quite apart from general difficulties of derivation, that assumes that we
already know what socioeconomic rights are justified; it assumes we
have already chosen between, say, the conditional formulations in
UDHR Article 25(1)79 and the unconditional formulation from ICESCR
just quoted. One is entitled to ask, How can we know that without
having considered what is to be said in favor of a theory of justice of the
Dworkinian kind as against a theory of justice of the Rawlsian or neoRawlsian kind? We cannot just "intuit" it because, as we saw in Part II,
our intuitions on this are all over place. There is no substitute for doing
the hard work that theorizing about justice requires, and that involves
thinking through what might actually justify taking sides in the RawlsDworkin dispute.
VII. SECOND-BEST THEORY
In actual fact, no one has been assigned an initially equal share of
resources, nor have most people had an opportunity to insure themselves
in a fair market against lack of talent, disability, or various forms of bad
luck. They are stuck in the real world, cursed with a heritage of what
almost anyone would have to describe as injustice, and that is the world
in which they suffer unemployment, deprivation, and insecurity, in
which their children go hungry, and in which they have to make
whatever appalling choices are left open to them. Rawls's theory is
similarly unrealistic. None of us was put in an original position and
asked what principles we would choose to put up with or what principles
we would be able to put up with to govern the basic structure of our
society. To the extent it is governed by principles at all, the basic
structure of our society is governed by principles manifestly rigged to
the advantage of some and the detriment of others. Or even when it is
governed by fair principles, we play the game that those principles
define-such as the market game-with radically disparate initial
endowments of property and other resources. Even Nozick acknowledges
the prominence of injustice in the real world. No one thinks that current
holdings of property are respectable by the historical standards that he
articulates. The pedigrees of all our holdings are contaminated with the
cruelest injustice, and when wealthy individuals are being required to
support the meager lifestyle of people much less fortunate than them, it
is quite unclear whether they are being required to do so out of
79. G.A. Res. 217 (IlI) A, supra note 1, at 76 ("Everyone has the right to a
standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability, widowhood, old age
or other lack of livelihood in circumstancesbeyond his control." (emphasis added)).
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