John Rawls published A Theory of Justice in 1971. At that time no moral problem was more widely discussed than preferential affirmative action. (See The Affirmative Action Debate, Second Edition, ed. Steven M. Cahn, Routledge, 2002). Yet the vast literature to which Rawls’s book gave rise included little, if any, discussion of how the magnum opus authored by the outstanding political philosopher of his time related to the leading political controversy of the day. No wonder those who teach Rawls’s book are unlikely to connect the two.
Granted, at the outset, Rawls explicitly denies that he will discuss “questions of compensatory justice and of weighing one form of institutional injustice against another.” He puts these matters aside on the grounds that they are not part of ideal theory but only “the things that we are faced with in everyday life,” best understood through developing an analysis of the basic structure of society.
This explanation, however, is belied by the work’s main claim: the two principles of justice. Consider the final statement of the second principle: “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.” Over the years this two-part principle has been analyzed extensively, but invariably the discussion focuses on part (a) rather than part (b).
Yet what is meant by “fair equality of opportunity”? Recall the words of President Lyndon B. Johnson in his 1965 commencement address at Howard University,
“You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You’re free to compete with all the others,’ and still justly believe that you have been completely fair.
Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates…
We seek not… just equality as a right and a theory but equality as a fact and equality as a result.”
This speech was delivered while Rawls was writing A Theory of Justice.
Did he agree with President Johnson? Does fair equality of opportunity require equality as a fact and equality as a result?
Consider seats on the United States Supreme Court. They are almost invariably filled by those who attended the most prestigious law schools. Does fair equality of opportunity require those institutions to pay attention in their admissions policies to the criteria of race, gender, and ethnicity? Or does doing so violate fair equality of opportunity?
Furthermore, admission to leading law schools depends in part on which college an applicant attends. Someone who excels at Harvard College is more likely to be admitted to its law school than a honors graduate of Podunk University. Hence the question of affirmative action again arises: Does fair equality of opportunity require colleges to take account of race, gender, and ethnicity in deciding whom to admit? Or does doing so violate fair equality of opportunity?
A Theory of Justice offers no answers to these critical questions. We learn only that a fundamental principle of justice requires attaching social and economic inequalities to offices and positions open to all under conditions of fair equality of opportunity. What are these conditions? Do they require preferential affirmative action or are they inconsistent with it? We are not told.
Why did Rawls offer no guidance on the matter? Perhaps we shall never know, but whatever his position may have been, stating it explicitly would have put him at odds with some supporters of his theory of justice. Thus the safest course was to say nothing, assuming commentators would focus their attention on condition (a), the “difference principle,” rather than condition (b), fair equality of opportunity. Such has been the case.
Perhaps those who teach Rawls’s two principles of justice should break with past practice and attend to what is meant by fair equality of opportunity. Doing so would reveal the little noticed connection between a celebrated philosophical work written five decades ago and a controversial social policy that has continued to be contested over the very same period.
Steven M. Cahn
Steven M. Cahn is Professor Emeritus of Philosophy at the Graduate Center of the City University of New York. The most recent books he has authored are Religion Within Reason (Columbia University Press, 2017); Teaching Philosophy: A Guide (Routledge, 2018); Inside Academia: Professors, Politics, and Policies (Rutgers University Press, 2019); The Road Traveled and Other Essays (Wipf and Stock Publishers, 2019); Philosophical Adventures (Broadview Press, 2019); A Philosopher’s Journey: Essays from Six Decades (Wipf and Stock Publishers, 2020), and Navigating Academic Life (Routledge, 2021).
Excellent article, Dr. Cahn. I’m a Rawls fan, studied under Rawls scholar David Reidy at UT, and always understood the Equal Opportunity portion of his 2nd Principle of Justice to entail not only formal equality of opportunity (the ability to compete for positions in the public and private sector free from discrimination), but also guaranteed access to adequate healthcare, nutrition, education and even shelter. The reason — a sick person unable to afford medical care can hardly compete with others on equal footing. The same for a homeless person, someone lacking a quality education, etc. Rawls wrote so much, I’d be reluctant to agree that he never specified any of this explicitly. But even if he didn’t, surely it follows from a serious commitment to equality of opportunity, and is consistent with what we’d expect Original Position Agents behind the Veil of Ignorance to demand. What are your own thoughts on what substantive equality of opportunity would require? Also, “equity” is a popular buzzword being used in lieu of equality these days. Any thoughts on the differences between the two, and whether JR would have endorsed the apparent growing interest in equity over equality?
If fair equality of opportunity entails “guaranteed access to adequate healthcare, nutrition, education, and even shelter,” why didn’t Rawls say so? In any case, does fair equality of opportunity call for preferential affirmative action? You don’t offer an opinion; neither did Rawls. You ask for my thoughts on what fair equality of opportunity requires. The term, however, is not mine, and I don’t even know why the principle calls for “fair equality of opportunity” rather than “equality of opportunity.” What work is being done by the term “fair”? Your understanding of Rawls may be what he intended, but I don’t find sufficient evidence to decide.
Perhaps Rawls was being strategically low key so his arguments would be more palatable, confident we’d infer the requirements of equal opportunity. And maybe “fair” just meant substantive rather than formal, meaning nondiscrimination laws alone wouldn’t be enough, which seems obvious. Any thoughts of your own on equal opportunity and/or increased usage of “equity”? If not, no worries. You’ve been thinking about the former, so thought I’d invite your view.
I find plausible your hypothesis that Rawls sought to make his views “more palatable” by not explaining the requirements of equal opportunity. And perhaps “fair” suggests the need for preferential affirmative action, but the matter is not “obvious.” As to my own thoughts, please see my essay “Rethinking Affirmative Action” in the recently published collection Academic Ethics Today: Problems, Policies, and Prospects for University Life, ed. Steven M. Cahn, Rowman & Littlefield, 2022, 105-110.