RIGHTS OF INEQUALITY: RAWLSIAN JUSTICE, EQUAL OPPORTUNITY, AND THE STATUS OF THE FAMILY

Abstract

I. INTRODUCTION

Rawls’s fundamental conception of fairness, that “the arbitrariness of the world must be corrected for” (141/122),A Theory of Justice (1971) has been issued in a revised edition (1999a). The new edition involves no significant changes of substance in the topics I address. I cite to the relevant page in both editions, but to avoid cumbersomeness, I normally cite merely the page numbers separated by a forward slash. The footnoted parenthetical citation “(141/122)” thus refers to p. 141 of the 1971 edition and p. 122 of the revised 1999 edition. Where there is a textual difference, I generally give the version from the revised edition; but I cite language from the earlier version where it seems to me illuminating. runs deep in the liberal moral sensibility and permeates American jurisprudence.This is one interpretation of the underlying idea of due process. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (approving “the traditional and common sense notion that the Due Process Clause [of the federal Constitution], like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’” (internal citations omitted)). Even the very deferential “rational basis” standard under which the courts review Equal Protection challenges to social and economic regulation must avoid arbitrariness. A standard formulation is that similarly situated individuals must be treated similarly. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Reed v. Reed, 404 U.S. 71, 75–76 (1971); Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Likewise, the most common level of review by the courts of decision making by administrative agencies is that the agency action will be overturned if “arbitrary and capricious.” 5 U.S.C. § 706; see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971); see also Davis & Pierce (1994: 200ff.), discussing the meaning of this test. Rawls’s theory of justice is the most profound and elaborated statement that we have of the intuition that justice is freedom from arbitrariness, that social benefits and burdens ought not be distributed on the basis of random factors over which people have no control. The whole apparatus of Rawls’s theory is at bottom a way of representing this intuition with clarity and precision. But the theory runs athwart the institution of the family. As Rawls acknowledges in his treatment of equality of opportunity, the family introduces an irreducible contingency into the circumstances of our social life that any acceptable theory of justice must accommodate. But Rawls’s accommodation is unsatisfactory in a way that reveals a deep—indeed, a fatal—problem with the fundamental conception of fairness. Because the family is ineliminable, we must give up a conception of justice based on correcting for the arbitrariness of the world, and adjust our notion of equality of opportunity accordingly.