The theory of social justice in Rawls

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					            The theory of social justice in Rawls
       Is it enough to confront the consequences of
                                                              Paula Francisca Vidal Molina                         *

        Abstract: On this essay is presented a general approach to the theory of social justice in John Rawls. We
review some critic views coming from several theoretical approaches. We believe that social justice allows us to
judge the regressive consequences for humanity of capitalism in its neoliberal phase and to imagine other possible
        Keywords: Social justice, capitalism, impacts, Rawls.

                           La teoría de la justicia social en Rawls.
               ¿Suficiente para enfrentar las consecuencias del capitalismo?
       Resumen: En este artículo se presenta un abordaje general de la teoría de la justicia social de John Rawls.
Revisamos algunas críticas desde diversos frentes teóricos. Consideramos que la justicia social permite enjuiciar las
consecuencias regresivas para la humanidad del capitalismo en su fase neoliberal y comenzar a imaginar otros
mundos posibles.
       Palabras clave: Justicia social, capitalismo, consecuencias, Rawls.

       Received: 20.05.2009                               Accepted: 01.07.2009


                                             Some Assumptions
        Some would say that apart from returning time to time as a fashion that renews classic lines, it
allows to justify actions that do not change the current panorama; justice semantics appears like shade of
infinite movements. Numerous contradictory and analogous instances occupy, use, appeal to the concept
of justice, however, what differentiates one another is the way how they conceive and materialize that

        The relevance of viewing and deepening some blurred elements, but that are conjugated at the time
to talk about social justice, is far from becoming a mere aesthetic exercise, of erudition, logic or fashion,
it rather faces us to the vitality of the question by the type of society in which we want to live and we
want to build for future generations. The question – apparently installed in the genetics load of humanity
and able to gestate the greatest and sublime movements of the human as also the most miserable and
empty– it confronts us with our daily life and future saturated of pure possibility.

       Justice is a word with a theoretical and historical burden that hides speeches and practices that
affirm, fight or stress them. Today it weaves together with others as citizenship, democracy, welfare,
community, recognition, rights, equity, etc., all which configures a frame full of contradictions and
struggles, that are located far from the apparent asepsis of the conceptual world. Here that frame of
concepts will not be object of study, they are only assumed as substrate and consequences of the
discussion on social justice.

       To gaze in a concept allows reading the multiplicity of meanings attributed -in this case- to the
notion of justice and the extraordinary confusion that its use provokes. Perelman already announced that
the most common conceptions mean it as: to each one the same thing, to each one according to his merits,
to each one according to his works, to each one according to his needs, to each one according to his
position or to each one according to what law attributes him (Perelman, Chaïn; 2005).

      Each use is put to question if it is observed at the light of the regressive phenomena of the
contemporary society, where the growing increase of poverty, the permanent violation of the social,
economic, political, cultural and environmental rights, the increasing inequality between countries and at
the interior of these, is part of the landscape that millions people live.

        In this context, it seems essential to know, analyze and tension in the light of these phenomena one
of the contemporary theories of justice -the one of Rawls- because he has renewedly installed the concept
of social justice and influenced new and old reflections regarding it, especially within the framework of
the Liberal State. Although this author‟s work was born and is inscribed in countries and debates of the
central countries, we believe that their production comes influencing also the concerns inside and outside
the academic world in Latin America, either through the demands and "recommendations" of
international guidelines with semantics, and the work of public policies, or with the hegemonic debates of
the international academic world -especially of the central countries- whose weight reaches beyond their
orbit. For the same reason it is required to know with greater rigour the approaches for evaluating its
pertinence at the current moment of contemporary society.

        Rawls is referred by some authors as a promoter of a liberal-socialdemocrat State, or egalitarian
liberal where the State assumes an active function of concern about the needs of society, thus he is
considered progressive in relation to the tradition of Nozick or of the "anarch-liberal" spring.

         The background from where he constructs his theoretical system is the legitimacy that has the free
market economic system and the State of Law, therefore, knowing deeply this version, allows developing
deep critiques pointing to the overcoming of that order. In that context, it seems appropriate to conceive
the proposals of justice in analogy with what in music is called tonal system, where the basis that
dominates is capitalism, a free market economy, and as much the institutional structure as other spheres
of social life subordinate to its requirements or tense it without pointing to modify the fundamental. Based
on it, it seems urgent to visualize –following Callinicos- other ways that raise as theoretical-philosophical
alternative to the liberal model (and its variants) in the discussions on justice, since to (re) construct a
normative horizon is part of the process of conceiving, imagining a model of anti-capitalist society that
guides the diverse actions to undertake.

                              John Rawls and the Theory of Justice
       Prior to make explicit the arguments which constitute Rawls‟ "Theory of Justice", we must
indicate that with this work, published in 1971, it is proposed as aim to offer, in the context of modern
moral philosophy an alternative moral conception to the derived of the classic utilitarianism,
perfectionism and intuitionist option.

        This text for many theorists, disciples and opponents to Rawls, has meant to attribute it the
revitalization of moral philosophy which at that epoch was in danger of constituting in something sterile,
product of the emphasis on logical and semantic analysis of ethical and metaethical concepts, all which
had deviated the attention of practical and material issues (Kukathas and Pettit, 1990; van Parijs, 1992;
Gargarella, 1999; Borón, 2003; Massini, 2005; among others). The above joined to the social and political
agitation of the epoch, the moral questionings of the war in Vietnam, the decadent role that came bearing
the analytical positivism in the 1970s, tradition that had set aside the affair of justice, comes to join so that
the "Theory of Justice" is inserted in that process of overcoming the analytical positivism and acquires the
dimension of a classic. Others, also assign him to be the forerunner of the age majority of the liberal
political philosophy, as it incorporates in the individualistic tradition the idea that societies have patterns
of inequality that persist in time and simultaneously, systematic modes whereby are assigned to persons
positions inside of power hierarchies, status and money (Barry, in Callinicos; 2003). Vallespín (1985)
added that the birth of the Theory of Justice is opportune due to the crisis of legitimacy that crossed the
classical democratic theory in that moment and the need to renew the bases of liberalism allowing to
guide and judge the institutional practices.

                           Justice as First Virtue of Social Institutions
        Rawls gives absolute priority to justice and understands it as the first virtue of social institutions,
thus in his approach he does not give a major value to institutions by being ordered, stable or efficient, the
essential -he mentions- is that they are fair and in the case of not being so, they must adhere to be
reformed or invalidated.
       With this he leaves clear that its starting point and the focus of social justice is the basic structure
of society and in it, especially the way in which social institutions distribute duties and rights within
society. He recognizes that through them can be favoured or not certain initial positions in which are the
individuals in society, or create inequalities between people –certainly not justified in the merit or
unworthiness- which will undoubtedly influence the life expectancy they have. Some of these institutions
that Rawls mention are the monogamic family, laws, the political constitution, the juridical protection of
free thought and the private property of the means of production, among others. His proposal conceives
an idea of society defined as an association of people who recognize certain rules or public patterns of
behaviour, of obligatory nature, that allow to relate and act. He believes that such norms specify a certain
system of cooperation that allows to promote the welfare of those who participate in it.

        Cooperation in society - in the rawlsian models which seems to retake of the liberal classics -is
characterized by being constituted of two poles; identity and conflict of interests. The identity of interests
allows viewing the concurrence of all to allow a better life than that possible to obtain according to the
particular and isolated effort of each person. However –he refers- that the conflict of interests is
constitutive within a group, since people are not indifferent about the way of distributing the greatest
benefits that result from collaboration between people, they will always prefer to have greater
participation for the achievement of their purposes.

        Under these assumptions, he affirms the need to dispose of a set of justice principles that allow to
define the mode to assign rights and duties by the basic institutions and thereby, to define the
"appropriate distribution of the benefits and social cooperation burdens". In this way, a conception
of justice gives a criterion for evaluating the distributive aspects that the basic structure of society allows,
justice principles allowing to regulate, for example, the political constitution, instances of the State and
elements of the economic and social system. But that implies -in this model- to assume a public sense of
justice and a shared conception of it, where the differences of interests and objectives of the people, do
not affect to establish "civic friendship" links.

        He admits the facto differences among people of what they estimate fair or unfair in society, but
this recognition does not annul that each one possesses a conception of justice and at the same time, that
they assume the importance of having a set of principles that assign rights, basic duties, the mode of the
correct distribution of charges and benefits of social cooperation. This is, they accept the difference
between the concept and the diverse conceptions of justice that each one can assume.

       Yet he does not cede before what he believes fundamental, to establish an agreement criterion on
the fair and the unfair so that people can coordinate their plans and actions based on the respect of
agreements which benefit the parties, otherwise there is the risk that the actions of persons deteriorate the
links of civility, "Mistrust and resentment corrode the links of civility, and suspicion and hostility tempt
man to act in ways that otherwise he would avoid" (Rawls; idem: 23). 1

        He clarifies that any relatively complete ethical theory must include principles to define the
distribution of the basic institutions of society, and these principles -regardless of which they are-
constitute the doctrine of justice.

         Justice as Impartiality: the veil of ignorance and the original position
       His concern will now be to show the mechanism by which are come to be chosen two principles
that will give account of his theory of Justice as impartiality or equity. We already know that principles
regulate the rights, duties, benefits and the types of social cooperation accepted in the basic structure of
society, now which principles would be eligible and desirable, but from an impartial point of view,
carried out by rational and free people is what Rawls intends to respond. Justice as impartiality has two
components, the first is the initial or original position of individuals and the choice they will make on the
problem to deal with and a second component is the set principles on which there will be some

        Focusing on the first component of justice as impartiality, we can say that Rawls draws the
attention of the existence of "justice circumstances" which he will understand as the normal conditions
under which human cooperation is possible and necessary, this is, what already previously we had
mentioned about the coexistence of identity and conflict of interests among the individuals, but where has
primacy the need of social cooperation.

        Deepening in justice circumstances he mentions the existence of objective and subjective
conditions that make possible and necessary human cooperation -idea that he recognizes already present
in the writings of Hume. These objective conditions he links them to the similarity in physical and mental
abilities between individuals, the vulnerability to which all may be exposed, as also the moderate
shortages of natural and not natural resources that are available in a society.

       On the other hand, the subjective circumstances he refers them to that the subjects of cooperation
have different plans, conceptions and purposes of life, even conflicting in many aspects, but the common
point among all of them is that they pretend to obtain of the agreement, the maximum possible of certain
goods sought by all the participants, example of this are rights, freedoms, income and wealth, self-respect,
opportunities and powers. He believes that without the existence of these circumstances -the need for
cooperation and plurality with possible conflicts of interests- is not possible "the virtue of justice". In the
original position in which subjects are, these assume those circumstances accepting them as something
naturally given or constitutive part of society.

        The original position is equivalent to establish a certain equitative procedure –for what it is called
justice as equity- through which there shall be elected unanimously certain principles by the members of
society -who independent of those who choose and which are the elected principles- will be assumed
because there has been arrived to them by a particular method. Rawls will show that the principles elected
in this original position could not be others but those to which he has arrived.

       Yet before advancing in his demonstration, the assumption that he has is the existence of equality
between subjects, as much as moral persons or as beings that have a conception of what is good for them,
and also able to have a sense of justice and an ability to act in accordance with any of the adopted
principles of justice.

          The subjects in this original position participate in a fictitious situation, he mentions that they are
covered by a "veil of ignorance", about the features of those who participate in it. With this formula
Rawls wants to ensure that the justice principles will be chosen in full ignorance, to ensure to nobody
positions of advantages or disadvantages product of natural fortune or by social circumstances in which
the subjects have lived. Such procedure sets and guarantees that the agreements reached for the election
of the justice principles are impartial, at the same time that it is allowed that all have the same rights to
choose principles2, "nobody knows which is his place in society, his position, class or social status, nor
which is his fate regarding the distribution of advantages and natural abilities, his intelligence, his
strength, etc. I will even suppose, that the own members of the group do not know their conceptions of
good, nor their special psychological trends. The justice principles are chosen behind a veil of ignorance
(...) if a man knows that he is rich, he can consider rational to propose that diverse taxes on welfare means
are declared unfair; if he knew that he is poor, it is much probable that he proposed the contrary. To
present the desired restrictions one imagines a situation in which all are devoid of this kind of
information" (Rawls; idem: 29-36).

        He incorporates the figure of the social contract where -hypothetically - the state of nature
corresponds with the original position of equality in which the participants are located and relate under
the veil of ignorance. Although he considers that the notion of contract or agreement applied to moral
matters can lead to misunderstandings and invite objections, he raises that this notion must not be
understood as the entrance to a type of society or to adopt a certain type of government -proposed in the
contractualist tradition of Hobbes, Locke, Kant, Rousseau- but in adopting certain principles elected at a
clearly defined initial situation. The figure of the 3 contract -he mentions- suggests the plurality of
relations between people who participate of the social cooperation, of their diverse and conflicting
interests, as of the requirement that the correct division of advantages must be done according to
acceptable and public principles for all the parties.

        He explicits certain formal restrictions of the agreement of justice principles to which arrive
people in the original position. Among them he shows five restrictions: First, the principles must be
general, this is, in the formulation they will express general relations and properties that do not allow the
parties to dispose of specific information about themselves and of their situation, to avoid identifying
themselves. Second, they must be universal in their application or value to all as being these people,
moral. A third condition is the public character, in the sense that the parties suppose they are choosing
for a public conception of justice, this is, it must be publicly recognized as constitutive of social life. The
fourth restriction is that the conception of fairness must impose an arrangement (order) of the
conflicting demands that may emerge. Finally, the fifth condition is the definitiveness of its justificatory
character; the parties are to consider the system of principles such as the supreme court of appeal in the
field of practical reasoning. He advances at the same time towards the need to justify the choice of a
conception of justice above another and this justification he links it with the theory of rational choice,
since it seems reasonable to accept that rationality he means it as that individual that if well possesses his
preferences, is capable to hierarchize the options based on those which better allow him to achieve his

        He supposes a rationality of which participate the individuals, and among its features he mentions
that a "rational individual is not assaulted by envy" since this feeling makes individuals worst, likewise,
its absence - of envy- implies understanding that each person has an own life plan which is sufficient and
that he is not prepared to abandon. Such mutually disinterested rationality possesses an interpretation in
parallel vias, one of them is that in which individuals are willing to gain the largest quantity of social
goods for themselves, and the second is that in this gain they do not pretend to be damaged among all –
since they are not moved by grudge- nor benefit of others. Another feature of rationality behind his
proposal, is shown in that the parties are unwilling to sign agreements that may not be complied or that
are with innumerable difficulties to do so, in turn says that when making their proposals, subjects do not
have the incentive to suggest senseless or arbitrary principles, as principles are showed as a limitation on
freedom of action and accepting such restrictions would only be through a rational action.

                                             The Principles
       The first principle demands equality in the distribution of basic rights and duties and the second
principle maintains the social and economic inequalities only if these produce compensation benefits for
all and especially for the least advantaged subjects of society, this is, this second principle implies to
accept that a few obtain greater benefits so that it is improved the situation of the less fortunate subjects
unlike of the common logic where it is justified that a few suffer privations if it is compensated with
obtaining a greater good for all in general.

       He formulates both principles in the following way:

       - "Every person has to have a right equal to the wider overall system of basic freedoms, compatible
with a similar system of freedom for all"

      - "The economic and social inequalities must be structured so that they are for:
      (a) Greater benefit of the less advantaged, according to a fair saving principle, and
      (b) joined to that the charges and functions are affordable to all, under conditions of fair equality
of opportunities" (Rawls; 1995: 341).

        The first principle refers to all kinds of basic freedoms -right to vote, to perform public positions,
of expression, meeting, conscience, thought, personal or of psychological oppression, of physical assault,
of personal property, are some examples-, the second is applied to economic and social inequalities, as the
distribution of income and wealth, the design of organizations that make use of the differences of
authority and responsibility (Rawls, idem.). The primary social goods to distribute are: rights and basic
freedoms, freedom of circulation and the free choice of occupation in a context of diverse opportunities,
powers and prerogatives of charges and responsibility positions in the political and economic institutions
of the basic structure and income and wealth.

        The principles –he notes- can be interpreted "democratically" and with that intention he refers to
the traditional ideas of freedom, equality and fraternity, adjusting the idea of freedom and equality to the
first principle -although equality also agrees with the fair equality of opportunities- and fraternity to the
difference principle.

       Yet it is not left there, he incorporates an order and unity between these two principles, which is
manifested in a "serial order" or in the lexicographical priority of one over the other, this is, the first
principle has priority over the second. Thus is also priority the second part of the second principle,
equality of opportunities, on the first part of it. The lexicographical order, means that until it is not
achieved the adequate level in one of the principles, the following does not come in to play. Rawls, with
this order makes evident the distinction between fundamental rights and freedoms, and social and
economic benefits, generating with it the hierarchyzation of various primary goods, where basic freedoms
become priority and waived although their abandonment might compensate from the point of view of the
economic and social benefits. Especially in this point it is observed with great clarity his liberal roots.

       He raises these arrangement of principles is configured almost intuitively among the parties and in
opposition to the principle of utility, as subjects in the original position are firstly understood as free
people who have fundamental interests and objectives on behalf of whom they consider legitimate to
make mutual demands based on the confirmation of the basic structure of society. Through such ordering
he believes that all the fundamental interests of the parties are guaranteed in the extent that the principle
of freedom is put above the second. Yet this priority that he gives to freedom is almost absolute since it
opens the option to deny or restrict freedom always only if with that action is achieved to change the
conditions of civilization, so as to enable in a determined time to enjoy again such freedoms.

                        The Maximin Strategy as Conservative Choice
       The so-called "equitative freedom" principle is the "natural maximum" of the first principle and
the so-called "difference" principle is the "natural maximum" of the second principle, for which Rawls
will assume that these two principles are the optimal solution chosen by people in the original position.
He conceived that their choice, are a species of maximum solution because always the worst results will
be superior to the worst result of any other. The two principles are thought by this author, as the maximin
solution to the problem of justice. What distinguishes the maximin rule is that it is defined as an
alternative strategy to other two available options ; the maximax and maximization of the expected utility.
The alternative maximax refers to that alternatives must be ordered by their best possible results, adopting
that whose best result is better than the best result of the others, thus it shows as a optimistic strategy. The
alternative of maximizing raises the order of the alternatives on the basis of estimates of probable gain.

        Rawls rejects the maximax strategy for being highly risky because the chances of loosing are
great. He also rejects the second strategy because it is the original position, in which the knowledge of
probabilities is impossible or insecure; it is required to be sceptical with regard to the calculations, as the
veil of ignorance does not allow to have clarity about the probability of obtaining profits.

        The maximin rule allows us to order the options by the worst possible results that they offer and it
will be accepted that whose worst result is superior to the worst results of the others. The maximin rule is
a strategy that is justified and which would be attractive to someone with a conservative or pessimistic
attitude, but regarding the special situation of the original position, it arises the doubt if this is the best
alternative in real life. The parties choose principles for the design of a society as if the places they were
to occupy in it were determined by their worst enemies.

                              Justice Materialized in the Institutions
        To overcome the abstract form of this conception of justice, Rawls points in the second part of his
book, to show the substantive implications that derive from adopting these principles (whose notions of
freedom, opportunity, equity still vague and ambiguous) at the institutions level. In this deployment he
tries to clarify the meaning and practical consequences of both principles which he illustrates describing
the basic structure that satisfies them, structure of which flow certain institutions or basic practices within
the framework of a constitutional and liberal democracy. A fair political constitution, fair economic
arrangements and obligations of persons to obey the laws of a society which is imperfectly fair will be
examples of that.

         The link that Rawls sets among the justice principles elected in the original position and fair
institutions, is being gradually clarified, and in a kind of methodical exercise he asks to imagine a
sequence of events in four stadiums or steps that –in their conjunct- will give account of that linkage. The
first step describes the election of the principles under the veil of ignorance, the second is destined to that
the parties that participate in the original position meet and decide on the justice of political forms, as they
also choose a constitution, in which are clarified the basic rights and freedoms, the third step is destined
to establish laws –to legislate- that affect the economic and social structure of society, and finally, in the
fourth occurs the rules‟ application by the judges and other officials, previously given a full
understanding of the basic structure -and fair- of society.

        The fair political system in this scope will be so if there are incorporated and protected the
freedoms of the citizenship at the interior of the political constitution. Freedom can never be denied or
restricted in theory and the instance that materializes this idea is a fair constitution which must understand
and protect freedom, which includes freedom of conscience, thought, personal and equality in political
rights. He is clear in declaring that the political system consistent with this would be some way of
constitutional democracy, but gives account of the limitation of achieving an ideal state of justice by
means of a constitution in the concrete society, for what the best that can be aspired is an imperfect
procedural justice. But in spite of that, he firmly believes that in the extent that it is defined the field of
ideal justice it will allow to evaluate the existing solutions and will be identified with greatest neatness the
most serious problems and difficulties that a society must avoid or the changes it must impel.

        The functions of assignment, stabilization and distribution, will be exercised by the government to
give account of the above. In that sense, it is achieved to view that economic justice expressed by the
second principle of justice would be materialized through the organs of a government, instance closest to
the figure that some commentators have linked to a Welfare State 4 than to the minimum State.

                          Some observations on the Theory of Justice
       In these years it has been immense the theoretical production that in some way criticizes or
approves the Theory of Justice, following we'll show some criticisms that have risen to this proposal, in
order to show some of the limits that it possesses.

        Following Vallespín (1998) it is clear that Rawls shows a trust in order to sustain a public
conception of justice, valid for contemporary societies where the plurality of life forms questions the
acceptance of a single concept of good that reigns for all, thus, the Rawlsian construction represents the
belief in reason-rationality as a way -still able- to build certain procedures of rational argumentation that
achieve to tune that plurality, beyond the "finite and fallibilistic character of reason, certainly reduced in
its capacity to bring order" (Vallespín;) 1998: 13). Such construction is sustained on "thin pillars", as it is
the internal coherence of the principles and the acceptance by those who participate in the original
position, argumentation that leaves aside any conception of objectivity linked to the truth as
correspondence with the structure of reality or a truth historically developed.

        The accent in these procedural elements would promote the priority and distinction of justice over
the good, this is, difference between justice and what is good for a certain group in a determined context,
contextual definition that Rawls sees impossible to universalize. Yet some critics evidenced the
inconsistency of it in the same work as Rawls ends by accepting some notions of human good that allow
to give sense to social organization, through the definition of valid primary goods for all and "supposing -
although without explicitly accepting it- all a conception of the good life or social human perfection: a life
directed by the autonomy of subjects and tolerance of and towards others, of human rights currency, of
political participation in democracy and so on" (MacIntire, in Massini; 2005: 183). This element of
critique will be surpassed in his work Political Liberalism, where he clarifies that observation.

       Another order of objections derives from the emphasis placed on an ethics of institutional
structures, invisibilizing the dimension of human ethics which involves its own motivations, desires and
purposes. To consider this element requires to wonder about the possibility of incidence that this has
once lifted the veil of the original position, the insecurity that subjects respect the agreement once known
their own moral motivations seems right. Walzer‟s critique on the matter can be summarized in that
hardly rational subjects who choose under conditions of impartiality, taken back to common people, with
a sense of own identity and immersed in quotidian problems, are going to reiterate their "hypothetical

        Rawls, when rejecting that the particularities of history, culture and the pertainance to a group
define the election of the principles of justice, points his construction as universalist and abstract, which
leaves aside the differences, the "otherness" materialized in the multiple minorities that today claim their
rights to participate of decisions. At this point, the rawlsian theory of justice does not give account of the
dimension of the identities, the gender and recognition. Iris Marion Young (2000) opposes to the
centrality of distribution in Rawls because he does not consider the themes of oppression and domination
nor he questions the social structures nor the contexts as the capitalist institutions and class relations.

       The difference principle (Massini, 2005; Gerald Cohen, 2001) constitutes itself in a principle that
enables conformism with liberalism, and vast inequality provided only if both parties receive some
benefit. Since the maximin principle it is argued that the most disadvantaged ones must accept the
benefits that they are given, because otherwise they would be in a worse situation. A rule explicited in
those terms annuls any intention of radical transformation of the social structures that maintain
inequalities. The predilection for the compliance of certain rights turns them into a closed, inmutable
structure before the movement and struggles of the different life forms to reach social-economic equality
and the recognition of identity.

        From the same field of battle, Sen and Habermas point their friend fire. Habermas (1998) called
the attention of the difficulty in which Rawls is when assimilating the basic goods to rights, generalized
goods that subjects may need to develop their life plans. This implies that the principles of justice are
reduced to the fair distribution of basic goods, more than to the subjects‟ autonomy through the exercise
of rights. Habermas also is opposed to the original position‟s design in which the choice is based on
"rational selfish" subjects, he doubts that impartiality is achieved by means of individual reflection where
usually have primacy selfish interests. Amartya Sen, on his side, mentions about the fetishist risk that is
ran by assuming the centrality of primary goods or resources at the time of making interpersonal
comparisons. He interprets those primary goods as an equivalent to the means for freedom for general
purposes, but he insists that if the axis of concern is freedom, it is not enough to focus on the means for
freedom but in the extent of freedom that really has the person since "the ability to convert these primary
goods and resources in freedom –to select a particular life and to achieve it- can vary from person to
person, equality in the possessions of property or the real freedoms enjoyed by the different persons"
(Sen, Amartya; 1998: 115).

       Therefore, the evaluation of justice based on capabilities, the individual demands are not valued in
terms of resources or primary goods that the diverse people possess, but in terms of freedoms they really
enjoy to choose between different modes of living that they may have reasons to value, it is "real freedom
which represents the „capacity‟ of a person to achieve the various alternative combinations of
achievements, this is, "of makings and beings". The possession of primary goods or resources does not
represent the capacity enjoyed by a person.5

                The challenges of Social Justice before the current context
        The Greek philosophy shows us that wonderful relation between justice, society, community and
citizen as part of making in and of the polis, in whose greatness Jaeger submerges and invites us to
recognize. This relation -and priority of justice- in the origins of the occidental thinking presents itself
from the epic poems of Homer as also in the first Greek philosophers who understood justice as the centre
of human culture and the key to give account of the place of man in the cosmos (Jaeger 1982) 6. This
means, justice was part and at the same time allowed a cosmic order, a harmony and hierarchy of human
actions. This order and harmony in the city, built through the civic exercise of politics in the public sphere
also served to naturalize differences between men-citizens and slaves, women, children, foreigners and

        The questioning on naturalization of social and political inequality is brilliantly pointed Rousseau,
who raises that this does not derive from the divine will, nor is the result of the natural inequality between
men, in the contrary, its origin is result of the private property of wealth and of the benefits that this
exercise gives7. The attempt to explain the origin of the social inequality as well as the legitimacy of what
it is object, leads us to focus the attention in the economic, social, political and normative structure that
allows that. Contemporary phenomena crystallize the sordid side of that Greek imaginary, but, at the
same time don‟t they express a challenge for the conceptualization and materialization of social justice?

       As we know, wars in the last decades show a different parameter of operation than the ones
performed until the first half of the XX century, today wars acquire a monstrous form for civil society,
where the amount of dead civilians -especially women, children and elderly- is much greater than the
dead of military forces of the parties in fight, at the same time, the survivors often become displaced
persons, men and women who run over the country avoiding to be in the crossfire, the shelter in many
cases has tended to decrease because the countries surrounding the conflict tend to close their borders. To
the anterior must be added the indirect deaths caused by disease or famine as war product. It is enough to
say that the background of the majority of these wars are economic interests and of domination, to
understand that the semantics of "fair wars" meets a function of concealment and justification.

       On the other hand, the Millennium Declaration derived from the United Nations General
Assembly in 2000, criticized the enormous inequalities in the human development of countries and
imposed the task of reducing poverty to the half by 2015, but this intention is only a fiction. The amounts
speak by themselves, until 2007 -according to the evaluation and monitoring of the UNDP– there existed
980 million people in developing countries who survived with less than one dollar a day, amount which
today has risen to 1,400 million according to the new poverty measurement made by the World Bank, that
gives account of new 400 million people living below poverty, now located on a dollar and twenty-five
daily in the developing countries. The same World Bank estimates mention that by 2015 there will be
1,000 million people which will be in situation below the poverty line, and many of those who have
overcome the dollar and twenty-five a day, will remain being poor8, situation that discredits the
Millenium commitments.

        The above s accompanied by an increase in the inequality of income, the existence of 800 millions
of undernourished in the world, 2.600 million people without access to a basic sanitation, 1.8 million
children dead each year as consequences of diarrhoea and diseases derived from contaminated water or
insufficient sanitation (UNDP 2006). Around 50,000 human beings die every day (especially children and
people of colour), either by hunger or diseases such as diarrhea, pneumonia, malaria and other poverty-
related causes. (Pogge, Thomas; 2007).

        Wealth concentration is scandalous9 , according to the X report on the world's wealth of Merrill
Lynch and Capgemini of 2006, the total number of millionaires in the world grew up in a 6.5% in 2005,
reaching approximately 8.7 million people -corresponding to 0.1 per cent of world‟s population- who
control 33.3 % billion dollars and by 2010 it is estimated that the patrimony in the hands of millionaires
will reach 44,6 billion dollars. Even in crisis situation such as that has been happening since the middle of
2007, unleashed by the real estate market, an American study of 2008, in charge of The Boston
Consulting Group (BCG) shows that the accumulation or wealth increase has been sustained in the past
six years, thus those who were rich do not cease to be rich and at the same time are joined the new ones 10,
which manage to make the necessary adjustments, in the context of the financial crisis, for never losing.

        The environmental destruction, brings its own consequences at world‟s level, affect and will –in
the future with greater severity- unequally affect the countries and the interior of these by increasing
poverty11. Within the capitalism framework, natural resources become increasingly more in financial
capital for the benefit of the economic groups and in detriment of natural resources. The crescent
deforestation, degradation of dry lands (excluding deserts), the risk of extinction and disappearance of
species has been increasing, scarcity and access restrictions to water is predicted for the two third parts of
the world's population in the next 25 years, are just some of the effects of this environmental massacre
(Claude, M.; 2007: 10). This must include the human rights report of Amnesty International (2007) that
relates the search for natural resources by large economic conglomerates with the persistent threat of
cultural identity and survival of several indigenous communities in Latin America.

       A not-long phenomenon in countries, especially of Europe and North America, is related to the
"security before terror-ism" idea which has become capable to justify paranoiac actions resulting in
discrimination, control, unjustified detentions, violation of the right of freedom, etc. (Amnesty
International; 2007). From another front, Kurz (1997) mentions that fundamentalisms of (pseudo)
religious order come to constitute in forms of deserved punishment, by the market economy‟s arrogance,
the capitalist system which imposes a unilateral way of life with consequences of brutal disintegration.

        Another dimension -with the same substrate- we see it in the legitimization of the illegal
immigrants‟ criminalization by the European Union, which reflects a xenophobic track, of racism and
discrimination against millions of people who see in central countries a solution to the permanent
situation of poverty and inequality that they live in their countries of origin. The paradox of all this is that
the role of the State becomes minimum and maximum at the same time, the first materializes the inactions
of regulation or market "freedom" and the second, a maximum police intervention and punitive laws.
Marx, in The Jewish Affair in 1843 brilliantly warned on this last point when declaring "Security is the
supreme social concept of the bourgeois society, the concept of police, whereby all society exists only to
guarantee to each one of its members the conservation of his person, his rights and of his property"
(Marx, 2005: 37). Security and freedom are sides of the same coin.

            Some Conclusions: between the normative and social phenomena
        Will it be possible to combat the anterior with a redistribution of resources?, can it be ended or
reduced the social injustice in a capitalist economy, where poverty and inequality are only some angles of
this?, hardly can be asserted that it is possible. Capitalism is constitutively unstable, it oscillates between
phases of expansion and depression, "it is choobically subject to deep and disruptive collapses" in
production and employment" (Callinicos; 2003: 137), in addition it generates behaviours that tend
towards hedonism, selfishness, exacerbated consumption, individualism, whose harmful consequences do
not only express in the inequality of wealth as we already saw.

       These ideas are the first that appear if it is neglected the importance of the question for Justice that
declares the normative horizon and good society that is not wanted to build. In that aspect this question
brings registered two dimensions: to valuate, judge the present to look at the future starting from some
existing items in the present that would allow to build it.

        It is important to set the powers that have the values and principles that can guide the future
society. MacPherson already –from the marxist tradition- spoke that Rawls could be carried out in a
society without classes. Fernando Lizarraga (2009) synthesizes -properly- the reasons of Rawls‟
importance for discussions faced in this matter. Rawls rejects utilitarianism and its subjectivist welfare
measures, meritocracy, the thesis of self-property (whose representative is Nozick), he also proposes an
objective measure to valuate equality (primary social goods), he exercises rules of priority to prevent or
decrease the arbitrariness of the intuitions at the time of taking moral decisions, at this point, the priority
of justice over efficiency and of the fair over the good is contrary to the common sense of the current
epoch and to the capitalism style in the neo-liberal phase. Finally, it is interesting to consider since it did
not exclude the possibility that the two principles that define what is justice (in its conceptual apparatus)
were possible to carry out in a society where there exists social property of the means of production. We
could add that Rawls makes transparent the interference that social institutes possess to build, strengthen
institutions and to enhance social inequalities.

       With no doubt when examining in detail these elements we see that responses and proposals of the
Theory of Justice do not allow the crystallization -as says Gerald Cohen (2001) of the "Radical equality
of opportunities" which obliges to correct all the inequalities originated from living or being born in
unfortunate social conditions and not chosen. History shows that any attempt to equal these conditions
under a capitalist economic model will have as consequences large movements and capital outputs or
oppositions of such magnitude that only leave blood in the country that intends it. The deeply predator
logic of capital -in its current phase- is incompatible with an egalitarian society of primary goods and
generation of capabilities, and example of this is delivered every time by each Human Development
Report, which only ratifies the inability to materialize these principles.

       At the same time, before the question about the possibility of reconciliation in societies in which
not only the crescent differentiation of life modes or the plurality of moral conceptions and about the
good existing, but also there is co-existed with countless forms of degradation and human regression,
seems to be a question that crosses the answers and solutions pointed by Rawls.

       When valuating Rawls‟ proposal, not only based on American society, but at global level -since
the regression of social rights goes beyond the local scope- there arises the concern about the mode how
to make converge this social retrocession with the election of a certain set of principles of justice as the
ones proposed by Rawls, this public conception of justice, is it sustainable in societies where plurality
reaches the denial of the human dignity, or where those who participate in the original position are not all
those who effectively must be?, how could participate those who have not been object of recognition
more than to be discarded?. No doubt that the social redistribution of the social and primary goods
proposed by Rawls, based on the disadvantaged, is absolutely insufficient for a society like ours. Not
breaking with the structures that cause poverty and inequality, the intention of improving the result of an
unjust situation historically established does not more than maintain its reproduction.
        On the other hand, Rawls‟ theory is blind in front of the relation between politics and large
consortia that influence -certainly- in the economic power concentration and it is enough to recall the
cases of transnationals as Shell in Nigeria where is allied to the political sphere, the military one to
maintain their12 interests. The predominance of the market over the State is a fundamental fact, Kurz is
right when he mentions that "the State lacks any primary means of regulation, it rather depends on the
market‟s means, this is, of money. Meanwhile the “power” means attributed to the State and,
theoretically, most of the times, identified with money does nor possess any primary hierarchical degree,
hardly a secondary degree, because all actions of the State require to be financed, not only the juridical,
infrastructural, etc., activities, but also the power in the most immediate sense of the term, this is, the
armed forces. In that sense, neither the military are an effective "extraeconomic factor", because they also
are subject to the market means, through the problem of their financing" (Kurz; 1997: 103).

        After the tour started we can say that justice demands more than the construction of a better way of
distribution, but a real transformation of the production and distribution structures. The weakness of the
presented theory of justice is the belief that justice can be applied within the capitalist system, ignoring -
according to Callinicos- the role of exploitation in the creation and maintenance of the existing structures
of inequality as of all the diverse forms of human regression.

        The normative dimension of justice before the empirical and historical phenomena that we are
living, allows us to evaluate this present as regressive for humanity, running towards the abyss; without a
notion of Justice and of good society to which we aspire hardly these phenomena of regression (and that
put us on the brink of collapse) would turn problematic and reprehensible.

        Contributions of Rawls about conceiving a just society, induce us -without imagining it- to think
that they only can be achieved -as says Callinicos- against capitalism, we believe that the challenge put at
the conception of the rawlsian social justice in the capitalist context, is the mode to show the inherent
limits it has to face the consequences of this hegemonic system. It is urgent -several thinkers come saying
so- to imagine other possible worlds, where sustainability, democracy, social justice and worthy life are
its centre and for this values and principles that inspired that society are fundamental to incubate that

   Anistía Internacional (2007), Informe 2007. El estado de los Derechos Humanos en el Mundo. Editorial
   Amnistía Internacional. Madrid. España. En
   Revisado el 30 de julio de 2008.

   Banco Mundial (2008), El Banco Mundial Actualiza Estimaciones de la Pobreza en el Mundo en Desarrollo.
   En Revisado el 10 de septiembre de 2008.

   Cademartori, José (2008), La Extrema Riqueza: Causa de las desigualdades en Chile. Crónica digital, Cenda,
   Santiago de Chile, 2008. Revisado el 27 de julio 2008.

   Callinicos, Alex (2003), Igualdad. Editorial Siglo XXI. Madrid. España.

   Claude, Marcel (2008), “El Retorno de Fausto. A propósito del gobierno de Lagos”. Periódico Mensual El
   Ciudadano, año IV, Nº 58. Julio. Santiago. Chile

   Idem (2007), Manifiesto Eco-Socialista. Bases preliminares para fundar el eco-socialismo del siglo XXI en
   Chile. En . Revisado el 20 de Julio de 2008.

   Cristi, Renato (2000), “Sociedad Civil y Estado en la Filosofía del Derecho de Hegel”. En Seminarios de
   Filosofía. Pontificia Universidad Católica de Chile, vols. 12-13, pp.147-162. Santiago. Chile.

   Cohen, Gerald (2001), Si eres Igualitarista, ¿cómo es que eres tan rico? Ediciones Paidós. Barcelona.

   Fazio, Hugo (2005), Mapa de la Extrema Riqueza al año 2005. Colección Ciencias Sociales. LOM Ediciones.
   Santiago, Chile.

   Ferrater Mora, José (2004), Diccionario de Filosofía. Editorial Ariel. Barcelona, España. Tercera
   reimpresión, Primera edición 1994. Tomo I.
    Gargarella, Roberto (1999), Las Teorías de la Justicia después de Rawls. Un breve manual de filosofía
    política.Editorial Paidós. Barcelona. España.

    Kurz, Robert (1997), “A falta de autonomia do Estado e os limites da política: quatro teses sobre a crise da
    regulaçao política”. En Os últimos combates. Editora Vozes. Petrópolis. Brasil.

    Kukathas, Chandran, Petit Philip (1990), La Teoría de la Justicia de John Rawls y sus críticos. Editorial
    Tecnos. Madrid. España.

    Lizárraga, Fernando (2009), “El Marxismo frente a la utopía realista de Rawls”. Artículo presentado a la
    revista UNICAMP. Brasil. 2009. (pronto a publicar).

    Locke, John (1990), Segundo Tratado del Gobierno Civil. Alianza Editorial, España.

    Marx, Karl (2005), A Questao Judaica. Editora Centauro. Sao Paulo. Brasil.

    Massini, Carlos (2005), Filosofía del derecho. La Justicia. Editorial Lexis Nexis. Buenos Aires. Argentina.

    Habermas, Jürgen (1998), “Reconciliación Mediante el Uso Público de la Razón”. En Debate sobre el
    Liberalismo Político. Editorial Paidós. Barcelona, España

    Jaeger, Werner (1982), Alabanza de la ley, Colección Civitas, Centro de Estudios Constitucionales. Madrid.

    Perelman, Chaim (2005), Etica e Direito. Editorial Martin Fontes. Sao Paulo. Brasil.

    Pogge, Thomas (2007), “Reconocidos y violados por la ley internacional: los derechos humanos de los pobres
    globales”. En Justicia Global, Derechos Humanos y Responsabilidad. Por Giusti Miguel y Cortés Francisco.
    Siglo del Hombre Editores. Bogotá. Colombia.

    PNUD, (2007), Informe sobre Desarrollo Humano 2007-2008. La lucha contra el cambio climático:
    solidaridad frente a un mundo dividido. Nueva York. EEUU. Versión digital En, revisado 15 de julio 2008.

    PNUD, (2007), Informe sobre Desarrollo Humano 2006. Más allá de la escasez: poder, pobreza y la crisis
    mundial del agua. Nueva York. EEUU. Versión digital En, revisado 15 de julio
    RAWLS, JOHN (1995); “Teoría de la Justicia”. Fondo de Cultura Económica. Madrid. España.

    Rousseau, Jean (1999), El Origen de las Desigualdades entre los Hombres. Ediciones Universales. Bogotá,

    Salvat, Pablo (2002), El Porvenir de la Equidad. Aportaciones para un giro ético en la Filosofía Política
    Contemporánea. Ediciones LOM. Santiago. Chile.

    Vallespín, Fernando (1985), Nuevas Teorías del Contrato Social: John Rawls, Robert Nozick y James
    Buchanan. Alianza Editorial, Madrid. España.

    Idem (1998), “Una Disputa de Familia: El Debate Rawls-Habermas”. En Debate sobre el Liberalismo
    Político. Editorial Paidós. Barcelona, España.

* Doctorate Student in Social Service by the Federal University of Rio de Janeiro, Brazil. Email:

1 This assertion reminds us of Hobbes and his negative conception on man‟s nature for what it is required to establish a social
contract to bring out man from the nature condition always in potency of war and struggle of all against all and to deposit in a third
the safety of life.

2 Ignorance is not absolute, Rawls considers some basic knowledges which will possess the parties among which we find the
following: they know general facts of human society, they understand the political issues, the principles of economic theory, the
basis o the social organization and the laws of human psychology.

3 The social contract theory leads to a conception of the political order as limitation of freedom of each person, but at the same time
behind it is an individualistic notion as starting point, this means, it is the person who determines the entire procedure of election
whose method is "kantian constructivism". The above is reflected in that the ethics‟ principles will be created by its consignees,
which is supposed are free and equal people that by following certain rational procedures will build and accept principles of justice
without reference to cognoscible moral objects or in debt to an external reality of the subject. For more detail, see Massini, Carlos;
The constructivism of Rawls. Juridical studies. University of Navarra.1997.

4 This point is somewhat dark in this work, as in various passages it refers or not to a constitutional democracy, in others to a
democracy of individuals and in others to a liberal democracy.

5 Sen cited some examples that clarify that assertion, in poverty he mentions that "when considering poverty in rich countries, we
must take into account the fact that many of the people who are poor in terms of income and of other primary goods also have
features -age, disabilities, propensity to diseases, etc.- that make more difficult for them to convert primary goods in basic
capabilities, for example, the ability to displace, to have a healthy life or to take part in social life" (Sen, Amartya, 1998: 115)

6 "In the Homeric thinking the line of demarcation between barbarism and civilization was dyke. Wherever that justice reigns, man
treads firm land, enjoying of security and protection in his persons and his goods, safe even as pilgrim in strange land", or when he
refers to Heraclitus and Anaximander: "Heraclitus, thus, not only conceived the principle of the universe as a law or justice of
cosmic nature, in the manner of Anaximander, but he connected, in addition, directly human law and the life of man in community
with that divine order. This meant that all individuals perform their role in the world, as all citizen of a Greek polis perform their
own in the constitutional life of his community" (Jaeger, 1982: 8, 32).

7 "The first one that, having created a ground, discovered the way of saying: This belongs to me, and found people pretty simple to
believe him, was the real founder of civil society. What about crimes, wars, murders, miseries and horrors would have not saved
mankind which, booting the stakes or filling the ditch, would have shouted to his fellows: “Keep away from listening this imposter;
you are lost if you forget that the fruits belong to all and that the Earth is of nobody" ¡(Rousseau;_1999:_60). !

8 For more details see World Bank‟s site:

9 For details of world concentration, See or United Nations University UNU-WIDER, in The analyses gives account of an integrated structure of inequality in the advanced economies as USA and
England in the 1990s, in which the breach between rich and poor based on income has increased as also the difficulty of social
mobility. (Callinicos, Alex 2003). Some data in Chile show the tendency of the capital concentration, so we have that the distance of
income between the 5% richer and 5 % poorer increased between 1990 and 2005, from 110 to 220 times, increasing polarization that
is not related to natural talents, nor work or sacrifices. Since 2003 to 2007 the multinational companies took almost 50 % of GDP
(Cademartori, José; 2008), on the other hand the wealth concentration in Chile is accumulated in three economic groups whose
profits increase every year; we have thus that the ranking is led by the Luksic Group that of US$ 3,400 million dollars possessed in
2004 increased to 4,200 in 2005, followed by Angelini group that of US$ 2,500 million by 2004 rose to 2.900 in 2005 and finally
the Matte group that of 2,800 million dollars in 2004 recoiled to 2,700 in 2005. (Claude) Marcel; 2008)

10 The Spanish newspaper El País, in its economy section calls the attention on this phenomenon, the growth of the new millionaire
families, which reached 11%, especially by the contributions of families proceeding from Asia and Latin America, thus it also
shows how those families which are already millionaires arrange to increase their growth of fortunes in spite of the mortgage crisis.
See Journal El País, economy, 5/9/2008 in

11 The UNDP speaks that while the climate change advances, this will bring greater retrocession at global scale. "The setbacks in
human development will not be linear, and their powerful effects will mutually feedback. The losses in agricultural productivity will
reduce incomes, the access to health and education will decrease. Also, fewer possibilities of having access to health and education
will restrict market opportunities and reinforce poverty. At a more fundamental level the climate change will damage the capacity of
the most vulnerable people of the world of decision-making and to profile processes that have effects in their own life" (UNDP,
2007: 107).

12 It is of public voice that the USA government demonstrated that the Shell company –anglo-dutch transnational oil consortium-
spent in five years more than US$ 400 million in lobby to modify laws which harmed its interests, thus also in 1993 it used other
methods to control the protests of the ogoni people who protested in Nigeria against an ecological disaster caused by the company
demanding its retirement, "transported the troops and paid extra wages to the soldiers that participated in the attack against
the ogonis" (The_New_York_Times,_cited by Fazio; 2005: 10). Other manifestations in the same direction is the public
recognition by the pharmaceutical group BASF of counting with more than 200 employees dedicated to political activities at full
time, the discovery in 2005 that the Volkswagen automotive company paid since 1990 salaries to executives who entered to politics,
the recognition in 2005 by a christian-democrat German delegate close to Angela Merkel, of having received extra salary from the
Dresdner Bank (Fazio; 2005), and so there could be written mountains of texts with the cases in all the world.