Abstract: Liberal theorists of justice like John Rawls have long maintained that a theory of justice should apply primarily to the institutional mechanisms of society, and only derivatively to the behavior of individuals within institutions. Institutions of taxation, for example, may be just or unjust by the lights of a theory of justice, but such a theory should deem the behavior of individuals unjust only insofar as that behavior undermines just institutions. As Rawls puts it, ‘we are to comply with and to do our share in just institutions when they exist and apply to us, [and] we are to assist in the establishment of just arrangements when they do not exist.’1 Critics of this restricted conception of justice (hereafter RCJ) argue that a theory of justice should judge individual behavior directly, even when that behavior complies with just institutions. These critics have tended to focus on two kinds of behavior that they argue should fall within the subject matter of a theory of justice: the ‘market-maximizing’ behavior of economic agents who demand incentives to exercise marketable talents in socially beneficial ways, and the ‘housework-shirking’ behavior of family members who distribute power and labor unequally according to gender. These critics argue that RCJ implausibly places these behaviors beyond the reach of justice. Call this the ‘restrictiveness objection’ to RCJ. A second objection to RCJ threatens to undermine RCJ from within: this criticism alleges that RCJ is arbitrary, because the theorists who embrace it lack a principled justification for restricting the subject matter of their theories to institutions while exempting the behavior of individuals within those institutions. Call this the ‘arbitrariness objection’ to RCJ. My project in this article is to defend RCJ against both objections. Along the way, I consider and reject an alternative strategy for defending RCJ, but I use insights gleaned from the inadequacies of this rival strategy to build my own defense against the two objections: working from within the framework of political liberalism, I demonstrate first that a theory of justice can nonarbitrarily be restricted to the basic structure, or the institutional structure by which ‘the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation,’ and second that such a restriction does not result in an implausibly narrow subject matter of justice. I conclude that neither objection undermines RCJ. I do not defend RCJ as it has typically been understood, however. A crucial premise in my argument is that the delineation of the basic structure is itself a substantive normative task, the performance of which must be responsive to relevant differences among enactments of political power. I argue for a more expansive notion of legitimate political power than either critics or defenders of RCJ have tended to adopt. My defense of RCJ thus occupies a conceptual middle ground within the debate about the subject matter of justice: With defenders of RCJ, I maintain that a theory of justice applies directly only to the basic structure of society, such that a society with just institutions may be fully just even though housework-shirking and market-maximizing occur within it. But I agree with critics of RCJ that market-maximizing and housework-shirking should not be beyond the reach of a theory of justice. I reconcile these convictions by defending a view of political legitimacy according to which housework-shirking and market-maximizing can be targets of legitimate political interventions. While a society is not made less just by the mere occurrence of housework-shirking and market-maximizing, it can be less just for having a basic structure that enables or encourages these behaviors.
Comment: Major contribution to the debate within political philosophy about what constitutes the subject of justice. Schouten shows why a political liberal is bound to use a restricted conception of the basic structure as the subject of justice, and yet also shows that, even on this restricted conception, considerable interventions to undermine the gendered division of labor within the family are not just permissible but required.