The theory of social justice in Rawls Is it enough to confront the consequences of capitalism? 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 worlds. 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 concept. 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 agreement. 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 purposes. 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 choice". 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 elders. 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 future. Bibliography Anistía Internacional (2007), Informe 2007. El estado de los Derechos Humanos en el Mundo. Editorial Amnistía Internacional. Madrid. España. En http://report2007.amnesty.org/esl/Download-the-Report. Revisado el 30 de julio de 2008. Banco Mundial (2008), El Banco Mundial Actualiza Estimaciones de la Pobreza en el Mundo en Desarrollo. En http://go.worldbank.org/MLVZFZTMS0. 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 http://www.rebelion.org/docs/60177.pdf . 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. España. 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. España. 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 www.hdr.undp.org/en/espanol/, 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 www.hdr.undp.org/en/media/, revisado 15 de julio 2008. 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, Colombia. 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. Notes * Doctorate Student in Social Service by the Federal University of Rio de Janeiro, Brazil. Email: pvidal71yahoo.com. 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: http://go.worldbank.org/MLVZFZTMS0 9 For details of world concentration, See www.iarnoticias.com or United Nations University UNU-WIDER, in www.wider.unu.edu/. 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 http://www.elpais.com/Articulo/Economia/ricos/vez/ricos/pesar/crisis/Financiera/elpepueco/20080905elpepueco_6/Tes 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.