RetRIevINg RaWLs foR RacIaL justIce? ( 171 )adjustments to natural limitations and historical contingencies, and the other of prin-
ciples for meeting injustice.^54Note the hedged and cautious language of this passage. Rawls is basically
conceding that he has not worked out what principles of justice would apply
under the “less happy conditions” of non- ideal circumstances. As Thomas
Nagel admits in a brief article on affirmative action for the Journal of Blacks
in Higher Education, ideal theory “does not tell you what to do if, as is almost
always the case, you find yourself in an unjust society, and want to correct
that injustice.”^55 Moreover, to the extent that Rawls explains how his ideal-
theory principles are (somehow) supposed to “guide the course of social
reform,” it is (in his later discussion of civil disobedience and conscientious
refusal) limited to the severely restricted “context ... of a state of near jus-
tice, that is, one in which the basic structure of society is nearly just.”^56 But
obviously a society with a history of white supremacy like the United States
is quite remote from being a well- ordered society; it is not slightly but radi-
cally deviant from perfect justice. So the already problematic issue of how
Rawls’s ideal principles are supposed to be developed into principles for
“meeting injustice” is even further exacerbated under these circumstances,
and the challenge to the applicability of FEO is even more forcefully raised.
It needs to be recalled that at the time of the original publication of
Shelby’s article (2004), the challenge to Rawlsian ideal theory was only
in its infancy. But since then a growing body of work has begun to dem-
onstrate how problematic and untheorized the relation between ideal and
non- ideal theory is in Rawls’s writings, and to raise the question of whether
ideal theory, far from being a necessary foundation for constructing non-
ideal theory, as Rawls thought, might actually be a hindrance to it.^57 Shelby’s
argument is not sufficiently informed by an awareness of these complexi-
ties. Nothing Rawls says would unambiguously authorize Shelby’s use of
FEO as a principle of transitional justice, and there are things he says that
would seem to directly prohibit it. Thus in Justice as Fairness he emphasizes,
“Justice as fairness is a political conception of justice for the special case of
the basic structure of a modern democratic society,” and a few pages later
says that “we view a democratic society as a political society that excludes a
confessional or an aristocratic state, not to mention a caste, slave, or a racist
one” [my emphasis].^58 As with Rawls’s judgment that a modified form of the
difference principle will be required to deal with racial injustice, this seems
centrally to contradict Shelby’s project. Rawls is telling us unambiguously
that his two principles of justice, including FEO, cannot be applied directly
to racist societies as Shelby is doing.
Suppose, however, that someone were to object at this point that
to insist on a difference between distributive and rectificatory justice is