A CONTRACTUALIST THEORY OF NONIDEAL JUSTICE Matthew Robert Adams London, United Kingdom B.A. (First Class hons.), University of Dublin Trinity College, 2009 B.Phil., University of Oxford, 2011 A Dissertation presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Department of Philosophy May, 2018 A. John Simmons John Allen Hollingsworth Professor of Philosophy (Chair) Talbot Brewer Professor of Philosophy Rebecca Stangl Associate Professor of Philosophy Colin Bird Associate Professor of Politics (External) It is obvious that between theory and practice there is required, besides, a middle term connecting them and providing a transition from one to the other, no matter how complete a theory may be; for, to a concept of the understanding, which contains a rule, must be added an act of judgment…But even where this natural talent is present there can still be a deficiency in premises, that is, a theory can be incomplete…In such cases it was not the fault of theory if it was of little use in practice, but rather of there having been not enough theory…. —Immanuel Kant, “On the common saying: ‘That May be correct in theory, but it is of no use in practice,” trans. Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 8: 275. Table of Contents ________________________________________________________________________ Acknowledgments i Introduction 1 Chapter 1: Ideal Theory & Nonideal Theory 5 Chapter 2: Nonideal Principles of Justice 33 Chapter 3: The Value of Nonideal Principles of Justice 68 Chapter 4: An Ideological Critique of Nonideal Methodology 100 Chapter 5: Nonideal Justice, Fairness, & Affirmative Action 133 Appendix I: Contractualism & Intergenerational Justice 160 Bibliography 176 Acknowledgements The germ of this dissertation was a conversation that I had with John Simmons as a first year graduate student. At the time I was taking his course “Rescue, Charity, and Justice.” One of the books assigned was Liam Murphy’s Moral Demands in Nonideal Theory: my first extended exposure to nonideal theory. Towards the end of the semester I mentioned that I had been wondering whether the normative content of nonideal theory could be determined using a contractualist framework. John seemed intrigued but uncertain. Our mutual perplexi- ty inspired me to think more about the topic and eventually to write a dissertation on it. John turned out to be an exceptional advisor. His enthusiasm for the project from the very outset was a constant source of inspiration; his careful guidance and support every step of the way was invaluable. In particular, his feedback on drafts and his own published work on the topic always pressed me to try to express my own ideas more sharply and elegantly. I could not imagine writing this dissertation without his help. Tal Brewer and Becky Stangl both went way beyond what could reasonably be ex- pected from committee members. They often drew my attention to new and unexpected problems that I had neglected in earlier drafts. In the short term this made things harder; in the long term it helped me to grapple with the problems more deeply. I am also grateful to Colin for agreeing to be my external examiner and for many enjoyable and rewarding discussions over the last few years—often fueled by whiskey—on topics ranging from dignity to ideology. During the spring semester 2017 Dave Estlund agreed to take me on as a visiting student at Brown University. Our leisurely lunches throughout the semester were fun and intellectually stimulating. I am particularly grateful to Dave for encouraging me to write a paper on ideology that eventually formed chapter 4 of this dissertation. i I have also received helpful comments on portions of the dissertation from the fol- lowing people: Michael Carroll, Harrison Frye, Luke Hunt, Donncha Mac Cóil, Kristina Meshelski, Ross Mittiga, Andrew Morgan, Kirun Kumar Sankaran, and Margaret Shea. I would also like to particularly thank Donncha for taking on the large task of proof reading the final version with great dedication and rigor. More generally, I am grateful to the UVa philosophy department. When I arrived as a graduate student six years ago I really did not know what to expect; thankfully the depart- ment turned out to be a wonderful academic home. I value how supportive the graduate students are to each other, and how so many of the faculty are obviously driven by what they judge to be philosophically important rather than what is academically trendy. I have learnt a lot over the last five years and a large part of the credit goes to the people who have sur- rounded me. Finally, on a more personal note, I count myself extraordinarily fortunate to have such a wonderful group of friends. The following people are worthy of special mention: Jenn Brewer, Matthew Byrne, Michael Carroll, Robert Cummins, Lisa Devlin, Miho Erin, Corin Fox, Katherine Freeman, Cathy Lanigan O’Keeffe, Donncha Mac Cóil, Leisha Marlow, Richard Matthews, Ross Mittiga, Andrew Morgan, Nicholas Rimell, Abdallah Salam, and Margaret Shea. Last—but certainly not least—I thank my immediate family for their love and support: my sister Sophie, my brother Tom, my mother Lesley, and late father Robert. ii Introduction Ideal theory is a conception of how a perfectly just society should be arranged. The orthodox (Rawlsian) position is that ideal theory is an essential part of a theoretical concep- tion of justice: in nonideal conditions we should transition to the full realization of ideal justice, and this transition should be orientated by ideal theory.1 This orthodoxy has recently been extensively challenged. Some philosophers—most famously Amartya Sen—argue that it is not necessary to get “heated up” about ideal theory in order to determine what we should do in our actual nonideal world. 2 One obvious reason why this orthodoxy has been challenged is that in John Rawls’s work (and in the Rawlsian tradition in general), the claim that ideal theory is an essential part of justice has been insufficiently clarified and defended. Another reason reflects a deeper social pathology. Rawls wrote the first edition of A Theory of Justice during a period of relative optimism. The civil rights movement brought hope that racial injustice—arguably the most endemic form of injustice in the United States— could eventually be overcome. With the exception of a slight rise between 1950 and 1960, wealth and income inequalities gradually decreased from 1910 to 1970.3 In doing so they (at least partially) confirmed the economist Simon Kuznets’s famous prediction that economic 1 Following A. John Simmons, “Ideal and Nonideal Theory,” Philosophy & Public Affairs 38 (2010): 5-36. (Cf. John Rawls, The Law of Peoples (Cambridge Mass.: Harvard University Press, 2001), 89.) 2 See: Amartya Sen, “What Do We Want From a Theory of Justice?,” Journal of Philosophy 103 (2006): 215-238, pp. 218-222; Amartya Sen, The Idea of Justice (Cambridge Mass.: Belknap Press, 2011), 102. (Cf. Elizabeth Anderson, The Imperative of Integration (Princeton N.J.: Princeton University Press, 2013), 3-7.) 3 Following Thomas Piketty, Capital in the Twenty-First Century, trans. Arthur Goldhammer (Cambridge Mass.: Belknap Press, 2014), 348-349. 1 inequalities would automatically decrease in advanced stages of capitalism.4 Whilst the basic structure of the United States clearly did not conform to ideal principles of Rawlsian justice in the period leading up to the publication of the book in 1971, it was perhaps reasonable to believe that something close to Rawlsian ideal justice could be achieved in a few generations. Crucially also, it was reasonable to hope that this achievement could come about largely by political and economic inertia. Sadly such reasonable optimism was short lived. The back cover of Rawls’s late work Justice as Fairness informs the reader that ‘Rawls is well aware that since the publication of A Theory of Justice in 1971 American society has moved further away from the ideas of justice as fairness.’5 Since Rawls’s death the impression of such backsliding has intensified. As recent political events dramatically illustrate, racial injustice remains deeply engrained in the United States. Indeed, if anything (at least in certain respects) it is enjoying a perverse renaissance. Wealth and income inequalities have also continuously risen since the 1970s. Essentially, the gulf between our actual nonideal world and the ideal seems increasingly great and insur- mountable. Consequently, ideal theorizing seems increasingly futile. A central aim of my dissertation is to vindicate the orthodox position that ideal theo- ry is an essential part of justice—a part that is crucial for an adequate development of nonideal justice. The central thread of my argument is captured by the prefatory epigram by Kant: the value of ideal theorizing in our actual nonideal world is obscure because the requisite theorizing is incomplete. My innovation of what I term “nonideal principles of justice” is crucial to overcoming this problem of under-theorization: nonideal principles of justice are “idealized” in the sense that they abstract away from considerations of political feasibility, and specify what justice simpliciter requires. But they are “nonideal” in the sense that they specify what should be done in nonideal conditions, rather than specifying how a perfectly just society should be structured. I argue that they are the key to clarifying how ideals of perfect justice relate to what we should do in our actual nonideal world. In this dissertation I also attempt to confront the deeper social pathology that has propelled suspicion of ideal theory. In one sense this pathology is reasonable: ideal justice is probably not something that will ever be realized in the actual world. Tragically, something 4 Simon Kuznets, “Economic Growth and Income Inequality,” American Economic Review 45 (1955): 1- 28.