Institutional Racism and Social Norms: On the Debate Between Rawls and Mills

Abstract

In this paper, I engage with the debate between John Rawls and Charles Mills. In the first part, relevant works by Rawls and Mills are mainly examined. To this end, I first begin by examining Rawls’s ideal theory of justice and its relevance to the issue of racism. I then consider Mills’s non-ideal critique of Rawls and supplement it with the help of the notion of social norms. Whereas Rawls’s view can deal with racial injustice as discrimination, in my view, I argue that Mills’s theory is mostly concerned with racist injustice as oppression. Between racial injustice as discrimination and racist injustice as oppression, however, there are varying degrees of race-related wrongs, which can be elucidated by harmful social norms. As a result, I conclude that Mills’s point can be shown without supposing that the Rawlsian basic structure is inherently racist.

1 Introduction

In this paper, I engage with the debate between John Rawls and Charles Mills. In thinking of society as something that starts from scratch, the upshot of social contract theory is that the legitimacy of political community consists in each member’s voluntary agreement to establish the common political order. For this reason, against feudal hierarchies, the social contract theory is deemed as an influential account of how justified political norms emerge from each person’s volition. Given its radical and universal assertion of equality and liberty among contract parties, this may raise a question: how does a community based on social contract allow for racial injustice as an actual practice and as a theory allowing the justification of racism?

This paper is divided into two parts. In the first part, relevant works by Rawls and Mills are mainly examined. To this end, I first begin by examining Rawls’s ideal theory of justice and its relevance to the issue of racism. I then consider Mills’s non-ideal critique of Rawls and supplement it with the help of the notion of social norms. Whereas Rawls’s view can deal with racial injustice as discrimination, in my view, I argue that Mills’s theory is mostly concerned with racist injustice as oppression. Between racial injustice as discrimination and racist injustice as oppression, however, there are varying degrees of race-related wrongs, which can be elucidated by harmful social norms. As a result, I conclude that Mills’s point can be shown without supposing that the Rawlsian basic structure is inherently racist.

2 Rawls on Race

It is well-known that Rawls’s principles of justice are above all to protect the equal liberties, including basic political liberties such as the right to vote, freedom of speech and conscience, and protection from arbitrary arrest. On what he calls the doctrine of the priority of liberty (Rawls, 2001, p. 46), Rawls says that “liberty can only be limited for the sake of liberty itself” (Rawls, 1999b, p. 214). In addition to that, according to the difference principle, socioeconomic inequalities should be arranged such that the least advantaged are allowed to have the greatest benefit, with fair equality of opportunity.

In this way, society as a scheme of cooperation is to fairly distribute various tasks, burdens, rights, and benefits. Prima facie, such overriding principles of justice should also counteract any racial inequalities. To be sure, Rawls’s primary interests lie in the principles of a well-ordered society under the condition of strict compliance under favorable circumstances (Rawls, 1999b, 7–8, 215 − 17). For this reason, he does not deal with the question of partial compliance in which people do not behave justly nor the theory of rectifying injustice. Since his actual remarks about race and racism are scarce as well as marginal, some reconstruction of his view is needed. As far as he admits that “Among our most basic problems are those of race, ethnicity, and gender” (Rawls, 1993, xxviii), it would be reasonable to expect that Rawls would have something to say about the issue of race and racism.

From the point of view of justice as fairness, racial identity should not be a basis of distributing rights and liberties. From the impartial viewpoint of justice, racial traits as particular and contingent facts are not morally relevant. Here race is regarded as a fixed natural feature which is ascribed by birth. Not to be biased by such arbitrary contingencies, social or natural contingencies should be ruled out by the device of the original position. Behind the veil of ignorance as an initial condition, every party is similarly situated for formal constraints of justice such as generality, universality, and publicity. From the original position, it is impossible to know one’s racial identity. As far as racist doctrines are not only unjust but also irrational, they are impermissible and unacceptable as a conception of justice (Rawls, 1999b, 129 − 30). This consideration is also based on the view that all persons should be treated as equal and free in virtue of their moral personality. Insofar as “there is no race or recognized group of human beings that lack” (Rawls, 1999b, p. 443) the capacity for moral personality, racist principles cannot be allowed in a just polity. By having “a conception that is suited for the basis of democratic citizenship” (Rawls, 1993, p. 18), citizens are to be regarded as free and equal persons in virtue of having the two moral powers. This is why, as Rawls puts it, we have a pre-theoretic conviction that “religious intolerance and racial discrimination are unjust” (Rawls, 1999b, p. 19). Here we are not concerned with something like a caste society where “each person is believed to have his allotted station in the natural order of things” (Rawls, 1999b, p. 479). In this sense, it may be fair to say that Rawls did not endorse any sort of racial inequality given that he later explicitly states that “we view a democratic society as a political society that excludes … a caste, slave, or a racist one” (Rawls, 2001, p. 21).

It may seem odd that Rawls only talks about limited kinds of contingencies such as social class, native endowments, and fortune, not mentioning some fixed as well as contingent statuses such as race and gender. In this regard, it would be helpful to recall Rawls’s own remark on his omission of race. Although he believes that racial injustice is a serious problem to be resolved, he thinks that “an omission [of race] is not as such a fault, either in that work’s agenda or in its conception of justice” (Rawls, 2001, p. 66). He is aware of this critique and answers that his focus is exclusively concerned with ideal theory, not non-ideal theory concerning historical circumstances like racial injustice: “in a well-ordered society under favorable conditions, with the equal basic liberties and fair equality secured, gender and race would not specify relevant points of view” (Rawls, 2001, p. 66). Rawls’s concern is limited to ideal theory since non-ideal theory “presupposes that ideal theory is already on hand. For until the ideal is identified… nonideal theory lacks an objective, an aim, by reference to which its queries can be answered” (Rawls, 1999a, 89–90). That is, ideal normative theory is supposed to provide “the only basis for the systemic grasp” (Rawls, 1999b, p. 8) of the pressing matters like racial injustices. In this way, Rawls seems to believe that particular racial injustice will be identified and evaluated to the extent that an institution deviates from an ideal conception of justice conceived in ideal theory.

Note that injustice for Rawls is a matter of unfairness. Injustice is simply defined as the absence of justice in his sense in the basic structure of society.¹ Here, for Rawls, racial discrimination means that discrimination is differential treatment based on races. While discrimination is necessary for injustice, discrimination should occur in the public sphere. For Rawls, in the public sphere such as education and employment, discrimination is arbitrary and irrational. Here it is important to see that while racial inequality can be part of gross racial injustice, injustice in Rawls’s sense is not simply reduced to de facto inequality itself since his conception of justice is procedural and legalistic.²

Note that the definition of discrimination I employ is quite general. Here my conception of discrimination is minimal and nonmoralized so that my view remains neutral to various conceptions of discrimination. The notion of discrimination as a nonmoralized concept does not show that every kind of discrimination is wrong or impermissible. For instance, one may argue that being racially discriminatory may not be racist (Matthew, 2017b, p. 909). For Rawls, while it is unclear what sort of the notion of discrimination he assumes, what he has in mind in critiquing discrimination is that it is irrational and arbitrary (for there are no such things as racial essences). In this case, what makes discrimination wrongful is that discrimination is to treat someone on morally irrelevant grounds.³ What Rawls seems to omit is the fact that racial discrimination accords with the actual inequalities and hierarchies in the basic structure of society.⁴

In sum, it is noteworthy that racial injustice need not be the same as racist oppression or domination. Rather, for Rawls, racial justice is a very limited ideal since it only means the absence of racial injustice such as race-related differential treatment in laws or policies, which is racially discriminatory. On this minimal definition of racial discrimination, “S practices racial discrimination with regard to A and B when S treats A and B differently because A belongs to one race and B belongs to another” (Matthew, 2017b, p. 897). Rawls justifies his position against racial discrimination by appealing to the liberal value of fairness and justice. For him, the point is to have fair principles of distributive justice without discrimination. As I will argue below, this is an extremely narrow view of institutional racism.

3 Mills’s Critique of Rawls

Let me turn to some of Mills’s critique of Rawls’s silence on the issue of racism and engage with the conception of the racial contract. For Mills, it is truly regrettable that Rawls’s “huge body of work on questions of social justice… has nothing to say about racial injustice” (Mills, 2009, p. 162). More importantly, on Mills’s view, Rawls’s ascription of equal moral status seems to be only extended to white people. On Mills’s view, society should not be seen as a scheme of mutual cooperation from which everyone should benefit but as a group-based hierarchical system of subordination and domination. Mills asserts that “the general purpose of the Contract is always the differential privileging of the whites as a group with respect to the nonwhites as a group, the exploitation of their bodies, land, and resources, and the denial of equal socioeconomic opportunities to them” (Mills, 1997, p. 11). Mills thinks that Rawls’s systematic omission of the concept of race suggests that he wrongly dismisses the actual history that non-white people have been excluded and degraded. Given that the modern racial order is thoroughly structured as a social system of global white supremacy, Mills believes that Rawls wrongly remains silent about the issue of racial subordination and inequality. If so, what Rawlsian ideal theory shows is nothing more than a mystified and idealized version of domination contract: “the ignoring of race in Rawls’s work is structural and symptomatic of white political philosophy in general” (Mills, 2009, p. 169). Mills argues that Rawls’s social contract theory is also Eurocentric in ignoring the fact that “Domination and coercion of the nonwhite population are the founding moments for the American (and not just the American) polity, not democratic inclusion and consent” (Mills, 2009, p. 173).

Finally, unlike Rawls’s de jure idea of universal moral personhood, which is to be recognized by a just society, Mills argues that one’s personhood can de facto come in hierarchical degrees through the racial contract. Although Rawls follows Kant’s formula of humanity that every person should be treated as an end in itself with equal respect, Rawls’s theory does not clarify how racialized people’s full personhoods are systemically denied. As far as a Rawlsian social contract is a racial contract among white persons, in a nonideal situation, racial identities, as an indispensable mark of physical, cultural, or genealogical characteristics, play a justificatory role of domination, dehumanization, and oppression by identifying the non-white with moral sub-person (Mills, 1997, 53–81). This is readily evidenced by the actual history of racist oppression such as slavery, colonization, and genocide. Here the notion of subpersonhood is essential to Mills’s notion of racial contract: “Subpersons are humanoid entities who, because of racial phenotype/genealogy/culture, are not fully human and therefore have a different and inferior schedule of rights and liberties applying to them” (Mills, 1997, p. 56). The denial of the moral personhood distinguishes racism from other moral or social ills, such as class exploitation.⁵ While Rawls is mostly concerned with political and economic inequalities, Mills is right in pointing out the limitation of merely focusing on unfair distributions of rights, liberties, and material goods. While it is argued that part of Rawls’s theory may provide some measures to address the distributive problem related to racism, it is unclear whether his difference principle and the principle of fair equality of opportunity can address corrective justice, accounting for the specifically racial aspect of oppression such as marginalization and dehumanization.

Regarding the concept of oppression, racial oppression would be appropriate as a more serious form of racial injustice (Matthew, 2017b, p. 890). By definition, the broadest terminology of oppression may imply injustice, but not vice versa. But when his view can be seen as racist injustice as oppression, Mills’s conceptual usage of oppression is not so broad while there can be various types of oppression. In my view, what Mills means by the notion of oppression is dehumanization and marginalization, as his typical cases are colonialism and slavery. It is understandable because Mills thinks that the racial contract is to make non-whites Untermenschen such that nonwhite racial groups are excluded and regarded as moral subperson. In this case, what is at stake is to end racial disrespect for the sake of equal treatment and respect to all person regardless of races. While the idea of oppression itself can be seen as a broader definition, Mills’ view of oppression seems to be limited to dehumanization and exclusion from a society as a cooperative venture. Again, the crucial point for Mills is about the basic structure of society, which is deeply racist.

However, it should be noted that Mills does not reject the idea of contractarianism. As he says, “Though it may appear to be such, the ‘racial contract’ is not a ‘deconstruction’ of the social contract…. It criticizes the social contract from a normative base that does not see the ideals of contractarianism themselves as necessarily problematic but shows how they have been betrayed by white contractarians” (Mills, 1997, p. 129). Insofar as the idea of social contract is historically and descriptively explanatory, it is Mills’s claim that we should hold on to the notion. Following the spirit of demystificatory domination contract, his project can be still characterized as retrieving contractarianism in a non-ideal way. If racial contract is a group domination contract, then the normative notion of contract can be still used as a viable heuristic tool to detect oppressive racist practices, showing “how society was created or crucially transformed” (Mills, 1998, p. 4). In a similar vein, rather than dismissing the idea of liberalism as such, Mills still seems to be committed to the emancipatory potentials of liberalism such as egalitarianism and universalism. On his view, if there is no such thing as “an immanent conceptual/normative logic to liberalism,” (Mills, 2017b, p. 13) which makes it intrinsically racist, it is better to redeem liberalism and deracialize it for a radical program.

Yet, it is not clear whether only white contractarians are problematic while contractarianism itself is fine. Before dealing with this issue in the next section, let me first note that the Rawls-Mills debate concerning race comes down to the debate between ideal theory and non-ideal theory. If the debate between Rawls and Mills can be reformulated as a debate between ideal (normative) and non-ideal (descriptive) theory, drawing on Rousseau’s original formulation of two different modes of contract, the two positions can be seen as corresponding to Social Contract and Discourse on Inequality respectively.⁶ Mills’s critique is a contemporary version of Rousseau’s demystificatory domination contract as the actual genesis of political communities, critiquing a key contractarian assumption of “a founding moment that is consensual and inclusive” (Mills, 2009, p. 181).

Even if nonideal theory is not included in ideal theory as such, the incompatibility between the two need not follow if this distinction is no more than “a theoretical division of labor” (Boettcher, 2009, p. 255). So if Rawlsian ideal theory of justice are suitable for distributive justice for a well-ordered society, Mills’s nonideal theory can be used for corrective justice for what he calls an ill-ordered society. To see this point differently, I would like to make a distinction between racial injustice as discrimination and racist injustice as oppression. By distinguishing these two kinds of racial injustice, one way to see this division of labor is to think that while Rawls is only concerned with racial injustice formally caused by racial discrimination, Mills is dealing with racist injustice as oppression from the actual political institutions. If this view is plausible, Mills’s critique of Rawls’s racism and Shelby’s use of Rawls to critique racial injustice may be compatible.

While Rawls’s theory is thoroughly concerned with abstraction and idealization, recall that Mills is deeply suspicious about ideal theory’s validity to deal with existing racial injustice. Rather, he focuses on “the actual historical record and the actual norms and ideals” (Mills, 1997, p. 92). Following a Marxist tradition of critiquing bourgeois liberalism, Mills goes so far as to suggest that ideal theory must be essentially ideological in the pejorative sense that contributes to illegitimate group privilege. Furthermore, ideal theory is objectionable since it is false, distorted, and illusionary: “Ideal theory … is really an ideology, a distortional complex of ideas, values, norms, and beliefs that reflects the nonrepresentative interests and experiences of a small minority of the national population” (Mills, 2005, p. 172).

While sympathetic to Mill’s challenge to Rawlsian views, I argue that Mills’s criticism of Rawls that his ideal theory of social contract is necessarily ideological can be seen in a different light. For even though some instances of racist society may involve allocating a dehumanizing status to certain racial groups, the function of racism is not merely a matter of all-or-nothing (either recognizing moral personhood or ascribing subpersonhood). Rather, dehumanization as animalization, objectification, or demonization may be better conceived as a justificatory tool for war, atrocity, or genocides.⁷ While dehumanization can be an important part of racism, racism is not exactly coextensive with dehumanization. Given that racial injustice as discrimination and racial injustice oppression can come in degrees, there may be ways in which the official principles of justice as fairness, the principle of fair equality of opportunity, and democratic citizenship are systematically distorted and undermined without presupposing the strong notion of dehumanization.

If so, the alternative options are not to be simply made between oppression and liberation. Arguably, this sort of racial injustice as discrimination seems to be less serious racial ills than slavery. As Lawrence Blum claims, there may be many diverse race-related moral wrongs that are not necessarily racist and dehumanizing in Mills’s sense because it is important to see that racism is not the only race-based wrong. Racial ills include racial injustice, racism, racial insensitivity, and the like (Blum, 2004). In a similar vein, racial discrimination (such as racial profiling) is not the same as racist discrimination.⁸ Accordingly, we need to distinguish Mills’s version of racial injustice as racist oppression from the Rawlsian critique of racial injustice as racial discrimination. Between the two extremes of racial injustice and racist oppression, there are diverse social mechanisms which result in race-related ills.

To see this point, in addition to explicit laws and government institutions, I would like to adopt the perspective of what Tim Syme calls “pervasive structure” as “the interdependent set of rules, norms and practices in place across an entire society” (Syme, 2018, p. 890). While Rawls and Mills see racial injustice as discrimination and racist injustice as oppression respectively, justice and contractarianism may not be the correct way to see racism in the pervasive structure of society. If so, it is debatable if Mills’s theory is not nonideal enough as far as these mechanisms are not accurately captured by his own abstracting, if not idealizing, model of racial contract. Racism does not have to appear only as violence and conflict as far as it can be manifested in ordinary social actions.⁹ I argue that the account of racial contract may overlook the ways in which racism subtly, informally, and implicitly pervades social practices, circulating the negative racial stereotypes.¹⁰ In addition, I argue that making reference to social norms can be a more nuanced and productive way to address the problems of the ideal theory.

To sum up, given his statement that the racial contract underwrites the social contract, Mills claims that Rawlsian social contract theory fails to appreciate that the social contract is at the same time a domination contract. By showing that the racial contract actually underwrites the modern social contract theory, Mills’s claim is that racism or white supremacy is decisive in the modern Western political societies. In naturalizing the notion of Rawlsian social contact and attempting to replace the ahistorical contract with the nonideal contract, I believe that Mills admirably identifies many problems in Rawlsian social contract theory. Ignoring nonideal theory, Rawls’s view may look like a sort of colorblind ideology according to which racism is already overcome (Bonilla-Silva, 2006). What I am trying to say is that Mills’s claim can come down to that Rawls did not see that the US is a racist society. While I concur with this claim, what I disagree with Mills is that this point can be shown without supposing that the basic structure of society in Rawls is inherently racist.

4 The Relevance of Social Norms

In the previous section, I categorized their views as racial injustice as discrimination (Rawls) and racist injustice as oppression (Mills) to show that both thinkers adhere to the idea of injustice in the basic structure of society. For the concept of racial injustice, the key issue is that there should be no arbitrary and morally irrelevant distinctions based on races. Any differential treatment based on races should be justified by some reasonable grounds. Mills’s main dissatisfaction with Rawls’s view would be that there is no room for corrective or rectificatory justice in Rawls’s ideal theory. The main fault is that Rawls is ignorant about the past racial injustice like genocide, slavery, and other racial domination because of his occupation with ideal theory. But as noted above, this may be understandable given the theoretical division of labor between ideal theory and nonideal theory. While Mills believes that Rawls’s ideal theory of society as a ‘cooperative venture for mutual advantage’ simply does not apply to the United States as a racist society, Rawls would definitely condemn a racist state as unjust (Rawls, 2001, p. 21). If so, the distance between Mills and Rawls seems rather trivial. While Rawls’s view of racial justice may be seen as institutional measures to prevent discrimination, Mills’s view of racial justice is to correct and rectify past and ongoing oppression.

In this section, I should show why social norms can be relevant to consider the Rawls-Mills debate on institutional racism. First of all, let me examine the concepts of institutional racism. Institutional racism is usually defined as “the policies, programs, and practices of public and private institutions that result in greater rates of poverty dispossession, criminalization, illness, and ultimately mortality of African Americans” (Taylor, 2016, 8). To counter the dominant framework for seeing racism as mere individual prejudices and attitudes, the concept of institutional racism is analyzed as racially harmful impacts on the non-white individuals. The idea is to plausibly explain the reproduction of persistent racial inequalities when institutions can be roughly defined as “formal system of roles and rules that enable and regulate sustained cooperative action for some specified purpose” (Shelby, 2016, p. 25). In evaluating the wrongness of institutional racism, the point is not just racially disproportionate impact of institutions but also their constitutive features such as goal, content, and application of those institutions. For a more nuanced concept of institutional racism, Shelby’s classification is useful: “Institutional racism can be extrinsic or intrinsic. On the extrinsic conception, an institution’s policies are regarded as racist, not by virtue of the policymakers’ racist beliefs, but solely in virtue of the policies’ effects. Extrinsic institutional racism occurs when an institution employs a policy that is race- neutral in its content and public rationale but nevertheless has a significant or disproportionate negative impact on an unfairly disadvantaged racial group…. Assessments of intrinsic institutional racism focus on the constitutive features of institutions rather than merely their external effects. (Shelby, 2016, 24 − 5). In the case of intrinsic institutional racism, its constitutive features such as goals, content, and application can be racist.

While Rawls says that a just society must not be racist, his idea of institutional racism may be closer to the intrinsic one (goal, contents, application). Although the case of Mills is more complicated, his idea of racial contract seems to think of intrinsic kinds of institutional racism since racism in his sense in the examples of slavery, apartheid and Jim Crow is analyzed as a constitutive part of current Western societies in their goals, contents, and applications. As noted above, it is notable that Rawls and Mills’s view of racial injustice is not the same as institutional racism in a broader sense. For Rawls and Mills, the basic structure concerns official and overt racial injustice.

Relatedly, it is noteworthy that Mills says that “Racism and racially structured discrimination have not been deviations from the norm; they have been the norm, not merely in the sense of de facto statistical distribution patterns but, as I emphasized at the start, in the sense of being formally codified, written down and proclaimed as such” (Mills, 1997, p. 93). While racist norms can be explicit, official, and public as a dominant contract, they can be also implicit, unofficial, and opaque. First, racist social norms are pervasive in the social structures in which even the racially oppressed conform to them.¹¹ Second, as far as such social norms can be opaque, rather than publicly transparent, to the parties of the alleged racial contract, the emergence of the norms is not best described by the idea of the racial contract. Rather, such opacity would need a more sophisticated epistemology of ignorance (Mills, 2007).¹² Racist social norms cannot be legitimate as a product of voluntary agreement if relevant social cognition in the first place was distorted in the ground zero of the contract. Regarding our topic, it should be stressed that social norms are neither solely a matter of cooperation nor that of domination. Rather, they can cut both ways. Coordination can be cooperation rather than domination in certain conditions.

Let me turn to Rawls again. Rawls defines an institution as “a public system of rules which defines offices and positions with their rights and duties, powers and immunities, and the like. These rules specify certain forms of action as permissible, others as forbidden; and they provide for certain penalties and defenses, and so on, when violations occur” (Rawls, 1999b, p. 48). In turn, Rawls defines the basic structure as encompassing “a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next” (Rawls, 1993, p. 11). More specifically, it includes the “political constitution with an independent judiciary, the legally recognized forms of property, and the structure of the economy (for example, as a system of competitive markets with private property in the means of production), as well as the family in some form” (Rawls, 1999b, p. 6). Taken together, the basic structure is defined as “the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (Rawls, 1999b, p. 6). However, it is notable that he also defines the basic structure as “the background social framework within which the activities of associations and individuals take place” (Rawls, 2001, p. 10). In this broader characterization, the basic structure is deemed as crucial to our social life since individual actions are constrained and mediated by such a structure. A pressing question is how to determine the scope of the basic structure.¹³

In this regard, it is important to note that institutional racism in the sense of the basic structure of society does not exhaust the full scope of racism in the broader sense. In my view, the basic structure of society is fundamentally legalistic insofar as “the law defines the basic structure within which the pursuit of all other activities take place” (Rawls, 1999b, p. 207). A racially just society in Rawls and Mills’s theories is a deracialized basic structure of society. What I argue is that Mills’s critique fails to see that the scope of racial justice is so narrow that it cannot address various social norms-based racial wrongs beyond the range of the basic structure. In other words, racial injustice is limited to institutional racism and yet Rawls and Mills do not fully appreciate the scope of such institutional racism. The main claim would be that the debate between Rawls and Mills comes down to a family squabble as far as they focus on the basic structure of society. Despite this crucial commonality, they are talking past if what Mills is trying to say is that the basic structure is basically racist while Rawls would not argue so given his conception of justice as fairness. My diagnosis is that Mills holds on to the conceptual framework of contractarianism and liberalism just as Rawls does so. Like Rawls’s just society, Mills’s hybrid liberalism is no more than a racially informed liberalism where “nobody would be unfairly advantaged or disadvantaged because of race” (Mills, 2003, p. 195). Both Rawls and Mills agree with the conclusion that the basic structure of society should be just but only see the current basic structure differently (for Rawls nonracist and for Mills racist respectively). It is my claim that this can be remedied by adopting a broader social ontology beyond the basic structure of society.

Moreover, despite historical changes in the basic structure, both Rawls and Mills are ahistorical in their view of society. While it is well-known that Rawls sees society sub aeternitatis specie, Mills’s view on the racist basic structure does not properly reflect historical facts on struggles and social progress. If we focus on the pervasive structure of society, it is easier to see the line between the basic structure of society and background culture can be porous. Social norms are the basic building blocks of the pervasive structure of society in which our forms of life are shaped, sustained, and often transformed. Christina Bicchieri defines a social norm as “a rule of behavior such that individuals prefer to conform to it on condition that they believe that (a) most people in their reference network conform to it (empirical expectation), and (b) that most people in their reference network believe they ought to conform to it (normative expectation)” (Bicchieri, 2017, p. 35). Social norms connect and cement interdependent individuals with relevant social groups by demarcating the deontic scope of permissible, required, or forbidden acts.

My claim is that we need to broadly consider the scope of what Rawls calls the basic structure of society by referring to social norms, which should be distinguished from moral or legal norms. As far as our beliefs, desires, and actions are largely dependent upon others’ expectations in society, social norms governing normative expectations should be regarded as a viable category of social ontology. That is, social norms shape people’s range of choices, motives, and characters. While a narrow approach on explicit governmental institutions and laws has been the mainstream political philosophical perspective, other nonpolitical everyday practices and social norms can be a proper site of justice and injustice. As Miriam Ronzoni argues, it seems plausible to think that a just basic structure is “not blind to problematic social norms” (Ronzoni, 2008, p. 205).

Mills writes: “white-supremacist societies (such as, but not limited to, the United States) have been founded on a “basic structure” (Rawls) predicated on the racial denial of equal personhood to people of color” (Mills, 2017b, p. 210). However, I argue that there may be other ways to see Rawlsian polities as racially wrongful even if the basic structures are seemingly non-racist. If this is right, the basic structure should not be seen as a fixed and isolated set of static institutions but as dynamic and complex patterns of social structures in interaction with various levels of social norms. According to this view, even if the basic structure does not include social norms and informal mechanisms of pressures, they are “not conceived of as fully independent of the general background created by the basic structure” (Ronzoni, 2007, p. 75).

This view may be consistent with what some Rawlsians would say about the relationships between the basic structure and the background culture. That is, they may argue that the basic structure and the problematic social norms in the background culture should be compatible. In my view, this requirement is still unsatisfactory since it does not take seriously the vulnerability of the basic structure with regard to the problematic social norms. Moreover, for securing the stability of the well-ordered society, citizens should have a sense of justice, which may not be cultivated by official institutions of the basic structure. The same thing can be said about several civic virtues or ethos of justice such as tolerance and open-mindedness. In other words, culture involves “the world in which agents exist, the normative expectations that shape how they learn, mold, express, and understand their life, self, and sense of character” (Ikuenobe, 2004, p. 39).

Let me elaborate why this point is important to our context. Given Rawlsian liberalism’s commitment to non-intervention of freedom of expression and conscience, it is hard to see how the state can engage in discouraging an individual’s racist attitudes.¹⁴ For instance, it is conceivable that someone is not racist in a public context whereas they may be racist in informal social practices. At any rate, individual behavior is not up to the task of the liberal political, if not moral, philosophy of justice whose main task is to deal with the basic structure of society. On Rawls’s view, a political conception is supposed to only govern the basic structure, not individual actions in specific situations. If institutions are defined as the realization of “a public system of rules” (Rawls, 1999b, p. 47), a formal conception of justice should only be concerned with the “impartial and consistent administration of laws and institutions, whatever their substantive principles” (Rawls, 1999b, p. 51).

Following this view, it is notable that Rawls makes a distinction between the public political culture (non-comprehensive) and its background culture, which involves all kinds of comprehensive doctrines (Rawls, 1993, 13–14, 220 − 22; Shelby, 2004, 1703). This rigid distinction can be related to Rawls’s liberal defense of neutrality. According to this, it is not permissible for the state to impose a particular conception of the good. Defending Rawls against Mills, Shelby’s claim is that a political conception of justice should be something that is publicly justifiable and reasonably acceptable, even for non-white citizens. Thus, Shelby argues that we “should interpret the fundamental ideas and principles latent in our public political cultures from our own standpoint, i.e., ‘here and now’” (Shelby, 2004, 1704). To be sure, one may say that our officially public political culture has been at least partly shaped by the history of struggles against racial oppression and domination. Now racist doctrines are not publicly and officially declared even though individuals in private associations can still harm people of color. Rawls’s point is strictly limited to the basic structure because of its “profound and pervasive influence on the persons who live under its institutions” (Rawls, 2001, p. 55). But given this functional definition, he seems to too narrowly conceive of the basic structure. He is explicit that his liberal theory of justice is only about the basic structure of society, not regulating individuals and their particular conducts. This is why Shelby writes that “the establishment of a just and well-ordered society does not require that individual racism be altogether extinct… The complete eradication of all forms of racism, overt and covert, is probably more than a ‘realistic utopia’” (Shelby, 2004, 1713). What he implies by this is that the antidiscrimination legislation does not have to deal with private racial discrimination by individuals in informal contexts (see also Matthew, 2017a, p. 238).

Thus, Rawls claims that the “primary subject of justice is the basic structure of society” (Rawls, 1999b, 6–7). In this respect, “Acquaintance with and participation in … public culture is one way citizens learn to conceive of themselves as free and equal” (Rawls, 2001, p. 56). Yet, the problem is that the relation between the public political culture and the background culture is not fixed in the milieu of social interaction. In this regard, racist social norms do not have to be conscious and intentional ones. Implicit biases derived from racist social norms are also notable as non-institutional factors, as tested in the Implicit Association Test (IAT). Contrary to Rawls’s view of institutional racism, racist norms do not require something like explicit violations of fair equality of opportunity. When racist attitudes and stereotypes are pervasive and widespread in cultural habits and they permeate popular perceptions regarding races, racism can still be there even though they are not plausibly located in the basic structure of society.¹⁵ Following Young’s conception of social structures, which are far broader than the basic structure of society, everyday life and ordinary social practices such as employment, credit, and hosing can be seen as “the accumulated outcomes of the actions of the masses of individuals enacting their own projects, often uncoordinated with many others” (Young, 2011, p. 70). A myriad of seemingly very small disadvantages, discriminatory acts, microaggressions, and stigmatizations in the pervasive structure of society can collectively contribute to racial inequality over time and accumulate intergenerationally.

In this respect, I concur with G. A. Cohen that it is “seriously unclear which institutions are supposed to qualify as part of the basic structure” (Cohen, 2008, p. 132).¹⁶ On his view, in addition to coercive rules, what matters is social ethos and culture, which are not reducible to individual or political institutions. Cohen’s critique of Rawls’s narrow notion of the basic structure of society is relevant since purely institutional means may not entirely motivate just personal choice and ethos, neglecting various non-institutionalized and informal social norms. Even if personal discrimination occasionally happens, the fact that legal or cultural systems tolerate such attitudes may allow the possibility of its perpetuation. Due to a stark distinction between individual (personal morality) and the basic structure (political morality), Rawls seems to underestimate the overlooked possibility of both informal and unofficial racism, which can communicate and transmit habitual racial bias and prejudice even within a seemingly just form of the basic structure.¹⁷ That is, to the extent that the ordinary functioning of the basic structure does not necessarily preclude racism, he seems to overlook the pervasive influence from the background culture, which can be racist contrary to the so-called color-blind public political culture.

I believe that this can show Mills’s critical point without assuming that Rawlsian basic structure is inherently racist. If it is the case that Rawls understands the notion of society too narrowly, ignoring the social norms flowing from the background culture to the basic structure, we cannot readily say that citizens’ sense of their own worth “is confirmed in the constitution of the whole society” (Rawls, 1999b, p. 205, my emphasis). This is why, contrary to Shelby’s overly optimistic commitment to Rawlsian view, “the joint commitment to equal citizenship and formal justice, including the rule of law” is not at all enough to exclude “both de jure and de facto discriminatory treatment of citizens” (Shelby, 2004, 1708). Institutional racism is a sort of crystallization of racist attitudes embodied in various social practices, which in turn contribute to the reproduction of certain institutional patterns of racial oppression. My point is that a complex interplay between the public political culture and the background culture is not sufficiently explored in Rawls’s theory due to his narrow view of social ontology.

It is important to note that such problems in Rawls’s framework are not captured by mere legal perspectives as well.¹⁸ For instance, even though the Jim Crow laws have been officially abolished by public officials and legislators, the discriminatory and exclusive social mechanisms linger, effectively hindering equal opportunities to affirm the black’s self-respect. This is because even if governmental legislations may indirectly influence informal social norms, they do not directly control such norms. To be sure, social norms may track some relevant normative content of laws. But when prevailing social norms are racist, they informally permit niches of racism, thereby encouraging a widespread racist ethos despite official legislative efforts. Changing relevant laws do not immediately resolve the pervasive structure of racial oppression as far as social norms governing racial classification do not simply supervene on the laws and have a relatively autonomous normative power.¹⁹ Rather, such norms are socially transmitted, partly and indirectly influencing the reproduction of discriminatory attitudes. There is no macro group agency responsible for racism because social norms are fundamentally decentralized among individual agents, local organizations, and social practices. Just as group agency is not required for feature group such as racial group, having group agent is not necessarily required for having highly structured social structures: “Non-agential joint actions … can be highly structured despite not being group agents. Some joint activities really are ephemeral and chaotic, but others, like informal social practices, can be long-lasting and highly organized, despite being non-agential” (Syme, 2018, p. 906). So the logic of social contract and sovereignty do not correctly capture emergence and change of social norms. Also, changing social norms may be uncertain and open-ended.

To sum up, it is questionable if the Rawlsian normative political philosophy is truly freestanding, separated from a background culture and social norms. While Rawls considers the background culture to be a secondary domain of non-public reasons and comprehensive views from diverse associations, the boundary between public reason and social reason is not as stable and impenetrable as he supposes. Rather, we are constantly open to nonpolitical social pressures represented by social norms. This also implies that racism may be compatible with just institutions in a narrow sense. It is notable that Rawls holds on to the idea of the moral point of view to consider the value of personhood, whether it be a person or citizen. For this reason, my claim is that the theory of social contract is too narrow a concept to deal with the issue of critiquing the structural, sociocultural, and nonmoral aspects of racism.

As Rawls rightly argues, “it is conceivable that a social system may be unjust even though none of its institutions are unjust taken separately” (Rawls, 1999b, p. 50). Using his own words, one implication of my argument is that a Rawlsian social system as a whole may be unjust even if its basic structure is just. Concerning the nuanced and multifaceted ways of oppression, I follow Marilyn Frye’s analogy of the bird cage: “It is perfectly obvious that the bird is surrounded by a network of systematically related barriers, no one of which would be the least hindrance to its flight, but which, by their relations to each other, are as confining as the solid walls of a dungeon” (Frye, 1983, p. 5).