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Taylor on Rawlsian Affirmative Action

By Lawrence Solum

Robert S. Taylor has posted Rawlsian Affirmative Action (Ethics 119 (April 2009): 476?506) on the Chicago Journals Website (subscription required, many library have access). Here is the access:

What implications does Rawls?s justice as fairness have for affirmative?action policies? Surprisingly, Rawls never addressed this issue in his writings?apart from one indirect reference, which I will review below.1 Samuel Freeman, however, reports that he spoke of it in his lectures and held the following views:
So?called ?affirmative action,? or giving preferential treatment for socially disadvantaged minorities, is not part of FEO [Fair Equality of Opportunity] for Rawls, and is perhaps incompatible with it. This does not mean that Rawls never regarded preferential treatment in hiring and education as appropriate. In lectures he indicated that it may be a proper corrective for remedying the present effects of past discrimination. But this assumes it is temporary. Under the ideal conditions of a ?well?ordered society,? Rawls did not regard preferential treatment as compatible with fair equality of opportunity. It does not fit with the emphasis on individuals and individual rights, rather than groups or group rights, that is central to liberalism.2
Thomas Nagel largely concurs with Freeman?s ?reading? of Rawls, especially with its focus on FEO and the distinction between ideal and nonideal conditions.3 These observations raise two questions, however. First, was Rawls correct in believing this, that is, are these conclusions really implied by justice as fairness? If so, what does this tell us about the appropriate forms of, as well as justifications for, affirmative?action programs? I will argue in this essay that these conclusions are indeed genuine implications of justice as fairness and that they offer us guidance in regard to the defense and design of affirmative?action policies. Additionally, insofar as other liberals share Rawls?s commitments to individualism, proceduralism, and autonomy, the conclusions reached below about legitimate?and illegitimate?forms of affirmative action should have resonance outside his particular theoretical framework. In fact, by examining the controversial implications of these commitments in the case of affirmative action, we shall gain unanticipated insights into the structure of Rawls?s political theory and liberalism more generally.

Full post as published by Legal Theory Blog on June 17, 2009 (boomark / email).