Sovereign Virtue: The Theory and Practice of Equality.

• Author: Herzog, Don

SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY. By Ronald Dworkin. Cambridge: Harvard University Press. 2000. Pp. 511. Cloth, $37.50; paper, $19.95.

Ronald Dworkin's (1) latest might well seem sharply discontinuous with his other work. The formal theoretical apparatus that kicks off the book is a forbiddingly abstract--some will say arcane--hypothetical auction, coupled with a hypothetical insurance market. There is simply nothing like it in Taking Rights Seriously, or A Matter of Principle, or Law's Empire, or Life's Dominion, or Freedom's Law. Then again, Dworkin first published the key papers on the auction some twenty years ago and has never flagged, as far as I know, in his commitment to the basic project. (2) Theorists have been waiting for the finished book for quite some time now.

It's invigorating, sometimes delightful, wrestling with the details of Dworkin's account, even or especially when one is unconvinced or even staunchly opposed to the project as a whole. And not just that it's always bracing to do a round of mental calisthenics; rather that when one disagrees, as I sometimes do in ways large and small, it is really helpful to dig in and try to focus on just what else one might say about the subjects Dworkin canvasses. Then too, Dworkin's work has the signal virtue of paying no attention to familiar skeptical objections to the possibility of substantive moral and political argument. He can urge, for instance--and rightly so--that people can make mistakes about what makes life worth living, without wringing his hands anxiously about the skeptical worry that any such view must be high-minded nonsense because realizing one's preferences is the only game in town (note particularly his contrast between external and internal skepticism) (p. 241).

Since I think skepticism about the very possibility of such arguments is extremely boring, and since I will never understand why skepticism gets to masquerade in some circles as a highly sophisticated and challenging view, or worse yet the simple truth of the matter that the more intelligent among us finally converge on, I applaud Dworkin's pointed lack of interest in engaging anything like meta-ethical or ontological queries. In the same vein, consider a slightly polemical aside: Dworkin is on record describing himself as a staunch opponent of pragmatism. (3) If pragmatism is the view that judges should adopt rules to promote what they take to be sound social outcomes, then I've no interest in it. And surely nothing hangs on the meaning of the word. But if we mean by pragmatism a blithe disregard for questions of ontology, a commitment to an anti-foundationalist picture of justification, or a lack of interest in the fact/value dichotomy, then Dworkin is as pragmatist as they come. (4) This sort of pragmatism, I'd hold, ought to be applauded and embraced. Dworkin's work demonstrates conclusively that there is no reason whatever to associate pragmatism, so construed, with any general sloppiness about or cavalier contempt for developing and defending sound arguments.

Yet the book on offer looks like more of a unified and finished treatment than it is. Dworkin demurs that the previously published chapters "have been the subject of extended comment by others, and for that reason I have decided to revise them here only in minor--typographical or stylistic--ways" (p. 7). One might respond dryly that the others in question probably would rather see how Dworkin proposes to deal with their objections than see his initial statements memorialized between covers, but he does eventually get to some of the key issues. (5) Dworkin's prose style, too, ordinarily lucid and engaging, now and again betrays regrettable signs of an author in a hurry. So the passing reference to "deliberative deliberation" (p. 378); so too this bit of broken-backed syntax, from a discussion of abortion: "No matter how much one wants a child of one sex, it shows inadequate respect for a life in being to end it because its sex is the other one" (p. 432). Those who've had the pleasure of listening to Dworkin lecture will more than occasionally pick up the cadences of the lectern here. Even in print, there's something right about the mischievous definition in Daniel Dennett's Philosophical Lexicon: "dwork, v. (Perhaps a contraction of hard work?) To drawl through a well prepared talk, making it appear effortless and extemporaneous. `I bin dworkin on de lecture circuit'--old American folk song." (6)

A more serious problem is that the book cobbles together independent publications from different venues, ranging from academic journals to The New York Review of Books, over some seventeen years (p. 475). The reader sometimes despairs at the thankless task of figuring out how tightly unified Dworkin means his presentation to be--or, authorial intentions shoved firmly aside, what the most illuminating account of his text is. Just for instance, in discussing Bowers v. Hardwick and Romer v. Evans, Dworkin draws a contrast familiar from his previous work. Some believe our constitutional rights are limited to those clearly affirmed in our history. Others believe we should interpret our history in light of the political morality that makes sense of it and then feel free--indeed, obliged--to extend whatever principles of political morality emerge to cases they properly govern, even if we haven't done so historically. (No points for guessing which side of that debate Dworkin is on.) He concludes by describing Romer as "a victory ... for the conviction that equality is a principle not only of justice but of constitutional law as well" (p. 465). Stirring words, no doubt, but I found myself in sputter-frazzle-hairpull mode: does "equality" here point to the hypothetical-auction story? Can we construct a plausible account leading from that latter, abstract theory to any stance about constitutional interpretation? Or is the equality in question just that of offering gays the same political chances to secure antidiscrimination protection that other groups in the community enjoy? Alas, Dworkin's text is calmly, forbiddingly silent on the point.

But now I am jumping ahead of myself. I proceed by sketching the lineaments of the hypothetical auction and insurance markets. I consider Dworkin's treatments of money in politics as a test case of how his theoretical commitments bear on concrete questions of politics and law. And I conclude by making more explicit some of the sensibilities that fuel my discussion--and by briefly saying something about what I take to be more promising ways of thinking about equality.

1. OF AUCTIONS AND INSURANCE

   Dworkin doesn't underline what must be a deliberate and significant shift in his language. After years of insisting on "equal concern and respect," he routinely refers in this volume to "equal concern." But the omission of "respect," whatever it finally signals, can't signal any retreat from generally Kantian sensibilities towards utilitarianism. Dworkin wants to develop an account of what he calls equality of resources. He wants to argue that this account is a fundamental alternative to a more familiar picture of equality of welfare, indeed that other views turn out on closer inspection to collapse into one of the two, so that actually equality of resources turns out to be the fundamental alternative on offer. And he wants to resolve longstanding worries that equality and liberty are somehow at odds by showing that equality of resources presupposes a robust conception of liberty.

   The general architectonic strategy of the book is to show that all our deepest commitments in morality and politics are interlocking and mutually supportive, that we can work up views of equality, liberty, justice, autonomy, and so on that will fit together (see for instance p. 4). The fit, of course, will be complex and intricate: as his readers have come to expect, Dworkin spins off one binary distinction after another in describing and defending his views. (And as Dworkin has probably come to expect, some readers will find the distinctions deeply illuminating, while others will think they won't bear the weight he is putting on them and are really just there to evade problems.) But the aspiration is to show that the fit is elegant.

   To the theory. Imagine a group of shipwreck survivors who have to divvy up the resources on their previously uninhabited island. Imagine that they agree to divide the island's resources equally and that they interpret that as meaning no one should envy whatever basket of resources someone else commands. (The category "envy-free distribution" does lots of work in welfare economics. Still, one might worry that it unwittingly capitulates to centuries of conservative insistence that the apparently dignified demand for equality is nothing but a polite veil for mean-spirited envy and resentment.) Imagine their adopting an auction--and remember that the auction in question is wholly imaginary. Yes, Dworkin thinks, there are actual social practices besides literal auctions that have some of the relevant properties--he adduces markets and democratic politics (p. 72)--and we will be able to draw important inferences from observing them. But the imaginary auction launching the theory is explicitly a matter of "the ideal ideal world of fantasy," not the "ideal real" world in which people are devoted to equality but face various problems implementing it, let alone the "real real" world in which many powerful players have contempt for equality, not least--but not only--because it doesn't serve their interests (p. 172). It's an attempt to get clear on, and to structure, some of our intuitions, so that we can then begin attacking our practical problems with some real machinery.

   The auctioneer will not insist on any arbitrary division of the island's resources into lots, but will permit any party to splinter whatever lot is proposed into smaller lots. He will allocate everyone...