Rawls asked what principles free and equal people would choose if they did not know who they were going to be. Almost everything written on justice since 1971 is either an extension of that question or a refusal of it.
This is chapter 3 of the PSIR Optional Notes, from the part on Political Theory in the Paper I syllabus. The complete book is a free download.
UPSC syllabus
Justice: Conceptions of justice with special reference to Rawl’s theory of justice and its communitarian critiques.
(UPSC prints the possessive as “Rawl’s”. The syllabus line is reproduced verbatim.)
In one page
- Justice is the virtue of institutions, not of individual conduct. Rawls calls the basic structure, meaning the constitution and the main economic and social institutions, the primary subject of justice.
- Rawls builds a procedural argument. Parties in an original position, behind a veil of ignorance, choose principles without knowing their class, talents, race, sex or conception of the good.
- They choose two principles in lexical order: equal basic liberties first; then fair equality of opportunity; then the difference principle, under which inequalities are permitted only if they benefit the least advantaged.
- Nozick rejects the whole approach. Justice is historical, not patterned. If holdings arose through just acquisition and just transfer, the distribution is just however unequal it looks. The Wilt Chamberlain argument is his demonstration that liberty upsets patterns.
- Communitarians attack the philosophical anthropology rather than the principles. Sandel’s unencumbered self cannot be the self that actually deliberates; MacIntyre denies that justice can be specified outside a tradition; Walzer replaces one distributive principle with complex equality across separate spheres.
- Cohen and Okin attack from inside egalitarianism: the basic-structure restriction lets self-interested behaviour and the gendered family escape scrutiny.
- Sen shifts the question from designing perfectly just institutions (niti) to comparatively reducing manifest injustice (nyaya), and from primary goods to capabilities.
- For Indian answers, the working move is to read Articles 14 to 16 and the reservation jurisprudence as a difference-principle argument that has been repeatedly forced to negotiate with a formal-equality reading of Article 14.
What the question is actually asking
Every theory of justice answers three questions in sequence, and most exam confusion comes from collapsing them. First, what is the subject of justice: individual acts, institutions, or outcomes? Second, what is the currency: resources, welfare, primary goods, capabilities? Third, what is the pattern: equality, need, desert, entitlement?
Aristotle supplies the formal principle that everyone still starts from. In Book V of the Nicomachean Ethics (c. 340 BCE) he distinguishes distributive justice, which allocates honours and goods according to merit, from corrective justice, which restores a balance disturbed by a wrong. His formal rule is proportionate equality: treat equals equally and unequals unequally in proportion to relevant difference. This is genuinely formal. It tells you nothing until you specify what counts as a relevant difference, which is exactly where substantive disagreement begins.
Hume adds the second precondition. Justice, he argues, is an artificial virtue that arises only under specific circumstances of justice: moderate scarcity and limited generosity. In a world of abundance, or among people of unlimited benevolence, questions of distribution would not arise. Rawls adopts this framing directly and builds it into the original position.
The distinction that carries the most marks is between procedural and substantive justice. A procedural theory specifies a fair process and accepts whatever it produces. A substantive theory specifies an acceptable outcome and judges processes by whether they reach it. Rawls is usually read as procedural, but this needs care: he designs the procedure so that it will yield a particular substantive result, which is one of Nozick’s sharpest objections.
Key terms
Pure procedural justice — No independent criterion of a fair outcome exists; the fair procedure defines the fair result. Rawls’s own description of his theory.
Perfect procedural justice — An independent criterion exists and a procedure reliably reaches it. Rawls’s example is dividing a cake with the cutter choosing last.
Imperfect procedural justice — An independent criterion exists but no procedure guarantees it. A criminal trial is the standard example.
Basic structure — The constitution, the legal form of property, and the principal economic and social institutions. For Rawls the primary subject of justice, because their effects on life chances are profound and present from birth.
Rawls: justice as fairness
Thinker
John Rawls (1921–2002)
Key works. A Theory of Justice (1971), Political Liberalism (1993), The Law of Peoples (1999), Justice as Fairness: A Restatement (2001)
Core claim. Principles of justice are those that free and equal persons would choose behind a veil of ignorance; the resulting two principles rank equal liberty above fair opportunity, and fair opportunity above permissible inequality.
Standard critique. The choice situation smuggles in liberal individualist assumptions (Sandel, MacIntyre); its maximin reasoning is arbitrarily risk-averse (Harsanyi); it stops at the basic structure and so exempts personal choices and the family (Cohen, Okin).
Exam hook. The default frame for any Indian question on distributive justice, reservation, or the welfare state. Pair with Ambedkar on social democracy.
The original position
Rawls revives social contract theory, but the contract is a device of representation, not a historical event or a hypothetical promise. Parties in the original position are rational and mutually disinterested. They know general facts about economics, psychology and sociology. They do not know their own place in society, class, natural talents, strength, intelligence, race, sex, generation, or their conception of the good.
The veil of ignorance does the moral work. By removing exactly the information that would let a person tailor principles to their own advantage, it converts self-interested bargaining into impartial reasoning. This is why Rawls calls the theory justice as fairness: the fairness of the initial situation transfers to the principles chosen in it.
Why maximin
Behind the veil a party cannot calculate expected utility, because probabilities are unavailable. Rawls argues that under these conditions a rational chooser follows maximin: rank alternatives by their worst outcome and choose the alternative whose worst outcome is best. Applied to social arrangements, this means you would not gamble on being born into a wealthy family, because you might be born into the worst-off group instead.
This step attracts the most technical criticism. John Harsanyi argued that the rational rule under genuine ignorance is to assume equal probabilities and maximise average utility, which would produce a form of utilitarianism rather than the difference principle. Rawls’s reply is that maximin is rational only under three conditions, all of which he claims hold here: no reliable probability estimates, a guaranteed minimum that the chooser can accept, and unacceptable outcomes below that minimum.
The two principles
In the final formulation of Justice as Fairness: A Restatement (2001):
- Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all.
- Social and economic inequalities are to satisfy two conditions: they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and they are to be to the greatest benefit of the least advantaged members of society, which is the difference principle.
Two features of this ordering carry marks. First, lexical priority: the first principle must be fully satisfied before the second applies, and fair equality of opportunity before the difference principle. Liberty cannot be traded for economic gain. Second, the difference principle is not a levelling principle. It permits inequality, and permits it without limit, provided the inequality genuinely improves the position of the worst-off group. A society in which entrepreneurs become very rich while raising the floor is compatible with it.
The currency of distribution is primary goods: rights and liberties, opportunities and powers, income and wealth, and the social bases of self-respect. These are things any rational person is presumed to want whatever else they want, which is what allows the parties to reason about advantage without knowing their conception of the good.
Justice is the first virtue of social institutions, as truth is of systems of thought
John Rawls, A Theory of Justice, 1971
No one deserves his greater natural capacity nor merits a more favourable starting place in society
John Rawls, A Theory of Justice, 1971
The second line is the moral engine of the difference principle. Natural talent and social starting point are, from a moral point of view, arbitrary. Nobody earned them. It does not follow that talents should be confiscated, only that the distribution they generate has no automatic moral claim, and that society may treat the distribution of natural assets as a common asset whose returns are shared.
Rawls after 1971
Political Liberalism (1993) is a substantial revision, and candidates who ignore it write dated answers. Rawls concedes that A Theory of Justice (1971) treated justice as fairness as a comprehensive moral doctrine, which is untenable in a society marked by reasonable pluralism. The revised project is narrower: a political conception of justice that citizens holding different comprehensive doctrines, religious and secular, can each endorse from within their own view. This convergence is the overlapping consensus. It is supported by the duty of public reason, under which citizens justify coercive political decisions by reasons others can accept as free and equal.
The Law of Peoples (1999) extends the argument internationally, and disappoints many of Rawls’s own followers. He runs a second original position among representatives of peoples rather than individuals, and does not export the difference principle globally. He recognises decent hierarchical peoples alongside liberal ones and defends only a limited duty of assistance to burdened societies. Cosmopolitan critics such as Thomas Pogge and Charles Beitz argue that the logic of the first book requires global distributive principles that Rawls declines to draw.
Nozick: the entitlement rejoinder
Thinker
Robert Nozick (1938–2002)
Key works. Anarchy, State, and Utopia (1974)
Core claim. A distribution is just if it arose from just acquisition and just transfer. Only a minimal state, limited to protection against force, theft, fraud and enforcement of contracts, is justifiable; anything more violates rights.
Standard critique. The Lockean proviso on original acquisition is left thin and indeterminate; historical rectification is unworkable in societies built on conquest and slavery; self-ownership does not establish ownership of external resources.
Exam hook. The standard counterpoint to Rawls in a 15-marker. Also the theoretical anchor for critiques of the Indian welfare and reservation framework.
Nozick’s entitlement theory has three principles: justice in acquisition, which governs how unheld things come to be owned; justice in transfer, which governs voluntary exchange and gift; and rectification, which corrects past violations of the first two. Justice is therefore historical, meaning it depends on how a distribution came about, and unpatterned, meaning it fits no formula of the shape “to each according to …”.
The Wilt Chamberlain argument is the demonstration. Begin from any distribution D1 that you consider just, including a perfectly equal one. Suppose a million people each voluntarily pay twenty-five cents extra to watch a basketball player, who ends up far richer than anyone else. The resulting distribution D2 is unequal. But every transfer was voluntary and began from a distribution stipulated to be just. Either D2 is just, or the pattern can be preserved only by continuously interfering with voluntary transactions. Nozick’s conclusion is that liberty upsets patterns, and that any patterned theory, including Rawls’s, licenses permanent interference in people’s lives.
From this follows his most quoted claim, that taxation of earnings from labour is on a par with forced labour: to take the product of a person’s hours is to claim a partial property right in the person. The underlying premise is self-ownership, which Nozick inherits from Locke. Its weakest point, as G.A. Cohen showed at length, is the move from owning oneself to owning the external world, which requires the Lockean proviso that enough and as good be left for others. Nozick weakens the proviso to a test of whether others are made worse off than they would have been, which permits almost any appropriation.
| Question | Rawls | Nozick |
|---|---|---|
| Subject of justice | The basic structure | Individual holdings and transfers |
| Type of theory | End-state, patterned | Historical, unpatterned |
| Role of the state | Redistributive, ensures fair value of liberties | Minimal: protection, enforcement of contracts |
| Natural talents | Morally arbitrary; a common asset | Owned by the person who has them |
| Taxation | Legitimate instrument of the difference principle | On a par with forced labour |
| Test case | Would the worst-off group be better off? | Did each step arise justly? |
The communitarian critique
Communitarians do not principally dispute the two principles. They dispute the account of the person that generates them. If the self behind the veil has been stripped of every attachment that gives it identity, then the choosing agent is not recognisably a human being, and the principles it chooses have no authority over actual people embedded in actual communities.
Thinker
Michael Sandel (b. 1953)
Key works. Liberalism and the Limits of Justice (1982), Justice: What’s the Right Thing to Do? (2009)
Core claim. Rawls presupposes an unencumbered self, prior to and independent of its ends. Real selves are partly constituted by attachments they did not choose, so deliberation about justice cannot bracket conceptions of the good.
Standard critique. Overstates Rawls’s metaphysical commitments; Rawls’s reply in Political Liberalism (1993) is that the original position is a device of representation, not a theory of the self.
Exam hook. The 2023 paper asked this critique in almost these words. Learn the Rawlsian reply too.
Sandel’s argument runs through the distinction between the voluntarist and the cognitive view of agency. On Rawls’s account, to deliberate is to choose among ends that are external to the self. On Sandel’s, much practical reasoning is a matter of discovering what one already is: a member of this family, this faith, this republic. Obligations of solidarity and membership are then genuine obligations, not merely the ones we happen to have consented to. This is why he objects to the priority of the right over the good. A political order cannot be neutral among conceptions of the good life, and pretending otherwise conceals the substantive commitments it does make.
Thinker
Alasdair MacIntyre (1929)
Key works. After Virtue (1981), Whose Justice? Which Rationality? (1988)
Core claim. Modern moral debate is interminable because it uses fragments of older traditions detached from the context that gave them sense. Justice is intelligible only inside a tradition with a shared account of the human good, sustained by practices and virtues.
Standard critique. Risks relativism, since it supplies no way to adjudicate between rival traditions; the historical narrative of decline is contested.
Exam hook. Use for questions on the crisis of liberal moral discourse, or on why rights talk in India often talks past community claims.
Thinker
Michael Walzer (b. 1935)
Key works. Spheres of Justice (1983)
Core claim. Different social goods carry different social meanings and belong to different spheres, each with its own distributive criterion. Injustice is dominance: the conversion of advantage in one sphere, typically money, into advantage in others such as health, office, education or political power.
Standard critique. Social meanings are contested and often reflect existing power, so reading justice off them can entrench the status quo.
Exam hook. The best single tool for Indian questions on money in politics, capitation fees, or the commodification of healthcare.
Walzer’s complex equality is worth learning precisely, because it is frequently misdescribed. He is not arguing for equal shares in each sphere. He is arguing that no citizen’s standing in one sphere should be determined by their standing in another. A society can tolerate considerable inequality of wealth and still be just, provided wealth does not buy political office, judicial outcomes, medical priority or educational places. Read against India, the framework indicts electoral funding and privatised admissions more sharply than it indicts income inequality as such.
Charles Taylor supplies the third strand. In his essay “Atomism” (1979) he argues that the liberal picture of the self-sufficient individual is incoherent, because the capacities liberals value, autonomy and rational agency, can only be developed inside a culture. This grounds an obligation to sustain the communities that make free individuals possible, and, in The Politics of Recognition (1992), an argument for differentiated cultural rights that strict procedural liberalism cannot accommodate.
Debate: Is the communitarian critique fatal to Rawls?
Yes. The original position cannot be neutral. Selecting primary goods, ranking liberty first and treating talents as a common asset all encode a specific liberal conception of the good. A theory that claims neutrality while smuggling in substance is worse than one that argues for its values openly. No. Political Liberalism (1993) concedes the point about comprehensive doctrines and retreats to a political conception. The veil is a modelling device, not a claim that persons are metaphysically unencumbered. Communitarians also owe an account of what to do when the community’s shared understandings are themselves unjust, which is the standing objection from caste, and none of them answers it convincingly. The examiner’s line. The critique fails as metaphysics and succeeds as sociology. It does not refute the two principles, but it does explain why liberal proceduralism has weak purchase in societies where identity, not individual choice, allocates life chances.
Critiques from inside egalitarianism
Two objections cut deeper than communitarianism because they accept Rawls’s egalitarian aims and show the theory falling short of them.
G.A. Cohen (1941–2009), in Rescuing Justice and Equality (2008), attacks the incentives argument. Rawls permits inequality when it benefits the worst off; the standard justification is that high earners need incentives to be productive. Cohen asks who requires those incentives. If the talented are themselves committed to justice, they would work productively without demanding a premium, and the inequality would be unnecessary. The inequality is therefore justified only by the talented person’s own unwillingness to comply, which is an odd foundation for a principle of justice. His conclusion is that justice requires an ethos, a set of personal attitudes and choices, and cannot be confined to the basic structure.
Susan Moller Okin (1946–2004), in Justice, Gender, and the Family (1989), presses the same structural point from feminist ground. The family is where people first acquire a sense of justice, and where the gendered division of labour is reproduced. By treating the family as part of the basic structure in name but exempting its internal arrangements from the two principles in practice, Rawls leaves the deepest determinant of women’s life chances outside the theory. Her constructive claim is that a consistent application of the veil, where parties do not know their sex, would rule out the gender-structured family as we know it.
Iris Marion Young (1949–2006), in Justice and the Politics of Difference (1990), rejects what she calls the distributive paradigm altogether. Treating justice as the allocation of divisible goods obscures the institutional conditions, decision-making procedures, division of labour and culture, that produce domination and oppression. Her five faces of oppression, namely exploitation, marginalisation, powerlessness, cultural imperialism and violence, are not distributive failures and cannot be corrected by transfers.
Sen: from institutions to realisations
Thinker
Amartya Sen (b. 1933)
Key works. “Equality of What?” (1979), Inequality Reexamined (1992), The Idea of Justice (2009)
Core claim. Theories in the Rawlsian line are transcendental institutionalist: they identify perfectly just institutions and say little about comparing actual states of affairs. Justice should be realisation-focused and comparative, asking which of two feasible situations is less unjust.
Standard critique. Comparative judgements still need criteria, so the contrast with Rawls may be softer than claimed; the capability list is deliberately left open, which Nussbaum treats as a weakness.
Exam hook. The highest-value framework for Indian answers, because it connects justice directly to deprivation, public reasoning and the record of the Indian state.
Sen recovers a distinction from classical Indian jurisprudence. Niti refers to organisational propriety and behavioural correctness, the rules and institutions themselves. Nyaya refers to realised justice, the world that actually emerges. A society may have impeccable niti and appalling nyaya. His methodological charge is that Rawls’s approach is neither necessary nor sufficient for the actual work of justice: we do not need to agree on the perfectly just society to agree that famine, untouchability or the absence of schooling are injustices to be removed.
His substantive contribution is the capability approach. Primary goods are means, not ends, and people differ enormously in their ability to convert means into functionings. A person with a disability, or living in a region without transport, needs more income to achieve the same mobility. Justice should therefore be assessed in the space of capabilities, the real freedoms a person has to achieve the lives they have reason to value. Martha Nussbaum develops this into a specified list of ten central capabilities; Sen declines to fix a list, holding that the selection is properly a matter for public reasoning in each society.
| Thinker | Locus of justice | Verdict on inequality |
|---|---|---|
| Rawls | Basic structure | Unjust unless it improves the position of the least advantaged |
| Nozick | History of holdings | Just if it arose from legitimate acquisition and transfer |
| Walzer | Boundaries between spheres | Unjust when advantage in one sphere converts into another |
| Sen | Realised capabilities | Unjust when it reflects unequal real freedom, not merely unequal income |
Reading the Indian record through these theories
The Preamble promises justice that is social, economic and political, in that order, and the ordering was deliberate. B.R. Ambedkar, in the Constituent Assembly on 25 November 1949, put the problem in terms no theory of justice has improved upon: India was entering a life of contradictions, with political equality of one person one vote and one vote one value, alongside social and economic inequality. Democracy built on that contradiction, he warned, was at risk from those who suffered it.
Articles 38 and 39 give this a directive form. Article 38 requires the state to promote a social order in which justice informs all institutions, and, after the Forty-fourth Amendment of 1978, to minimise inequalities in income and eliminate inequalities in status, facilities and opportunities. Article 39(b) and (c) direct the distribution of material resources to serve the common good and prevent concentration of wealth. These are close to a constitutional statement of a difference principle, weakened by non-justiciability.
The reservation jurisprudence is where the theoretical argument becomes litigation. Article 14 guarantees equality before the law; Articles 15(4) and 16(4) permit special provision for backward classes. The constant question is whether the latter are exceptions to the former, a formal-equality reading, or facets of it, a substantive-equality reading. The court has moved decisively to the second view.
- Indra Sawhney v. Union of India (1992). Upheld 27 per cent reservation for other backward classes, excluded the creamy layer, fixed a ceiling of 50 per cent as a normal rule and held that reservation in promotions was not permissible under Article 16(4).
- The Seventy-seventh Amendment (1995) restored reservation in promotions for Scheduled Castes and Scheduled Tribes by inserting Article 16(4A).
- M. Nagaraj v. Union of India (2006). Upheld the amendment but conditioned promotion quotas on the state demonstrating backwardness, inadequacy of representation and no compromise of administrative efficiency.
- Jarnail Singh v. Lachhmi Narain Gupta (2018). Removed the requirement to demonstrate the backwardness of Scheduled Castes and Scheduled Tribes, holding that their backwardness is presumed by their inclusion in the lists, while retaining creamy-layer exclusion.
- Janhit Abhiyan v. Union of India (2022). Upheld the One Hundred and Third Amendment providing ten per cent reservation on economic criteria, by three to two, thereby permitting a breach of the fifty per cent ceiling and admitting economic disadvantage as a standalone ground.
Each theory reads this sequence differently, and saying so explicitly is what separates an average answer from a good one. On a Rawlsian reading, reservation is fair equality of opportunity supplemented by the difference principle, and the creamy-layer doctrine is the device that keeps benefits flowing to the least advantaged rather than to the best-placed members of a designated group. On a Nozickean reading, group-based allocation of state employment violates the entitlements of individually more qualified applicants, though the rectification principle offers a route to justify remedies for historical dispossession that libertarians rarely take up. On a Walzerian reading, the sharpest injustice is not the quota but the conversion of money into educational place and educational place into office, a sphere violation that reservation partially interrupts. On a Sen-influenced reading, the relevant question is not the size of the quota but whether it expands real capabilities, which is why the shift from EWS income thresholds to actual educational and health deprivation is a live policy debate.
Where answers lose marks
- Describing the veil of ignorance and stopping there. The veil is a premise. The marks are in the derivation, the lexical ordering, and the reason talents are morally arbitrary.
- Treating the difference principle as a demand for equality. It permits unlimited inequality that benefits the worst off, and prohibits even small inequality that does not.
- Writing the communitarian critique as an attack on the two principles. It is an attack on the conception of the self behind them.
- Ignoring Political Liberalism (1993). Answers that present the 1971 position as Rawls’s final view are dated, and the shift to overlapping consensus is often the examiner’s real target.
- Confusing Sen’s niti and nyaya, or presenting the capability approach as a rejection of equality rather than a change in the space where equality is assessed.
- Using Indian examples decoratively. Naming Indra Sawhney is worth little; explaining why the creamy-layer doctrine is a difference-principle device is worth a great deal.
Asked before
- Rawls’ idea of the “liberal self” is too individualistic. Explain, in this context, the communitarian critique of Rawls’ theory of justice. (2023, Paper I, 15 marks)
- Explain how Rawls used the liberal and egalitarian perspective to develop his concept of distributive justice. (2025, Paper I, 15 marks)
- Affirmative Action Policies draw as much strong criticism as strong support. Analyze this statement in the context of equality. (2023, Paper I, 15 marks)
Answer skeleton
Rawls’ idea of the “liberal self” is too individualistic. Explain, in this context, the communitarian critique of Rawls’ theory of justice. (15 marks, 250 words)
Frame. State the target precisely. The critique is directed at the conception of the person presupposed by the original position, not at the two principles.
Establish the Rawlsian self. Parties are rational, mutually disinterested, ignorant of their conception of the good. The right is prior to the good; the self is prior to its ends.
Sandel. The unencumbered self cannot account for constitutive attachments or for obligations of membership that were never chosen.
MacIntyre. Justice is tradition-dependent; abstracted from a shared account of the human good, moral argument becomes interminable.
Walzer and Taylor. Distributive criteria derive from social meanings, which are community-specific; the capacity for autonomy is itself socially produced.
The Rawlsian reply. The original position is a device of representation. Political Liberalism (1993) narrows the claim to a political conception sustained by overlapping consensus, which meets much of the objection.
Evaluate. The critique fails as metaphysics and succeeds as sociology. Close on India: in a society where caste allocates life chances before any choice is made, the communitarian description is accurate, but its remedy is weak precisely because the community’s shared understandings are part of the injustice.
Last-mile revision
- Rawls 1971; Nozick 1974; MacIntyre 1981; Sandel 1982; Walzer 1983; Okin 1989; Young 1990; Rawls again 1993; Cohen 2008; Sen 2009. The decade sequence is itself an argument.
- Two principles, lexically ordered: equal basic liberties, then fair equality of opportunity, then the difference principle.
- Primary goods: rights and liberties, opportunities and powers, income and wealth, and the social bases of self-respect.
- Maximin is chosen because probabilities are unavailable behind the veil; Harsanyi’s average-utility objection is the standard counter.
- Nozick’s three principles: acquisition, transfer, rectification. Historical and unpatterned. Wilt Chamberlain shows liberty upsets patterns.
- Sandel: unencumbered self. MacIntyre: tradition-constituted rationality. Walzer: complex equality, dominance, spheres. Taylor: atomism, recognition.
- Cohen: incentives argument and the ethos of justice. Okin: the family as the ungoverned basic institution. Young: five faces of oppression beyond distribution.
- Sen: niti and nyaya; transcendental institutionalism versus comparative realisation; capabilities rather than primary goods; Nussbaum’s list.
- India: Preamble ordering, Articles 38 and 39, Indra Sawhney 1992, Nagaraj 2006, Jarnail Singh 2018, Janhit Abhiyan 2022, Ambedkar’s contradiction of 25 November 1949.
Read the rest. This chapter is one of 58 in the complete PSIR Optional Notes, covering Paper I and Paper II in full — free to download.
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