4

The New Egalitarians

WHEN A THEORY OF JUSTICE was published in 1971, the response was unprecedented for a book of its kind. It was reviewed in journals of philosophy, political science, law, economics, sociology, psychology, education, social work, criminology, and health, as well as in literary reviews and non-academic publications. The New York Times listed it as a book of the year, and it was widely acclaimed as the most important work of philosophy since Henry Sidgwick’s The Method of Ethics of 1871. In that first year, it had four print runs. Stuart Hampshire declared it a “permanent refutation” of the idea that analytical philosophy could not address morality and politics.¹ Even Rawls’s critics described it as noble.²

Rawls was by then fifty years old. The readers of his early articles had long been waiting for the finished object. Those students and colleagues who read drafts he had circulated over the preceding seven years were now themselves prominent philosophers and often his first reviewers. Rawls was already a philosophical celebrity. “Justice as Fairness” had been reprinted in four collections, “Two Concepts of Rules” in seven.³ His theory was a touchstone in debates about objective ethics, the “social institution” of morality, social justice, and the choice of “distributive schemes” as well as civil disobedience and war.⁴ In lectures to students throughout the 1960s, Rawls set the narrative for a generation of philosophers. Those who saw political philosophy as dead had got it wrong. It was, in fact, ripe for revival. The “analysis of the concept of justice,” he said, was what would secure it.⁵ With Rawls’s book, that analysis was complete. It claimed to provide not only an objective ethical theory but one designed to judge social institutions. It was the guide the philosophers of public affairs were waiting for.

As they waited, the political terrain had shifted. The daily events of the civil rights and Vietnam years had preoccupied philosophers, but the effects of longer-term political changes were also becoming visible. The optimism of the mixed economy and affluent society that infused Rawls’s theory dissipated, with the civil unrest, disorder, and economic instability that immediately preceded and followed the book’s publication. The “end of ideology” was itself declared over.⁶ The line between the public and the private was redrawn. There was a widespread sense of crisis—of democracy, governability, and legitimation.⁷ At the point Rawls was solidifying his terms of art, the politics that shaped them was fading from view.

In this new moment, Rawls’s theory—with its commitment to public, democratic institutions and to improving the lot of the least well off—looked less like a vision of pluralist civil society regulated by a minimally interventionist state and more like a robust defense of a welfare state committed to significant redistribution. When Michael Harrington called for a “passion to end poverty” in his The Other America (1962), he had diagnosed America’s problem as “one of vision. The nation of the well-off must be able to see through the wall of affluence and recognize the alien citizens on the other side.”⁸ Rawls’s theory was read by many as facilitating that vision: it showed what a society would look like if it were justifiable to a nation of equals, and what moral persons would be like if only they saw each other clearly. For a generation of philosophers, it was a justification for social democracy, aimed at reducing inequality and fostering reciprocal relations between citizens—a philosophical “gloss on the domestic programs of the 1960s” of Lyndon Johnson’s Great Society. “After the deed,” one critic wrote, “comes the rationalization.”⁹

What kind of rationalization Rawls’s theory represented would be determined by his readers. It meant different things to different people. Rawls’s book was something of an encyclopedia of postwar Anglophone thought. The ideas and techniques that came to prominence in the years of its production—welfare economics, choice theory, game theory, theories of public finance, analytic jurisprudence, ethics, democratic theory, and the history of ideas—were deployed and tamed in service of his grand theory. Hanging all this together was a difficult process. Rawls, self-consciously and sometimes confusingly, took elements from many traditions—Kantian, Humean, neoclassical—as he squeezed his core ideas into new shapes. Familiar, opposing, and counterintuitive ideas worked alongside each other in unfamiliar ways. Arguments that Rawls developed at different times overlay one another, became submerged, and reappeared at various levels and in distinct forms—with many in tension, but all rendered compatible, available for use. Taken from a “moral point of view,” he suggested, conceptual contradictions and traditional binaries—between conventions and contracts, legal rules and sovereign decisions, individuals and communities, altruism and self-interest—could be dissolved. The internal coherence of A Theory of Justice masked its tensions. It also underplayed the consensual vision of society Rawls had to assume was possible in order to secure that coherence.

Though his theory was singular in its scope, Rawls was not alone in his concerns. The Vietnam-era debates had created the constituency of Rawls’s readers and shaped the book’s “high liberal” interpretation.¹⁰ Over the course of the 1950s and 1960s, the concern with the dangers of the state had waned and new varieties of liberalism gained ground: the liberal defense of economic growth, the social liberal defense of civil liberties and the rights of individuals held against the state, and, still at the margins, a market liberal, and libertarian, defense of constitutions. Anti-totalitarianism had lost its hold on social liberalism. Liberal philosophers, encouraged by the constitutional and legislative victories of the early civil rights movement and the Great Society, began to describe themselves as inheritors of a long New Deal tradition.¹¹ The idea of capitalism returned to public debate, and its defenders extended the critique of planning in radical directions.¹² The rediscovery of American socialism that had begun with the end of McCarthyism and was buoyed by the social movements of the 1960s reached political philosophy, which continued to look to Britain, where many American philosophers studied and where debates about socialism, the welfare state, and its principles of distribution had persisted.¹³ By the 1970s, as a radicalized generation of antiwar protesters moved from graduate school to university positions and the intellectual radicalism of social movements penetrated the academy, Rawls would find a new left-liberal and socialist audience, which influenced him in turn. It was now “hard to deny that the question of socialism and which form of it, must now be squarely faced,” Rawls said in 1971.¹⁴ These debates were vital for stabilizing the ideological context within which Rawls’s theory was understood, and for shaping the characteristic commitments of the new variety of social liberalism that developed in its shadow.

Like his contemporaries, Rawls was attentive to these specific preoccupations. But his universalizing efforts achieved something unique. A Theory of Justice created a philosophical ground zero. Earlier debates would later be forgotten. The order of the principles, the justification of the principles, the choice, the argument, and the implications of the principles—these were the preoccupations of Rawls’s first readers as they put his ideas to work for their purposes. Already in 1973, it was possible to speak of a “Rawls industry.”¹⁵ By 1979, Peter Laslett declared that not only was political philosophy not dead, but a new adjective, “Rawlsian,” described its transformation.¹⁶ Yet during the 1970s, Rawls’s ideas were hotly contested as readers of varied disciplinary and ideological stripes exhumed different parts of his theory, using them for liberal, democratic, and socialist ends. Gradually, however, the generation of liberals who came to intellectual maturity during the Vietnam War naturalized his assumptions, categories, and arguments. His concepts became terms of art, their origins and ideological basis neglected. The political choices the young Rawls confronted—between non-intervention and redistribution, plural groups and administrative experts, equality and common ownership—were obscured, transformed, or reconfigured for a different moment in which philosophical debate began not from these choices but from Rawls’s theory. The core ideas of his theory stabilized. Soon the theory, no longer under construction, was set, the result of choices between alternative kinds of moral and political argument. The project became its defense and expansion. Rawls’s framework seemed capable of absorbing anything.

The new liberal egalitarianism had a number of distinctive features. It focused on principles of justice applied to institutions and on the benefits and burdens that flowed from social rules rather than the rights that might exist outside them. It prioritized individual moral persons over collective agency. It focused on distribution and rejected desert as a distributive principle. It sidestepped forms of “historical” argument and assumed a cooperative vision of society as a community of principle. During the 1970s, these features were affirmed when Rawls’s theory came under attack from the libertarian Robert Nozick and Rawls’s followers came to his defense. Philosophers quickly adapted Rawls’s arguments to deal with such challenges, as well as with the “public affairs” of the day, from health care to affirmative action. His ideas were shored up in theory just as the rules of the social democratic state were challenged in practice and rendered unstable by ideals that stretched beyond the state—ideals of the market, of international interdependence, and about the environment and individual human rights. The initial reception of Rawls’s theory set the terms for liberal philosophy to make sense of this world. But it also gave philosophers a distinctive structure of egalitarian thinking to defend against the libertarian threats to their right and to diffuse the promise of alternatives to their left.

Before Rawls’s theory was published, several changes had taken place in the 1960s that helped constitute its audience. The Vietnam years and the debates about obligation, war, and responsibility were crucial to the institutional formation of the philosophy of public affairs and to bringing moral and legal philosophers to political problems. Those years were also a time when distributional questions returned to moral and political philosophy. The shift among postwar philosophers from analytical ethics to normative accounts of social justice had continued. Economic and political thinkers were experimenting with accounts of states and constitutions, markets and morals, institutions and behavior. While Rawls was putting the finishing touches on his theory, they were reshaping the conceptual terrain.

A key development was the rise of economic libertarianism and neoliberalism that took place to Rawls’s right. In debates over public finance and constitutionalism, James Buchanan, Gordon Tullock, and others at the University of Virginia’s Thomas Jefferson Center founded public choice theory, which applied economic analysis to the study of political constitutions.¹⁷ In tirades against untrustworthy, “self-interested” political agents and “bloated” bureaucracies that gave the lie to notions of the “public interest,” public choice theorists took the midcentury critique of centralized power to its extreme conclusion, calling for an extension of market models of decision-making to the state and democratic system as a whole.¹⁸

In this moment before the political triumph of neoliberalism, public choice theorists seemed to share characteristics with Rawls: the opposition to concentrated, centralized, and discretionary power, the concern with stability, proceduralism, liberty, and free association, and above all a vision of a constitution or basic structure of society within which freedom of action could justly be allowed to take its course.¹⁹ Rawls’s concern with uncertainty, risk, and unknowability and his advocacy of a limited yet strong state chimed especially with Friedrich Hayek and Frank Knight, from whom the early public choice theorists drew. Like Rawls, their theory of “constitutional choice,” which followed a model of decision-making under uncertainty, was part of the revival and formalization of contract theory.²⁰ In 1964, Rawls attended the second meeting of the Committee on Non-Market Decision-Making, the network that formed the basis for the Center for the Study of Public Choice and the journal Public Choice, established at Virginia Tech in 1969. Along with other neoliberals, including Hayek, Milton Friedman, and George Stigler, Buchanan saw in Rawls a potential fellow-traveler. Buchanan recognized Rawls as a kindred follower of Knight’s—a student of “fair games.”²¹ In 1968, on Friedman’s invitation, Rawls became a member of the neoliberal Mont Pèlerin Society.²²

Despite methodological affinities, public choice theorists and Rawls disagreed about the desirability of capitalism and the role of government in addressing social issues. The years of the Warren Court led to a bifurcation of constitutionalism and civil libertarian defenses of rights. Amid the racial backlash against the civil rights movement, social conservatives invoked the Constitution against civil rights and labor politics.²³ Public choice liberals also positioned themselves against rights discourses. Buchanan and his followers wanted the ground rules of society to establish a framework for the interaction of mutually consenting persons, but nothing more than this. Government intervention to deal with inequality, discrimination, and, crucially, desegregation was illegitimate.²⁴ Some public choice constitutionalists embraced a social and racial conservatism.²⁵ While legal philosophers like Dworkin and Frank Michelman defended rights as having moral value beyond the Constitution or used Rawls’s theory to guide a liberal judiciary toward welfare rights, Buchanan condemned civil disobedience and, later, the Court’s rulings on affirmative action.²⁶

Rawls’s difference principle signaled a radical redistribution that, from the perspective of public choice theorists, amounted to a betrayal of their shared commitment to equal liberty and constitutional rules. While Rawls moved with the Keynesian consensus, they turned against it. In 1959, when he had begun to develop a neo-Keynesian account of economic government, he had drawn on the ideas of the economist Richard Musgrave, who brought together Keynesian macroeconomics and the neoclassical concerns of public finance with allocation and distribution.²⁷ Musgrave had defended a Keynesian position in debates about the reach of government and the theory of public finance (a theory that itself tended to skepticism of centralized state power, on the basis that bureaucracies could not gather accurate information in the area of public goods).²⁸ In 1967, when Rawls published his account of distributive justice, he followed Musgrave over Buchanan, outlining five branches of government: the distribution branch, to secure fair equality of opportunity and fair value of the political liberties; a transfer branch, to look after needs and welfare services; an “anti-trust” allocation branch to avoid monopolies and unreasonable market power; a stabilization branch, to secure full employment through demand management, the Federal Reserve, government spending, and so on; and an exchange branch to limit state powers of taxation and restrict public expenditure.²⁹

The structure of Rawls’s theory and public choice theories had parallels, but politics divided them. Rawls did not take on the public choice vision of government. He made clear his commitment to “correct” distributions of wealth and concentrations of power that interfered with liberty and equality of opportunity. Responding to Hayek’s claim that “unequal inheritance of wealth is no more inherently unjust than unequal inheritance of intelligence,” he retorted that “inequalities founded on either should satisfy the difference principle.”³⁰ Moreover, in Rawls’s mature theory, there was no opposition between the ground rules and active state intervention in economic life: the ground rules correctly regulated by his principles of justice indeed required intervention. The year Rawls published A Theory of Justice, he allowed his membership of the Mont Pèlerin Society to lapse.³¹

The 1960s also saw the continued rise of discourses about the persistence of deprivation and poverty amid affluence.³² The War on Poverty pushed a racialized sociological literature—concerned with “pathology” and “culture” among African Americans as much as class or redistribution—into mainstream discourse.³³ In Britain, as the welfare state’s limitations became more visible and Richard Titmuss and others called for its extension to the poor, many placed problems of income distribution and material deprivation alongside concepts that would become key to the new liberal philosophy—concepts of justice, altruism, need, and desert.³⁴ Michael Young’s condemnation of meritocracy, the idea that merit should be the basis of educational opportunities, was given empirical support.³⁵ The Labour revisionists whom Rawls admired were dismissed by the next generation of political philosophers like Brian Barry as preferring “the rhetoric to the reality of equality.”³⁶ The turn to social justice they began continued, but it radicalized as the mood darkened.

Economic theory now had its own ethical revival. In the first half of the twentieth century, British ideas about the state and its provisions had, even at the most “mundane” levels of social policy, been shaped by the predominance of idealism and its emphasis on “corporate identity, individual altruism, ethical imperatives and active citizen-participation.”³⁷ Economic thinkers from J. A. Hobson to A. C. Pigou had brought ethical criteria into “economic science.”³⁸ That idealism had been long gone, but with utilitarianism and “welfare state philosophy” under pressure, it was revived alongside the search for distributive criteria. There was an overwhelming acceptance, Barry wrote, of the idea that “some kind of distributive considerations have to be introduced as a constraint or a competing factor on the maximization of aggregate utility.”³⁹ Kenneth Arrow’s “Impossibility Theorem” had led to skepticism about citizens deciding social values, but it also opened up the possibility of inserting ethics into economic analysis (particularly through the rejection of interpersonal comparisons of utility).⁴⁰ Under the influence of Amartya Sen, social choice theory was taken up beyond economics, and with it an ethical focus.⁴¹ This shift in welfare economic theory provided Rawls with tools for his own. At Harvard in 1968, he taught a seminar alongside Arrow and Sen.

In this context, a debate blossomed at the intersection of British economics, sociology, and political philosophy, about the morality of society and the state and the moral basis for principles of economic distribution, that would be crucial to the Atlantic reception of Rawls’s theory. Traditionally, political philosophers distinguished between market societies and altruistic or solidaristic ones. Both social visions had recently been adapted in defenses of social democracy. Altruism had a multifaceted lineage in British thought. It played a role in Victorian legitimations of charity and philanthropy, in socialist ideas of mutual aid independent of the state, and—as part of a contributory ethic of “reciprocal assistance”—in defenses of social insurance, public citizenship, and welfare provision. Altruism and the virtues associated with the voluntary principle could be invoked against the encroachment of the market, or in the name of community and the welfare state. They could be privatized and individualized: the turn away from the state could also be a turn away from the public.⁴² The postwar years had seen a revival of altruism as part of a strain of ethical idealism that prioritized “needs,” “reciprocity,” and “mutual aid.” By the mid-1960s, when Titmuss argued that economic policy should not be limited to inequality reduction, he suggested that the state needed to encourage altruism, reciprocity, and social duty to fulfill its function of meeting “socially recognized ‘needs.’”⁴³ Like Karl Polanyi, Titmuss rejected the view that “society was an adjunct of the market.”⁴⁴ He took this rejection further in his The Gift Relationship (1970), which defended voluntary blood donation in Britain against the private blood system in the United States, arguing that the “commercialization of blood and donor relationships . . . represses the expression of altruism.”⁴⁵ On this view, altruism and needs were central to a well-functioning society, the ethics of individual and social action mattered, and social insurance was conceived of as a form of mutualism rather than a sharing of risk.

By contrast, another postwar defense of social democracy made use of concepts usually associated with theories of market and commercial society.⁴⁶ This was the tradition of Hume, Smith, economics, and social choice theory, which invoked self-interest benevolence, convention, and sociability and placed “exchange” above “the gift.” Many new liberal theories of social justice were built from this tradition, in which justice was an artificial virtue of institutions, a just society did not require altruism, and the market had no moral valence of its own.⁴⁷ Where the state did not sufficiently regulate the market, it might well be criticized—but not in the name of solidarity or ethical community. The voluntary principle, whether enacted by private charity, community associations, or corporate philanthropy, could not replace the impersonal workings of state and market.

This division was revived in early issues of Philosophy and Public Affairs, which featured a debate about Titmuss and the role of altruism in achieving social ends. “Like many economists,” Kenneth Arrow wrote, “I do not want to rely too heavily on substituting ethics for self-interest.” Titmuss’s ideas about the limits of markets in delivering goods followed a long venerable tradition, from Pigou to Knight. But Arrow saw an “elitist flavor” in Titmuss’s defense of a variety of “impersonal altruism,” which Titmuss failed to recognize was as detached from “feelings of personal interaction as the marketplace.” His excessive antipathy to “the market” was a mirror of Hayek’s antipathy to “collectivism.”⁴⁸ In response to Arrow, Peter Singer defended Titmuss and the needs-based altruistic basis of the welfare state. The market could not be trusted. Moreover, Titmuss recognized that the right kind of welfare state could create “a voluntary system” to foster “attitudes of altruism and a desire to relate to, and help, strangers in one’s community.”⁴⁹ Singer saw ethical action as required to secure social ends. Arrow saw those ends secured by the unintended consequences of self-interest in the market, or by the concerted impersonal action of the state. Both, however, conceived of themselves as putting forward what Arrow would later call a “cautious case for socialism.”⁵⁰ Yet at stake was a fundamental split over the justification of the state and the question of how much it mattered whether people were moral.

The young Rawls had combined an ethical commitment to community with the Humean tradition of market society, but had not been prescriptive about the relative merits of market, community, public, and private. What mattered was that all these could flourish beneath a constrained state. For a time, his Wittgensteinian base had given way to a Humean one, concerned with conventional rather than natural sociability.⁵¹ Alongside his use of the tools of welfare economics and social choice theory, this orientation made many misread his as a strict theory of self-interest. In the 1960s, Rawls’s vision of a moral community of persons was overlaid by a new Kantian language of autonomy and inviolability, which added to doubts about where he stood. Rawls tried to find a way around the supposed incompatibility of ethical traditions and the moral psychologies they presumed. The idea of justice, he wrote, struck a balance “between altruism and the claims of self” and “involves a notion of reciprocity.”⁵² Thomas Nagel provided a related view of impersonal altruism, in his Oxford BPhil and doctorate under Rawls, published as The Possibility of Altruism (1970). Nagel wrote that “altruism itself depends on the recognition of the reality of other persons, and on the equivalent capacity to regard oneself as merely one individual among many.” Altruism was “not a feeling,” nor anything to do with “self-interest,” but it was “rational,” a “condition of rationality,” and itself involved a relationship with oneself: the principle of altruism “arises from the capacity to view oneself simultaneously as ‘I’ and as someone—an impersonally specifiable individual.”⁵³ By taking an impersonal point of view, such ideas might be reconciled. Rawls likewise provided ways of defending an impersonal altruistic vision. Yet the historic division of self-interest and altruism would nonetheless structure how he was read.

Another set of arguments, closely tied to discussions of altruism, self-interest, and needs, would also shape Rawls’s reception. This was a largely British debate about whether the welfare state should act for humanitarian reasons or for reasons of justice. In the 1960s, some theorists appealed to the idea that the state should meet needs as an alternative to social justice. For one conservative Oxford philosopher, justice meant that distributions were calculated according to individuals’ contributions to social ends. Large-scale social endeavors—the National Health Service, the welfare state, other societies for “mutual benefit”—should adopt a limited principle and distribute goods according to need in order to prevent such institutions sliding into totalitarianism.⁵⁴ Social democratic philosophers rejected this argument.⁵⁵ Another Oxford philosopher, David Miller, later distinguished between arguments that began from the premise “that human suffering should be avoided” as a requirement of moral sentiment or humanitarian duty and those that saw “the satisfaction of needs” as a matter of justice and began from a different premise: that “every man is as worthy of respect as every other.” Meeting needs was not a matter of humanity, to be left to voluntary systems or the market, but a matter of justice.⁵⁶ It could be explained by appeal to an idea of “an underlying equality” between individuals, an idea of basic equality of the kind that Bernard Williams had developed some years earlier.⁵⁷

Even before Rawls published his book, philosophical discussions of the welfare state thus increasingly deployed an idea of justice tied to a baseline equality.⁵⁸ In the debates over needs and altruism, justice supplanted humanity. Philosophers became more concerned with the question of how moral deservingness and character mattered in the laws and ethical bases of states and in questions of economic distribution. “To ascribe desert to a person,” Barry wrote, “is to say that it would be a good thing if he were to receive something (advantageous or disadvantageous) in virtue of some action or effort of his or some result brought about by him.”⁵⁹ Desert was important as a principle of individual responsibility: “Desert-dependent principles,” as another philosopher called them, were popular in law and punishment.⁶⁰ In the 1960s, a challenge for legal philosophers had been to find “humanist” versions of desert principles—what H.L.A. Hart, the foremost proponent of this task, called a “relaxed retributivism,” which limited the concept’s scope and weight. Feinberg and Hart stressed that “advantages and disadvantages” could only be connected with voluntary actions and their consequences.⁶¹ It was impossible to say someone “deserves” something because it is in the “public interest”—that was simply to “misuse” the word “deserve.”⁶² But how was desert relevant when it came to institutional decisions and economic distributions?

A number of philosophers analyzed the concept of desert to temper enthusiasm for it or to show, as another Oxford philosopher insisted, that the “criterion of need was more important to justice than the notion of desert.”⁶³ “Desert-dependent” definitions of justice were “behavior-dependent.”⁶⁴ But if the context was distributive and institutional, and if there were concerns of need, was behavior relevant? “Desert looks to the past—or at most to the present,” Barry wrote, “whereas incentive and deterrence are forward-looking notions.”⁶⁵ When it came to problems of distributive justice, it was the future that was important, not the past. What was at stake in these debates was how much personal morality mattered in accounts of justice and the state. For Titmuss and those who extended the voluntary principle, virtue might be privatized or it might be communal, but it still mattered. For the many philosophers who were beginning to write about justice, the merit of the welfare state was precisely its avoidance of claims about virtue, character, what people were like, and what they had done in the past. They removed the field of “behavior” from arguments about institutions altogether. This was one way of eradicating the discourse of the “undeserving poor.”⁶⁶

In 1965, Barry observed that these arguments amounted to an overwhelming “revolt against desert.” He associated distributing goods in accordance with desert with liberal atomism: “Desert flourishes in a liberal society where people are regarded as rational independent atoms held together in a society by a ‘social contract’ from which all must benefit.” The welfare state represented a move away from such atomism. Its corresponding theories were based on reciprocity or need, not desert. Across society, Barry wrote, desert was on its way out: in the legal emphasis on “rehabilitation and deterrence rather than retributivism,” in schemes for “workmen’s compensation,” and in the “welfare state which (in theory if not in practice) pays special attention to the old category of the ‘undeserving poor.’” There were alternative principles of distribution to ensure that needs were met. Barry quoted Roscoe Pound’s observation two decades earlier that “the risk of misfortune to individuals is to be borne by society as a whole.” This was behind “the insurance theory of liability” and “much social security legislation.”⁶⁷ Yet few philosophers thought desert claims entirely normatively irrelevant. Many retained a notion of desert to distinguish between earned and unearned income. Without desert, some argued, it might be impossible to counter the claim that “the value of the capitalists’ benefits is equal to the value of their attributes,” or that capitalists “come to their entitlement without having done something to deserve it.”⁶⁸ Even Barry sounded a note of caution at the prospect of breaking with desert as a criterion for distribution: only if a society worked without incentives and deterrence would a world without desert look truly different to one with it. Only then would a “radical break” with “just deserts” be possible.⁶⁹

These debates prepared the ground for Rawls’s institutional theory of justice and shaped how he was read. Rawls had eliminated as a basis for distribution those things he considered “arbitrary from a moral point of view.”⁷⁰ He thought his theory demonstrated the injustice of commonly held ideas about distribution—most importantly, the idea that people get what they deserve. Natural talents, like economic wealth, were morally arbitrary. People could not be said to deserve a greater share because they were lucky in their lot, in the talents or wealth they started with. The idea of desert ought not to determine what inequalities of social fortune could be permitted. Rawls’s principles would do that instead, by explaining which inequalities caused by accidents of luck and fortune could be justified. But they would do so only at the most general institutional level.⁷¹ In line with the trajectory of political philosophy, Rawls’s theory presented a reciprocity-based argument for justice over humanity, which used markets but restricted appeals to desert. Moreover, even as Rawls showed how institutional and interpersonal forms of political justification could be combined at a deeper level, his critique of desert as a distributive principle was also part of the broader challenge to theories that confused personal with institutional morality, whether altruistic accounts of welfare or ethical socialism.⁷² Yet whether this made Rawls’s theory a radical departure from “just deserts” or put him closer to the American constitutional theorists whose concerns were not the relative merits of needs, altruism, and self-interest but bureaucratic overreach was, to some of Rawls’s first readers, difficult to tell.

A Theory of Justice did respond to these concerns, and Rawls’s ideas had changed substantially in the two decades since he formulated his vision of society as a game. Yet the original parameters of his early theory remained. Rawls’s youthful optimism about American society in an age of affluence and his anxieties about concentrated power left their mark: in the society regulated by the principles of justice—where individual persons were protected from the effects of contingency, bad luck, and unjustifiable inequalities—the state would not constantly intrude on the lives of individuals and communities. But now Rawls also insisted that his theory could be timeless. The original position was meant to provide the perspective to see humanity sub specie aeternitatis.⁷³ It could rise above the local concerns with the welfare state. An early adopter of many intellectual fashions, Rawls made clear his aspiration to generality—one that had characterized his search for a moral point of view but was now accentuated with a language of truth and rational choice.⁷⁴ The aspiration of his theory had always been grander than the justification of welfare provision. It became more so in the run-up to publication as these debates about the ethics and economics of distribution in social democracies gathered apace. Initially Rawls had intended that his theory would provide the objective basis for ethics that had been so lacking in midcentury philosophy and social science. By the 1960s, it was meant also to provide criteria to replace utilitarianism and a morality for a new legal constitutionalism. It was intended to solve the impasse of welfare economics—to provide a way of judging distributions that went further than Pareto efficiency and to bridge the gap between moral philosophy and economics, which generations of economists had widened. Rawls’s preoccupations were born of a midcentury moment that predated these justice debates, but his ambitions grew over time. His theory’s scale, innovative conceptual vocabulary, and its reintroduction of the themes of the postwar decades, fueled in part by these ambitions, gradually allowed Rawls’s formulations to eclipse the divisions and distinctions of the 1960s welfare state debates that gave him his audience. Rawls incorporated these earlier ideas, but his success served almost to obliterate them from the philosophical record.

Yet when A Theory of Justice was published, Rawls did have to defend its claims to these various audiences that had developed as he wrote. Many of the initial responses tried to pin him down on political questions. But Rawls did not want to be pinned down. He declared often that his theory was flexible as to what kind of society it implied. At a talk at the American Economics Association (AEA) in 1973, Rawls spelled out the stakes. Where only the equal liberty and fair equality of opportunity principle held, there would be “some form of democracy.” That would involve social and economic inequalities: the first principle alone did not disrupt how “individuals’ life-prospects are significantly affected by their family and class origins, by their natural endowments, and by chance contingencies over the course of their life.” It was the difference principle, with its maximin criterion, that ensured that those inequalities were addressed. An “institutional macro-principle,” the difference principle applied to “tax and fiscal policy and inequalities in income and wealth that law and government permit” to “expectations and not results.” It did not apply to associations—to “churches, firms, labor unions, universities and so on”—but regulated the expectations and prospects of social groups only “as these are affected by the basic structure.” But it did get rid of inequalities, not by destroying “natural variations” and “unusual talents” but by recognizing them as an opportunity that could “form a basis for social ties.” “The natural distribution of abilities is viewed in some respects as a collective asset,” Rawls declared. Institutions could be designed to exploit these, so that they did not threaten relations between free and equal moral persons. With maximin, “inequalities are to everyone’s advantage and those able to gain from their good fortune do so in ways agreeable to those less favored.” Rawls continued the contrast with economic theory. Unlike the theory of general equilibrium, his theory did not see what was done by institutions as a “summation, or at least a plausible extension, of what should be done by individuals,” as the “aggregate result of micro-economic processes.” Instead, it provided normative principles to regulate the basic structure, to act as constraints on the “general climate of the market.”⁷⁵

As the Cold War thawed and the universities began to incorporate radical dissent, socialist and Marxist ideas became a visible feature of academic political debate.⁷⁶ In this new context, Rawls was clear that he wanted to extend the cover of justice theory to the left. In 1973, at a roundtable on his book at the American Political Science Association (APSA) annual meeting, Rawls insisted that he did not dismiss “socialistic planning” or “Marxian schemes” as “beyond justice.” “I have no desire to argue for a representative property-owning democracy above all else,” he said. “It is compatible, I believe, with everything I say that some form of federative participatory democracy combined with market socialism should be the most just arrangement, even for us.”⁷⁷ About larger questions of political economy, Rawls insisted now more than ever that the logic of his theory required flexibility on regime type. Justice could be achieved in both capitalist and socialist systems. In both, the rules of the game could work to the benefit of all the players. Yet if socialism could fit Rawls’s rules, it would be market socialism: markets were crucial to the allocation of productive resources, to maintaining efficiency, and to the “free association” of producers, entrepreneurs, and firms.

In this account, Rawls stayed close to the Labour revisionists. More generally, Rawls would attribute various ideas that had independent origins in his earlier thought to his contemporaries: he credited Amartya Sen with the idea of “lexical ordering” and James Meade with the idea of property-owning democracy.⁷⁸ He now appealed to Meade to underpin his claim of flexibility between property-owning democracy and “liberal socialism.”⁷⁹ All along Rawls had been committed to the former. But it no longer meant quite what it had in its earlier anti-statist iteration. It was now a theory of the left more than the right.⁸⁰ Yet Rawls’s initial anxieties about the state, and about bureaucratic and associational power, still lingered. What was to be avoided, Rawls said, was not a particular property regime, but “the control of economic activity by a bureaucracy regulating a centrally directed system or one guided by agreements between industrial associations.”⁸¹ The critique of concentrated power remained in place.

What did all this mean in practice? Rawls put forward many radical ideas, but he also seemed to retract them. Soon his readers began to hold him to task. The canonical interpretation of his theory was gradually set, but not before he was challenged from every direction. Rawls’s theory was merely “ideology in philosophy’s clothing,” one early response declared.⁸² For Allan Bloom, Rawls provided a feel-good platform for:

democracy plus the welfare state—leaving open whether capitalism or socialism is the most efficient economic form (so that one need not be a cold warrior); maximum individual freedom combined with community (just what is wanted by the New Left); defenses of civil disobedience and conscientious objection (the civil rights and antiwar movements find their satisfaction under Rawls’s tent); and even a codicil that liberty may be abrogated in those places where the economic conditions do not permit of liberal democracy (thus saving the Third World nations from being called unjust).⁸³

For John Schaar, Rawls provided “the ideology that the ‘end of ideology’ theorists of the 1950s were seeking.”⁸⁴ Rawls confirmed a soft liberalism that they believed was already there. He promoted a vision of society as a community of principle where all shared the value of cooperation, and he was clear on the importance of blunting the consequences of the unequal power that exists within and between associations and classes. As Bloom and others saw, however, he wanted to leave the political implications of this open. This was in part a political choice. But it was also the result of Rawls adapting his judgments to bring them in line with the anti-intuitionist theory he had created. Rawls would often insist that the logic of his theory permitted multiple answers to a variety of questions (and not only about the choice of property regimes). While some readers were frustrated by this, others saw it as Rawls’s genius.

Amid the unanimous awe and enthusiasm the book inspired, readers were therefore divided about how to interpret its political implications. The legal and ethical philosophers in Rawls’s immediate circle were gaining in influence, and they used his ideas to consolidate theirs. Lawyers would look to Rawls’s principles to underpin their accounts of constitutional law and rights-based liberalisms.⁸⁵ Marshall Cohen welcomed Rawls’s theory as a defense of the principles “on which our Constitution rests” at the very moment when those principles were being “obscured and betrayed.”⁸⁶ Welfare economists saw in Rawls an account of value that could be used to critically assess markets and their limits at a time when the confusion of the model of perfect competition with reality was stifling the economics discipline’s critical capacities.⁸⁷ But for every interpretation of Rawls as savior, there was a counterview. It was equally feasible to see in his constitutionalism a defense of the status quo against dissent.⁸⁸ After all, to defend only those protests that demanded rights in the name of the Constitution and its institutions might also involve delegitimizing those that challenged them. Others thought Rawls’s priorities were wrong. He conceded too much to economics and self-interest, downgrading community. In the light of the welfare state debates, many thought he prioritized the distributional over the “relational” preoccupations of the altruistic tradition of British social democracy that R. H. Tawney and Titmuss represented.⁸⁹

There were two main dimensions to the conceptual response to Rawls’s theory. One focused on the justificatory apparatus for the principles of justice and explored what this revealed about Rawls’s view of ethical and social life. The other looked to the principles themselves. Those concerned with the first worried about Rawls’s representation of human nature and the plausibility and ideological implications of his view of the self. Given that Rawls developed his own moral psychology, he might have expected interested critics to look there. Instead, they looked to a part of his theory where the question of the self was more complex and submerged—the original position. What did that choice situation say about Rawls’s understanding of human nature? Could the assumptions he made be justified? Rawls stipulated that where the contracting parties met to choose the principles to judge social institutions, they were behind the veil of ignorance, with limited knowledge about themselves and society. The parties chose principles to structure society so that if they drew the worst straw, things would be better than in an alternative society guided by alternative principles. They chose according to the maximin strategy—to maximize the lot of the least well off.⁹⁰

Every step of this argument for the derivation of the principles came under fire. Economists like Arrow and John Harsanyi, who recognized Rawls’s original position as part of ongoing explorations in “risk-bearing” and decision-making under uncertainty, were among the first to doubt that the parties would choose principles as Rawls said they would.⁹¹ Harsanyi was skeptical that Rawls had proved that the parties would choose principles of justice rather than utility: if the parties factored in the probability that they would end up with the smallest slice of the pie, they would prefer a distribution according to utilitarian principles. He also suggested that the parties would be more willing to gamble than Rawls allowed, and would opt for a distribution with greater inequality, preferring to take the risk and end up with more.⁹² Some critics recognized Rawls’s understanding of human nature as not truly like that of economists; one described him as “too cautious to be bourgeois.”⁹³ Others contested his stipulations about motivation—why, for instance, were the parties “mutually disinterested” rather than “altruistic”? There were objections to Rawls’s reliance on empirical facts and social scientific laws; to which characteristics Rawls saw as arbitrary; and to the argument that history, community, and identity could be assumed away by the veil.⁹⁴ Then critics began to challenge the alternative possibilities the parties were offered. Later, they queried Rawls’s restriction of the scope of his principles to the basic structure of society rather than to the international realm, or to civil society, the family, or individual and social action.⁹⁵

For readers wary of procedural or market liberalism, the very fact that Rawls intervened in game-theoretic or neoclassical economic debates revealed the ideological nature of his preoccupations. Walzer said Rawls’s theory was a philosopher’s “withdrawal” from “the common place”: Rawls envisaged “philosophical representatives”—philosopher guardians detached from democratic reality and “legislating for the rest of us.”⁹⁶ Others seized on the formal arguments and rational choice assumptions of the theory as flawed or as symptomatic of his alignment with managerial and scientistic liberalism.⁹⁷ For such critics, the portrayal of the parties as mutually disinterested rational beings was at best a misunderstanding of what people were like; it could also indicate that despite his sometimes communitarian rhetoric, Rawls ultimately envisaged man as homo economicus—an atomized “infinite consumer.” Just as the lines between the model of perfect equilibrium and real-life markets blurred, so it seemed that those between Rawls’s model and his vision of reality did too.⁹⁸ Some questioned whether the parties could really be models of Kantian noumenal selves, as Rawls sometimes seemed to suggest. They thought him committed to the pursuit of self-interest and an amoral or immoral understanding of motivation.⁹⁹

Rawls’s defenders insisted these critiques conflated the parties in the original position with actual human selves, or even their ideal version. After the charges of economism waned, others noted the parties in the original position were not even individuals, let alone “real” ones, but “continuing lines” or “groups.” Those keen to preserve an account of corporate responsibility or to dispute methodological individualism later greeted this with enthusiasm.¹⁰⁰ Jane English and Susan Moller Okin, who saw Rawls’s labeling of the parties as “heads of households” as revealing the gendered structure of the theory, attacked it with skepticism.¹⁰¹ Neither was wrong. As Barry also recognized, Rawls took enough from economics to deploy standard economic units, and it was the household—families, not individuals—that mattered for economic theory.¹⁰² Rawls’s theory hailed firmly from the era of the family wage. The family and the smaller associations had a distinctive ethical role for Rawls as the site of moral development, and feminists saw this clearly.

Once the interdisciplinary excitement around choice, risk, and uncertainty subsided, the original position was either set aside as unnecessary relative to other forms of justification or accepted as an argument for justifying the choice of principles to regulate a just society.¹⁰³ Earlier experiments in adopting a moral point of view were discarded, even as they had paved the way. These debates about the original position also laid the foundations for another, one that would outlast the technical debates about decision-making under risk and uncertainty: the debate about what idea of the self lurked behind Rawls’s theory.¹⁰⁴ But those concerns were deferred for another decade. With game theory ascendant, the psychological and naturalistic underpinning of Rawls’s theory was of little interest. What mattered were the economic ideas that overlaid it: the self-interested rational individual and their Kantian inverse, the autonomous moral person. But Rawls’s readers also turned to the content of the principles themselves. As they began to argue over how radical and demanding his theory really was, the aims of liberalism were reinterpreted. It was against the backdrop of arguments over the welfare state, constitutional theory, and civil liberties that the politics of the principles would now be understood.

Did Rawls’s theory aim to improve the lot of the poor, or did it aim at equality? Which of these was the more radical aim for liberalism? Did Rawls take the rich to task, or did he let them off the hook? Political philosophers analyzed these questions, asking what it meant that Rawls prioritized the liberty principle, whether the difference principle was egalitarian, and how much redistribution it demanded.¹⁰⁵ The national difference in reception was striking. In the United States, as Perry Anderson later wrote, “Rawls’s delphic masterpiece” was received “as the standpoint of a moderate, liberal left, within a field whose center of gravity lay well to the right of it.”¹⁰⁶ Daniel Bell, for instance, read Rawls as providing a full-blown attack on meritocracy and “the most comprehensive effort in modern philosophy to justify a socialist ethic.” In Britain, however, Rawls was read as a “figure of the centre.”¹⁰⁷

While Stuart Hampshire situated Rawls alongside Tawney and Titmuss, Barry accused him of lacking in that same tradition of British altruism.¹⁰⁸ Others characterized his theory in relation to contributory, welfare state, and utilitarian theories. Miller thought that Rawls’s theory, like utilitarianism, was “forward-looking,” but he also thought the notion of desert crept into the principle of fair equality of opportunity. Barry was delighted by Rawls’s rejection of desert, but overall it was not the “radical break” with just deserts he imagined. Rawls cared about limiting, not eliminating, inequalities. Too concerned to provide economic incentives for general improvement, Barry thought him content with inequalities that no serious egalitarian would permit.¹⁰⁹ The British sociologist W. G. Runciman went further, in a debate that prefigured later philosophical disputes about the role of incentives. Rawls’s theory contained an attack on the contributive principle.¹¹⁰ In correspondence, Runciman argued that Rawls’s model allowed “extortion” by “fortunate entrepreneurs.” He was aligned with Buchanan and Tullock—defenders of perfectly competitive markets and “enemies of the welfare state.” Social justice, in Runciman’s terms, required constant redistribution.¹¹¹ Rawls did not provide for that constant redistribution and attention to need that lay at the heart of the welfare state.

When Brian Barry released his book-length response two years after A Theory of Justice was published, he described Rawls as an “unreconstructed Gladstonian liberal.” The difference principle was deeply radical, but “surely not since Locke’s theory of property have such potentially radical premises been used as the foundation for something so little disturbing to the status quo!” Rawls might have aimed his theory at securing advantages for the “worst off representative man,” but he fudged what that meant: was the “lowest representative man” the least advantaged of all those in the bottom social position, or was he the “average taken over this whole class”? Locke had dropped the “idea that everyone has property in what he mixes his labour with in the light of the observation that the poorest labourer in England lives better than a king in America. But at least he had the decency to make the claim for the poorest labourer—not the average.”¹¹² Moreover, Rawls cared too much about securing the agreement of the rich. Both liberals and Marxists thought his model implausible for its assumption that the rich would give up their positions to benefit the least well off and his faith that the moral point of view would not collapse into the “class point of view.”¹¹³ In this sense, Rawls fell between two stools: he did not have the benefits of a fully altruistic view when it came to ideas of social solidarity, but nor did he have the clear-sightedness about power that derived from interest-based views.

Yet Rawls had many left-liberal defenders too. While he dug down on the priority of liberty, they sought to rescue the “radical premises” of the difference principle. Some claimed that Rawls’s distributive ideas were inextricably concerned with production. If taken seriously—as the centerpiece of Rawls’s theory, relaxing the priority of liberty argument—the difference principle would lead to a wide dispersal of capital, far more egalitarian than any existing welfare state. It was a “people’s capitalism.”¹¹⁴ Others, focusing on Rawls’s connection of reward to the performance of “social function” and its disconnect from “natural and social fortune,” argued that his theory ruled out capitalism: Rawls followed those who saw ownership as not in itself productive, thus not contributing to the cooperative scheme, and so ruled out capitalist property as unjust and moved toward a democratic socialism.¹¹⁵ Rawls’s intentions need not have been radical. His theory could have radical consequences.

Many left-liberal philosophers therefore tried to use Rawls’s theory. Others saw it as a rationalization of a capitalist welfare state.¹¹⁶ His account of the legal system, which delighted constitutionalist lawyers, made his theory incompatible with the kind of neo-Marxist and critical view of law then gaining ground, which emphasized the ties of the legal system to private property regimes.¹¹⁷ Rawls was, moreover, reluctant to criticize the market, not only on moral grounds but on those of efficiency, and seemed to some to uncritically accept it as a mechanism of social distribution. To others, his emphasis on ownership and wealth neglected the importance of worker control for justice: Rawls did not see what arrangements were in fact required by market socialism.¹¹⁸ He missed the roots of capitalist exploitation in private ownership and the division of labor, assumed a class society was “inevitable,” and failed to see that socialism could not merely be a mere “modification” of a “capitalist welfare state” with a few workers’ councils and public ownership. These limitations were part of the legacy of Labour revisionism—its reimagining of socialism’s aim as equality and its accommodation with managerialism. For Barry, Rawls appeared not to consider “the question of improving the working conditions of the bulk of the population as one of justice,” despite a nod to the importance of “meaningful work.” This downgraded the importance of collective action, political conflict, and the labor movement in securing the conditions of social justice, and even the partial successes of the welfare state. Rawls “suggests no machinery for bringing about the changes he so airily speaks of as being possible,” Barry wrote. “One is forced to conclude that he must believe market forces to have some inherent tendency to bring them about, which is completely contradictory to experience.”¹¹⁹ If Rawls’s theory had relied on the sociological prophecy of a mixed economy tending toward post-industrial society, that prophecy, still unfulfilled, itself required a justification that Rawls did not provide.

On some leftist interpretations, Rawls neglected the potential collective agent of the working class. From a liberal perspective, a distinctive yet parallel complaint was made: that his emphasis on social ties and equality amounted to a neglect of the poor. Rawls’s egalitarianism was seen by certain liberals to come at too high a cost. Among the legal philosophers with whom Rawls’s ideas had an immediate impact, some challenged Rawls by extending the logic of humanity- and needs-based welfare arguments, as well as the turn to poverty (ideas that soon provided the basis for “sufficiency” alternatives to egalitarianism).¹²⁰ Michelman, for example, deployed Rawls’s principles to defend a jurisprudence of judicially enforceable “welfare rights” and to support the claim that the Constitution itself condemned poverty.¹²¹ He argued that judges could use Rawlsian principles to defend welfare and justify attacks on poverty not just as wealth “discrimination” but as material “deprivation.” Though he deployed Rawls’s ideas in support of this welfare rights jurisprudence, Michelman nonetheless took him to task for his neglect of the poor for the sake of reducing inequality. Rawls’s concern with relative inequality, Michelman claimed, occluded a staunch defense of “a social minimum.”¹²² Though Rawls advocated one in practice, the thrust of his theory was to say that reciprocal relations between persons and groups mattered more than absolute poverty reduction.

This downgrading of equality turned on a welfarist minimalism and a humanitarian argument about the state’s responsibility to meet needs. It was a response to the demand to take seriously poverty in the midst of affluence. But it risked displacing the problem of inequality. Compared to this, Rawls’s emphasis on relational egalitarianism seemed a robust answer to that problem. Like older egalitarian traditions that focused on the psychological costs of inequality, Rawls was adamant that inequality between classes of people was destructive to individuals and society.¹²³ Yet to others, Rawls’s egalitarianism was insufficient in another respect. An implication of Rawls’s vision that saw the fate of the poor tied to that of the rich was that he did want to fight the rich to give to the poor. The destiny of each was tied to that of all. The rich were not understood as possessing a distinctive economic power; their position was not challenged as a way of confronting relations of domination or corporate capitalism.¹²⁴ At the AEA meeting in 1973, Rawls admitted that while the maximin criterion might, “if society were to impose a head tax on natural assets,” conform to the precept “from each according to his abilities, to each according to this needs,” that was not in fact feasible. Individuals would have “every incentive to conceal their talents,” and anyway such a scheme would be a step too far, conflicting with liberty. Society instead could “say that the better endowed may improve their situation only on terms that help others. In this case whatever inequalities exist will effectively benefit the least advantaged, even though, for the sake of equal liberty, they are not as well off as they might be.”¹²⁵

In the early 1970s, these political critiques of Rawls came thick and fast. In talks, he defended himself against many of them. He refused the characterization of his theory as confirming the status quo and insisted that he did not, as economists did, “take preferences as given by social institutions but as created by them.” Preferences were “not static,” but evolved and developed over one’s life. They focused primarily on “institutions not commodities,” on “rights and opportunities, not things.”¹²⁶ When Barry accused him of thinking that “nearly just” societies “actually exist,” “in the shape of the USA,” Rawls retorted that “I would find it very difficult to see how anyone who has lived in this country for the past decade or so could think that it is a just or nearly just society as I define justice.” It might be worth “the effort and devotion” to try to preserve “aspects” of “our political life,” since “a condescending dismissal of our political tradition can only be destructive in the long-run.” But this was a far cry from the claim that “the basic structure of our society is just, or nearly just.” “To think this is to fail to work out the implications of the principles of justice,” he protested. “Can anyone seriously believe that the inequalities of our society work out to the best advantage of the least favored, or that they nearly do so?”¹²⁷

In a 1971 lecture, “Liberalism and the New Politics,” Rawls had elaborated in what ways American society failed by contrasting his liberalism with New Left ideas. He saw value in the New Left critique of liberalism—its attack on the corruption of political processes, markets, incrementalism, unfair influence, and institutional hypocrisy. But, for Rawls, the problem was not that liberal procedures and institutions themselves led to unfair outcomes, but that in order for liberal procedures to function correctly, they needed to be underpinned by “conditions of background justice” “that in the US today do not obtain.” In some cases, these conditions had been so “flagrantly violated” that no one was bound by the outcome of procedures. Notwithstanding his restrictions on the justifiability of civil disobedience, Rawls used the example of voting rights, which, in isolation from justice, were “formal and ineffective.” Yet it was not, as some “radical critics believe,” necessary to “dismantle capitalist institutions altogether.” Rather, liberals must be flexible as to “which reforms are necessary to establish the validity of liberal institutions and procedures.” Rawls agreed with the argument that “indigenous liberal traditions provide a reasoned basis for radical criticism of our existing institutions and that many if not most of the objections raised against present policies by radical critics can be defended on essentially liberal grounds.”¹²⁸

No matter, in the end, what Rawls the man thought. Over time, in the years of debate, interpretation, and reinvention that followed the publication of his book, analytical philosophers did what they do best: they selected particular ideas and arguments and made those as internally coherent as possible. What shaped the coherence they arrived at was an outside challenge. Faced with that challenge, it became clear that Rawls’s ideas taken together amounted to a distinctive kind of political theory. That challenge came not from the welfarist, socialist, or social democratic left, nor from the public choice right. It came from a new right-libertarianism that aimed not to replace Rawls’s specific principles but to reconfigure its understanding of justice. It was in response to that libertarianism that the character of liberal egalitarianism was established.

Rawls’s Harvard colleague Robert Nozick was not much concerned with how much room Rawls gave to ideas of altruism, need, poverty, or incentives. He objected to the reach of Rawls’s state. Nozick saw any trace of skepticism about intervention in Rawls as irrelevant in the face of his theory’s redistributive implications. These, he argued, amounted to injustice. In 1973, Nozick published an article on distributive justice, the first installment of his best-selling book of the following year, Anarchy, State, and Utopia, which defended a minimal state whose activities were confined to the protection of individuals, their rights, their property, and their contracts. His minimal state was not the young Rawls’s. Society, for Nozick, was nothing like a game. What mattered was not the rules of the basic structure, but rights. Nozick’s rights were prepolitical, preceded contracts, and were not granted by institutions. “Individuals have rights,” Nozick wrote, “and there are things no person or group may do to them (without violating their rights).”¹²⁹

Nozick did not provide an argument for these rights. For this, his neo-Lockean theory was widely condemned—as “without foundations,” as a “reductio” of anti-utilitarian arguments, or as simply “implausible” and “American.”¹³⁰ This did not stop him providing a withering critique of theories like Rawls’s, in which ideal cooperative societies, Nozick claimed, required constant and continual state interference with those rights. All curtailments of individual freedom had to be the result of purely voluntary schemes: social insurance, education, aiding the needy—these were possible, but only if they resulted from individual voluntary action. Nozick thought all obligations were founded on consent. Like Walzer, with whom he co-taught, he returned to a simple idea of consent that Rawls had tried so hard to get away from.¹³¹ On his view, the state existed only to enforce individual rights, particularly the right not to be compelled to take part in schemes to which individuals had not consented. Rights were violated not only by utilitarian institutions that traded off individual for social welfare but by any scheme that imposed a loss on individuals for the sake of the social good.¹³²

Here was a libertarian attack on the redistributive functions of the state. No more than a minimal night-watchman state could be justified. This vision generated a series of new fault lines among political philosophers, not only over the extent of redistribution Rawls’s theory demanded but about the kind of theory it was. It was institutional: property rights were designated by social institutions and the distributive principles applied to the basic structure that determined what belonged to whom. It was also seen by Nozick as interventionist and unhistorical. Nozick claimed that Rawls and other theorists who relied on “games of fair division” ignored how goods were created and how allocations were reached. They focused on dividing the pie, not on who baked it: Rawls’s idea of an economy began with “manna” from “heaven.”¹³³ “Rawlsian” liberals provided theories of redistribution: the implication of eliminating desert as a basis for distributive justice was that those who did not have the talents and goods that would allow them to get by comfortably should be compensated for what they lacked.

Nozick objected to this vision. It mattered how property came to be distributed, and original ownership mattered. Leaving ownership out of the equation skirted problems of causality and responsibility. Nozick made an influential distinction. On the one hand were approaches to distributive justice that relied on “end-state principles,” like Rawls’s and welfare economic theories, which evaluated only “current time-slices” of distribution but ignored how that distribution came into being. On the other were those that relied on “historical” principles (like his), which saw as morally relevant how individuals came to own what they owned.¹³⁴ The justice of an individual’s possessions and control over economic goods was not a function of their contribution to the general welfare. That was the kind of claim made by an “end-state” or “pattern” theory in which individuals’ claims to goods were just only if they were part of a distribution where inequalities worked to the advantage of the least well off—where the difference principle and its claims on reciprocity held. For Nozick, a distribution was just if it came about by a “just initial acquisition,” a “just transfer,” or a just “rectification” of an unjust taking.¹³⁵

Nozick’s intervention mattered to the trajectory of liberal philosophy in a variety of ways. To many outside the growing circle of philosophers of public affairs, Nozick and Rawls were cut from the same cloth—both were elite Harvard philosophers fundamentally committed to the priority of liberty, the downgrading of utility, and “antipolitical” contractarianism.¹³⁶ But Nozick’s critique of Rawls was a sign of things to come, and a bellwether for the changing political mood. The sociological optimism of a liberal political culture that had underpinned Rawls’s liberalism and its openness to different regimes was being replaced by defenses of private property, choice, capital rights, and markets, enabled by a radicalized skepticism of state overreach.¹³⁷ With the coming crisis of Keynesianism and its left-alternatives, new forms of neoliberalism and economic libertarianism were on the rise.¹³⁸ Many began to suggest the state’s capacity to intervene in the economy was being squeezed by the “absolutization of the market.”¹³⁹ Political philosophers encountered these changes in disputes over “markets and morals,” in which they extended the division over self-interest and altruism-based theories into critiques of markets—for instance, in debates over health care reform in the late 1970s among Singer, the young Marxist philosopher G. A. Cohen, and others.¹⁴⁰ But it was Nozick, rather than these general worries about marketization, who first helped make the ideas of economic liberty, property rights, consent, choice, and original entitlement central to liberal philosophy.

Nozick sparked a conceptual reckoning with the tenets of Rawls’s theory and a defense of its egalitarianism. It was in response to Nozick that Rawls’s followers became “Rawlsian” and established the contours of the new philosophy. This included a philosophy of public affairs that applied general principles to “issues of public concern,” which continued to be determined by the concerns of the courts. It also included a vision of liberalism with moral principles that applied to institutions and to which philosophers preoccupied with public affairs might appeal. What determined this new liberal egalitarianism’s canons of legitimacy was not so much a theorist’s response to a particular argument—since a degree of political flexibility was built into Rawls’s framework—as that theorist’s adherence to a set of assumptions about the basic tenets of the new liberal theory, including what kinds of arguments were permissible and which were excluded. Three in particular, which were sharpened in response to Nozick, had immediate ramifications for the politics of liberal political philosophy.

The first was the importance of the basic structure. The new egalitarians stuck by Rawls’s “macro-institutional principles.” Rawlsian justice was about finding the right principles to regulate the social rules. The precise distributions demanded by the principles were debated, but the institutional nature of the theory was not.¹⁴¹ Rawls’s argument that principles of justice applied only to the practice that was the basic structure was widely accepted. What exactly was meant by a “practice,” and how tightly this idea was defined, had preoccupied Rawls as he formulated his theory. The basic structure had not been a casual formulation, though its intentional capaciousness as something between social institutions and state entailed some ambiguity. That ambiguity was now underplayed, as many accepted Rawls’s theory as primarily institutional. Only later would Rawls’s critics challenge this focus, contesting what they saw as the tightly institutional scope of the basic structure for its neglect of agency. For now, Rawls’s theory as stated in A Theory of Justice became the new baseline: all additions and criticisms would respond to its institutional focus. Meanwhile, his early motivations were eclipsed. The critique of the interventionist state embedded in the metaphor of society as a game, in which the basic structure had its origins, was forgotten. While some shared Nozick’s worries about the stability of the basic structure, most accepted its designation of the structures of a liberal, welfarist, or egalitarian society and state.¹⁴² After Nozick attacked liberal egalitarianism as excessively interventionist, the response was to defend egalitarian distributions, state intervention, and redistribution explicitly.¹⁴³ The institutions themselves were assumed, at the same time that the divide between philosophers who gave institutions conceptual priority over rights deepened. This divide soon cut across political lines, but in the first instance Rawls’s institutionalist followers were also committed to significant redistribution.

Rawls’s theory complemented the growing preoccupation among philosophers to prioritize justice over humanity and to join it to basic equality. It was this egalitarian commitment that became the second defining characteristic of liberal theory in his shadow. What precisely it entailed preoccupied philosophers for decades in debates about the basis and implications of egalitarianism. But the redefinition of philosophical liberalism as tied to the value of equality was also a product of the Rawlsian response to Nozick and the initial wave of Rawls’s left-liberal and socialist critics. In 1977, when Dworkin argued that a “certain conception of equality” was “the nerve of liberalism,” he was shoring up the philosophical belief in a continuous liberal tradition that presented the Great Society as a liberal landmark paving the way to social democracy and the New Deal as a “triumph of pragmatic politics.”¹⁴⁴ An earlier generation of liberal critics became the New Deal state’s post hoc defenders.¹⁴⁵ For Dworkin, liberal equality was the core value of the “package” of “New Deal Liberalism,” the reputation of which had been threatened by the Vietnam War.¹⁴⁶ That package was translated into Rawlsian terms as a conceptual commitment to the principles of justice designed to regulate a practice, not to individual rights and entitlements in abstraction from it: the theory was concerned with a nonvoluntary cooperative scheme characterized by reciprocity, limited inequality, and equality embodied in the treatment of equal moral persons. At the same time that Rawls’s theory, born in part of anxiety about the New Deal state, was naturalized in the discipline of political philosophy, it was also written into a narrative of liberal egalitarian progress that claimed the New Deal as its victory.

The third characteristic of the new liberal egalitarianism was its relation to historical argument. Nozick and Rawls were both criticized for erasing history. Some saw their theories as abstract, timeless, inattentive to historical change and context. They were insensitive to personal and communal histories, unconcerned with what people were like.¹⁴⁷ But Rawls was not insensitive; his point was that much of this was irrelevant from the point of view of distributive justice. “Modern-minded men like thinkers to be forward-looking,” one philosopher wrote of analytical philosophy’s temporal focus, and they “regard it as a mark of obsolescence in the concept of justice that it should be backward-looking”; hence they reduced the importance of desert.¹⁴⁸ Rawls followed suit. Personal histories were irrelevant to just distributions. The original position had little to do with history, nor did Rawls’s institutional account of what people were owed. Nozick, by contrast, joined a long line of thinkers who deployed historical origin stories, myths, and arguments to justify distributions. Rawls’s theory was primarily hypothetical: the focus on hypothetical agreement and contract would be a crucial characteristic of liberal egalitarian modes of justification.¹⁴⁹ Nozick fused the hypothetical with the historical.¹⁵⁰ He did not try to ground existing property rights in real historical processes but was more interested in how distributions of property might have arisen. Yet he did think individuals come over time to have entitlements to material goods because of what they have done and what they have exchanged, and that institutions that interfered too much with this process were illegitimate. Personal histories of exchange were normatively relevant.

This attention to historical processes was not exclusive to Nozick. His defense of capitalism might have been the political antithesis of socialism, but it was also its philosophical mirror. Nozick’s critiques of Rawls’s theory shared something with certain socialist objections, which saw it as lacking an account of production or the labor process that defined or created value: it mattered who baked the pie, and who made the effort or contribution. Rawls’s early liberal and socialist readers extensively debated whether contribution—to joint enterprises, public goods, or product—should be a major distributive rule of a society, and how much its effects should be remedied by other rules of fairness with different compensation requirements. For some, historical arguments could be used to explain why people deserve to be compensated for their exploitation, or to have expropriated goods, time, or labor returned. They could help explain why workers, capitalists, or entrepreneurs were or were not productive in a morally relevant way, or why labor’s contribution to the production of a good was underestimated relative to capital.¹⁵¹ Nozick put his “entitlement” theory to different ends. What counted as a just transfer or rectification was extremely broad, and unconcerned with the problem of rectification, he provided no mechanism to correct for exploitation. Justice, on his neo-Lockean view, amounted to the protection of individual property. But as the analytical socialist preoccupation with Nozick in the coming years would attest, these arguments operated on a similar plane to certain anticapitalist ones, especially those that were the legacy of New Left ethics (in which exploitation, for instance, was a moral and historical process by which bosses and capitalists cheated, abused, and defrauded workers of the value of their products). In their philosophical incarnation, these became wedded to controversially Marxian themes of social justice and equality, as well as a critique of capitalism as a system of rules rather than as defined by justice in exchange.¹⁵²

Yet it was first because of Nozick, as much as any leftist challenge, that Rawlsians sharpened their responses to “historical” and “backward-looking” arguments. As liberal philosophers turned their attention from interpreting the details of Rawls’s theory to contesting Nozick’s and defending Rawls’s approach in response, they doubled down on both Rawls’s institutional and presentist focus.¹⁵³ The removal of history was here the route to universalist egalitarianism. As they rejected the relevance of desert to institutional principles, they also rejected the normative relevance of arguments about how inequalities came about and, with them, non-institutional claims about individual entitlements, initial endowments, and the ownership of resources. Liberal egalitarian justice theories started not from past ownership but from the institutions of the basic structure in the hypothetical present.

This framework began to push those who accepted it in a variety of directions, just as Rawls had bowed to the logic of the theory he built. Over the course of the 1970s, the account of institutional rules, egalitarian principles, and individual persons at the theory’s core came to determine what kinds of arguments philosophers took as permissible. The institutional, hypothetical and nonhistorical emphasis, sharpened in response to Nozick, placed a range of positions outside the new liberal egalitarianism. Many kinds of political theories were excluded, including the meritocratic, contributive, aristocratic, or statist ones that the young Rawls had explored only to reject.

This was not only the case when it came to determining what kind of society could count as just. The liberal egalitarian guidelines also came to be used when dealing with particular public affairs. The non-ideal realm of “partial compliance,” in which most public affairs took place, was increasingly seen as not just guided but constrained by the arguments formulated in debates about ideal justice.¹⁵⁴ Rawls’s arguments very quickly became the common-sense baseline that determined what public affairs counted as core liberal concerns. Where his arguments were unclear in their implications, philosophical debate ensued. New subfields of political philosophy were born of attempts by Rawls’s followers to stretch his theory to cope with political concerns that he had ignored or not anticipated, or that were difficult to address within the Rawlsian liberal framework. When Dworkin defined a “liberal package” of key concerns, he set aside as only controversially liberal a number of others: “military intervention in Vietnam,” “the environment,” and the “debatable extension of liberal doctrines, like busing and quotas that discriminate in favour of minorities in education and employment.”¹⁵⁵ These concerns were deemed potentially outside the liberal egalitarian purview. When in subsequent years philosophers explored them, they stretched these theories into new territory.

One public affair that liberal egalitarians tried to address was that which a decade earlier Rawls had deemed one of “implementation”: the problem of desegregation and, more broadly, of racial inequality and injustice. The philosophical response to these problems was illustrative of the politics of the new egalitarianism. During the 1970s, amid continued resistance to desegregation, political philosophers turned their attention to the ethics of various solutions. In these years, neo-Lockean claims that turned on historical and rights-based arguments similar in structure to Nozick’s were not unusual among African American, black nationalist, and anticolonial theorists who argued that reparations were owed to African Americans for slavery and its institutional legacy in Jim Crow.¹⁵⁶ For those who did not receive the benefits of citizenship and its logic of compensation for disadvantage, neo-Lockean demands for repair and rectification were a political resource. After demands for reparations for slavery gained national attention in the late 1960s, a number of philosophers, such as Hugo Bedau and Bernard Boxill, explored how a claim for reparations for historical injustice might fit an egalitarian Rawlsian framework.¹⁵⁷

The claim to a historical right of reparation was easily accommodated in Nozick’s framework. His emphasis on historical principles and transhistorical rights that existed outside the institutional social rules was a perfect fit. The same was not true of egalitarian, institutional, nonhistorical theories.¹⁵⁸ Boxill illustrated this with an explicit contrast. On the one hand were Rawlsian theories, which rested on the acceptance of social rules and the existence of a “single” “valid community.” They were concerned with compensation for bad luck and natural accidents, the costs of which “the whole” agreed to bear. Distributive justice rested on a view of society run in terms of fair competition, which required compensatory programs that were “forward-looking” and concerned with keeping society fair and running smoothly, with its losers protected.¹⁵⁹ On the other hand, the case for reparation was “more primitive,” “backward-looking,” and derived “directly from self-preservation” rather than any social contract, agreement, or set of social rules.¹⁶⁰ Boxill’s account depended, as Nozick’s did, on rights—not in his case entitlements in property, but the right of each person to “pursue and acquire what he values.” An egalitarian safety net was not the same as reparation to black and colonial peoples: that depended “precisely on the fact that such people have been reduced to their present condition by a history of injustice,” whereby the products of slave labor had been expropriated, so that descendants of slaveholders were in possession of wealth not rightly theirs.¹⁶¹ Such a neo-Lockean view posited a realm of historical argument and transhistorical rights of ownership, property, and inheritance that existed outside of social rules and agreements. For those who did not already exist within a realm of social rules that benefited them, it had a lot to offer.

But such claims were hard to accommodate within the liberal egalitarian framework. When Bedau, who, like other left-liberals in the 1970s, tried to find a socialist interpretation of justice theory, analyzed the demand for black reparations, he saw the need for a “socialist justice” that combined leftist backward-looking arguments and egalitarian present-focused ones.¹⁶² By contrast, in his treatment of Native American claims for the return of land, the utilitarian David Lyons, a student of Rawls’s, argued that reparation and rectification were not egalitarian ideas. Though history might be used to causally explain the force of certain redistributive claims—and Native American “deprivation and their claims are rooted, causally and historically, in the wrongs that . . . their ancestors suffered”—they had no normative weight of their own. Their claims were not normatively derived from their original historical rights outside of institutional contexts, but from their current disadvantage—not because of transhistorical rights claims but “current inequities (some of which, of course, may trace back causally to the dispossession of Native Americans and the aftermath).”¹⁶³ It was current wrongs that mattered, whether or not they were causally derived from past injustices.¹⁶⁴ Distributive justice was about changing the institutional rules so they worked to the benefit of the least advantaged. Distinctive historical arguments based on reparation were deemed unnecessary.

Egalitarian principles were capacious and flexible, just as Rawls intended. They could be deployed for transformative and radical ends, as Barry thought the difference principle ought to be. But in practice, when tied to the architecture of Rawls’s theory, they were moderate, reformist, and served to diffuse alternative radical demands by force of argument. Historical claims about imperialism, colonialism, and global politics had already been left out of philosophical treatments of the Vietnam War, which abstracted core moral concerns from political ones. Now these absences were given broad justification. The practical concerns the Rawlsian framework was best placed to handle were constitutional ones, not demands for reparations, and this had consequences for the political shape of philosophy. The “legalization” of philosophy continued, with the courts determining which political problems absorbed philosophers and which they ignored.¹⁶⁵ In 1971, Briggs v. Duke Power made affirmative action law; where whites had long had preferential treatment, now the opposite was demanded.¹⁶⁶ In that ruling’s wake, and after the 1972 executive order that brought affirmative action to campuses and then the Bakke ruling in 1978, philosophers debated the ethics of preferential hiring, affirmative action, and workplace discrimination. Legal liberals in postwar America tended to take one of two approaches to the workplace: one focused on unions and “workplace majoritarianism” to set the bounds of employer discretion; the other looked to discrimination law and the protection of minorities. It was the latter approach, which both stopped short of reparations claims and displaced labor politics, with which philosophers were concerned.¹⁶⁷

A number of different justifications for preferential hiring were proposed by philosophers of public affairs. Some appealed to rights. Judith Jarvis Thomson, for instance, did so on grounds that no one has a right to a privately produced benefit, and so employers have a right to hire whomever they like.¹⁶⁸ Preferential hiring was justified as a kind of redress for past exclusion. Arguments like this privatized work even as they justified diversity. But it was the reference to historical, past wrongs that most irked Thomson’s critics, who were also concerned with what kinds of rights were at stake in her vision.¹⁶⁹ Others tried to extend Rawls’s framework for non-ideal theory to cover affirmative action. Such arguments, developed before Rawls’s distinction between ideal and non-ideal theory had been taken up as a prerequisite, and before many philosophers argued that non-ideal theory had to be constrained as well as guided by ideal theory, were later rejected as “insufficiently Rawlsian.”¹⁷⁰ Yet it was clear to many that the solutions Rawls had provided to the problem of the relative weights of desert, merit, contribution, and effort and their relevance to the distribution of opportunities and incomes had implications for affirmative action. Indeed, while critics argued that affirmative action severed reward from character, choice, and effort, and outcomes from responsibility, many suggested Rawls’s theory pointed in the same direction.¹⁷¹

Whether and in what ways Rawls’s theory could support a defense of affirmative action was part of a broader debate over whether it could be seen as meritocratic, as well as about the place of desert in egalitarianism. A common misunderstanding of Rawls, Norman Daniels wrote, was that there was no “scope for reward” within the basic structure. But Rawls did not “nullify” desert. Nor did he entirely disavow meritocracy, within the limits provided by his principles.¹⁷² Rawls might have made desert irrelevant to his institutional principles and stressed that natural assets were not deserved and that starting places in the game were not merited. However, he still thought that desert and contribution could characterize social relations within institutions and within the limits of the difference principle. Indeed, he had explored in detail the extent to which effort or talent might create individual desert and ensured a “principle of redress” that would compensate those with fewer natural assets. He made equality of opportunity substantive rather than formal (via educational provisions) and part of the second principle.¹⁷³ Rawls’s readers now debated the relevance of institutional and pre-institutional notions of desert in the justification of affirmative action. Some stressed that desert as a principle of individual responsibility had to be better accommodated: treating people “as they deserve” was a vital route to “treating them as autonomous beings” whose “actions merit approval or resentment.” It increased “their control over their own lives and fortunes.” What mattered in arguments for affirmative action, on this view, was not ascriptive identities of race or gender but the removal of “barriers to effort” and unfair disadvantages.¹⁷⁴ But the revolt against desert also made liberal egalitarianism amenable to a defense of affirmative action. Reparations claims required historical argument, but they potentially implied a strong and punitive idea of responsibility that made distributive arguments into quasi-corrective ones. Affirmative action, by contrast, could fit the Rawlsian framework, since it could be framed in egalitarian terms, with a deflationary view of individual responsibility and of talents as collectively held assets. Rawls’s ambivalence on responsibility and desert could be put to political use in the name of a robust institutional egalitarianism.¹⁷⁵

Not all aspects of affirmative action were easy to accommodate. For instance, it put the status of groups within liberal philosophy under pressure. This was a major question in the related jurisprudence surrounding desegregation and busing, taken up by the foremost antidiscrimination theorist, legal philosopher, and SELF member Owen Fiss.¹⁷⁶ He posited a solution in his “group disadvantaging” principle, which impugned “facially neutral practices with a racially disparate impact.” This “antisubordination” principle argued that laws may not “aggravate or perpetuate” the subordinate status of a specially disadvantaged group.¹⁷⁷ In making this argument, Fiss followed distributive justice theorists in their rejection of certain kinds of historical and group claims: as one commentator argued, he took on the “apparent partisanship of a group-specific approach to the Constitution, with a largely depoliticized account of that group’s trajectory.”¹⁷⁸ Consistent with his Rawlsian colleagues, he downgraded explicit considerations of the historical emergence of black disadvantage and did not include arguments about compensation for historical discrimination. It was “an ethical view against caste” that mattered, not past wrongs.¹⁷⁹

Nagel made a similar argument in his introduction to the Philosophy and Public Affairs reader Equality and Preferential Treatment (1977). Arguments from historical injustice were discounted for the sake of securing future equality of opportunity. Women and African Americans, Nagel wrote, were still “in too poor a competitive position to convert equality of opportunity into equality of achievement.” But in the pursuit of that equality—in the inevitable departure from the “merit” system that entailed—claims based on reparations, historical injustice, group unfairness, or prior contribution were set aside. Distributive justice should not rest on past wrongs, original entitlements, or an idea of desert. “An advantage of arguing from the desirability of improving a bad situation, rather than from a claim of right is that it does not require agreement about how much of the bad situation is due to past injustice,” Nagel wrote. “We may wish to improve it however it was caused.”¹⁸⁰ Instead of claims on behalf of collective or corporate groups, justifications for preferential treatment should focus on “individual unfairness.” The skepticism about assigning agency and responsibility to collective entities was reasserted: “When we notice that the only groups for which the group fairness argument is at all plausible are those with strong psychological identification—and historical continuity—we may conclude,” Nagel argued, “that the argument’s appeal is due to the fact that it conceals an argument of individual unfairness. There may be a way to defend group compensation and liability without appealing to individual justifications, but it would appear to depend on illegitimate personification of collectivities.”¹⁸¹

The task of liberal political philosophers became to address various public affairs using only the egalitarian arguments they now defined as legitimate. Rawls’s theory provided the first test of that legitimacy. The new egalitarians took it as their baseline and struggled to show just how much it could accommodate. This remained the case for many years to come. For example, as critiques of Rawls mounted, with the philosopher Charles Mills and others later arguing that the Rawlsian neglect of racial injustice illustrated liberal egalitarianism’s white supremacist core, certain Rawlsians would respond that Rawls’s theory provided the basis for a robust defense of affirmative action and an attack on racial injustice more broadly.¹⁸² Rawls did not comment on affirmative action until later in life, and he never proposed an antidiscrimination principle or account of compensatory justice. Nor did he treat “race” as an independent cause of failures of fair equality of opportunity, but as part of economic inequality. Some argued that his theory nonetheless contained sufficient resources to make those additional arguments unnecessary.¹⁸³ After all, since his graduate school days, Rawls’s decision procedure had aimed at removing prejudice and irrationality. Considerations of racial disadvantage played an important role in the original position and veil of ignorance, which eliminated knowledge of racial identity and racism precisely to prevent racial inequalities. The fair equality of opportunity principle and difference principle, particularly its accompanying principle of redress, together significantly mitigated the effects of racial disadvantage.¹⁸⁴ A range of black philosophers, including Boxill, Laurence Thomas, and Michele Moody-Adams, saw in Rawls the possibility of a theory of racial justice.¹⁸⁵ Some, like Tommie Shelby, suggested that Rawls’s liberalism went far beyond nondiscrimination in the administration of justice: it had the potential to critique institutional racism and racial disadvantage in the name of equality, without using post-Bakke arguments from diversity.¹⁸⁶ On this view, a Rawlsian just society left neither stratifications of class nor race in place. Independent historical arguments were not conceptually necessary to redress the accumulation of historical racial or class disadvantage.

The beauty of Rawls’s theory was that its arguments could be put to radical ends and admit a more demanding egalitarianism than he might himself have advocated. Yet while this was the fate of its constituent arguments, the structure of Rawlsianism as an intellectual field and the dominance of particular philosophical preoccupations and assumptions would serve to keep out alternatives. This was the paradox of the new philosophy, and it was already coming into view. By the end of the 1970s, the character of liberal egalitarianism was set. For the foreseeable future, both proponents and many critics would negotiate within its terms. Egalitarian principles applied only to individuals or institutional policies determined by them. Institutional rules became the core feature of a usable theory. Rights outside of them and claims from history were excluded. Liberal philosophers insisted that ideas and arguments excluded by the Rawlsian framework were no longer necessary to deliver an egalitarian politics.