In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice

A Theory of Justice' is a remarkable book. It is learned and ambitious, deep (though multileveled), subtle (though lucid), rich and complex. It has been received with favor and fanfare by distinguished philosophical critics.2 Its topic can hardly be disdained by devotees of the law. Some books are like cathedrals. Depth, subtlety, richness and complexity may retard comprehension however much they reward it ultimately. It is impossible to grasp and absorb this book's architectonic, hence its meaning, by simply reading it through no matter how studiously. Some sort of focused interrogative strategy may help one come to grips with Professor Rawls' monumental utterance. I have chosen to seek understanding through this not-so-philosophical question: How does the book bear upon the work of legal investigators concerned or curious about recognition, through legal processes, of claimed affirmative rights (let us call them "welfare rights") to education, shelter, subsistence, health care and the like, or to the money these things cost? 3 On the face of it, the bearing would appear to be direct and profound. An apparent main purpose of Rawls' book is to advance and clarify discourse about claims respecting distribution, transfer, and provision of social goods including material social goods-income, wealth, and what you can buy with them. Opinion abounds (Rawls evidently shares it)4 that our society is marked by evident and severe distributive injustice. Followers of the law may fairly worry about seeming disconnection between our ingrained notions of a legal order and these urgent, if debatable,5 questions of distributive justice-at least insofar as we mean by "distributive justice" an outcome-oriented