Randy and Libby Discuss
Rawls and Affirmative Action

Contact: Dr. Jan Garrett

Last revised date: November 15, 2006

Dramatis Personae

Randy, the libertarian:
The basic standard of what is permissible and impermissible is non-interference rights (to life, liberty, and property). Randy is named after the philosopher and novelist Ayn Rand.

Libby, the egalitarian liberal:
Everybody has basic human rights, including a mix of non-interference rights, political participation rights, and some social and economic rights to assistance from society. Libby has been influenced by writings of the political philosopher John Rawls.

The Dialogue

This is a "return engagement" for Randy and Libby, who are overheard discussing libertarianism and liberalism in Randy and Libby Discuss Libertarianism and Rawlsian Liberalism. Unlike the earlier dialogue, designed for helping beginning students in ethics or political theory to think about the essentials of the two positions, this dialogue is exploratory. (In fact, it is so exploratory that I explicitly reserve the right to distance myself from what Libby says here as soon as I am given a good enough reason.) The dialogue asks what Rawls would say about the specific issue of affirmative action, on which, so far as I know, he never ventured a clear opinion. These reflections have been stimulated by some work by Dr. Martin Carcieri, who is developing the case that Rawls would not have endorsed Affirmative Action but might reasonably be enlisted in constructing a case for reparations.

R. What does your man Rawls say about affirmation action, regarding the hiring of minorities and women?

L. I don't know that he ever addressed that issue.

R. Never? He did live a long time after the issue became prominent.

L. Yes, it's not as if he never said anything relevant about it. He opposed racial and gender discrimination in two places, not only in the anti-discrimination part of the Difference Principle but also in the Equal Liberty principle. Every one has a right to a fully adequate scheme of equal basic liberties. That means, for instance, that you don't have a lesser right to due process if you are black or a woman; you don't have a lesser right to liberty of conscience if you are a black or a woman. And, as I understand Rawls' position in his later writings, he was more and more concerned that these rights be effectively equal. It is too easy to interpret the rights as merely formally equal while in practice denying them substance.

R. It's up to individuals to use their rights, to put them into practice.

L. Part of the problem is that groups that have been long deprived of their rights sometimes expect defeat, or expect to have a lesser share, than the groups that have long exercised their rights and, on top of that, privileges. Members of the previously deprived groups tend to defer to members of the privileged groups even though the formal rules have been changed. This inequality is affected by the much smaller set of financial assets (chiefly in home equity), and therefore personal material resources, that are available to African Americans than to so-called whites.

R. And you think affirmative action, of the kind that gives admittance or hiring preference to members of certain groups who score in the same range as members of other groups, might counteract that?

L. It might, if there is no other way to bring about genuine equality.

R. How could a Rawlsian justify that?

L. Rawls' theory seems to be a way of describing a just social order, a social order that is ideal from the perspective of justice. The task then is one of determining how to close the gap between the actual society, which is unjust, and the blueprint for the just society, assuming of course that the political leaders of society are now decisively committed to justice, which they haven't been in the past.

R. A sort of non-ideal theory, to guide us in bringing the real world into line with the ideal world?

L. Yes.

R. How could Rawls justify that, given that for him the liberty principle cannot be sacrificed for the sake of the aspects of justice embodied in the Difference Principle?

L. Conceive of the just social order, one without gender or caste advantage, as the goal, Equal Justice. In order to get there, certain means that would not be justified in the Ideal Society, would be justified for purposes of transition.

R. Sounds like it will give government a lot of scary power.

L. I knew you would say that, but let's first reason about means and ends. Rawls himself says that the liberties may be limited for the sake of liberty, and only for the sake of liberty.

R. He does oppose utilitarianism.

L. Part of the reason he does is that utilitarianism seems to endorse the abrogation of equal liberties or equal opportunity in order to make the trains run on time or otherwise boost the economy or national prestige. Rawls wants to block that move. Affirmative action, in the sense of preferential hiring or admissions, might conceivably be defended as a temporary restriction on the equal opportunity clause of the difference principle for the sake of the substance of the equal liberties and the equal opportunity principle. In that case, it would not violate the lexical ordering that Rawls demands.

R. Surely you'd have to say more than that to defend it.

L. You could defend it if you could establish beyond a reasonable doubt that instituting it would produce more genuine equality of opportunity and more genuine equal access to the liberties covered by the liberty principle than doing nothing.

R. That's a causal claim, which would have to be backed up by empirical evidence.

L. Since it has never really been tried, it might be hard to find empirical evidence.

R. Never been tried? Affirmative action has been around for thirty years.

L. It has never had a true test. It has been under political and rhetorical assault ever since it was instituted. People have called a means aimed at correcting the results of past discrimination reverse discrimination, as if it were subject to the same moral judgment as race and gender discrimination in the past. But the two are different because race and gender discrimination assumes the doctrine of racial inferiority, while affirmative action makes no such assumption. It starts from the empirical fact of unequal opportunity and the moral premise that equal access to liberties and real equality of opportunity are worthy goals.

R. But you'll never have a true test if you insist that the rhetorical assault go away. Those who are assaulting affirmative action are just using their freedom of speech. They may be misrepresenting the views of those who favor affirmative action, but the chances of proving that they are exceeding traditional limits of free speech are small.

L. I am not going to advocate that they be suppressed. After all, I'm committed to the importance of the liberties. On the other hand, I'm not prepared to say that Affirmative Action is wrong for a follower of Rawls.

In what follows, Libby seems to go beyond Rawls and introduce some thoughts that may have been inspired by post-Rawlsian "deliberative democratic" theorists. (See Will Kymlicka, Contemporary Political Philosophy, chapter 7, part 1.)

R. So you're going to keep advocating Affirmative Action even though you admit you likely face public resistance.

L. I am going to advocate what I see as just. For that I use Rawls' model of the original position. If I were a member of a minority that had been severely discriminated against in the past, and if that discrimination were still inscribed in social inequalities in the present, I would want society to take vigorous deliberate collective steps to overcome that.

R. But how much effort are you personally going to put into a fight that is such an uphill battle?

L. I don't want to decide that alone. I think I should find a way to consult with others who are better situated than the average person to reason about implementation of Rawlsian principles in this area.

R. What do you mean?

L. I mean the members of the formerly discriminated against groups. I am interested in whether women or African Americans as groups still think that Affirmative Action is a useful means to achieve greater gender or racial equality in our society. I mean, if they no longer thought it was, it would be very odd for me to invest energy in it?

R. You'd leave it to a vote? How unphilosophical!

L. The important thing is for members of these groups to have a collective conversation, in which all perspectives get a hearing, about what would advance equality for them, and we should see if a consensus emerges. Collectively the members of these groups are more likely to see the pros and cons of any program, affirmative action, reparations, or something else.

R. What would Rawls think of this?

L. I suppose I've gone beyond Rawls here, but I do believe there is something to be gained at this practical level when real people, not behind the VOI, get together to discuss pros and cons of an issue. Of course, for the results to be fruitful and in this case compatible with justice, those engaged in the conversation must take a long-term view and avoid getting side-tracked by tricks that are designed to evoke violent emotion. Special care must be adopted to expose attempts to manipulate the process for private gain, especially of relatively privileged sections of the formerly oppressed group.

R. When you go beyond Rawls like this, are you abandoning him?

L. As far as I know Rawls would not have ruled out such conversations, which are less about the principles of justice and more about implementing them. Besides, some of the values Rawls tried to model with the Original Position would still have to be present in the character of those conducting the discussion.