Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Dworkin: Inadvertent Libertarian?

Winter 2000

Sovereign Virtue: The Theory and Practice of Equality by Ronald Dworkin (Harvard University Press, 2000; 511 pgs.)

Ronald Dworkin gets off to a poor start, but things are not so bad as they first appear. He tells us that equality is the sovereign political virtue. What could be more anti-libertarian? But we must not move too quickly: his "sovereign virtue" need not be taken in a conventionally egalitarian way. Dworkin's basic principle states: "[n]o government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance" (p. 1).

Oddly enough, this principle can be read in a way that makes it entirely consistent with strict adherence to the free market. A libertarian should respond to Dworkin that in a free market, the government (or, as Rothbardians prefer, the private protection agencies) does treat everyone under its jurisdiction with equal concern. It does so by respecting everyone's rights to life, liberty, and property. This, not the elaborately detailed schemes for redistribution our author sets forward, is the correct understanding of equal concern.

Dworkin, who rarely misses a philosophical trick, anticipates this objection. "Those who embrace it [laissez-faire] can also accept the abstract egalitarian principle and claim their theory as the best interpretation of that principle" (p. 481).

Unfortunately, Dworkin has little directly to say about this theory: perhaps to him it is obviously wrong. But it is not too difficult to see why he opposes the free market. In his view, the poor in a market society could claim that they have been subject to harmful discrimination.

But how can this be? However limited their resources, do not the poor in a free-market order have exactly the same rights as anyone else? No, responds Dworkin. The fact that individuals do poorly on the market in part arises from the legal system in place. "[W]hen a nation's wealth is very unequally distributed . . . then its equal concern is suspect. For the distribution of wealth is the product of a legal order . . . when government enacts or sustains one set of such laws rather than another, it is not only predictable that some citizens' lives will be worsened by its choice but also, to a considerable degree, which citizens these will be. . . . We must be prepared to explain, to those who suffer in that way, why they have nevertheless been treated with the equal concern that is their right" (pp. 1-02).

Dworkin's response just pushes back the issue one step. Granted that how people fare in the market depends on how the legal system defines their property rights, what then follows? What criteria govern a proper legal system?

Here our author arrives at surprising answer. Although he dismisses laissez-faire capitalism with barely a mention, his own principle of distribution grasps a key truth about the market. In a free market, goods pass to those who are willing to pay the most to get them.

An example will clarify the point. What determines who gets to own a copy of that most valuable commodity, The Mises Review? Obviously, the magazine goes to that select group willing to pay the subscription price. If more people clamored for the journal than there were copies in print, demanders would bid up the price until the quantity demanded equaled the available supply. No, I have not by mistake inserted notes for an economics lecture into my review of Dworkin. The example has the utmost relevance to Dworkin's principle of equal concern. A legal system that allows people to bid against one another for the goods they want displays equal concern for its citizens.

Dworkin states the central point precisely: "The [market] auction proposes . . . that the true measure of the social resources devoted to the life of one person is fixed by asking how important, in fact, that resource is for others. It insists that the cost, measured in that way, figures in each person's sense of what is rightly his and in each person's judgment of what life he should lead, given that command of justice" (p. 70).

What has happened? Has Dworkin, an arch-leftist, suddenly converted to free-market orthodoxy? Not at all; I have omitted to mention a vital piece in the puzzle. Dworkin insists that a market, to be fair, must start from a position of equality of resources: "Of course it is sovereign in this . . . connection between the market and equality of resources, that people enter the market on equal terms" (p.70).

Here we reach the decisive difference between Dworkin's conception of equal concern and that of the free-market advocate. As Mises long ago noted, some people indeed have more dollar votes than others. But, as market advocates look at matters, the government has no business attempting to "correct" for the differing talents and resources with which people start out. We show equal concern by taking people as we find them: to do otherwise is drastically to interfere with individual freedom.

But, Dworkin would reply, what about luck? Is it not unfair that, e.g. I was not gifted with the golfing ability that has earned Tiger Woods millions? Should he not be required to give me a large chunk of his money before we can acknowledge the justice of the market?

We could, I suppose, at this point simply throw up our hands and say: "Here we have an irreconcilable clash of moral judgments. It is because of his aberrant judgments that Dworkin must be cast into utter darkness."

I venture to suggest that this is to quit too soon: we can narrow the area of conflict. Dworkin thinks that some matters of luck may be insured against: these he terms "option luck" and permits within his system. If, in the market, you could have insured against accident but failed to do so, you cannot demand that others pay your medical bills in case you suffer accidental injury. Dworkin is here at one with Mises and Rothbard.

What he objects to is the effect of "brute luck." Some instances of bad luck cannot be anticipated through insurance. "Some people are born with handicaps, or develop them before they have either sufficient knowledge or funds to insure on their own behalf. They cannot buy insurance after the event" (p.77). In Dworkin's view, the government should counteract, by an elaborate "insurance" scheme that he sets forward, the effects of brute luck, both good and bad. Suffice it to say that the "insurance" is compulsory and redistributive in intent.

Now, to my mind, the basic issue that separates Dworkin from defenders of the market emerges clearly. Does the government manifest respect for people by attempting to correct for "brute" luck that cannot be dealt with by ordinary insurance?

Even here, I suggest, we need not depend on controversial moral intuitions to answer. Even those inclined to accept Dworkin's insurance plan should think twice before attempting to put the scheme into practice.

Surely no government can be trusted with the immense powers needed to "correct" the market. Would not the holders of power intervene in order to promote their own interests, rather than to enact Dworkin's convoluted plan?

Rather than stress Dworkin's deficient understanding of politics, I prefer to reiterate a fact that greatly surprised me. If we eliminate Dworkin's controversial premise about "brute luck," he offers a powerful defense of the market, along Misesian lines.

This is not the only instance in which Dworkin, no doubt against his intentions, provides ammunition for classical liberals. He sharply criticizes a pet aversion of mine, Rawls's difference principle. He asks a simple but devastating question: why should a theory of economic justice be concerned only with the worst-off class? "[I]t seems callous to say that the only people for whom a theory of justice has concern are those whose lives are the most damaged, even though others, who work as hard as they can, are seriously injured" (p. 331).

More generally, Rawls does not show why people in "his original position, ignorant of their own future status, would choose the difference principle out of their own self-interest" (p. 331). Even more generally, why is what people would choose in the original position of any relevance for moral theory? Dworkin is not the only writer to raise these issues, but he does so in a particularly effective way.

At many other points, Dworkin's book proves a valuable quarry for those aiming to defend the market. Space limitations prevent further discussion, but I commend to readers the withering analysis Dworkin offers of equality of welfare.

To readers tempted to think that I have gone soft, I offer one argument to the contrary. Dworkin will probably dislike being mined for pro-market arguments more than he would recoil from any invective of which I am capable.

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