Reparative Racial Justice from Wariness in the Rawlsian Original Position

Charles Mills has argued that Rawlsian justice cannot recognize racial injustice, cannot apply to a society so nonideal as the United States, and provides harmful support for “color-blind” approaches to racial justice. This article derives duties of backward-looking reparative justice from a Rawlsian Original Position (OP) by arguing that representatives in the OP know that social groups may exist and that bias tracking those groups may become encoded in social institutions over time, even in ideal circumstances. Representatives will have cause to design historically backward-looking institutions that can investigate claims of institutional bias and make recommendations for repair. This approach improves upon other responses to Mills because it does not make a “lexical error” by relying on a principle of fair equality of opportunity. Finally, this article shows how Rawlsian ideal theory, when applied to a state like the United States, naturally gives way to a nonideal theory like Mills’s own.