O igualitarismo liberal de Dworkin

Darlei Dall'Agnol2

Translated by Milene Consenso Tonetto
Translation from Kriterion, Belo Horizonte, v.46, n.111, p.55-59, Jan./June 2005.

ABSTRACT

This paper sorts out the main elements in Dworkin's political philosophy called here "liberal egalitarianism". To reach this aim, it reconstructs his legal theory and his understanding of citizens' most fundamental right, namely the right to equal concern and respect. Moreover, it analyzes his attempt to reconcile this formal equality, as well as a more substantial equality, with freedom.

Keywords: Liberalism, law, equality, freedom, Dworkin.

RESUMO

O presente artigo apresenta os principais componentes da filosofia política de Dworkin, aqui chamada de "igualitarismo liberal." Para atingir esse objetivo, reconstrói a sua teoria do Direito e sua compreensão do direito fundamental de todos cidadãos ao igual respeito e consideração. Além disso, discute criticamente a sua tentativa de compatibilizar essa igualdade formal, bem como uma concepção mais substancial de igualdade, com a liberdade.

Palavras-chave: Liberalismo, Direito, Igualdade, Liberdade, Dworkin

One of the main modern problems in political philosophy and in legal theory is to equate, in a satisfactory way, liberty and equality. On the one hand, some philosophers, for example Kant, stress the preeminence of freedom as the basis of political and juridical actions. On the other hand, different philosophers, like Aristotle and John Stuart Mill, maintain that equality is the basis of justice and, therefore, that it should be taken as the main guide for establishing public policies.

These differences become sharper for those who think that there is an antagonism between the ideals of freedom and equality. It seems that, if a particular public policy emphasizes individual freedom, then there is a significant growing in social inequality. For instance, during the period of predominance of neo-liberalism, in 1990s, occurred an increase of social inequality in Latin American countries. However, if the policies emphasize social equality, then it seems that they need to restrain individual freedom. The attempt to implement a socialist government through the proletarian dictatorship is a strong evidence of this apparent antagonism between freedom and equality.

What makes Dworkin's political philosophy and his legal theory attractive is the attempt to show that freedom and equality are not opposites, but complementary. Despite that Dworkin clearly works within the liberal tradition, his understanding of liberalism is sui generis because it takes equality to be its central ideal.

The main goal of this paper is to discuss Dworkin's legal theory in the light of his political philosophy, which will be called "liberal egalitarianism" for reasons that will be clarified later. The intention is to analyze in a critical way his notion of equality, which is the ground for Dworkin's political comprehension of the law.

1. Liberal egalitarianism

In order to understand Dworkin's re-interpretation of the fundamental assumptions of liberalism, it is necessary to reconstruct some of the criticism he addressed to Rawls and Nozick. In his classical book A Theory of Justice, originally published in 1971, Rawls sorts out a procedure for establishing the basic principles of justice that should regulate a democratic society. This procedure is constituted by a hypothetical situation, called "original position", where the parties would first agree on principles, then establish a constitution and finally create the necessary institutions for co-operation between citizens. In this procedure, persons would be under unusual circumstances, that is, behind the "veil of ignorance": they would have their own interests; they would have partial knowledge of their identities and they would know the main laws of economy, etc., but they would not know their effective position in society, for example, whether they are rich or poor, young or senior, their race, sexual preferences, etc. Rawls maintains that if this procedure is adopted, persons would chose the following principles of justice: first, each person is to have an equal right to basic liberties (liberty of conscience, political liberty of discussion, the right to vote, freedom of the people to have property, freedom from arbitrary arrested and seizure); second, eventual social and economic inequalities could be tolerated if they are both (i) for the greatest benefit of the least advantage and (ii) attached to offices and positions open to all. Finally, Rawls sustains that there is a priority rule: when the two principles seems to be in conflict, the first should override the second. In other words, to guarantee liberties is more important than to eliminate social and economical inequalities.

In the past thirty years after the publication of A Theory of Justice, Dworkin has criticized some of Rawls' ideas. Two objections are important in the present context. First, Dworkin does not agree with the priority given to the first principle (1975: 17). He considers an unjustified proposition Rawls' thesis that any rational being would, given that the minimal material conditions of life satisfied, prefer to increase freedom instead of wealth. Furthermore, Rawls has a conservative conception of a person's character. This implies, according to Dworkin, that even behind the veil of ignorance people would not necessarily contract the principles mentioned above. They could "gamble" and accept unequal principles of justice believing that they could be in an advantageous position over the others. Therefore, according to Dworkin, Rawls's attempt to show that basic liberties are more important than economical and social differences is flawed.

Another significant critique, which also is necessary to understand liberal egalitarianism, was made in the article "The Original Position". Dworkin contrasts the constructivist, procedural model addopted by Rawls, with the naturalist models of justification in order to show that the ground for the first principle of justice is the original right that each person has to be respected and to be considered in an equal way (1975: 46-53) This means that the original position is characterized in such a way that it is evident that equality is the fundamental principle instead of the individual liberties. In Dworkin's own words, "the right to equal respect is not, on his account, a product of the contract, but a condition of admission to the original position". (Ibidem pp. 51) Consequently, the right to equal consideration is due to human beings qua moral persons. (see also Rawls 1999: 511). Therefore,

Rawls' most basic assumption is not that men have a right to certain liberties that Locke or Mill thought important, but that they have a right to equal respect and concern in the design of political institutions (italics added).³

The conclusion cannot be other, but that equality is the fundamental notion which gives legitimacy to Rawls' first principle. We can here have a first reason why Dworkin's political theory deserves to be called liberal egalitarianism and it is not just another kind of liberalism.

Regarding the libertarian theory defended by Nozick in Anarchy, State and Utopia, Dworkin agrees that individuals have rights and that they are inviolable, but disagrees that these rights are independent of the civil state, in a kind of state of nature. For Nozick, freedom is everything and equality almost nothing. On this regard, there is a complete opposition between the two philosophers. Dworkin disagrees with the role attributed by Nozick to the right of property and, consequently, with the minimalist conception of the state. Moreover, he criticizes Nozick's understanding of the functions that the state should have, that is, to guarantee the right of property only and, eventually, to care for the security of its citizens. Therefore, Dworkin disagrees with Nozick's basic idea, that is, if we take seriously human rights we must condemn the practices of the welfare state. Dworkin argues that creating taxes in order to redistribute wealth is neither a violation of rights nor a way of slaving individuals. Moreover, despite the fact that Dworkin agrees with Nozick that justice in the liberal tradition is independent of any conception of the good life, he disagrees that a liberal should be skeptical about the best way to live. In fact, he maintains that it should be left to the individual to decide about how s/he would like to live, but this does not imply that the different forms of life should not be scrutinized or discussed and publicly justified. This point will be better examined in the last section of the present work.

As it was said in the introduction, Dworkin challenges the idea that the rights that guarantee basic liberties are in actual conflict with equality in a fundamental level. According to Dwokin, individual rights make sense only if they are understood as necessary for what equality requires. In this way, the basic question of his political philosophy is not "how much equality should we give up to respect a right?", but instead "is this right necessary to protect equality?" By inverting traditional liberalism and its Rawlsian version of it, Dworkin intends to defend himself from the criticism that he protects individual interests in detriment of social welfare. For this reason, Dworkin takes equality to be the driven force of liberalism. By subordinating individual rights to the idea of equal respect and concern, Dworkin's political theory should be named "liberal egalitarianism" and not only be known as a version of, among many others, liberalism. This feature of his theory will become clearer with the elucidation of the notion of human rights, the main ingredient of Dworkin's political philosophy.

2. Rights as trumps

In the essay Rights as Trumps, Dworkin maintains the idea that "rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole" (1984: 153). By considering rights as trumps, Dworkin aims at making explicit the function that this notion has in the political discourse. Thus, if someone has a right (for instance, the right of freedom of expression), this means that it will be wrong to violate this right to foster the welfare of the community using it as a "background justification". By this expression, Dworkin gives meaning to some kind of utilitarianism, which continues to be the most powerful way of justifying public policies in western democracies. It is worth noticing, however, that by taking rights as trumps, Dworkin is not presenting an exact definition of "to have a right", but making explicit how rights should be understood in the context of the relationship between individuals and society.

Dworkin denies, as it was seen, that the notion of individual rights stands in conflict with equality. He also denies that the defense of rights implies to give up the classical notion of common good which seems to be the ultimate end of politics. That is to say, social welfare does not need to be in opposition to individual rights. According to Dworkin, the conflict is apparent and superficial. In fact, individual rights and social welfare are both grounded on equality.

To understand this thesis –which is extremely important for political philosophy and is the basis of liberal egalitarianism– it is necessary to reconstruct the critique that Dworkin addresses to political theories of welfare, mainly represented by utilitarianism. Traditionally, utilitarian theorists were opposed to the notion of human rights and Bentham even considered it to be fictitious. The fundamental principle of utilitarianism is that the welfare of an individual cannot count more than the general welfare, and, therefore, the idea that an individual has rights that can override the common good is refused by some utilitarian theorists who defend the maximization of general happiness. This is commonly understood in classical utilitarianism in terms of pleasure or, in contemporaneous versions of utilitarianism, it is identified with the notion of satisfaction of interests or desires or preferences.

Dworkin also thinks that equality is the basis of the notion of individual rights and that they are, in special circumstances, personal trumps over general welfare. It is necessary to remember that he holds that the conflict between individual rights and general welfare is not real and that it does not operate in a fundamental level. Moreover, the justification of rights and general welfare is made using the notion of equality. In order to better understand how this happens in the case of rights, it is necessary to examine economic rights, for example, the right to have a minimal standard of decent life for an individual who lives in a society which has sufficient resources for everyone. The economical politics in this society should increase the medium welfare and this means that if a particular public policy increases the conditions of life of the community as a whole, it should be chosen instead of a policy that will improve the conditions of a small group only. This is required by liberal egalitarianism because, on the contrary, the interests of a small group would override the interests of the community as a whole. However, if some individual, given the specific conditions of his/her life, for example, if s/he is disable or if the market does not need his/her talents any more, etc. has a standard of life bellow the minimum of that community, then such situation should be corrected because the individual has the right to have a good standard of life. It is in this way that the economic rights are justified by liberal egalitarianism and, consequently, a more substantial notion of equality can be foreseen here.

In Chapter 6 of Taking Rights Seriously, Dworkin starts to give a more comprehensive justification of the different rights. He holds that the most fundamental right is the right to equality and this is actually the basic premise of his political philosophy. Now, if one asks "Equality of what?", Dworkin's answer will first be that it is equality of respect and equal concern mutually required by all individuals. It forms also the basis of political actions and determines governmental projects. It is from this basic right of equality that he justifies the other economic, political, etc. rights. But what is surprising for a so called "liberal philosopher" is that in chapter 12 of the mentioned book, Dworkin argues that there is no fundamental right to freedom (1977: 266). Obviously, he does not deny that individuals have rights to certain liberties, for example, the right to make personal decisions on moral questions. However, these rights are derived not from a supposed general abstract right to freedom, but from the right to equality.

Political rights can also be justified by equality. A parliamentary democracy is an egalitarian way of deciding which rules should be adopted in a community and so on. Laws protect the welfare when, for example, they forbid criminal acts. Moreover, it is equality that allows every citizen to have a voice in the determination of general welfare. Therefore, political rights are exemplified in the materialized equality of democratic decisions. Having presented Dworkin's notion of rights and the way they are justified, it is necessary now to clarify his conception of law because they support each other.

3. A liberal legal theory?

Since the publication of Taking Rights Seriously, Dworkin was developing a theory of law that eventually culminates in the book Law's Empire. Given that Dworkin denominates his own theory "liberal", it would be necessary to characterize in a more detailed way how liberalism is historically understood. However, this goes far beyond the scope of this article (for a comprehensive discussion of liberalism, see Dworkin 1985, pp. 181f.). In order to understand Dworkin's theory of law, it is necessary, however, to keep in mind the main thesis of liberal egalitarianism that was briefly discussed above. As it will become clear, Dworkin's philosophy of law is constructed upon his political philosophy.

Firstly, Dworkin contrasts his conception of law with two legal theories, that is, juridical positivism and utilitarianism (1977: vii). Both could be derived from Bentham's philosophy. The first holds that the truth of legal statements consists in facts about the rules, which have been adopted by social institutions and nothing more. The second maintains that law and his institutions are necessary only for the general welfare. Dworkin's theory of law is in opposition to both theories, but it remains in the context of the liberal tradition. The material basis of Dworkin's theory is his conception of human rights, which have no place neither in utilitarianism nor in juridical positivism, as they were defined above.

Methodologically, Dworkin holds that in a theory of law it is necessary to distinguish between conceptual and meta-ethical questions from normative ones. The first is related to what it should be understood by expressions such as "law", "property," etc., which are used by lawyers, prosecutors and judges and are not always clearly defined. The normative questions are related to the fact that some laws are just or unjust and with the question which rights individuals actually have, etc. From this, it is possible to extract some lessons about how to teach law: it is important to establish clearly the meaning of the expressions that are used; it is necessary to distinguish factual questions from normative ones, for example, questions that are related with the existence of legal systems and questions about their legitimacy, etc. For this reason, to teach codes is important as well as to discuss critically the philosophical basis of the law.

In relation to its structure, the normative part of law should be, according to Dworkin, composed of three basic theories: legislation; adjudication and compliance (1977: viii). The first discusses the question of legitimacy, for example, it describes under which conditions an individual or a group is entitled to make laws and what are these laws. The second establishes standards for judges to decide hard cases and shows why only judges, and no one else, can take decisions in the application of the laws. The last discusses the limits and the nature of citizens' duties to obey the laws and the enforcement associated with them when they are not followed. Without given details about each of these theories, it is clear the kind of structure that any account of law must be capable of explaining.

Second, in order to answer that question in a more precisely way, it is necessary to clarify that law is not, according to Dworkin, an exact science like mathematics, but it is closer to the arts, especially literature. For this reason, some questions have preeminence in his legal theory, for example, interpretative problems become increasingly important. They are not related only with interpretation of the letter of the laws, but also with the understanding of the moral principles that justify them. In a juridical system where consuetudinary law is the basis for deliberations and for juridical decisions, problems of understanding common moral sense become vital. For this reason, it is necessary to clarify better this thesis, which maintains that law is fundamentally an interpretative activity. As it will become clear, the principles of liberal egalitarianism are interpreted as operating in the common moral sense and for this reason also Dworkin's theory of law is thought to be liberal.

4- Law as interpretation

In his books A Matter of Principle and Law's Empire, Dworkin presents in a more elaborated way his idea that law is similar to a kind of art, that law is analogous to literature. Consequently, law cannot be an exact science. The central point is that law is a question of interpretation and not of invention (1985: 1). This proposition is explicitly defended in three chapters of the second part of the book A Matter of Principle and in the second chapter of Law's Empire. There, Dworkin analyses the theory which holds that there is no correct answer to juridical questions and the implications of this position. Opposing to this view, Dworkin argues that there are reasons to reject such skepticism and to affirm the objectivity of the interpretations of the laws. In what follows, it will be examined how this is possible.

Initially, it is necessary to discuss the question whether or not there is a right answer to hard cases. A hard case is by definition a case which has no absolute and final arguments to make the decision. For example, a hard case is one where there is more than one valid principle that can be applied. Another example is a case which does not have a clear explicit principle. To illustrate when this happens, consider the following case: imagine that one lives in a country where the constitution guarantees basic rights, including the protection to different forms of autonomous actions. Suppose now that a specific state of this country creates a law based on the idea of the sanctity of life, which prohibits abortion except to save the life of the mother. Is this law not unconstitutional because it disrespects women's right to make free decisions about what is directly related to their body? Is this law not interfering with autonomy assured by the constitution?  Now, what a judge of this particular state should decide if a citizen asks authorization to perform abortion based on constitutional principles and mainly if she uses the argument that the fetus has anencephaly? Could the judge guarantee the possibility of autonomous choice or would he interpret the constitution as holding the supposed right to life for the deficient fetus? (Dworkin 1994: 7f. for an analysis of the famous case Roe v. Wade, which inspired the formulation of this example).

Despite the fact that there are different versions of the theory which holds that there are no correct answers in hard cases, some basic characteristics of this position could be sort out: first, given that many laws are vague there will be always a space for a free interpretation in their application (Dworkin 1985: 128); second, given the permanent disagreements about fundamental principles, they cannot be finally demonstrated (Dworkin 1985: 137). In these cases, there will be a space for discretion and, for example, a judge could apply one principle instead of another. However, Dworkin tries to show that despite the fact that this apparent moral dilemma seems insoluble, it is possible to reach a correct answer in hard cases. The way Dworkin solves the case presented above, will be discussed later.

It is important now to point out that Dworkin defends the idea that juridical activity is not only an eventual exercise of interpretation, but also that the essence of law depends on hermeneutical practice or analytical jurisprudence. Understood in this way, law is fundamentally a political phenomenon. It was for this reason that Dworkin's political philosophy, that is, his liberal egalitarianism, was presented above before his conception of law. It follows that lawyers, judges, prosecutors, philosophers of law, etc. should think about their practices and theories within a determined sociopolitical context. However, this does not mean that law is a subjective matter or that it is subject to a particular political party. In order to avoid this partial view, it is necessary to examine in a more detailed way the thesis that law is essentially a hermeneutical activity.

As it was pointed out above, Dworkin compares law with literature, instead of comparing it with exact sciences. In the chapter "How law is like literature" (1985: 146f.), he explicitly suggests to students and law professionals that they should engage into literature and other forms of artistic expression. There is here another good lesson about how Dworkin thinks the formal study of law should be: besides of the direct contact with the norms expressed in the different codes, it should provide sophisticated hermeneutical techniques of comprehension and interpretation of the laws. Some traditional problems of juridical hermeneutics should here be mentioned: the necessity of contextualized application of general principles; the idea of the historicity of the human productions and rationality; the structure of horizon of interpretation, which means basically that the context is paramount, etc. Besides that, it is important to stress that there are many hermeneutical points that need to be taken into account: one should understand law in accordance with the letter and the spirit; the necessity of a systematic account, that is, to see the constitution, the different codes and the statutes as a whole; the importance of taking into consideration the legislator's intention, etc. These questions should be discussed because law is closer to the interpretative art than to the explanatory sciences. This does not mean, as it was stressed above, to allow for some kind of skepticism or relativism.

The important questions now are: how Dworkin defends the objectivity of the juridical interpretation? How does he solve hard cases? To answer these questions is not easy since the interpretation and the application of a law become a Herculean task. Actually, Dworkin imagines a judge with abilities beyond the human capacities, called Hercules (1977: 105f.), who could solve hard cases in an objective and correct way. Initially, it should be stressed here that Hercules accepts the existent laws, he recognizes the duty to follow the previous decisions, he knows that it is the law that creates and extinguishes rights, etc., but he should also interpret basic principles of law and justice to help his decisions on eventual hard cases. To illustrate how this could be done one can take the bioethical example presented above. To solve this case, Hercules needs to construct a complete political theory, which justifies the constitution as a whole, that is, he should have a political philosophy capable of explaining the place of fairness in society. He should also construct a constitutional theory, that is, to establish what are the principles and policies that should be followed. In the case of the Anglo-American system, this may include the interpretation of the common law, because law is fundamentally consuetudinary. Eventually, Hercules' decision should be that the principle of reverence for life must generally be respected. However, this principle would not be broken if the right to abortion in cases where there is a severe deficiency in the formation of the fetus is allowed. This decision could be justified from the interpretation of another constitutional principle, namely, one that guarantees autonomy, which in this case overrides the principle of the intrinsic value of life (Dworkin 1994: 7f., for more detailed analyses of the decision of the American Supreme Court, in 1973, about the case Roe v. Wade). One can see in this way how law is an interpretative art, including of the fundamental principles of the moral sense.

5. Ethics and Justice

This section will return to the question of the relationship between law and political philosophy in Dworkin's theory. It should now be clear the place that equality occupies in his philosophical system. His position has been called, in this paper, liberal egalitarianism and, until this moment, only a formal conception of equality was analyzed, namely, equality as equal respect and concern. However, it was also observed that Dworkin's defense of economic rights contains a more substantial conception of equality. Thus, there are some features of his political philosophy that need to be better clarified in order to understand it. Since the end of 1980s, Dworkin established a more solid basis for his liberal egalitarianism because he defends in a more emphatic way a substantial conception of equality based, for instance, in the equal distribution of resources.

Before analyzing this point, it is necessary to emphasize again that Dworkin takes distance from liberal theories a la Rawls, which intends to give a complete account of justice in political terms only. Such separation between politics and ethics is, according to Dworkin, squizophrenic because it cannot recognize the most elementary convictions of daily moral life. He maintains that a liberal state should actually be neutral in relation to the different ways of life, that is, it cannot impose a particular conception of happiness. However, it should also guarantee the minimal conditions for all ways of life to reach the goals of their projects of life. Therefore, there is a continuity between ethics and politics: a way of life can only be fully realized in a social context (see Mulhall and Swift, 1996, pp. 276-308, for a more complete analysis of this point).

Formal equality, that is, the principle that everyone should be respected and treated equally was sufficiently analyzed above. It is time now to clarify better a more substantial kind of equality, namely, equality of resources and opportunities, etc. In A Matter of Principle, Dworkin makes clear that in liberalism the idea of equality as a political ideal is not only that of equal concern and respect (1985: 190) Another basic principle of the liberal egalitarianism states that "… the government treat all those in its charge equally in the distribution of some resource of opportunity … " (Ibiden, pp. 190, italics in the original) As can be seen, Dworkin argues that some minimal conditions should be satisfied by the state so that the citizens can accomplish the projects of their lives. For instance, access to fundamental education is a necessary condition for having success in the establishment of goals in many projects of life and it is also a condition to their effective realization.

On the equal distribution of resources, Dworkin maintains that:

Certainly, resources must figure as parameters in some way, because we cannot describe the challenge of living well without making some assumptions about the resources a good life should have available to it. Resources cannot count only as limitations, because we can make no sense of the best possible life abstracting from its economic circumstances altogether. ⁴

Thus, what Dworkin calls "liberal equality" revolves in a view which considers that equal distribution of resources is achieved when all individuals can use equally the conditions that are necessary for their ways of life. Consequently, inequalities of resources (land, house, etc.) should be corrected by transference and personal inequalities (differences in talents and health) should be compensated by a system of redistributive taxes. As can be seen, Dworkin's liberal egalitarianism is not grounded only on the formal notion of equality.

It is not possible here to make a complete critical evaluation neither of Dworkin's political philosophy nor of his theory of law. However, it is necessary to make a last comment. Dworkin's political philosophy seems to be some kind of idealized liberalism. That means: in theory, it seems that there is no real conflict between freedom and equality, but in the real practices of capitalist economies, where his liberal egalitarianism finds his natural place, there is certainly an antagonism between these political ideals. For this reason, authors such as Rawls are more realistic since they recognize that, at the very moment they give priority to liberties, they need another principle to correct social and economic inequalities. Therefore, Dworkin is, when he puts equality as a ground of liberalism, compelled to accept in the first place a merely formal concept of equality (equal respect and concern) and, in the second place, more substantial kinds of equality (resources, opportunities, etc), but they still are far from satisfying a more radical version of egalitarianism. Thus, the question that remains for reflection is this: is liberal egalitarianism merely a new utopia or in fact it is the form that western societies assume as an ethical principle?

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¹ This paper was originally presented in the "Seminário sobre Filosofia do Direito na UFSC" in 2003. Its revision was completed in April 2004 and had the support of CNPq, which I am in debt for financing the research project "Seguir uma regra: as implicações das observações de Wittgenstein para o debate metaético entre cognitivistas e não-cognitivistas". I am grateful to my friend and fellow Delamar Volpato Dutra for his comments and suggestions on a previous version of this paper.
² Assistant Professor of Philosophy at the Federal University of Santa Catarina. This article was  received in May 2004 and approved in May 2005. ddarlei@cfh.ufsc.br
³ DWORKIN, R. The Original Position. [1975] In: DANIELS, N. Reading Rawls. Critical Studies on Rawls' Theory of Justice. Stanford: University Press, 1989. pp.52.
⁴ DWORKIN. "Foundations of Liberal Equality". In: DARWALL, S. (Ed.) Equal Freedom. Selected Tanner Lectures on Human Values. Ann Arbor: University of Michigan Press, 1995. pp. 259.