Rawls, Cohen and Dworkin and the Real World
Ronald Dworkin’s political theory is an ideal theory, but it is interpretive for liberal communities. His legal theory is interpretive only, since it requires an already existing and pre-interpretive set of social practices. But the moral appeal of his legal theory derives from his political ideal of equality of respect and so the two theories are closely connected. Given the ideal nature of his political theory, and the relatively liberal assumptions that John Rawls builds into his conception of stability, Dworkin’s political theory is, compared to Rawls’s, uncompromising. In Dworkin’s view, some stable societies are not morally justified, and that is the end of it. It follows that we must consider that the implications for stability in Dworkin’s theories lie particularly in the appeal of equality, since that idea grounds for him, not just the general requirement of decent, non-discriminatory action, but the distribution of economic resources, and political power in a representative democracy. In addition, equality directs the principled application of law through its adherence to the legal virtue of ‘integrity’. The major appeal of equality is that it should be understandable rationally by any mature person as a universal value. In Amartya Sen’s words, ‘… the claim of a universal value is that people anywhere may have reason to see it as valuable’. Here it is considered how Dworkin’s theory, particularly his important theory of equality of resources, has implications for stability. It is concluded that he takes a more coherent and robust moral stance than Rawls.
Like a number of contemporary American political philosophers, Dworkin draws a distinction between ethics, the morality of one’s personal life, and morality, by which he means social morality. That distinction rests on the value of individuals having private space in which to act autonomously, in living according to their own convictions. That distinction captures the spirit of Mill’s distinction between self- and other-regarding spheres of action. Although public morality requires the community as a whole (the state) to be impartial on matters concerning this private sphere, it is a mistake to suppose that Dworkin’s view about state impartiality, or ‘neutrality’, as it is often called, rests on any non-moral default position. It is as strongly moral as the rest of his political and legal theory. On the contrary, the state has a strong moral duty of respect for individual autonomy. State ‘neutrality’ is therefore compatible with a communal duty of encouraging people to make responsible decisions. Dworkin’s view is highly protestant. Since the state must respect conscience, it is an affront to dignity to make decisions for people in how to live their private lives.
The state has further duties, arising from the abstract duty to promote a just community to create and protect the ethical space in which people may act. The private space in which an individual has the freedom to act will be a function of this duty. It follows, in Dworkin’s account, that the individual’s integration with the community will be part of the individual’s autonomous life. And so certain failures in an individual’s life may be attributable to a failed communal duty towards them. In John Rawls’s term, Dworkin’s theory of liberalism requires that the liberal community be understood as ‘continuous’ with an individual’s view of the importance of personal autonomy and how it should act should be part of a ‘comprehensive doctrine’ of what constitutes ‘well-being’ for that person. So Dworkin does not subscribe to Rawls’s later view that only a ‘political’ liberalism is possible, one that cannot be justified from a single ‘comprehensive’ point of view.
Given these remarks, it is a clear mistake to suppose that Dworkin’s liberalism promotes ‘selfish’ or ‘atomistic’ values, the sort of charge that 80s ‘communitarians’ levelled against liberalism. Dworkin’s right to autonomy is part of equality of respect, and its potential impact on others is part of the scope of autonomy. It is not that freedom is ‘justifiably’ restricted because of the equal rights of others to the exercise of their freedom. Equality does not restrict it at all. Rather, freedom is constituted, or defined, by the equal rights of others. So dignity – one’s right to equality of concern and respect – requires the idea that freedom is defined (or ‘parametered’) by the rights of others. A significant definition of that private sphere arises from the state’s duty to monitor the distribution of resources according to equality, discussed shortly.
The fundamental idea doing the work here is the notion of equality. Since it is an equality of treating people as equals the relationships between people are integrative. ‘That’s fair enough’ one person might say to another, ‘I’m not free to do that to you’ but that’s only because you, in same position, couldn’t do the same thing to me’. Further, equality understood like this provides the solution to what Dworkin calls in Law’s Empire ‘the puzzle of legitimacy’. That puzzle is not solved by saying we ‘consent’ to the state, or community, because putting it that way is a fictional device for describing legitimacy: no one actually consents. Nor is legitimacy explained by simply saying ‘justice requires it’ because, he argues, justice extends beyond particular communities to the whole world. He also dismisses the familiar argument that because a community confers certain benefits on its members, fairness requires some form of return (sometimes called the ‘fair play’ argument, or the ‘benefit-detriment’ argument) because it presupposes that political legitimacy arises out of choice. Fairness instead suggests a reason for you to ‘join in’, but, Dworkin says, you have no such choice.
Dworkin’s solution to the puzzle lies in the organic idea of ‘fraternal obligations’, the sort that arise from already existing relationships, such as the relationship between siblings. Such obligations are reciprocal and important – ‘associative’ - but do not arise out of choice at all. Because the idea of fraternity does not exclude hierarchical communities, the best form of communal obligation, for Dworkin, arises from a fraternal association in which the regard for each other member is based on the fundamental principle of equality of respect, what he calls a ‘community of principle’:
‘A community of principle … can claim the authority of a genuine associative community and can therefore claim moral legitimacy – that its collective decisions are matters of obligation and not bare power – in the name of fraternity.’
Dworkin’s theory behoves us to make the most of the community in which we happen to find ourselves. We should understand others as equal to ourselves, and that we should interpret the practices of that community in ways that are consistent with understanding the associative identity we share with others, expressed in the idea of equality, even although we have not chosen those associations. As equality here is not an equality of outcomes, and the interpretation of the fraternal relationship must be consistent with the moral improvement of communal practices, fraternity in theory takes assumes the best senses of comradeship and none of the bad.