Liberalism's Lifeguard

Sovereign Virtue: The Theory and Practice of Equality, Ronald Dworkin. Harvard University Press, 511 pages, $35.00.

About halfway through Sovereign Virtue, I came across an intriguing paragraph. Ronald Dworkin is discussing Lochner v. New York, an infamous 1905 decision in which a conservative majority of the U.S. Supreme Court struck down a statute limiting the workweek of bakers to 60 hours. The statute, the Court explained blithely, wrongly limited the bakers' "freedom of contract" (a right mentioned nowhere in the Constitution).

The remedy was to guarantee workers--rich or poor--the right to sweatshop conditions. Dworkin seems to agree, but for progressive reasons: "It is wrong in principle for the state to deny people the right to work on terms they are willing to accept, in order to improve the economic situation of workers generally, unless it provides unemployment compensation or other relief ... sufficient to make their circumstances plausibly as good as they would be if people held a job under the outlawed terms." In other words, the workweek law at issue in Lochner protected workers who already had jobs by locking out of the market those who would work longer hours for the same pay. It would be unfair to enforce the law unless it was part of a larger economic security program along social democratic lines.

This is intriguing because it has been one of the unexamined dogmas of liberal jurisprudence that Lochner is bankrupt. To liberals (a group that includes both Dworkin and me), "Lochnerite" is a term of deepest opprobrium--something like, say, "poo-poo head" in other contexts. Can it be that Dworkin's major theoretical work on equality has led him to embrace, from the left, this reviled precedent?

Alas, no. Barely one paragraph later, Dworkin backs away from such a jarring conclusion. "The Constitution cannot be understood as demanding that all parts of a social program interpreting a state conception of equality be adopted at once," he explains. So, he says, the New York legislature should have been free to reward one group of bakers without any requirement to compensate those harmed by the workweek law.

I regret this retreat not because I believe in Lochnerism but because of a nagging disappointment I have long felt about Ronald Dworkin's admirable body of work, one that is not alleviated by this otherwise first-rate book. Philosophy of law, it seems to me, should challenge our preconceptions--most particularly our intuitive certainty that the rule of law always commands precisely the result we are most comfortable with. A critique of Lochner, if it is original, can force the reader to confront exactly what features in the decision have justly spawned its reputation as a prime example of lawless judicial activism. In general, jurisprudential analysis should force us outside our political assumptions and then require us to rebuild them, if at all, on a stronger foundation. Dworkin too often skips this step, running ahead to the congenial result--a failing that is displayed, unfortunately, in this collection of his essays.

One criticizes Ronald Dworkin timorously, exclaiming all the while, in the words of Mike Myers's Wayne Campbell, "I am not worthy!" He is, as legal philosopher George Christie once wrote, "the phenomenon of our age." He holds appointments at both Oxford and New York University; from those twin towers, he dominates academic Anglo-American jurisprudence much as John Rawls dominates contemporary political theory. His 1978 book Taking Rights Seriously and his magnum opus Law's Empire set out a liberal theory that he calls "law as integrity."

To oversimplify grossly: Dworkin sees legal reasoning as a special form of moral philosophy. For him legal decisions are a continuum of individual judgments about the rights of the law's subjects. Crude judgments of social utility do not enter in--except in a secondary sense as evidence that a right exists. But rights, because they are moral constructs, trump utility; a right, Dworkin theorizes, is something the law must recognize even if doing so will leave the community as a whole worse off than if it did not. Dworkin's ideal judge--whom he has named Hercules in his previous work--retains all legal precedent in his head and decides new cases by synthesizing them into the best moral explanation of the rights of the parties.

At his best--and much of Sovereign Virtue is very good indeed--Dworkin is dazzling. But there remains the disappointment I mentioned. Simply put, for all its elegance, Dworkin's legal theory is disappointing in what William James would call its "cash value"--its implications for the practical work of legal argumentation and decision. As in the case of Lochner, it does not seem to constrain Hercules from almost always acting in the same way that a less Olympian, more politically committed liberal judge would.

Hercules in practice bears an uncanny resemblance, in fact, to the late Supreme Court Justice William Brennan--a wonderful man and a fine judge, but no Olympian. As a result, Dworkin has come to seem like liberalism's lifeguard, forever breathing air into the by-now sodden lungs of Warren Court decisions. Whether fairly or not, a reader is led to doubt the coherence of a jurisprudential theory that does not question significant results already reached, even if by judges whose motives are beyond reproach.

Perhaps for this reason, Dworkin's body of work has had less practical impact on American law than far less elegant constructs: the crude economic analysis of Richard Posner or the kick-butt feminism of Catharine MacKinnon, to name only two. (We have also recently begun to see judicial decisions cashing in the ham-fisted utilitarianism of animal rights theorist Peter Singer.)

The reason for this lack of influence, I fear, is on display in Sovereign Virtue. Dworkin has--not to beat around the bush--a regrettable tendency to beg the question, to assume his conclusions in the formulation of his problems. Sovereign Virtue is concerned with equality, a concept that has taken a lot of lumps lately. As Dworkin notes, "even self-described left-of-center politicians reject the very ideal of equality," eschewing "what they call the 'old left's' stubborn assumption that citizens should share equally in their nation's wealth."

To defend equality, Dworkin argues that the promise of democracy cannot be realized without "equality of resources." Under this scheme, society treats people as equals "when it distributes or transfers so that no further transfers would leave their shares of the total resources more equal." The distribution must not occur only at the beginning of a life but must be allocated over time, with the acknowledgment that no division is truly equal if any citizen "would prefer someone else's bundle of resources to his own bundle." Although the mechanisms Dworkin recommends--progressive taxation and cash transfers--are staples of old-style liberal thinking, he insists that his idea of equality also embraces "the principle of special responsibility," which demands that individuals live with the consequences of how they choose to use the resources made available to them. This concept, one reflected in the thinking of President Bill Clinton and British Prime Minister Tony Blair, is less well developed in Sovereign Virtue than is the posited obligation of society to equalize resources over time.

In a long and careful argument, Dworkin defends this idea against the arguments of utilitarians--who seek only to maximize overall welfare, without regard to who gets what. He also rejects what he calls "equality of welfare," an allocation of resources dependent on the subjective preferences of people with different tastes. He proposes metaphors and thought experiments intended to demonstrate the moral emptiness of a democratic theory that defends unequal distributions of wealth and influence or that leaves allocation of these goods to chance and unregulated markets.

All very well; Dworkin long ago made a believer out of me. But, as I noted, his arguments don't seem to cut strongly against those of his adversaries in ways that, say, Posner's do. That's because he starts from "the abstract egalitarian principle: government must act to make the lives of those it governs better lives, and it must show equal regard for the life of each." From this base, Dworkin proceeds to dissolve (as an analytical philosopher would say) the apparent contradictions that thwart liberalism's dreams: the contradictions between equality and liberty on the one hand and liberty and community on the other.

"Community is a desirable goal," he writes, "but only on liberal terms of moral neutrality: The collective life of a political community includes its official political acts: legislation, adjudication, enforcement, and the other executive functions of government... . On the liberal view, nothing more should be added."

The basis for Dworkin's account of liberty is moral. "Equal concern"--a social commitment to valuing each life at the same level--must be the fundamental principle underlying social arrangements. Liberty is important because it is a necessary precondition of realizing this principle. Under "equality of resources," each person must have the freedom to deliberate and make an informed choice about his or her bundle of resources. But liberty has no independent significance "apart from the role liberty plays in the lives of those who have it." Society indeed already treats liberty this way, Dworkin argues, by limiting, for example, freedom of speech in order to protect quiet times and places or curtail freedom of occupation in the interest of professional licensing laws. "But," he asks, "if these important liberties yield to competing values of that sort, why should they not yield to the normally more imperative requirements of distributional justice?" Liberty, thus understood, is an attribute of equality: "Any genuine contest between liberty and equality is a contest liberty must lose," Dworkin asserts. His argument is more complex than this summary suggests; but the complexity, I submit, does not change the fact that it is at bottom an exhortation rather than an exploration. He does not, in fact, resolve the conflict most thinking people perceive between individual freedom and the distributional needs of others; instead, he tells us we shouldn't mind settling it his way.

Despite Dworkin's often dazzling arguments, there are times when his assumptions do not command assent. "It is true," he concedes, "that for centuries some people have claimed special importance for their own lives by pointing out, for example, that they belong to a nation favored by God, or that they are people of special lineage or talent or beauty or even wealth. Such claims are, happily, out of fashion among us now, and we need not make any great effort to refute them."

If this is Dworkin's understanding of current fashion trends, he needs to get out more. Not only is equality rejected out of hand by most of Earth's nonphilosophically trained population, it is at least implicitly questioned by Posnerites, who tilt in all things toward the productive, and by MacKinnonites, who think it's time for men to taste a little of what they have been dishing out. And of course the third way came into being because old-style social democracy found no winning argument against Robert Nozick's "night-watchman state"--the contention that government generally should not intervene in the lives of its citizens and cannot do so effectively.

Even more troubling, Dworkin defines equality in terms that presuppose a world of sovereign nations, each governing a population made up only of its own citizens. "A political community that exercises dominion over its own citizens," he says, "must take up an impartial, objective attitude toward them all... . Equal concern, as I said, is the special and indispensable virtue of sovereigns." By so doing, he parachutes out of the most puzzling problem facing egalitarians in a world of rapid transport, porous borders, and unprecedented migration: the obligation of sovereigns to those within and without their borders who are not citizens, the uninvited members of the political community as we define it nowadays. Every developed nation in the world today counts a substantial shadow population of "illegal" or barely tolerated foreigners within its borders; this growing phenomenon poses the most difficult challenge to equality and democracy over the century ahead.

So Sovereign Virtue disappoints as a polemical charter for equality. It resembles more an internal dialogue among Dworkinian liberals: Hercules, like John Barrymore's Svengali, talking to himself. In those terms, of course, it is quite marvelous, particularly in the first part, where Dworkin lays out his theoretical scheme of equality and defends it against competing liberal theories. The book's second section consists largely of Dworkin's essays from The New York Review of Books commenting on specific current legal problems. Some of these have not aged well, most particularly his insistence on discussing the puzzle of affirmative action within a schema that seems to restrict it to a bipolar question of justice between African Americans and whites.

Perhaps the lesson is that law--whatever it should be--is not moral philosophy at all. Law's empire evokes allegiance from its subjects because it serves self-interest, not because of the integrity with which it fulfills obligations to others. Whether they would admit it or not, most legal practitioners see it, I think, as a construct resembling Machiavelli's state, which stands outside the world of ethical concern and furthers the goals of its subjects in an instrumental way that would be indefensible if practiced by individuals. If equality is to be sold in this crude world, it must be sold as a benefit most particularly to those who, at first glance, view it as restricting, not enhancing, their liberty and access to resources. Certainly "equal concern" has been out of fashion in American courtrooms for more than a decade. And in the wake of the Supreme Court's decision in Bush v. Gore, "law as integrity" is going to be a hard sell in the classrooms where I teach. ?

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