Abstract: What does a just society look like? One that is virtuous and ethical? And for that matter, what does an ethical society even look like – a meritocracy, an authoritarian order, a communitarian one? How fine-grained do we need to get: should we stop at social policy? These are exactly the questions John Rawls spent much of his career trying to answer, across a series of works spanning over thirty years and leaving behind a monumental legacy. Without a shadow of a doubt, Rawls is the most influential liberal political philosopher of the twentieth century. He first laid out his central ideas in his 1971 magnum opus, A Theory of Justice, where he introduced the concept that would define his life's work: Justice as Fairness. As the name on the tin suggest, Justice as fairness implies that a just society inaugurates some level of fairness – specifically, on equal basic liberties for all, paired with social arrangements that permit inequalities only when they work to the benefit of society's least advantaged members. In this article, I outline the basics of Rawls’s model for a just society. I begin by explaining what Rawls means by ‘justice’. Next, I provide a brief exposition of the crucial aspects of his theory. Then, to assess the plausibility of the model Rawls provides for a just society, I examine feminist critiques from Hanshaw and Held that reveal acute issues with the theory. To see why this is problematic, the subsequent discussion shifts to the principles of justice that are chosen by the Rawlsian deliberator, where I argue that these principles are ill-equipped to combat injustice that arises from misrecognition. In light of these flaws, I claim that the Rawlsian framework as originally formulated cannot be entirely conducive to a just society.
Rawlsian Justice.
In A Theory of Justice, John Rawls (1971) outlines a liberal egalitarian conception of justice which he calls ‘justice as fairness’.[1] Rawls’s chief aim is to identify principles of justice aimed at guiding the basic terms of social cooperation within a liberal society. In this sense, Rawls’s ambition is modest; to define justice not as presupposing ‘accept[ance] [for] any particular comprehensive doctrine’ [2], rather, as principles that ‘free and rational persons concerned to further their own interest would accept in an initial position of equality’.[3] In other words, Rawls’s conception of justice does not rely on any contentious philosophical claims about the good but is defined in terms that citizens would assent to when thinking rationally and viewing themselves as free and equal persons willing to cooperate in fair circumstances. Indeed, this reveals Rawls’s broader intentions – to demonstrate a shared conception of justice that can be endorsed when suspending our judgements on what constitutes the good.
According to Rawls, his conception of justice is derived from values he identifies as implicit in democratic societies. They offer a foundation for formulating principles of justice which can be widely accepted by members of such societies to ‘regulate all further agreement’ through which ‘forms of government can be established’.[4] Justice as fairness is therefore a political conception of justice that explicitly concerns itself with the ‘basic structure’ of a well-ordered society.[5] To this end, Rawls’s theory is narrow in scope; it does not apply to evaluating the principles of justice of particular laws. Rather, its application is streamlined to the problem of justice that concerns the basic structure of society.
Original Position.
At the heart of the Rawlsian framework lies the ‘Original Position’ (‘OP’).[6] The precise import of the OP is to justify and rank Rawls’s preferred principles of justice. Rawls setup is straightforward. Imagine a hypothetical choice situation in which representatives of citizens (‘deliberators’) are stripped of their identity: knowledge about their social standing, natural endowments, gender etc. Deliberators thus reason about principles of justice that should apply to the basic structure of society behind a ‘Veil of Ignorance’ (‘VoI’).[7] The VoI demands the exclusion of information that would allow deliberators to tailor principles of justice to their own advantage, thus thwarting principles that are arbitrarily drawn to accrue unfair benefits. By cordoning off information of our specific biography, the VoI is a conceptual attempt to guarantee impartiality and mitigate bias. What remains available for deliberators is a ‘thin conception of the good’.[8] Which is to say, deliberators aren’t oblivious about everything; they are rationally self-interested and desire as much as possible what Rawls calls ‘social goods’.[9] Goods such as ‘rights, liberty, opportunities and income and wealth’.[10]
What this framework minimally implies, Rawls argues, is some commitment to material equality. After all, reasonable citizens would likely adopt a ‘conservative attitude’ and safeguard against the risks of being amongst the worst-off members of a society when the VoI is lifted.[11] Hence, Rawls stipulates ‘the maximin rule’ – the inference that reasonable citizens would support rules that prioritise the well-being of the most impoverished classes in society.[12] In sum, the principles selected through the OP, Rawls argues, are the correct principles of justice.
Principles of Justice.
Now, which public principles of justice would citizens who view themselves as free and equal, treating society as a fair system of cooperation, choose to regulate the basic structure of society? With the OP in mind, Rawls argues deliberators would settle on two principles.
1) The Principle of Liberty: each person has an equal inalienable claim to a fully adequate scheme of basic rights, which scheme is consistent with the same scheme of liberties for all.
2) The Principle of Social and Economic Inequalities: social and economic inequalities are justified iff:
a) They are linked to social position and offices which are equally accessible to all with the same ability and willingness to utilise those abilities (principle of equal opportunity).
b) They are to the greatest benefit of the least advantaged member of society (difference principle).[13]
In a society governed by these principles, the first principle has lexical priority over the second. Thus, the basic liberties cannot be sacrificed for greater equality of opportunity nor greater social and economic equality. Rawls also bestowed the first part of the second principle (a) lexical superiority over the second part (b), meaning that equality of opportunity cannot be sacrificed for greater social and economic equality.
Drawing these threads together, we arrive at a broadly egalitarian theory of justice. However, some economic and social inequalities are justifiable: these deviations are only permissible insofar as (1) they benefit the least advantaged group and (2) do not undermine the other principles which have lexical priority. In sum, justice as fairness requires that ‘the basic structure is to be arranged to maximise the worth to the least advantaged of the complete scheme of equal liberty shared by all’.[14]
Issues with the Original position.
Although conceptually ingenious, many issues have been raised with the OP, ranging from (i) doubts on whether a hypothetical contract is a contract at all[15], (ii) doubts on whether ideal deliberators would select Rawls’s preferred principles[16], and (iii) issues with the characterisation of the ideal deliberator behind the VoI. My focus will exclusively lie with (iii). Additionally, it’s worth prefacing the discussion here will solely focus on the OP as conceived in A Theory of Justice (1971). As Valentini (2023) notes, the OP ‘features centrally’ in other works by Rawls, ‘such as Political liberalism, The Law of Peoples and Justice as Fairness: A Restatement’.[17] Providing a nuanced evaluation of the OP in those works is beyond the scope of this essay.
With these concerns bracketed to one side, an initial issue with the OP lies with Rawls’s characterisation of the thin theory of the good that deliberators behind the VoI are allowed to work with. That is, the presumption that we will all value wealth and so on. One question worth asking here is whether such a list is exhaustive, or indeed, adequate for that matter. On one hand, it’s hard to baulk that these things are conducive to what the good life entails for some people. On the other hand, as Simmonds (2018) notes, this thin conception of the good (arguably) reflects a kind of ‘bourgeois’ sleight of hand.[18] That when working with this ‘inherently biased’ and ‘individualistic’ thin theory of the good, of course, we would naturally arrive at principles of justice, which acclaimed liberals such as Rawls would endorse.[19] To bring this issue into sharper focus, consider individuals such as Buddhists, who harbour strong religious commitments – devoting their lives to meditation within a commune of like-minded individuals and bereft of material possessions. What is to be said for these social goods (i.e., communal flourishing and solidarity), which arguably are just as primitive as wealth for some people? By what neutral standard of objectivity can we exclude certain social goods from a thin theory of good, no matter how sparse? Indeed, many communitarians have raised issues here.[20]
To guard against accusations of foul play per se. Rawls may simply concede his characterisation of the thin conception of the good is not entirely neutral but contend that the OP is meant to seek a higher level of abstraction. Which is to say, the OP is not concerned with neutrality ‘between diverse conceptions of the good’ or further, outcomes that advance ‘this or that conception of the good’.[21] Instead, the OP is concerned with neutrality about approach. That is, through abstraction we ensure that principles of justice aren’t arbitrarily drawn, and thus, hope to arrive at an ideal public conception of justice, whatever that may entail, but importantly – transcendent of a particular conception of the good. In short, the OP is a reasonable and neutral way to perform this ‘necessary abstraction’[22] in order to arrive at ‘a fair scheme of co-operation for persons who hold diverse ideas of excellence [or the good]’[23]. Yet, one kind of qualm to level here is whether the original position is a neutral methodology, as Rawls would supposedly affirm.
Feminist Concerns.
Within the OP, Rawls assumes that ‘it is rational for parties to suppose that they do want a larger share [of social goods]’.[24] Precisely this conception of rationality is the driving factor for those dwelling in the OP. However, is Rawls right to claim that this conception of rationality is accurate and the only relevant factor for ideal deliberators when choosing principles for a just society?
A perennial critique of the social contract tradition (Rawls being no exception) lies with their ‘bourgeois conception of rationality’.[25] For Held (1987), ‘conceptions of rationality [that] begin with the assumption that human beings are independent, self-interested or mutually disinterested individuals’ carry problematic implications.[26] This is because it implies that to partake in genuine rational deliberation, individuals must only consider outcomes for themselves. Indeed, this seems highly questionable, and following Michael Sandel (1982), we might well wonder whether the ideal deliberator in the OP is an unrealistic view of the self – an abstraction bereft of the qualities to be an ethical person – not anchored enough in reality.[27] After all, why exactly are qualities such as ‘empathy’ and ‘care’, which are not necessarily rational but nonetheless very important factors, excluded from the deliberator’s arsenal?[28]
Plausibly, as Hanshaw (2018) argues, ‘empathy should be just as relevant of a factor when considering the most just arrangements of society’ as it often plays an integral role in ‘the decisions people make and the way they relate’ to each other.[29] For one, many relationships and friendships aren’t based on rational self-interest (economic or societal benefits), they are based on ‘empathy’, ‘dependence’, care and ‘love’.[30] When entering the business of constructing principles of a well-ordered society, we ought to consider not only its members as ‘rational autonomous agents’, but also agents who are mutually dependent on each other.[31] In this way, Rawls’s emphasis on pure rationality discounts relevant factors that are necessary for appropriate decision-making. Thus, Rawls’s abstraction of the ideal deliberator does not reflect a neutral understanding of humans, as it is neither an accurate understanding of ‘human relations’[32] nor a comprehensive account of human decision making.
Perhaps Rawls is aware of potential complaints that the OP makes assumptions about decision-making that may not entirely be conducive to real-world decision making. As Rawls remarks, ‘[t]he motivation of persons in the Original Position must not be confused with the motivation of persons in everyday life’.[33] Or again, ‘parties are characterized as mutually disinterested does not entail that persons in ordinary life... are similarly disinterested in one another’.[34] Thus, under a Rawlsian understanding, the type of deliberator in the OP is not a universal representation of humans in real life.
But such a response does not resolve the tension in Rawls’s account, it just reasserts that, stricto sensu, the ‘motivation’ of the Rawlsian deliberator is not to be equated with the ‘motivations’ of actual persons.[35] But the issue, as expounded above, is that the Rawlsian deliberator does not appear to be a neutral understanding of humans nor anchored enough to reality. This is problematic as Rawls’s framework is parasitic on this narrow conception of humans to adduce how the basic structure of society ought to look. This consideration brings to fore a deficiency in Rawls’s account. Specifically, that the ideal Rawlsian deliberator or as Held puts it, ‘economic man’[36], primarily establishes principles of justice that focus on material inequality. My central claim is that these principles are ineffective at promoting actual justice for women.
Maldistribution and Misrecognition.
In Redistribution or Recognition, Nancy Fraser (2003) claims that there are two aspects to achieving social justice, viz., ‘recognition’ and ‘redistribution’.[37] From the outset, Fraser attempts to deconstruct the understanding of these ‘folk paradigms’ as identity politics and class-based, respectively.[38] Fraser argues that both folk paradigms express ‘a distinctive perspective on social justice’, and thus offer distinctive concerns.[39] That said, Fraser’s main aim is to resolve the misunderstandings between the two paradigms that are often presented as ‘mutually antithetical’[40], in order to develop a theoretical framework that provides a ‘social arrangement that can redress both economic and status subordination’.[41] She is keen to stress that these two paradigms assume different conceptions of justice and, by extension, differing proposed resolutions.
For instance, ‘[t]he redistribution paradigm focuses on injustice it defines as socio-economic injustice’, a classic case would be the impoverished and exploited class which desires a more just distribution of wealth, thus the proposed remedy for this injustice ‘is economic restructuring of some sort’.[42] Indeed, the remedy for this type of injustice draws stark similarities to the principles chosen by Rawls’s ideal deliberators – redistributing social goods insofar as it benefits the most disadvantaged. Yet, does the Rawlsian distributive approach sufficiently square off injustice that the recognition paradigm is concerned with? That is, ‘cultural or symbolic injustice’ which includes cultural domination, gender stereotyping and denigration.[43] A salient example is being a black woman in finance, having to deal with the stereotype of being a DEI hire and thus ‘somehow’ less qualified.
As Hanshaw notes, these types of injustices require more than ‘tax overhaul or a changing of basic economic structure; they require cultural change’.[44] Indeed, structural change of this kind happens on a systematic level as in the ‘basic structure’ of society; therefore, injustice of this kind needs reconciliation, with which the recognition paradigm is concerned with. That is, cultural changes and demanding an end to denigration. But, of course, this is ‘a tall order for a government’ because cultural change of this kind is not ‘easily enforced legislatively’.[45] However, Fraser’s commitment to accommodate these two remedies (of both paradigms) may provide some guidance. For instance, recognising that the underrepresentation of black women in finance is predominantly due to racism, recognising the gender pay gap is caused by sexism, and recognising both are fundamentally unjust, rather than solely attempting to create more DEI schemes to accommodate equality of opportunity (principle of equality) or pay women slightly more (difference principle), is exactly why this connection to recognition is imperative. Part of the issue is that Rawls’s theory lacks the tools to provide the kind of solution misrecognition requires, as fundamentally, it focuses solely on distributive justice and thus is structured around ‘just’ redistribution strategies.
To bring this into sharper focus, consider Shwartzman’s (2006) comments: that Rawls ‘frequently lumps together in his writing the distribution of natural talents’ and the ‘contingencies of social circumstance’ without distinguishing that there is an important nuance between the two.[46]. What Shwartzman is soliciting us to question is the difference between natural endowments and the power structures that govern a society in which certain positions are more privileged than others. When probing further, we find that these structures of power aren’t ‘governed by luck’ but rather produced by social and political forces.[47]De facto, by ‘lumping the effects of socially generated hierarchies with the effects of natural endowments’, it gives off the impression these ‘structures were not produced by social and political forces’.[48] This is a particularly damning observation for Rawls as he fails to distinguish between the ways that ‘misrecognition’ (cultural injustice) is not a result of ‘maldistribution’ (economic injustice).[49]
In this vein, the Rawlsian paradigm fails to account for social injustice that arises from misrecognition. Instead of dismantling these embedded cultural norms, Rawls ends up merely trying to reimburse women who happen to be born women through the redistribution of social goods. The issue is that Rawls does not ask ‘why these economic equalities actually occur’[50] and ‘neglects the fact that many people still view women as subordinate’.[51] Indeed, this can be traced back to Rawls’s abstraction in the OP not being anchored enough in reality. For it demands not only a narrow conception of humans but also amnesia of the status quo, like ‘facts about current and historical patterns of social domination and oppression’.[52] The issue with abstraction of this kind, as Whisnant notes, is that it excludes ‘the very features of the social world that we need most to understand in order to change them’.[53] As a result, it ensures those features will remain ‘unchallenged in the resulting theory, which in turn will fail to contribute to changing the world’.[54]
This goes to the heart of the issue, as Rawls’s theory of justice misses the roots of injustice towards women. It is not merely that women envision a society where they are materially renumerated for unjust discrimination or subordination, rather women envision an ‘alternative society – one where the institution of the basic structure does not take gender oppression, or other forms of unjust hierarchy, as a given’.[55] In this vein, the limits on Rawls’s principles become apparent – they are ineffective at prompting actual justice for women.
Conclusion.
Overall, the abstraction of the ideal deliberator behind the OP is not anchored to reality enough. To show why this is problematic, I discuss the principles that derive their justification from the OP, arguing that they are inadequate to combat injustice that arises from misrecognition. This is because the injustice rooted in misrecognition is structurally different to that of economic inequalities. On this basis, Rawls’s framework fails to resolve injustices faced by women and therefore cannot be entirely conducive to a just society. Perhaps, a Rawlsian may have a response here, that the Original Position is not definitive and thus, can be expanded to root out fundamental inequalities such as unjust sexism. Furthermore, although care and empathy are important factors, is that society’s concern?
[1] John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press, 1971), 3.
[2] John Rawls, Justice as Fairness: A Restatement (Cambridge, Massachusetts: Harvard University Press, 2001), 26.
[3] Rawls, A Theory of Justice (n 1), 9.
[4]Ibid, 10.
[5]Ibid, 7.
[6]Ibid, 11.
[7]Ibid.
[8]Ibid, 160.
[9]Ibid, 123.
[10]Ibid, 54.
[11]Ibid, 133.
[12]Ibid.
[13]Ibid, 266.
[14]Ibid, 205.
[15] See Ronald Dworkin, ‘The Original Position’ (1973) 40(3) University of Chicago Law Review 500.
[16] See Johan E. Gustafsson, ‘The Difference Principle Would Not Be Chosen behind the Veil of Ignorance’ (2018) 115(11) Journal of Philosophy 588.
[17] Laura Valentini, ‘On the Role of the Original Position in Rawls’s Theory Reassessing the “Idealization” and “Fact-sensitivity” Critiques’ in Weithman, P, (ed.) Rawls’s A Theory of Justice at 50 (Cambridge: Cambridge University Press, 2023), 202.
[18] Nigel Simmonds, Central Issues of Jurisprudence (London: Sweet and Maxwell, 2018), 69.
[19]Ibid.
[20] See David Botti, ‘Critics of John Rawls’ in Sellers, M., Kriste, S, (eds) Encyclopaedia of the Philosophy of Law and Social Philosophy (Dordrecht: Springer, 2025).
[21] Simmonds (n 18), 70.
[22]Ibid, 87.
[23]Ibid, 70.
[24] Rawls, A Theory of Justice (n 1), 123.
[25] Virginia Held, ‘Non-Contractual Society: A Feminist View’ in Hanen, M. P. and Nielsen, K. (eds.) Science, Morality, and Feminist Theory (Calgary: University of Calgary Press 1987), 114.
[26]Ibid, 111.
[27] Michael J Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), 55-58.
[28] Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books 1989), 15.
[29] Hannah Hanshaw, ‘Rawls and Feminism’ (2018) 6 CLA Journal 182, 184.
[30]Ibid.
[31] Ibid.
[32]Ibid, 193.
[33] Rawls, A Theory of Justice (n 1), 128.
[34] Ibid.
[35]Ibid.
[36] Held (n 25), 114.
[37] Nancy Fraser and Axel Honneth, Redistribution or Recognition (New York: Verso, 2003), 11.
[38]Ibid.
[39]Ibid, 12.
[40] Ibid, 11.
[41]Ibid, 94.
[42]Ibid, 13.
[43]Ibid.
[44] Hanshaw (n 29), 190.
[45]Ibid.
[46] Lisa H. Schwartzman, Challenging Liberalism: Feminism as Political Critique (Pennsylvania: Pennsylvania State University Press, 2006), 70.
[47]Ibid.
[48]Ibid.
[49] Fraser (n 37), 49-50.
[50] Daniel J. D’Amico, ‘Knowledge Problems from behind the Veil of Ignorance’ (2019) 24(1) The Independent Review 73, 79.
[51] Conor Arsenault, ‘A Feminist Critique on the Limits of Rawls’ (2016) 7 Mapping Politics 4, 10.
[52] Schwartzman (n 46), 65.
[53] Rebecca Whisnant, ‘Review: “Challenging Liberalism: Feminism as Political Critique”’ (2007) 3 Notre Dame Philosophical Reviews 1, 2.
[54]Ibid.
[55] Schwartzman (n 46), 70.
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