John Rawls

Theory of Justice

By Avery Kolers, University of Louisville

Objectives
1. Explain why Rawls’s theory of justice is first and foremost a procedural theory.
2. Present and explain the two principles of justice.
3. Identify Rawls’s view of the relationship between individual and society, and his objections to
rights-based, utilitarian, and communitarian views.
4. Address Rawls’s omission of some of the most important issues of justice in contemporary
human societies, such as race, colonialism, health, migration, and the global environment.

Reading Assignment:
Rawls, John. A Theory of Justice. Cambridge, Mass: Belknap/Harvard University Press, 1971.

Commentary

John Rawls’s Theory of Justice (TJ) is the most important work of 20th century normative political
philosophy, and “Justice as Fairness,” the theory he defended there, is the most important normative
theory in the field. A philosophical work is generally considered part of political philosophy when it
addresses systems through which power is contested and exercised or resources are produced and
distributed. A work of political philosophy is normative when it engages moral questions about these
issues – for instance, how the exercise of power can be justified to those who are subject to it, or how
resources such as money and power should be distributed, or whether it is ever permissible to trade off
the lives and interests of some for the benefit of others. And finally, a work of normative political
thought is generally considered political philosophy as opposed to political thought when it abstracts
from the specific histories and institutional arrangements of particular locales, and attempts to isolate
its normative political questions as they might apply in any society, anywhere. Thus a political
philosopher might put the arguments of Aristotle, Hobbes, and Nussbaum into direct conversation as
though there were neither time nor space separating them. It was this tradition of debate – normative
political philosophy – that Rawls’s Theory of Justice rejuvenated and reshaped upon its appearance in
1971.

Justification
During the 17th and 18th centuries, philosophers such as Thomas Hobbes, John Locke, and Jean-Jacques
Rousseau adapted an older “Natural Law” tradition by using the image of a “social contract” to ask what

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 might justify political rule and property rights over land and goods. Their strategy was to describe their
vision of a ‘state of nature’ – a world before government – and imagine what we would agree to if we
found ourselves in such a world. For all its limitations, this tradition was revolutionary because it put
governments on notice that in order for their rule to be legitimate, they had to provide benefits to the
everyday citizen. Moreover, since each citizen was equally entitled to ask for such justification, the social
contract tradition implied a basic moral equality of all, recasting unequal social relations as artificial
rather than natural. Out of this tradition emerged theories of political and economic rights that are still
relevant and compelling today, including the American Revolution’s ideals of “life, liberty, and the
pursuit of happiness,” and the French Revolution’s ideals of “liberty, equality, fraternity.”

Even so, for over a century before TJ, the social contract tradition had waned, and Utilitarians and
‘Intuitionists’ dominated normative political philosophy. ‘Intuitionists’ are those whose arguments rely
on direct appeals to moral considerations such as justice or equality (34). For instance, an intuitionistic
defense of socialism might argue that equality of condition was more important than getting what you
deserve; but a different intuitionist could equally well defend capitalism by arguing that individual
property rights outweigh appeals to the social good. Rawls worried that these sorts of debates were
futile because there was no external standard for determining which set of ‘intuitions’ about justice was
correct (39). Utilitarians, by contrast, evaluate actions and social institutions by asking whether they
maximize well-being for all affected. For instance, a utilitarian might endorse a policy of fast economic
growth even at the cost of some people’s basic interests in the short term. Rawls objected that
utilitarianism is too dismissive of the distinction between persons (27). It’s one thing for you to sacrifice
a fun morning (by studying till noon) so you can have a fun evening; it’s quite different when
policymakers sacrifice your pleasure or even life so that others can have fun.

Against intuitionism, Rawls argued that progress in political philosophy could come, not from any great
new insight about the substance of justice, but from devising a fair procedure. To Rawls, the shift to a
procedural conception of justice brought numerous benefits, the first of which was that fair procedures
help us make decisions when we can’t agree on substantive outcomes. It is typically easier to see that an
election, a lottery, or a coin-toss is fair than it is to determine which of the outcomes is better on its
merits. Indeed, the justice of giving power to the winner of the election, or money to the winner of the
lottery, is purely procedural: the outcomes are right just because they derive from a fair procedure (86).
So in TJ, Rawls proposes, not to simply offer a theory of justice, but to describe a fair procedure for
identifying or choosing principles of justice for the distribution of the benefits and burdens of social
cooperation, and then to let the substantive chips of justice fall, more or less, where they may (120). (He
does insist that the procedure doesn’t work like a mathematical procedure or a logical deduction;
whatever comes out of his procedure must still be double-checked from the perspective of those who
are to live under the principles so chosen (499), as well as by reflecting on the system as a whole (579).)

Procedural justification has other benefits, too. First, a fair procedure makes it easier for everyone –
losers included – to live with the results. We can reconcile ourselves to unfavorable outcomes by
accepting that the procedure from which they arose was fair and legitimate. And second, by setting up,
not a static society that strictly distributes a fixed amount to each person or class, but rather a set of
economic and political procedures that play out across decades and generations (304), we can hope and
expect that over time, each of us, or each of our family lines, might take turns in all strata of society.

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 The Veil of Ignorance and the Two Principles
What, then, was the procedure that Rawls thought we could all see would be fair? And what principles
did he think would emerge from this procedure?

Traditional social contract theories are procedural theories that imagine everyone in a state of nature
choosing a set of rules that would make it worthwhile for them to submit to governmental authority.
Rawls has two reasons for rejecting the traditional method. First, although he agrees that each person is
owed a justification for exercises of power over them, he thinks that we should not start from the false
idea that we were once in a state of nature without government, or would go back there if there were
no agreement. But second, any starting point other than this phony state of nature would lead us to
skew the rules in our favor: if I am in the religious or racial majority, I can make the minority pay for
tolerance; if I am independently wealthy, I can resist any demands for redistributive taxation.

To overcome this dilemma Rawls proposes that a fair procedure is one where each of us is
hypothetically situated in an “Original Position” of equality where we know enough about people and
societies to choose rationally about basic social systems, but know nothing particular about ourselves,
our own society, or even our place in history (120). So what we do know are general scientific and social
scientific facts about the nature of human beings and societies; we know that we live among humans in
a situation of “moderate scarcity” – that is, we can all survive and thrive, but we have to work for it
because we won’t just receive manna from heaven. And we know that people tend to want things like
money, self-respect, social status, political and moral freedoms, and the opportunity to choose and
pursue their own life plan. What we don’t know is anything particular about ourselves or the specific
society in which we live: whether we are rich or poor, able to perform physical labor or give birth, a
member of the majority ethnicity or of any religion, and so on. He calls this situation of not knowing
particulars the “veil of ignorance,” and proposes that justice is whatever principles for governing our
society we unanimously choose from behind this veil (136).

Because each of us can “enter” the Original Position at any time – we do not have to time-travel back to
a past state of nature or move to an unsettled territory – we can ask ourselves the question of basic
justice whenever that question arises. And since each of us is represented in the Original Position, we
are not going to accept a sacrifice of our own interests just to benefit someone else. On the other hand,
because we choose from under a veil of ignorance, everyone would reach the same conclusions about
what justice is. If everyone chooses from under a veil of ignorance, then each of us has the same
information and preferences, and all of us choose identically (139) and unanimity is achieved.

And what, then, do we unanimously choose? Rawls posits two principles of justice; the first has to do
with what is to be held equal and guaranteed its “fair value”; the second has to do with what may be
distributed unequally. For Rawls, what is to be held equal is our basic liberties – liberties that make
democracy and an open society possible – such as speech, conscience, political participation, personal
liberty, and so on (61). Rawls thinks that none of us would be willing to give these up under any normal
circumstances, and nor would we be willing to have less of them than others.

But not everything is a basic liberty, and many things may be distributed unequally. For instance, jobs
and positions of privilege are inevitably unequally distributed, and Rawls also thinks it would make sense
to distribute goods like money unequally, provided the unequal distribution was good for everyone. The
question, though, is what kinds and degrees of inequality are acceptable? Rawls’s second principle
answers this by saying that inequalities of jobs and social status are acceptable if they are distributed

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 under conditions of fair equality of opportunity; and resulting inequalities of resources like income and
wealth are acceptable if they are distributed so as to achieve the greatest benefit to the least well-off.

What do these conditions mean? Most fundamentally, opportunities are ‘formally’ equal when no one is
legally excluded from the job market or directly discriminated against; for instance, no rule forbids
women from working in important jobs (72). But this is insufficient if women tend to be hindered by
nonlegal social practices such as gendered childcare and homemaking responsibilities. Fair equality of
opportunity takes account of such inequalities that arise from social patterns. We can see that
opportunity meets this standard if, for instance, the likelihood that a young child will grow up to be
wealthy, or a CEO, or a parliamentarian, is no different whether that child is male or female, white or
Black, from a poor family or a rich family, and so on. If fair equality of opportunity exists, you would
expect a thorough re-sorting of people across income strata with every generation, with no patterns of
differential outcomes between any two salient social groups.

And what of these income strata? The second part of the second principle – known as the “Difference
Principle” – allows (or more accurately, requires) socioeconomic inequalities just insofar as these are “to
the greatest benefit of the least advantaged” (302). This is a strange phrase; it sounds like the poorest
are at the same time the richest, which makes no sense. But what Rawls means by it is that the point of
inequality is to create, as the saying goes, a rising tide that lifts all boats (298); and in the Original
Position we would choose whatever “tide” would lift all boats the highest. This is what he means by
“greatest benefit of the least advantaged”: if we compare all possible societies, we’d create the one
where the poorest are best-off compared to their counterparts in all other societies. However, it’s
important to remember that this principle of inequality is the third-ranked idea, behind the equal basic
liberties principle and fair equality of opportunity. So although we would choose unequal outcomes in
exchange for increased wealth for everyone, we would not allow inequalities to grow to the point that
our children would suffer unequal opportunity or that our political and moral freedoms were
compromised.

In sum, Rawls’s final statement of the two principles is as follows:

First Principle

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 Principle

Social and economic inequalities are to be arranged so that they are both:

(a) [Difference Principle] 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 (302).

Shorthand: when in the Original Position, design a society with the assumption that your worst enemy is
going to place you in it (152).

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 Individual and Society
To be more precise, in the Original Position you are not exactly designing a society; that is to be done by
constitution-writers, legislators, and the people (201). Instead, in the Original Position you are choosing
principles that you will then use to evaluate whether the “basic structure” of your society is just (7). This
basic structure – pervasive institutions like economic, political, and legal systems, as well as the standard
social forms like family units, gender norms, and whether racial or ethnic classifications exist or have any
impact on how our lives go – sets the framework for social cooperation. So when we choose principles
of justice, we must bear in mind that the shape of the basic institutional structure has permanent and
unchosen effects on our life prospects. Income differentials do not occur in a vacuum; they are products
of those systems of distribution. For instance if, due to high stress, poor nutrition, inadequate schools,
and unavailable childcare, poor parents are typically less able to prepare their children for career
success, then the basic structure is enshrining intergenerational class hierarchies. Fair equality of
opportunity would require us to dismantle such intergenerational hierarchies, at least provided we
could do so without stunting the equal basic liberties.

In a just society, our market income and personal wealth – and Rawls does think that justice requires
economic markets with personal property rights – significantly reflect past free choices that we and
others have made. Many philosophers – including “natural rights” theorists such as Locke, “classical
liberals” such as Hayek, and defenders of “meritocracy” – think that the relationship between free
choice and market outcomes is what justifies our holdings: in their view, I have a ‘natural right’ to these
things I own because I got them by using my own body in ways that neither coerced nor cheated others;
or I ‘deserve’ what I have as a reward for how hard I worked and how talented I am.

Rawls disagrees. What you have to offer, and what it’s worth, depends on what others have and need,
what people who came before you have invested in you and others, and the plans and expectations that
people developed in light of a just system of interactions. Rawls sees what you deserve as what you may
legitimately expect, given such institutions. He agrees that we all have important interests in controlling
personal property and in being recognized for our meritorious efforts. But how we should accommodate
these interests, and how weighty they are relative to other interests, are outputs of the theory of
justice, not inputs. Market inequalities therefore have a function: to incentivize people to generate a
surplus that can produce benefits and ease burdens for all. Relatively rich people can be said to
‘deserve’ their high incomes only because those incomes are generated by responding effectively to this
incentive structure in a just society – that is, a society that makes the worst-off as well-off as they can
be. And the scope of property rights is not ‘natural’ but instead depends on what justice says about
which things can be owned, in what ways.

But if we are deeply shaped by the basic structure, and even our capacity to put forth meritorious effort
is partly due to those social institutions, does this mean that each of us is merely an avatar of the
society? Rawls may be said to be following Aristotle, John Stuart Mill, or arguably Kant in attempting to
strike a balance between viewing the society as productive of individuals, including even their
psychology, and viewing individuals as morally and rationally free and independent. If the natural rights
and equal opportunity theorists went too far in imagining individuals as independent, certain
communitarians go too far in the opposite direction. Rawls views each of us as independent enough to
form and revise our life plan and values, and thinks it is important that each of us be held responsible for

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 these life plans and values. Moreover, his Original Position is designed so that no one’s basic interests
are sacrificed for the benefit of others. But he also views us as shaped by, and typically finding our
happiness in, collective endeavors and social systems. Moreover, how we develop our individual life
plans is answerable to the principles of justice; notwithstanding my liberty of conscience, I may not
create a religion based on enslavement or which forbids anyone from leaving the religious community;
notwithstanding my freedom to form and revise my conception of the good, I can be blamed and
punished if that conception of the good involves violating others’ rights. For Rawls, the good society is
not a “community,” because it is not unified by a shared conception of the good. But the good society is
a “social union,” because it is a freely affirmed cooperative arrangement unified by justice and enabling
us to value and benefit from one another’s excellences (523).

Applied and ‘Non-Ideal’ Political Philosophy

A Theory of Justice has had major impacts in ethics and other areas of philosophy, and inspired a
renaissance of Kant scholarship and broadly Kantian methods through the entire discipline of
Philosophy. But of course its greatest impact was in political philosophy, a field that was reshaped and
reinvigorated – arguably worldwide, but certainly in the Anglo-American tradition – from the moment TJ
appeared. Many scholars began working within the new set of frameworks and questions that TJ
foregrounded. It was the lodestar of the field.

So it is puzzling, to say the least, that TJ virtually ignores all of the most urgent problems of social justice
in the world around it. How could the central work of normative political philosophy, the greatest
achievement of the theory of social justice to emerge from academic Philosophy in the West, say
virtually nothing about racial oppression, migration, international justice, gender, the environment, or
the legacies of colonialism and imperialism? Notwithstanding Rawls’s inclusion of brief chapters on civil
disobedience, just war, and intergenerational justice, it is hard to believe this work is a product of the
1960s.

Some of TJ’s limitations may be endemic to “analytic” political philosophy, specifically in the liberal or
social-contract tradition – for instance, the emphasis on individuals, law, and the methods and
assumptions of neoclassical economics – and the consequent difficulty of addressing extralegal social
power, racial formation, gender norms, the Earth’s finitude, and so on. Other limits may be due to
Rawls’s decision to focus on “ideal theory” – rather than the more urgent task of “non-ideal” theory – on
the assumption that you need to know what target to aim at in order to know which social changes
would move you towards rather than away from that target. And still other limitations may be due to
the demographics and social structure of the profession of philosophy at the time, namely, that it was
largely an in-club of financially comfortable white men at a handful of elite institutions who mostly read
one another’s work.

A wide variety of these issues have been addressed in the philosophical literature of recent decades. A
concluding task for this review is to discuss how Rawls’s brief remarks on issues of “applied” political
philosophy, plus his philosophical methodology, did or could address these ignored questions. It is not
claimed that TJ’s methods would be successful in addressing them; debate in every area continues.

An early challenge to TJ had to do with international justice. Rawls imagined that the society in question
was “closed,” meaning that people enter only by birth and exit only by death, and the principles of
justice apply only within such societies and not beyond them. This seems to imply that Rawls has no
objection to staggering inequality across borders, or even colonial relations between states, just so long

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 as there is a liberal democracy within each state. (Rawls’s later foray into international justice – The Law
of Peoples – did not do much to allay these concerns, but opened new lines of criticism.) Moreover,
scholars of migration have wondered how he could be so ignorant of the perennial fact that people
cross borders, particularly given that the US is widely seen as a “nation of immigrants.”

Rawls would deny that his “closed” society assumption has to do with migration at all. Rather, it reflects
Rawls’s view of how the principles are to be chosen and justified. Those who don the Veil of Ignorance
must choose institutions they would be willing to live with, come what may. Suppose you were in the
Original Position and you thought, “If I come out on top, I’ll stay, but if not, I’ll leave.” You might then
take a gamble, creating a society with higher peaks and lower valleys. But worse, you would then be
choosing not for yourself but for others: for those left behind or unable to leave. Thus although it makes
it difficult to discuss justice in the context of migration and bordering practices, Rawls’s “closed society”
assumption was an attempt to ensure that principles of justice are self-imposed and hence freely
affirmed by each of us, and that we choose only something that we can live with. As for international or
global justice, many commentators have argued that – notwithstanding what Rawls himself says in TJ or
later in Law of Peoples – his methodology does justify a considerably more robust system of global
justice (e.g. Beitz). However, Rawls remained concerned to enable moral, political, and cultural diversity,
and worried that a uniform global basic structure would require a degree of socioeconomic and political
integration that would violate the equal basic liberties and fair equality of opportunity principles. He
thus endorsed a “global Society of Peoples” instead of affirming a uniform political and economic system
subject to the principles of justice.

Similarly, early critics such as Jane English raised the problem of intergenerational justice and the global
environment. To address this question Rawls prescribes that the Veil of Ignorance hide from us which
generation we are born into and how wealthy our society is. He thinks we would choose a “Just Savings”
principle requiring that each generation play its part in the multi-generational enterprise of achieving
and maintaining just institutions. In later work, Rawls revised this in line with English’s suggestion, so
that we would know our generation but choose a principle that we would want all previous generations
to have followed. It is unclear whether either formulation of the just savings principle could achieve the
unanimity across generations that Rawls’s method seems to require in order to produce determinate
results. Nor does either method enfranchise animals or the natural environment, thus ensuring that
Rawls’s system remains anthropocentric. In addition to environmental challenges that arise due to the
Earth’s finitude, other environmental challenges arise due to the Earth’s inevitable unpredictability:
earthquakes, disasters, pandemics, and so on. In the Original Position we should know that such
disasters are an inevitable part of life on Earth, and we would presumably demand that just institutions
be structured for ethical disaster preparedness, mitigation, and burden-sharing. It is not clear, however,
where if at all such a principle fits within Rawls’s two principles.

Gender, Race, and Colonialism

One jarring feature of Rawls’s discussion of intergenerational justice is that he frames it in terms of what
fathers owe to sons and what people in the Original Position would choose if they imagined themselves
as fathers. Further, in addressing the problem of just savings he recognizes that justice is a
multigenerational enterprise, but he never considers what those who enjoy more-just institutions owe
to the descendants of those who, in the past, were treated unjustly. These two gaps open out to major
questions about gender justice and racial justice both within and across generations.

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 Numerous scholars, most famously Susan Moller Okin, have argued that, try as we might, it will be
impossible to repair Rawls’s methodology to address justice between genders or within the family. One
way of seeing the problem is by noting that households have different numbers of people in them; some
adults live alone, others live in households of one or more other wage-earners and multiple children and
retirees, and so on. Is the degree of social inequality, then, to be measured across households, or across
individuals? Suppose distributive justice allows a maximum wealth difference of 5:1 between the richest
and the poorest individuals. But then, two rich people marry and found a family. Suddenly the rich
household has 10 times the wealth of the poorest individual. So the whole system is put off. But if the
permissible wealth differentials are between households, now the principles have nothing to say about
justice between spouses. Similar problems arise when we think of justice between overlapping
generations. So far, at least in modern societies, humans do not seem to have invented a social unit,
other than the family, in which children can be reared with the love and attention they need. Yet if in a
just society the social mores and habits inculcated in better-off households enhance their children’s
competitive chances in the economy going forward, the sorting required for fair equality of opportunity
will be hindered, and class status will be heritable (74). The family is thus both required for justice, and
corrosive of it.

Now imagine a society that meets the standards of Rawlsian justice in the abstract, but women are
disproportionately at the low end while men are disproportionately at the high end of the distributive
scheme; or racial minorities disproportionately low and white people disproportionately high. Has
anything gone wrong, by the lights of Rawls’s two principles? Further, suppose that one reason for these
unequal outcomes is that young women or minorities in the education system tend to believe that they
are not “cut out for” the most lucrative or powerful sectors, and hence form preferences to pursue
lower-status and lower-paying positions, leading to a sorting that seems both unjust and yet perfectly
voluntary. Again: are Rawls’s two principles any help here?

Rawls suggests that, once out from under the Veil of Ignorance, we should be able to take any salient
social identity and check it for these kinds of systematic biases, and continually refine the “precepts of
justice” within the society in order to achieve and maintain background justice (307). But it will be a
challenge to fix these problems; liberal principles have a hard time addressing ‘unofficial’ social mores,
behavior patterns, and sedimented gender roles – all the more so if we have not worked out the
intrafamilial justice issues mentioned above. Even deeper problems arise in the context of historic
injustices such as colonialism, slavery, segregation, and the legacy of periodic flareups of intercommunal
terrorism used to keep these systems in place. If property rights or social capital are in any way
heritable, shouldn’t descendants of victims now be compensated by descendants of perpetrators? Could
a principle of intergenerational justice include a requirement to make whole, in some way, the past
victims of the unjust practices of the present state? And even more fundamentally: if we live in a settler-
colonial state, who should be choosing principles of justice for us – the wrongfully displaced indigenous
peoples and their descendants, the colonizers and their descendants, or all together? Whichever answer
we give here, we seem to be choosing a side in a debate that is itself about justice, and so the theory of
justice presupposes prior principles of just territorial control or what it is for us all to be one people.

Other Applied Issues

Many people, philosophers and others, find Rawls’s basic methodology compelling, and agree that his
principles articulate, if not fully sufficient conditions of justice, at least good shorthand starting points.
Consequently, the Original Position model with a Veil of Ignorance has become a very familiar and

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 popular method of posing questions and framing theories in virtually every social context where
benefits and burdens are distributed, including health and health care (Daniels), the workplace (Arnold),
environmental justice (Bell), and racial justice (Shelby). Though the direct impact of Theory of Justice
may have waned, its indirect impacts continue to expand.

Questions for Self-Review

1. Rawls calls his view “justice as fairness” because it is the product of free choice in a fair choice
situation. What makes the choice situation “fair”?
2. Rawls prioritizes the “equal basic liberties,” emphasizing the plural (a whole system of liberties
rather than any single liberty). If you think your basic rights are important, is the priority of
liberties sufficient to protect basic rights? What would be different if Rawls had made basic
rights primary instead?
3. Rawls remarked that his principles of justice can be said to capture the classic liberal ideals of
liberty, equality, and fraternity, with the Difference Principle specifically connecting to the ideal
of fraternity. How do the principles capture these ideals?
4. Cardiologists – heart doctors – have the highest median pay of any career in the United States.
Do they deserve their high pay? How would Rawls assess this question?
5. Choose some area of contemporary struggle over social justice. How might Rawls’s methodology
be applied to this question?

Works Cited & Supplemental Reading

Arnold, Samuel. “The Difference Principle at Work.” Journal of Political Philosophy 20 #1 (2012), 94-118.

Beitz, Charles. Political Theory and International Relations, 2nd ed. Princeton: Princeton University Press,
1999.

Bell, Derek. “Environmental Justice and Rawls’s Difference Principle.” Environmental Ethics 26 #3 (2004),
287-306.

Daniels, Norman. Just Health. New York: Cambridge University Press, 2007.

English, Jane. “Justice Between Generations.” Philosophical Studies 31 #1 (1977), 91-104.

Mills, Charles W. Black Rights/White Wrongs. New York: Oxford University Press, 2017.

Okin, Susan Moller. Justice, Gender, and the Family. New York: Basic Books, 1991.

Rawls, John. Justice as Fairness: A Restatement, ed. Erin Kelly. Cambridge, Mass: Belknap Press/Harvard
University Press, 2001.

Rawls, John. The Law of Peoples. Cambridge, Mass: Harvard University Press, 1999.

Shelby, Tommie. Dark Ghettos: Injustice, Dissent, and Reform. Cambridge, Mass: Belknap Press/Harvard
University Press, 2018.

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