring reason to emotion downgrades care and, with it, the work women disproportionately do.
  • The ethics of care is criticised by feminists themselves for resting on essential feminism — attributing care to women as a nature rather than as an assigned role — and for being difficult to apply, since it offers no way to adjudicate between competing attachments.

Sen: The Capability Critique

Sen‘s objection is the most constructive, and it is best understood as both a critique and an extension of Rawls.

• The methodological complaint is that Rawls relies on rational choice — abstract individuals negotiating in abstract situations — where what is needed is social choice, real persons reasoning in real situations.
• The substantive complaint concerns the metric. Rawls distributes primary goods and treats subsequent inequalities as justified; Sen argues that people differ in their capacity to convert primary goods into a life they value.
  • Individuals vary in health, longevity, climate, location, working conditions, even body size, and these are not a few hard cases but widespread and real differences.
  • A severely disabled person receives no additional claim under the difference principle if only holdings of primary goods are counted, though their conversion rate is plainly lower. Sen’s point extends well beyond disability: the needs of the sick and the healthy, the child and the adult, are not the same.
  • Using primary goods alone as the metric therefore produces unjustified inequality and unfairness.
• What matters is capability — the real freedom to achieve the functionings a person has reason to value. Primary goods are means; capabilities are the freedom itself. Rawls treats redistribution as a means to freedom and then does not ask what people can actually do with it.
• Niti and nyaya carry the deeper disagreement. Niti is procedural propriety; nyaya is the world that actually emerges. Sen holds nyaya is the more important, and that Rawls’s preoccupation with getting the procedure right leaves the realisation unexamined.
• Rawls is deontological; Sen is consequentialist, and the flute illustrates why the difference matters.
  • Anne should have it because she alone can play it — the utilitarian answer.
  • Bob should have it because he is poorest and has no other toys — the egalitarian answer.
  • Carla should have it because she made it — the libertarian answer.
  • All three claims are true, and each is intuitively plausible.
  • Sen’s point is that there is no reason to assume one must be the right answer. Sometimes there is simply a plurality of right answers.
  • The assumption that only one kind of just society exists — a liberal one defined by Rawlsian principles, with all others falling short — is not a plausible response to real pluralism.
• The Krishna–Arjuna exchange in the Bhagavad Gita dramatises the same split.
  • Arjuna’s position is consequentialist — weighing the scale of destruction and whether victory is worth its cost.
  • Krishna’s is deontological — do your duty and disregard the consequences.
  • Sen takes Arjuna’s side, on the ground that many lives would have been saved.
• Buddha supplies the model Sen prefers: rather than searching for a universal formula for justice or truth, he attended to minimising the suffering in front of him — a realisation-focused approach in practice.
• Nussbaum develops the capability approach in the direction Sen declines to take, specifying a list of central capabilities that any decent political order must secure — which restores the determinacy Sen’s pluralism gives up, at the cost of the pluralism.

Macpherson: The Contextual Objection

• Macpherson argues that the claim to universality is unfounded: Rawls’s theory is culture-specific, confined to a particular cultural context despite its ambitions.
• What the theory does, on this reading, is rationalise liberal beliefs and values — the veil of ignorance notwithstanding. The parties reason their way to conclusions congenial to the society Rawls inhabits.
• It is therefore best understood as a defence of liberal-democratic welfare states, which is a considerable achievement but not a universal theory of justice.

The Rawlsian Reply

Rawls and his successors have answers, and a fair treatment records them.

• On the unencumbered self: the original position is a device of representation, not a metaphysical claim about persons.
  • Rawls is not asserting that people exist prior to their ends. He is modelling what it would mean to reason fairly about principles.
  • Any thought experiment abstracts from features it holds irrelevant; the question is whether these features are irrelevant, which is a narrower dispute than Sandel’s.
• On universality: Political Liberalism is in large part a concession to the communitarians. Rawls stops claiming a comprehensive doctrine and grounds the conception in the public political culture of a particular kind of society — which meets Sandel and Macpherson substantially, while conceding less than either wanted.
• On the family: the reply is that the basic structure includes the family, so Okin’s repair is an application of the theory rather than a refutation of it. Rawls himself later accepted that the principles apply to the family.
• On capability: the difference principle can be indexed to needs rather than to primary goods alone, which absorbs much of Sen’s objection without abandoning the framework.
• What does not get answered convincingly is Cohen’s. If the incentive-seeking behaviour of the talented is what makes the difference principle necessary, and that behaviour is inconsistent with accepting the principle, then the theory is justifying an inequality produced by a failure of the very commitment it presupposes.

The Indian Application

• Reservation maps onto the Rawlsian framework more precisely than onto any other theory of justice, which is why the framework is so heavily used in Indian debate.
  • It is fair equality of opportunity (2b) supplemented by the difference principle (2a): positions are to be genuinely open, and where they are not, arrangements must work to the benefit of the least advantaged.
  • Rawls’s own reasoning about the receding character of inequality — formal equality, then opportunity, then a level playing field — reconstructs the Indian sequence almost exactly.
• The Ambedkar contrast is where the fit breaks down, and it is the more interesting comparison.
  • Rawls’s is pure procedural justice: design the procedure and accept its outcome. Ambedkar’s is egalitarian justice: the outcome — the annihilation of graded inequality — is specified in advance, and institutions are instruments for reaching it.
  • Rawls asks what free and equal persons would choose. Ambedkar begins from a society that did not contain free and equal persons, where the question of what they would choose does not arise until the hierarchy producing them is dismantled.
  • The difference is not one of degree. Rawls treats the starting point as a fact institutions must handle; Ambedkar treats it as the thing to be destroyed.
• Indian jurisprudence has independently arrived at Rawlsian devices.
  • The creamy layer exclusion is a difference-principle correction applied within a beneficiary group — the benefit must reach the least advantaged, not the best-placed among the disadvantaged.
  • The ceiling on reservation is a fair-equality-of-opportunity constraint operating as a limit on the difference principle, which is lexical priority in judicial form.
  • The economically weaker sections provision, upheld in 2022, moved the criterion from social to economic disadvantage.
  • Rawls’s framework accommodates that change straightforwardly, since the least advantaged can be identified by any relevant metric.
  • Ambedkar’s cannot, since for him the disadvantage to be remedied is caste, not income.
  • The dissent’s objection — that reservation remedies social exclusion rather than poverty — is Ambedkar’s position stated in constitutional terms.
• Yadav and Deshpande’s disadvantage index is the most direct Indian implementation of Rawls’s insight that what a person possesses is not attributable to talent alone — assessing achievement against circumstances rather than in the absolute.

Conclusion

• Rawls’s standing rests less on whether his conclusions hold than on the fact that he made the question answerable. A field that had abandoned normative argument as unscientific recovered it because he showed that principles of justice could be derived rather than asserted.
• The theory’s genuine achievement is the reconciliation of liberty and equality. Deriving both from a single procedure, and ordering them lexically rather than trading them off, is what neither the libertarian nor the socialist tradition had managed.
• Its central vulnerability is the one every school found independently: the original position purchases fairness by abstraction, and the abstraction removes the very features that make claims of justice urgent — community for Sandel, gender for Okin, bodily difference for Sen, culture for Walzer and Macpherson.
• The critiques have proved more durable than the objections they raised, because each generated a research programme of its own — the entitlement theory, complex equality, the capability approach, the ethics of care. Rawls’s real legacy is the quality of the disagreement he provoked.
• The most defensible position now is close to Sen’s.
  • Keep Rawls’s insistence that justice is a matter of institutions rather than natural facts.
  • Drop the assumption that a single set of universally acceptable principles is available.
  • Assess arrangements by the lives they actually permit, rather than by the elegance of the procedure that generated them.

Rawls asked what principles free and equal people would choose if they did not know who they would turn out to be. His critics answered, one after another, that the question is unanswerable because nobody is nobody in particular — and then spent fifty years building theories that only make sense as replies to it.