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retrieving rawls
for racial justice?
ACritique of Tommie
Shelby
charles w. mills
Northwestern University
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The intellectual chasm between the worlds of the black American freedom
struggle for justice and the white American academic philosophical communitys discussions of justice is nowhere more clearly illustrated than in
the centrality of racial justice as a theme to the former and its virtually
complete absence from the latter. John Rawlss 1971 A Theory of Justice is
generally credited with the revival of Anglo-American political philosophy,
taking it from its postwar mid-twentieth-century deathbed to its present
standing as one of the healthiest and most vibrant branches of the discipline.7 Translated (as of 2007) into more than thirty languages,8 Theory
shifted the traditional focus of political philosophy from the question of our
obligation to obey the state to the question of the justice of a societys basic
structure. A vast literature has been generated around Rawlss work, his
importance being recognized even by those who sharply disagree with the
design of his apparatus and its prescriptions. For Samuel Freeman, Rawls
is a world-historical thinker, the preeminent theorist of justice in the
modern era, the foremost political philosopher of the twentieth century,
and ... one of the great political philosophers of all time, who wrote more
on the subject of justice than any other major philosopher.9
But as I have pointed out elsewhere,10 this body of work, extensive and
world-historical as it may be, does not extend to the subject of racial justice,
despite the fact that Rawls was a citizen of the Western democracy most
centrally structured by racial injustice, a white-supremacist state founded
on Amerindian expropriation and genocide, and African slavery and subsequent Jim Crow.11 Nor has there been much attempt in the secondary
literature to develop a Rawlsian perspective on racial justice comparable
to what feminist political theorists have been doing for the past quarter
century for gender justice.12 (I should clarify that by racial justice I mean
primarily not preemptive measures to prevent racial injustice but corrective measures to rectify injustices that have already occurred. That is the
important question: how could such policies as affirmative action, preferential treatment, and, more radically, reparations, be articulated and
justifiedif they canwithin Rawlss apparatus, had he chosen to make
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Moreover, for the most part they do not actually try to mobilize the apparatus
itself to tackle racial justice as a theme, but rather select particular concepts
in Rawls for more limited and local purposes. For example, the Thomas
essay cited above looks at Rawlsian self-respect and the black-consciousness
movement, though it critiques Rawls for confusing self-esteem with selfrespect.22 An essay by Michele Moody-Adams (herself a former Rawls student) examines race, class, and the social construction of self-respect.23
However, neither of these philosophers has made race a central concern
of their writing, nor do they regard the African American philosopher
identity as particularly significant for their own work.24 More pertinent for
our purposes, then, are the two prominent black analytic normative philosophers who do, and who have worked on race throughout their career,
Bernard Boxill and Howard McGary. Their similarly titled books are Blacks
and Social Justice and Race and Social Justice.25 Boxills most extensive discussion of Rawls centers on his claims about the efficacy of civil disobedience,
though Boxill is also critical of Rawlss treatment of international justice,
and what he sees as his unwarranted belief that a feeling of inferiority
always diminishes overall satisfaction.26 So he is not adopting Rawlss
apparatus himself in his prescriptions for racial justice. McGary has brief,
scattered discussions of Rawlsian ideas and their relevance to racial injustice throughout his bookfor example, on the relation between injustice
and self-respect, on the black underclass, on African American exclusion
from social institutions, and in a comparison of Cornel Wests and Rawlss
strategies for arriving at principles of social justice.27 The discussion most
important for us concludes, in a chapter on reparations, that Rawls does
not go far enough in his deontological thinking, and that (what McGary
sees as) Rawlss unacknowledged teleologism would rule out certain kinds
of programs for rectificatory justice, thereby providing an inadequate
basis for remedying racial social oppression.28 So neither author judges a
Rawlsian framework to be helpful.
II
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institutional base for more than thirty years. My focus will be on Shelbys
2004 article in the Fordham Law Reviews special issue on Rawls.29
But first a brief summary of the Rawls essentials.30 Rawls revived social
contract theory in the form of a hypothetical thought-experiment, in which
you choose principles of justice not on moral but prudential grounds, with
crucial aspects of your identity and the society you will be entering being
hidden from you by a veil of ignorance. So this choice in the original position, through the combination of self-interest and stipulated ignorance, is
supposed to produce an equivalent to a moral choice, as you may turn out,
once the veil lifts, to be one of the subpopulations negatively affected by
unjust principles. Rawls emphasizes that we are choosing principles for
a well-ordered, that is, perfectly just, society, since in his view ideal normative theory (dealing with perfect justice) is the only adequate theoretical foundation for properly doing non-ideal normative theory (addressing
injustice). He argues that we would choose two principles, a guarantee of
basic liberties (BL), lexically prior to a second principle in which fair equality of opportunity (FEO), the correction for being born into a disadvantaged
social group by the social lottery, is itself lexically prior to the difference
principle (DP), that permits social inequalities only if they better the condition of the worst-off social group, who are handicapped by a thin bundle
of talents inherited in the natural lottery. In sum: BL (FEO DP). In
his later work, post-Theory, he argued that given a plurality of reasonable
views in modern democratic societies, liberalism cannot be imposed as a
comprehensive, self-contained and self-sufficient ethico-metaphysical
doctrine, so that a more minimal, freestanding political liberalism that
does not rely on such foundations is all that can be required of citizens.
Let us now turn to Shelbys article Race and Social Justice: Rawlsian
Considerations. Appearing in a section on race and ethnicity of the
Fordham Law Review special issue on Rawls, it is part of the most extensive
discussion I know in the secondary literature about the nondiscussion of
race in the secondary literature. Shelby was one of four contributors, the
others being Seana Shiffrin, Anita Allen, and Sheila Foster. Part of Shelbys
concern in this article is to defend Rawls against Shiffrins charge that antiracial-discrimination provisions should have been incorporated directly
into the principles of justice.31 I am sympathetic to Shiffrins critique, but
will not get into this matter here, since my primary concern, as noted at the
start, is corrective racial justice, which is the really interesting issue, rather
than preventive antiracist measures.
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Shelby continues:
While I am not sure what set of institutional reforms would be
required to realize the principle of fair equality of opportunity in the
United States, it seems clear that it would require, at a minimum,
considerable redistribution of wealth, the expansion of educational
and employment opportunities and aggressive measures to address
discrimination in employment, housing, and lending. My main point
here, though, is that a basic structure that provided fair equality of
opportunity for all citizens regardless of race would remove many of
the socioeconomic burdens that racial minorities presently shoulder
because of the history of racial injustice.... In this way, the fair equality of opportunity principle addresses one of the most urgent concerns
of members of the least favored races, namely, to insure that their
life prospects are not unfairly diminished by the economic inequalities that have been created by a history of racism. Were this principle
institutionally realized and widely recognized, it might also have the
effect of sharply reducing the resentment for past racial injustice that
some members of disadvantaged racial groups harbor, maybe even
leading them to reconsider their insistence on claims to reparations.34
In sum, structural criticisms of the Rawlsian apparatus are unjustified,
since though it is true that Rawls had little to say about racial justiceeven
less than he had to say about gender justicethe apparatus can be turned
to this end without any problems.
So it is in this way that a Rawlsian path to racial justice can be mapped.
But I disagree, and I now want to raise five objections to this line of
argument.
Rawlss Non-Endorsement
To begin with the most obvious objection to Shelbys proposed reconstruction of a Rawlsian reply, the most glaring problem is that Rawls himself did
not make use of it in contexts where it would have been natural for him to do so.
We are not dealing here with an obscure issue that understandably never
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surfaced within Rawlss discursive universe in the thirty years between the
publication of A Theory of Justice and Rawlss death, or did so only as a
minor, low-priority matter. As mentioned earlier, racial injustice and the
white-supremacist constitution of the actual basic structure has been
more salient in the United States than in any other of the Western democracies. Moreover, race and racism were on Rawlss radar from the start in
Theory in a way that gender and sexism were not. Though neither racial
nor gender identity are included as things you do not know about yourself
behind the veil in this first formulation of his theory,35 Rawls does explicitly
condemn racism. Thus he states, We are confident that religious intolerance and racial discrimination are unjust, says that no one behind the veil
would put forward the principle that basic rights should depend on the
color of ones skin or the texture of ones hair, and asserts:
From the standpoint of persons similarly situated in an initial situation which is fair, the principles of explicit racist doctrines are not
only unjust. They are irrational. For this reason we could say that they
are not moral conceptions at all, but simply means of suppression.36
So the point is that Rawls is aware from the beginning that racism is
an important issue. In addition, in his introduction to the cloth edition of
Political Liberalism, more than twenty years later, he admits that Theory does
not deal with race, and writes: Among our most basic problems are those
of race, ethnicity, and gender. These may seem of an altogether different
character calling for different principles of justice, which Theory does not
discuss.37 So his first book condemns racism and his second book concedes that, despite his condemnation, the remedying of racism was not
discussed in it.
The obvious question then is, how are we supposed to read this passage? I suggest that there are three main possibilities. Rawls believed that
(a) despite appearances, the principles of justice formulated in Theory can
indeed be used to deal directly with race; or (b) the seeming is correct, and
altogether different principles of justice are required to deal with race; or
(c) although different principles of justice are required to deal with race,
they are not altogether different, since they can (somehow) be derived
from ideal-theory principles. Shelbys use of FEO commits him to endorsing (a), whereas I think Rawls (rightly or wrongly) actually believed (c).38 But
if the first interpretation were correct, surely the natural thing for Rawls to
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have done at this point would have been to continue (as I just said in [a]),
However, this appearance is misleading, because ... He does not do this,
despite the fact that he is reporting a response to the book that obviously
troubles him. If Shelby is right, and all that is needed is the extrapolation
of FEO to take race into account, why does Rawls himself not just say so?
It is hardly plausible to hypothesize that this obvious move, were it implicit
in his theory, did not occur to him. The far more plausible interpretation is
that for him, FEO could not be applied in this way.
Further evidence for this reading can be found in Rawlss concession,
in his introduction to the 1996 paperback edition of Political Liberalism,
that changes over time in the content of public reason are necessary:
Social changes over generations also give rise to new groups with
different political problems. Views raising new questions related to
ethnicity, gender, and race are obvious examples, and the political conceptions that result from these views will debate the current conceptions
[my emphases].39
Again, the natural reading is that race and ethnicity do indeed raise new
and different political and normative questions, which is why they are to be
contrasted to and seen as in contestation with the current conceptions. If
Shelby were right, this would have been the obvious place for Rawls to say
that in fact the principles he outlined a quarter century earlier could readily
be extrapolated to handle these questions, so that the newness was only
a matter of the particular groups now being included in the scope of the
principles, not the content of the conceptions themselves. But he does not
say this; he leaves the issue hanging and moves on.
Finally, the clincher, I would claim, is that in Justice as Fairness,40 his
last book, where Rawls is trying to produce the definitive summary of the
essentials of his view, he returns again to the issue of race and gender.
We have seen that the two principles of justice apply to citizens as
identified by their indexes of primary goods. It is natural to ask: Why
are distinctions of race and gender not explicitly included among
the three contingencies noted earlier (16)? [In this earlier section,
Rawls had listed three kinds of contingencies that affect inequalities in citizens life-prospects: social class, native endowments and
opportunities to develop them, good or ill fortune.]. . . . The answer
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is that we are mainly concerned with ideal theory: the account of the
well-ordered society of justice as fairness.41
Note what he does not say. He does not say that although race and gender
are not explicitly included among these contingencies, it would be easy
enough to add them, and then work out how the two principles of justice
(including FEO) would then apply to citizens disadvantaged by race and/
or gender. Instead he asserts explicitly that this exclusion is a principled (not
merely contingent) one, arising out of the fact that the two principles are
principles of ideal theory for a well-ordered society, while race and gender
problems fall under the different category of non-ideal theory. He does not
say it is just a matter of applying FEO, as Shelby thinks. Instead, he suggests tentatively that what would be required is a special form of the difference principle.42 So this is in direct contradiction of Shelbys claim.
In sum, insofar as Shelby is supposed to be giving us a sympathetic
reconstruction of how Rawls would develop his principles to deal with
racial injustice, he would obviously have to explain (a) why his reconstruction runs directly opposite to what Rawls himself says, to the limited extent
that he does make positive recommendations (that is, he endorses a modified DP rather than FEO); and (b) why Rawls himself is so tentative and
hesitant in the more frequent textual locations where he raises the problem
but gives no positive recommendation, when according to Shelby it would
just be a simple and straightforward matter of extending FEO to include
race.43
So what explains Rawlss tentativeness, and why does Shelby not appreciate its significance? My suggestion is that though Shelby does mention the
ideal theory/non-ideal theory distinction, he does not really attribute that
much weight to it. He believes either that non-ideal theory just involves
populating the terms of ideal theory with different variables, or that you can
preempt the need for non-ideal theory altogether by appropriately extrapolating ideal theory. In my opinion, both of these judgments are wrong
and Shelbyto use old-fashioned Rylean languageis guilty of a category
mistake.44 As Thomas Nagel points out, affirmative action, that policy of
racial justice actually implemented in the United States, is probably best
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about slavery and Jim Crow to reconstitute public memory.55 None of these
issues is addressed by FEO redistribution, which is unsurprising, since it
is not a principle motivated by and constructed for dealing with this kind of
problem in the first place. I would suggest that Rawlss reluctance to follow
the path Shelby reconstructs for him arises precisely out of his recognition
of this non-identity. If FEO, a principle of ideal theory, could be turned
into a principle of non-ideal theory simply by substituting race and gender
as the pertinent variables in the place of the ones Rawls himself acknowledged, then Rawls would not have justified his nontreatment of race and
gender by the fact of their falling under non-ideal theory in the first place.
Let me now raise some further problems for Shelbys assumption that,
despite these moves of his, he is still within the parameters of Rawlsianism
as standardly understood. Rawlss principles of justice for a well-ordered
society are not conjunctively linked in any arbitrary order (P1.P2.P3 or
P2.P3.P1) but lexically ordered: BL (FEO DP). One cannot extract one
element as if it were a discrete module and apply it to a situation and still
claim to be performing a Rawlsian exercise; the relationship of the three is
crucial. So we need to know how Shelbys proposed use of FEO is related
to the other principles, especially since Shelby is not just extending FEO to
educational opportunity but to wealth also (considerable redistribution of
wealth).
In standard interpretations of Rawls, the point of FEO is to guarantee
as far as possible in a well-ordered society (modulo the inevitable privileging by the nuclear family of children of the better-off) equal chances for the
equally talented, and not have smart working-class kids lose out in market
competition because their class background deprives them, for example, of
equal opportunities of education.... The school system, whether public
or private, should be designed to even out class barriers.56 But in the actual
ill-ordered society that is the United States, such equalizationdesirable
as it would bewould not be sufficient to equalize life chances across the
racial divide, because even if poor black kids got the chance to go to better
schools, they would still be hugely handicapped by the fact of wealth disparities between white and black households. Ever since the 1995 publication of Melvin Oliver and Thomas Shapiros Black Wealth/White Wealth,57
differences in wealth have been recognized as central to the perpetuation
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The marshaling of the evidence necessary to make Shelbys case also runs
into difficulties. We want these measures of racial justice, radical as they
may seem, to be endorsed by whites and not forced on them by black threats.
So appeal to the kind of considerations acceptable to Rawlsian public reason becomes crucial: factual claims and social-scientific analyses about the
history of white domination in the United States and the various ways in
which its legacy continues to manifest itself in the present. In the original
choice of Rawlss two principles of justice, the choosers behind the veil
were limited to general facts about human society.64 Now, in the legislative stage of what Rawls calls the four-stage sequence, they are permitted
knowledge of general facts about their society that inform the enactment
of just laws and policies,65 and it is here (on this reading of Rawls) that the
case for aggressive use of FEO would be made. But such factual claims and
social-scientific theoretical analyses are going to be subject to the Rawlsian
stipulation that they fall under the category of the presently accepted facts
of social theory, the methods and conclusions of science when not controversial.66 And if we know anything about the history of race in the United
States we know that such matters are going to be hugely controversial.
At every step of the way, from postbellum Reconstruction in the 1860s
70s to the 1950s60s period of civil rights legislation dubbed by some the
Second Reconstruction, whites have opposed measures of racial progress
and racial justice, a consistent zigzag pattern of advances against massive
resistance followed by later retreat that has been documented in such books
as Philip Klinkner and Rogers Smiths The Unsteady March: The Rise and
Decline of Racial Equality in America.67 As early as the period immediately
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after emancipation, arguments were already being made that the freedmen
needed to stand on their own feet and not be coddled by the state. And
today, of course, color-blindness is the hegemonic view among the white
majority, who believe that the legacy of racism has long since been largely
overcomeand that, if anything, it is whites who are more likely to be the
victims of discrimination.68 Divisions on race-related matters, whether specific events or public policy, have produced some of the largest public opinion gaps in recent decades, from the O. J. Simpson acquittal to the Katrina
social disaster. As Donald Kinder and Lynn Sanders concluded years ago
in their classic Divided by Color, race creates divisions more notable than
any other in American life: Political differences such as these are simply
without peer: differences by class or gender or religion or any other social
characteristic are diminutive by comparison.69
The point is, then, that were Shelby to accede to the Rawlsian stipulation to leave controversy at the door, he would immediately be depriving
himself of the weapons he needs to win his case. The data about the white/black
wealth gap, huge differentials in incarceration rates, continuing employment discrimination, etc., can alleven when not challenged outrightbe
given alternative explanations than the ones Shelby (and I) would favor.
These dramatic divisions obtain not merely at the layperson level but at the
level of academic theory. As Thomas McCarthy writes:
Neoconservative theorists treat underclass values, attitudes, behavior, and the like as independent variables and make them the causes
of the social, economic, and political inequities afflicting its members. Extreme residential segregation, failed schools, dire poverty,
chronic unemployment, and the breakdown of the black family are
thereby regarded as effects of irresponsible behavior rather than its
causes or as both its causes and effects. Accordingly, the remedy proposed is self-improvement rather than institutional change or than
some combination of both. Institutional racism, on this view, is a
thing of the past.70
If Shelby is claiming to be relying on an unmodified Rawls, he cannot use left-wing social-scientific materials, since they violate Rawlsian
norms. Even armed with such theoretical analyses, of course, the left have
already lost the battle with the right, as shown by the neo-liberal shift of
recent decades. But without them, they would be helpless even to put
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notes
1. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
Iwould like to thank the three anonymous referees of this essay for their thoughtful and thorough engagement with my argument. I have made various changes in
the original draft in response to their comments, which have undoubtedly turned it
into a better paper than it would otherwise have been. In the pertinent notes below,
I explain why, though I took his criticisms seriously, I did not, after reflecting on
them, act on all the suggestions of one particular referee.
2. Elizabeth Anderson, The Imperative of Integration (Princeton, NJ: Princeton
University Press, 2010). See esp. 37, on the significance for her of racial justice
being a matter of nonideal theory. She gives three reasons there for rejecting ideal
theory and Rawlsianism: (a) principles must be tailored to the motivational and
cognitive capacities of human beings; (b) ideal theory, founded on inadequate
empirical assumptions, occludes crucial distinctions and the possibly new ideals that might be required by altered conceptual maps; and (c) ideal theory may
be epistemologically disabling, for example because the representative cognitive positions of an ideal society will be raceless, thus justifying color blindness,
whereas our own society requires sensitivity to race-based injustices.
3. See chs. 3, 4, and 8 of my book with Carole Pateman, Contract and Domination
(Malden, MA: Polity, 2007). My claim there is that we need to run a different
thought-experiment custom-designed for generating principles of non-ideal theory
rather than trying to turn principles of ideal theory to the remedying of non-ideal
problems.
4. Tommie Shelby, Race and Social Justice: Rawlsian Considerations, Fordham Law
Review 72, no. 5 (2004): Symposium: Rawls and the Law: 16971714.
5. As for Andersons objections: my belief is that the problems she identifies can be
addressed by my revision of the orthodox thought-experiment, but for reasons of
space I will not pursue this here. It is possible that Anderson might be sympathetic
to my modifications, but view them as so transforming the Rawlsian apparatus that
it ceases to be Rawlsian, even in a scare-quotes sense, so that in effect my own position should be categorized as rejecting Rawls.
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6. One referee, though not the other two, found this opening section of the paper
(the paucity of attention to the issue of racism in mainstream [Rawlsian] political
philosophy) quite misplaced. His argument is that since principles for rectification of injustice both depend on an already worked out theory of justice and, second,
are part of a different set of principles that have to be fine tuned to particular societies and hence at a different level of abstraction from the principles contained in
justice as fairness, I would have to show that inattention to (non-ideal) conditions of racism in society distorts the principles produced by the theory for such
inattention to be criticized as problematic. Otherwiseif the (ideal-theory) principles are merely incomplete rather than defectivemy critique is unjustified. But
my response would be that the only way we can find out whether the ideal-theory
principles can indeed guide us in constructing the pertinent non-ideal-theory principles (for rectificatory racial justice) is for this to be demonstrated, and the point
of the opening section is to document how little effort has been made in the profession to do so. Surely forty years is long enoughespecially in a society to whose
creation racism has been centralfor there to be a significant body of work by
now showing how one derives principles of rectificatory racial justice (apressing
and urgent matter [Rawls, Theory, 9 ] if ever there was one) from the ideal-theory
principles! That was, after all, Rawlss own rationale for prioritizing ideal theory in
the first place, that in no other way can a deeper understanding of non-ideal
questions like compensatory justice be gained (Rawls, Theory, 9). So I dont see
this opening section as begging the question, as the referee asserts (a non-starter
as an argument, in his opinion, since I have not proven that Rawlss principles
cannot be so applied). All I am trying to show at this stage is that they have not (for
the most part) been so applied, that this (almost complete) silence is a problem,
andas with the parallel feminist claimthat the natural explanation is the professions dominant demography.
7. Rawls, Theory of Justice.
8. Samuel Freeman, Rawls (New York: Routledge, 2007), x.
9. Ibid., xvi, xvii, x.
10. Charles W. Mills, Rawls on Race/Race in Rawls, in Race, Racism, and Liberalism
in the Twenty-First Century, ed. Bill E. Lawson, supplement, Southern Journal of
Philosophy 47 (2009): 16184.
11. Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of
Conquest (New York: W. W. Norton, 1975); George M. Fredrickson, White Supremacy:
A Comparative Study in American and South African History (New York: Oxford
University Press, 1981); Rogers M. Smith, Civic Ideals: Conflicting Visions of
Citizenship in US History (New Haven, CT: Yale University Press, 1997); Anthony
Marx, Making Race and Nation: A Comparison of the United States, South Africa, and
Brazil (New York: Cambridge University Press, 1998).
12. See Ruth Abbey, ed., Feminist Interpretations of John Rawls (University Park, PA:
Pennsylvania State University Press, forthcoming), both for the collected essays and
for Abbeys very useful chronological overview of the feminist literature on Rawls.
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13. Norman Daniels, ed., Reading Rawls: Critical Studies on Rawls A Theory of Justice,
rev. ed. (1975; repr. Stanford, CA: Stanford University Press, 1989); H. Gene Blocker
and Elizabeth H. Smith, eds., John Rawlss Theory of Social Justice: An Introduction
(Athens: Ohio State University Press, 1980).
14. Henry Richardson and Paul Weithman, eds., The Philosophy of Rawls: A Collection
of Essays, 5 vols. (New York: Garland, 1999). My thanks to Anthony Laden for this
piece of information.
15. Samuel Freeman, ed., The Cambridge Companion to Rawls (New York: Cambridge
University Press, 2003).
16. Freeman, Rawls, 9091.
17. Jon Mandle, Rawlss A Theory of Justice: An Introduction (New York: Cambridge
University Press, 2009); Percy B. Lehning, John Rawls: An Introduction (New York:
Cambridge University Press, 2009) (orig. Dutch ed. 2006); Paul Voice, Rawls
Explained: From Fairness to Utopia (Chicago: Open Court, 2011); Frank Lovett,
Rawlss A Theory of Justice (New York: Continuum, 2011).
18. Sebastiano Maffettone, Rawls: An Introduction (Malden, MA: Polity, 2010), 79, 80,111.
19. Brooke Ackerley et al., Symposium: John Rawls and the Study of Justice: Legacies
of Inquiry, Perspectives on Politics 4 (2006): 75133.
20. L
eif Wenar, John Rawls, The Stanford Encyclopedia of Philosophy (Fall 2008
Edition).
21. Henry S. Richardson, John Rawls, Internet Encyclopedia of Philosophy.
22. L
aurence Thomas, Rawlsian Self-Respect and the Black Consciousness Movement
(1978), repr. in Richardson and Weithman, Philosophy of Rawls, vol. 3, Moral
Psychology and Community.
23. M
ichele M. Moody-Adams, Race, Class, and the Social Construction of SelfRespect, in African-American Perspectives and Philosophical Traditions, ed.
John Pittman, special issue, The Philosophical Forum 24, nos. 13 (Fall-Spring 1992
93): 25166.
24. S
ee their interviews with George Yancy in Yancy, ed., African-American Philosophers:
17 Conversations (New York: Routledge, 1998).
25. B
ernard R. Boxill, Blacks and Social Justice, rev. ed. (1984; repr. Lanham, MD:
Rowman & Littlefield, 1992); Howard McGary, Race and Social Justice (Malden, MA:
Blackwell, 1999).
26. B
oxill, Blacks and Social Justice, 21218, 21925, 99.
27. McGary, Race and Social Justice, 1314, 100, 70, 198, 123n6, 20813.
28. Ibid., 11922.
29. Shelby, Race and Social Justice. Shelby has another article where he claims
to be drawing on key Rawlsian ideas: Justice, Deviance, and the Dark Ghetto,
Philosophy and Public Affairs 35, no. 2 (2007): 12660. However, his primary aim
here is not to derive racial justice prescriptions from Rawls but to make a case for
what our appropriate moral perspective should be on the black ghetto poors deviant behavior and attitudes (crime, refusal to work in legitimate jobs, contempt for
authority). So though moral issues are involved, remediation of the injustice of the
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25 charles w. mills
basic structure is not the real theme. I would also claim, though I will not pursue
this here, that the central ideas he is using are not really distinctively Rawlsian, but
rather generic liberal concepts and principles.
30. S
ee: Rawls, Theory of Justice; John Rawls, Political Liberalism, exp. ed. (1993; repr.
New York: Columbia University Press, 1996); John Rawls, Justice as Fairness: A
Restatement, ed. Erin Kelly (Cambridge, MA: Harvard University Press, 2001).
31. Seana Valentine Shiffrin, Race, Labor, and the Fair Equality of Opportunity
Principle, Fordham Law Review 72, no. 5 (2004): 164396.
32. Shelby, Race and Social Justice, pp. 171011.
33. Ibid., 1711. The Rawls passage cited is from John Rawls, A Theory of Justice, rev. ed.
(Cambridge, MA: Harvard University Press, 1999), 63.
34. S
helby, Race and Social Justice, 171112.
35. They are not mentioned in the list on p. 12 of Theory, and not formally included
until a 1975 essay.
36. Rawls, Theory of Justice (1971), 19, 149.
37. J ohn Rawls, Political Liberalism (New York: Columbia University Press, 1993),
xxviii.
38. See, for example, Rawls, Theory of Justice (1971), 246.
39. Rawls, Political Liberalism (1996), liii.
40. Rawls, Justice as Fairness.
41. Ibid., 6465.
42. Ibid., 66.
43. The same referee cited in note 6, above, misread me here as imputing to Rawls a
hesitation about condemning racism, and also of insinuating, quite unfairly to
Rawls, that there is something unsaid or hidden in these passages. But this is a
misinterpretation. As I emphasize myself, Rawls condemns racism unequivocally
from the start. The point I was making, contra Shelby, was that if Rawls thought his
ideal-theory principles (here FEO) were the appropriate ones to use to deal with racial
injustice, he would just have said so. The fact that he didnt, and refers to a special
form of the DP instead, shows that he believed other principles were necessary (the
point the referee himself makes in the quote I cite from his review in note 6).
44. Thanks to Derrick Darby for reminding me of this phrase (though Darby himself
does not necessarily endorse my judgment here).
45. Thomas Nagel, Rawls and Liberalism, in Freeman, ed., Cambridge Companion to
Rawls, 84n3.
46. Freeman, Rawls, p. 90.
47. The Ethics of Aristotle: The Nicomachean Ethics, trans. J. A. K. Thomson, rev.
Hugh Tredennick (New York: Penguin Classics, 1976), book 5. However, Samuel
Fleischacker has argued that in Aristotle himself neither concept really corresponds to our own contemporary version, since the idea of entitlement to a certain
distribution merely by virtue of being human is a modern one, first put forward
by Babeuf: Samuel Fleischacker, A Short History of Distributive Justice (Cambridge,
MA: Harvard University Press, 2004).
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48. Rawls, Theory of Justice; John Rawls, The Law of Peoples, with The Idea of Public
Reason Revisited (Cambridge, MA: Harvard University Press, 1999).
49. At various points in his review, the same referee reminds me that racist discrimination violates FEO. I had not at all meant to deny that, but my focus, as made
clear at the start, is corrective racial justice (affirmative action, preferential treatment, etc.), not preemptive measures.
50. Rawls, Theory of Justice (1971), 24546, 351.
51. Thomas Nagel, John Rawls and Affirmative Action, Journal of Blacks in Higher
Education 39 (Spring 2003), 82.
52. See, for example: Charles W. Mills, Ideal Theory as Ideology, Hypatia 20, no.
3 (2005): 16584; Colin Farrelly, Justice in Ideal Theory: A Refutation, Political
Studies 55 (2007): 84464; Social Justice: Ideal Theory, Nonideal Circumstances,
ed. Ingrid Robeyns and Adam Swift, special issue, Social Theory and Practice 34,
no. 3 (2008); Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University
Press, 2009); Anderson, Imperative of Integration, 37; A. John Simmons, Ideal
and Nonideal Theory, Philosophy and Public Affairs 38, no. 1 (2010): 536.
53. Rawls, Justice as Fairness, 14, 21.
54. See Alfred L. Brophy, Reparations Pro & Con (New York: Oxford University Press,
2006); and Pablo de Greiff, Justice and Reparations, in Pablo de Greiff, ed., The
Handbook of Reparations (New York: Oxford University Press, 2006).
55. Thomas McCarthy, Vergangenheitsbewltigung in the USA: On the Politics of the
Memory of Slavery, part 1, Political Theory 30, no. 5 (2002): 62348; Thomas
McCarthy, Coming to Terms with Our Past: On the Morality and Politics of
Reparations for Slavery, part 2, Political Theory 32, no. 6 (2004): 75072.
56. Rawls, Theory of Justice (1971), 73.
57. Melvin L. Oliver and Thomas M. Shapiro, Black Wealth/White Wealth: A New
Perspective on Racial Inequality, 10th anniversary ed. (1995; repr. New York:
Routledge, 2006). See also Thomas M. Shapiro, The Hidden Cost of Being African
American (New York: Oxford University Press, 2004).
58. And in fact things have gotten worse since even the more recent, revised tenthanniversary edition of Oliver and Shapiros book was published in 2006. A 2011
online report states that the wealth differences between median white and black
households are now twenty to one, and eighteen to one for white and Latino households, the highest ratio since the government started to collect these data: Wealth
Gaps Rise to Record Highs Between Whites, Blacks, Hispanics: Twenty-to-One,
Pew Research Center online report, released July 26, 2011 (2009 figures). Since
these are 2009 figures, it is possible that they do not register the full impact of the
subprime meltdown, and that when those figures come in, the ratios may stand
even higher.
59. Robert Taylor, Rawlsian Affirmative Action, Ethics 119, no. 3 (2009): 476506.
See esp. 48790, where Taylor draws on the work of Christine Korsgaard to fill in
the gaps in Rawlss account of what non-ideal circumstances would permit.
60. Ibid., 48891, 485.
61. Ibid., 489.
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