1. INTRODUCTION

Professor Dworkin's writings on moral and political subjects have never failed to interest me in the past, and the two-part article “What is Equality” which is the subject of this paper, is no exception. Its wealth of relevant distinctions is bound to be useful to every serious student of the subject, whatever – or, in view of the range of opinions on these matters now current, perhaps I should say almost whatever – his (or, of course, her) ideological proclivities, and whether or not he is sympathetic to Dworkin's position. The present treatment will be devoted, needless to say, primarily to disagreements, criticisms, and the raising of further questions, most of them designed to call in question either the general idea that equality should be regarded as a legitimate and important goal of social institutions or Dworkin's particular formulations of that equality. This largely negative-seeming consideration, I need scarcely add, is not intended to discount or detract from the positive contributions of Dworkin's work, which are very substantial indeed. It's just that having been ably set forth by Dworkin himself, they scarcely need seconding from this source.

Professor Narveson's comments about my papers on equality are both penetrating and comprehensive. I cannot hope to discuss all the issues he raises in any detail. But there is a special problem: his main question is about what I have not said. He asks how I might defend equality of resources other than simply by describing a version of it, and of course this question will require some extended discussion. But he is right to say that this is his most important question, and I should hate to lose the opportunity of encouraging discussion of it. So I shall begin with some general remarks about the defence of the idea of equality and then take up, in a very hasty and summary way, the other problems he discusses or raises. Please allow me, however, this apology and caution. I know that what I shall say about the defense of equality is at many points dogmatic and at others unmindful of very natural objections and replies. I want to answer Narveson only by showing in a rough and general way how far I think a defense of equality is possible, what kind of defense this can be, and what form it should take.

My main complaint about Dworkin's papers on equality was that he had not said much by way of arguing for it. His intriguing response to this request provides a good start, and I shall confine this brief, further comment to what he says on that basic subject. Space considerations, alas, require me to ignore the other parts of his discussion (most of them well-taken, I should say in passing).

Dworkin distinguishes what he calls the “abstract egalitarian thesis” from his particular version of equalitarianism, equality of resources. His strategy is to argue, first, that the latter is the best realization or version of the former, and then to argue for the general thesis itself. In my comments, I shall reverse this order, however, for reasons that will be clear as we proceed.

1. The Abstract Egalitarian Thesis

Dworkin states this as follows: “From the standpoint of politics, the interests of the members of the community matter, and matter equally.” (24) The statement is intended to be abstract in the sense that it would “embrace various competing conceptions of equality,” so that in principle we can divide the discussion the way Dworkin has done into the two questions, “Should we accept equality as a principle at all?” and “What is the best version of equality, at what we might call the constitutional level?” But can we really do this? I am not entirely clear that we can. In order to appreciate the difficulty here, at any rate, consider Dworkin's suggestion that ”in order to sharpen the question” – the question whether to accept equality as a principle at all, that is –“I ask you to suppose that the abstract egalitarian principle does provide a good argument for subsidized medicine…” Now, some might think that such a program is paradigm case of what ought to be rejected at the public level, and yet his reasons for such rejection might very well be based on a principle that its proponent would regard as abstractly egalitarian.

1. John Rawls' A Theory of Justice represented a rare intellectual event. It advanced a fresh, detailed and powerful conception of political economy, and rooted that conception in an elaborately worked out political and moral philosophy. Rawls' two principles of justice, with the celebrated maximin standard of distributive justice, represent the point of departure for any serious discussion of this subject. The details of Rawls' proposal are too well known to require summary. Instead, I shall call attention to the basic premise of his work and to a significant anomaly in it, as setting the stage for my own proposal.

I hope to persuade Charles Fried to think again about his developing views on distributive justice. Since I live at a certain remove from Cambridge, the best I can offer is a hypothetical dialogue with an imaginary person whose views seem, to me at least, of a Friedian inspiration.

My central question deals with the way Fried establishes his rights to things he candidly concedes he does not deserve. To present my problems, I shall begin with a simpler case than those – involving kidneys and talents – that Fried makes central to his discussion. Rather than starting with these rather special goods, I find it clarifying to focus first on more garden variety commodities – which, to emphasize their character, I shall call apples.

I will, in this paper, set out the philosophical foundations and the basic structure of a new theory of justice. I will argue that both these foundations and the theory which is based upon them are intuitively attractive and theoretically sound. Finally, I will argue that both are supported by the fact that they lead to attractive implications such as the following:

(1) One can justify at least some governmental redistributive programs which presuppose that those receiving the wealth have a right to it, without being committed to any form of egalitarianism.

(2) The justification for these redistributive programs respects property entitlements; it argues, in effect, that property entitlements and rights to some redistribution of wealth presuppose each other, rather than being in conflict with each other.

(3) The amount of redistribution to which each indigent person is entitled is directly proportional to the wealth of the society in question (the wealthier the society, the greater the entitlement) and inversely proportional to the number of indigents in the society in question (the more indigents, the less to which each is entitled).

There are at this stage in the history of Western thought few entirely new ideas in philosophy. Too much has been written about the important issues to allow for entirely new approaches. My theory is no exception to these generalizations, for it draws upon the tradition of John Locke, of the agrarian reforms such as Paine, Spence, and Ogilvie, and of libertarian writers such as Robert Nozick. Nevertheless, I will argue, the resulting theory is a significant advance over the ideas of these earlier writers.

1. A NOTE ON INTERPRETATION

It became clear in the discussions at the conference at which Professor Brody's paper was given that he and I had slightly different interpretations of his paper. He apparently regards the rights violations to be justified (having to do with the initial appropriation of land) as events in the distant past, and any resulting compensation as being due to our contemporaries only as heirs of people injured in the distant past. To me, one of the attractions of his analysis is that it allows one to dispense with such tenuous arguments and consider rights violations occuring at this very moment, and the compensation due for them. If every individual has the right to use all uncreated resources, then when I use force to keep you out of my living room I am violating your rights; although (according to Professor Brody) that may be an appropriate rights violation, it still imposes on me the obligation to compensate you. These comments were originally written on the assumption that Professor Brody intended the argument to be interpreted in this way; since I believe it is a more interesting argument in that form than in the form apparently intended by its author, I will maintain that interpretation throughout my comments.

2. CRITIQUE

Professor Brody's solution to the problem of Lockean entitlements is ingenious and in some ways attractive, but I find it unsatisfactory in the form presented here. The problem is that, in spite of the author's claims to the contrary, it seems impossible, in principle, to decide how much compensation each person is entitled to.

1. THRENODY

Is it any longer possible to talk seriously about justice and rights? Are these words corrupted and debased beyond redemption? There is no need to multiply examples of how anything that any pressure group has the chutzpah to lay claim to forthwith becomes a right, nemine contradicente. Nor is this Newspeak restricted to the vulgar. The President of the Pacific Division of the American Philosophical Association has granted permission to misuse words like rights and justice if you do so in the service of desirable political ends. Our most universally acclaimed theoretician of justice has shown at length that justice is a will perpetual and constant to forcibly take goods from those who have earned them and give them to those who have not; and the leading light of Anglo-American jurisprudence has constructed a “straightforward” argument proving that a citizen's right to equal protection of the laws is fully satisfied if only the bureaucrat denying him or her a public benefit on racial grounds shows “respect and concern” while processing the forms.

INTRODUCTION

In my view, justice is entirely conventional; indeed, all of morality consists in conventions that are the result of continual tacit bargaining and adjustment. This is not to say social arrangements are just whenever they are in accordance with the principles of justice accepted in that society. We can use our own principles of justice in judging the institutions of another society, and we can appeal to some principles we accept in order to criticize other principles we accept.

To use David Hume's model of the relevant sort of convention, two people rowing a boat each continually adjusts his or her rate of rowing to the other so that they come to row at the same rate, a rate that is normally somewhere between the rate at which each would prefer to row. In the same way the basic principles of justice accepted by people of different powers and resources are the result of a continually changing compromise affecting such things as the relative importance attached to helping others as compared with the importance attached to not harming others.

Hume's rowers provide an example of a “convention” that is normally completely tacit. There are other models in which the bargaining can be more explicit, for example when a seller comes to set prices that are acceptable to customers, when employers reach understandings with employees concerning wages, or when political groups influence legislation.

I want eventually to consider the implications for moral reasoning and argument of the thesis that principles of justice are entirely the result of implicit bargaining and convention of this sort.

An ongoing tension exists within the Lockean tradition in political philosophy between the claim that each individual is the “Proprietor of his own Person” and the claim that nature is “that which God gave to Mankind in common.” The former claim points to a realm of discrete individual entitlements only formally equal in the sense of each individual having jurisdiction over his own person and not over any other person, while the latter points either to a collective entitlement to nature or to individual entitlements to substantively equal shares of nature. Were the two realms, that of persons and that of extra-personal nature, separate and independent, no tension would arise from the union of these two claims. But the realms are manifestly interconnected. Individuals acquire, use, labor upon, invest their time and energy on, and transform, more or less in accordance with their purposes, elements of extra-personal nature. And Locke and his followers believe that at least certain of these interactions with segments of nature give rise to individual property rights to the segments thereby appropriated, labored upon, transformed, or whatever. The traditional bridging notion is each person's right to his own labor which is seen as part of each person's proprietorship over himself. According to this tradition, if the right of each individual over his own person is to be respected, individual titles to appropriated, labored upon, or transformed nature must also be respected.

The task for anyone seeking to embrace all the strands within this Lockean heritage is to reconcile, a) this right to one's own labor and the (or some) system of private property rights tied to it (which system will include historical entitlement principles for legitimating later property configurations) plus the right of self-ownership (or some equivalent) which lies behind the right to one's own labor, with b) some distributionist ideal, at least with regard to natural resources.

I

At one point in Taking Rights Seriously, Ronald Dworkin sketches an argument which would today be widely acceptable. He writes: “The University of Washington might argue that, whatever effect minority preference will have on average welfare, it will make the community more equal, and therefore more just.” It is perhaps not certain that Dworkin himself accepts that immediate inference as sound. There can, however, be no doubt but that: first, many if not most people speaking or writing today in this area do indeed take ‘equality’ to be as near as makes no matter synonymous with ‘equity’; and, second, they do indeed also identify doing (at any rate social) justice with bringing about (ever more, if never perfect) equality of condition.

THE INAPPLICABILITY THESIS

There is a gap between the idea of distributive justice and the many factors that are morally relevant for decision making on economic issues. Only to a degree can this gap be attributed to the distance between “ideal reach” and “practical grasp,” to the legitimate difference in detail between an abstractly delineated economic scenario and a concrete set of circumstances, and to the disparate idioms and metaphors of theoretical and practical discourse. Rather, the gap indicates a fundamental problem with the concept of distributive justice. The problem, that is here termed the “inapplicability thesis,” is that even if distributive justice in abstract formulation were to be accepted as a value, its application in economic decision making is indeterminate.