When the broad concept of discrimination is evoked, its two distinct branches may come to mind. On the one hand, we have formal discrimination–legal discrimination, employment discrimination, and explicit institutional discrimination immediately come to mind. On the other hand, there exists a more intangible and implicit form of discrimination, carried out by individual persons through discriminatory beliefs and attitudes. The first type of discrimination is clearer to see, and thus often easier to address when speaking in the hypothetical of an ideal, just society. We know how to write laws that can directly grant basic rights and liberties to different societal groups, and have a conception of various legitimate methods the state can use to enforce these laws. But it is the second kind of discrimination with which I am largely concerned; can attention to only the first type of discrimination truly form the foundation of a truly just society? In this essay, I will explore 20th century political philosopher John Rawls’ A Theory of Justice, which, as I will argue, implicitly claims that we can. I will present how Rawls addresses and is able to address the concern of racial discrimination through his principles of justice, illustrate that racial dispositions are outside of the scope of his project, and argue that it is unjust to disregard them.
In A Theory of Justice, Rawls aims to establish two principles as the principles of justice, whose role he believes is providing “a way of assigning rights and duties in the basic institutions of society and [defining] the appropriate distribution of the benefits and burdens of social cooperation” (Rawls 4). For Rawls, the site of justice is restricted to the basic structure of society, which determines “the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (Rawls 6). The basic structure can be thought of as “the political constitution and the principal economic and social arrangements” (Rawls 6). Rawls focuses on the basic structure because he believes that its effects are “profound and present from the start,” in that citizens born into certain social positions have different life prospects dependent on the political system and their economic and social circumstances (Rawls 7). For instance, a man born to an unskilled laborer of a racial minority will plausibly have a subordinate social status compared to the son of a wealthy, influential businesswoman. From birth, the two men will have vastly different opportunities and chances in life, not due to merit or ambition, but social position. These are inequalities that Rawls believes are inevitable and thus must be addressed by the principles of justice. Rawls believes that the principles of justice for the basic structure are those that “free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association,” an approach that he deems to be “justice as fairness” (Rawls 10). Rawls motivates the formulation of his principles of justice through the thought experiment of the original position, a hypothetical scenario designed to be fair and equal. The parties in the original position are rational and mutually disinterested, and are tasked with designating the conception of justice for their society under a “veil of ignorance.” They are aware of all general knowledge they may need to develop a conception of justice, such as an understanding of human nature and psychology or economic principles. However, they are purposefully unaware of all identifying features regarding themselves (e.g. their abilities, race, or social positions) or their society (e.g. its culture or political condition) to ensure no conception of justice unfairly benefits a particular group. Rawls believes that the principles of justice for the basic structure are those that the parties in the original position would select, and argues that these two principles are as follows: 1) “each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others” and 2) “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all” (Rawls 53). The first principle has priority over the second, and Principle 2 (b)–fair equality of opportunity– takes priority over Principle 2 (a)–the difference principle. For the purposes of this paper, I assume that Rawls’ principles of justice, as he argues, follow from the original position.
Although Rawls does not explicitly discuss racial discrimination frequently in A Theory of Justice, his construction of the original position and proposed principles of justice (specifically, fair equality of opportunity) would seem to rule out formal racial discrimination and many of its tangible effects in the basic structure. By formal racial discrimination, I refer to the partial and inconsistent “administration of laws and institutions, whatever their substantive principles” may be, on the basis of race (Rawls 51). For instance, in the case of legal institutions, formal racial discrimination could refer to a judge penalizing a member of a racial minority more strongly than a member of the racial majority, even though the same crime was committed in similar circumstances.
I will first make explicit how the original position leaves no room for racist doctrines to be components of the principles of justice. In the original position, all parties are under the veil of ignorance, and are thus unaware of their own race as well as which racial groups (if any) are favored in their society. Given that the parties are rational beings with the desire to advance their own interests, it would be irrational to advocate for principles involving racial discrimination when the principles could be to the parties’ own detriment. No principle conceived by the original position, then, would have room for a policy of racial discrimination. Moreover, Rawls proposes a second stage proceeding the original position, in which the parties become delegates that “are to design a system for the constitutional powers of government and the basic rights of citizens” under the constraints of the chosen principles of justice (Rawls 172). At this point, the veil of ignorance is slightly lifted, and the delegates have access to general facts about their society to aid them in their task. Philosopher Tommie Shelby extends Rawls’ limited remarks on racial justice via the constitutional stage, assuming that “among the general facts of their society to which the delegates would have access at the constitutional stage are: (1) whether racial identity engenders conflict in the society; (2) whether there are some in the society who have, or who are prone to develop, racist beliefs and attitudes; and (3) whether some racial groups in the society are or have been politically, socially, or economically disadvantaged because of racism” (Shelby 1707). As the delegates are still unaware of their own racial identities, it would be rational for them to 1) ensure no racist doctrines become law and 2) “select constitutional provisions that explicitly prohibit racial discrimination in the institutions of the basic structure” (Shelby 1707). Racial discrimination within institutions such as the healthcare system, for example, would be prohibited, as it would be irrational for a delegate to advocate for it without knowing if the disparity would affect them. Armed with the knowledge that race could affect patient outcomes, it is plausible that delegates choose to implement an anti-discrimination policy for patient care. A similar logic can be applied for other institutions in the basic structure. Furthermore, Rawls’ proposed principles of justice can be applied to exclude racial discrimination of a significant degree. Both Principle 1 and 2 apply to everyone equally, irrespective of race. Principle 1 guarantees that everyone–members of every racial group–have equal rights to the most extensive scheme of basic liberties. As a result, it protects racial minorities from the infringement of liberties such as freedom of speech or the right to vote. Due to the ordering of the principles, this condition must be satisfied before the difference principle and fair equality of opportunity come into effect. For Rawls, fair equality of opportunity means that if “there is a distribution of natural assets, those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system” (Rawls 63). The strength of the principle should be recognized. Under fair equality of opportunity, many forms of racial injustice that currently exist or have existed in societies would be eliminated. For instance, children of a racial minority would have access to education that is of the same quality as the children of the racial majority. Similarly, employment opportunities cannot be withheld due to race; if two employees are of equal caliber and dedication, employers are not permitted to use race as the determining factor in deciding which employee to promote.
However, the principles of justice are limited to the site of the basic structure that Rawls presents, and “should not be confused with the principles that regulate the conduct of individuals in particular circumstances or the internal organization of associations within society” (Shelby 1712). In particular, the basic structure does not include racial prejudices that the individuals that operate in it may hold, and places no restriction on the organization of associations within society so long as the principles of justice are still being upheld. Racial insults or displays of contemptuous attitudes due to race are permitted in a Rawlsian just society, for example, as the principles of justice limit the tangible consequences of this racial bias. And yet, the principles do not address the racial dispositions and doctrines that fuel acts of discrimination to occur, as the attitudes of individuals are outside of the basic structure. Under Rawls’ basic structure, every member of a racial majority could hold violently racist views towards the racial minority, but so long as the effects of that racism does not violate fair equality of opportunity, the society is just. I disagree with this assessment. Thus, I will argue that by excluding the racist dispositions and ideologies of individuals from the basic structure, Rawls neglects potential effects that would be profoundly unjust.
First, we can extrapolate that Rawls would certainly not find the existence of racial prejudices in a society moral. Rawls values moral development and “argues that a just, well-ordered society will be stable only if its members continue to develop a sense of justice” (Okin 21). Presumably, had one asked Rawls if excluding racial dispositions should be a part of cultivating moral character, his answer would be in the affirmative. But this seems too cavalier and vague of an approach to counter the heavy and lasting effects of racial injustices that originate from racial prejudices. Naturally, in the absence of racist ideologies, acts of racism would not occur. It is the very task of eradicating these ideologies that is complex and demanding–certainly deserving of more consideration than the off-handed hope that as citizens develop their moral tendencies, the exclusion of racial biases will follow.
Moreover, the ramifications of racial dispositions in a society that abides by Rawls’ principles of justice are profound and unjust. Shelby claims that “if the basic structure of a society is well-ordered and just, then even if racist beliefs and attitudes continue to circulate in this society, these beliefs and attitudes should not inhibit any person, regardless of race, from fully participating in the society as an equal citizen, with all the accompanying liberties and opportunities. Nor would the existence of individual racism be an obstacle to any person's effective choice and active pursuit of a rational plan of life under conditions of fair equality of opportunity” (1713). While I acknowledge the strength of Rawls’ principles in combating a variety of racial injustices, I believe Shelby vastly understates the implications of racist beliefs. We consider an employee of a certain racial minority in which the immediate superiors at her workplace hold incredibly strong racial prejudices against her. These prejudices have never once impacted the woman’s right to fair equality of opportunity; regardless of her bosses’ personal attitudes, she was hired fairly, receives compensation that befits the quality of her work, and is provided equal chances at promotion. But while she may receive equal opportunities at success as her counterparts in the racial majority, she does not achieve equal acceptance in their environment. She is cognizant of her employers’ views of her due to her race, and their racial contempt for her is evident through every interaction they have through their words, actions, and body language. As the microaggressions against her continue to pile on, day after day, week after week, month after month, she loses the ambition and drive to succeed that she once had when she first joined the company. A passing, racially charged comment by an employer, while not falling under the scope of actions that would be rendered illegal by fair equality of opportunity, impacts her self-worth. Despite being more than capable, she feels inferior and out of place because of her race, which discourages her from pursuing opportunities that would have been both well-suited and accessible to her because of fair equality of opportunity. Without the same ambition as her counterpart in the racial majority–that notably has not been met with microaggressions at every stage of their career–she cannot reach her full potential. Moreover, this disadvantage is not necessarily limited to her. We can point to a younger sibling, for instance, that hears about the microaggressions his sister faced, and adopts the same mindset, believing that he is lesser than his coworkers of the racial majority. A close friend may actively choose not to pursue a career at the same company in the hopes of avoiding mental turmoil and its consequences, despite being qualified for and interested in the role. Both experience the lasting effects of racist ideologies before even entering the workforce. On a large scale, then, it is not difficult to imagine the profound tangible consequences of repeated microaggressions. Every individual’s life prospects and outcomes are jointly dependent on the chances they are given and the effort they put in, but the effects of microaggressions will unfairly curtail the latter for racial minorities. And while their final positions in society will not impact the chances of future generations due to fair equality of opportunity, their experiences will influence the choices and ambitions of the next generation. In this way, the effects of racial dispositions are present from the start. Over time, our example is no longer restricted to a few people, but rather an entire group in society that would collectively experience lower life prospects in society. This has the potential to reinforce and strengthen racist doctrines. For example, if an individual with racist views believed that members of the racial minority were mentally unfit for certain jobs, and he sees very few members of the racial minority succeed in the position, then he may cite his own experience as justification for his views. As this cycle continues, the effects of microaggressions and racist attitudes may become stronger and stronger. Additionally, as Shelby himself notes, “racism creates peculiar forms of disadvantage that are not strictly speaking a matter of socioeconomic disadvantage, for instance, in its tendency to produce in its victims a diminished sense of their own worth as persons” (1710). Microaggressions do just this, and the psychological impacts of them are immense. To feel inferior due to one’s race is demotivating, mentally draining, and strikes at what is often the core of who one feels they are as a person. For a member of the racial minority to then reach the same life outcome as a member of the racial majority, they must first be able to move past these effects–a feat that requires a non-trivial amount of mental effort and enterprise, neither of which are needed for the member of a racial majority to succeed. Microaggressions are not considered as part of the site of justice, but it is evident their consequences disproportionately affect members of the racial minority. This barrier for the racial minority exists as a direct consequence of racial prejudices, but yet it is not one that fair equality of opportunity addresses due to the restrictions placed on the basic structure.
It could be argued that racial dispositions need not be considered in the basic structure, as the enforcement of the principles of justice could eventually result in a society free of racial bias. The logic is as follows; under fair equality of opportunity, members of the racial minority are ensured they will not be unfairly stripped of opportunities due to their race. It is nearly certain that there will be members of the racial minority that still take advantage of this principle and are able to overcome the effects of microaggressions and succeed in society. For instance, we can consider a person that is driven by others’ beliefs that they will not succeed, or an individual for whom others’ words have no impact. As these individuals achieve higher positions in society and associate more commonly with members of the racial majority, the perceptions of the racial minority that the racial majority hold will slowly change. By seeing a racial minority disprove racist ideologies they once had blind faith in, their racist doctrines will slowly be challenged, and social progress will be made. As this transition occurs, we can expect the frequency of microaggressions to decrease, and this in turn would work towards removing the additional barrier that members of the racial minority have to face that prevents them from reaching their full potential. As enough time passes, we could optimistically believe that fair equality opportunity would then be sufficient in diminishing the presence of explicit and implicit racial animosity. However, this seems to me too optimistic a view for a theory of justice as fairness. Even under the assumption that implementing fair equality of opportunity will result in racist doctrines waning away (which is not assured in and of itself), there is no guaranteed timeline at which point discriminatory attitudes will cease to exist. Moreover, from the perspective of the disfavored racial group, it seems implausible that they would be willing to wait an unknown amount of time–potentially more than their own lifetime–for racist ideologies in their society to be eliminated. This rings all the more true when the profound effects of these attitudes are taken into consideration, particularly when we note their tendency to snowball over time. Thus, it is critical for racial dispositions to be included in the site of justice from the start.