TAKING EQUALITY SERIOUSLY
3.1. In the previous chapter, Rawls’s position with regard to the matter which beings should be granted certain rights was addressed; Rawls considers reason (as he uses the concept) to be a decisive criterion. I will now turn to an alternative approach, that of Ronald Dworkin, which concentrates on other aspects than does that of Rawls. This means that the problems involved with Rawls’s position do not appear here, but Dworkin’s alternative raises some other important issues of its own. His position merits attention in a study such as the present one. He has written extensively on the sorts of equality mentioned in the introduction that are not relevant here, but also addresses the level that precedes this analysis, thus dealing with precisely the issues that are of interest here.
Dworkin interprets Rawls’s position1 as follows: “[…] justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice”2. Indeed, Rawls characterizes the principles of justice he discerns as “[…] the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association”3.
Dworkin’s evaluation of the aspect of Rawls’s theory that is of interest for me here is the same as my own: “[The right to equal respect] is possessed by all men who can give justice, and only such men can contract. This is one right, therefore, that does not emerge from the contract, but is assumed, as the fundamental right must be, in its design”4. I have indicated what the problems are with Rawls’s answer to the question of who is to be treated equally with whom in the previous chapter. Dworkin’s own stance on equality will now be inquired.
3.2. When Rawls’s reasons to take into consideration the concerns of humans (and only their concerns) were evaluated, he turned out to recognize a special equality that purportedly singles out human beings, namely reason (as he understands it). Dworkin, I will argue, is less clear in this respect, but he, too, maintains that such a quality is to be acknowledged. As he puts it: “Anyone who professes to take rights seriously, and who praises our Government for respecting them, must have some sense of what that point is. He must accept, at the minimum, one or both of two important ideas. The first is the vague but powerful idea of human dignity. This idea, associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust. The second is the more familiar idea of political equality. This supposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves, so that if some men have freedom of decision whatever the effect on the general good, then all men must have the same freedom. I do not want to defend or elaborate these ideas here, but only to insist that anyone who claims that citizens have rights must accept ideas very close to these”5.
It is important to notice (although Dworkin fails to do so) that these ideas are in fact two facets of the same basic point. After all, the (supposed) ‘human dignity’ (the first idea) is what shields human beings from the unjust treatment, while it would be difficult to grasp on what basis the weaker members of a political community should be entitled to the same concern and respect as the more powerful members (the second idea) if not on account of that same element (viz., the (supposed) ‘human dignity’)6.
In a similar vein, ‘flat’ and ‘normative’ equality, as Dworkin uses these terms, seem interrelated. Dworkin says: “We use ‘equality’ in its flat sense simply to indicate sameness or identity along some specified or understood dimension without suggesting that the speaker believes sameness along that dimension is desirable. […] We use ‘equality’ in its normative sense, on the contrary, precisely to indicate the respect or respects in which the speaker thinks people should be the same, or treated the same way, as a matter of justice. […] Political philosophers who worry about conflicts between liberty and equality have the normative not the flat sense of these ideas in mind”7.
He thus distinguishes between two sorts of equality. The first is needed, however, in order to defend the second, for otherwise it would not be clear who should be treated equally with whom (certainly not every being, since humans are treated differently than animals). There even seems to be a circle here: in order to find out who should be treated equally with whom (the normative sense), one must appeal to equality (the flat sense) lest there be no basis to differentiate in the treatment of various beings (notably, in distinguishing between humans and animals). The circle can be resolved (Dworkin himself does not provide such a solution, not even considering this a problem in the first place) if one denies that two separate levels are at stake here, so that the obligation to treat beings equally follows from an element they share in common. This is what I will in fact argue in chapter 6, demonstrating how prescriptive equality (as I call it) is based on basic equality.
The distinction between ‘flat’ and ‘normative’ equality is similar to that between ‘equal treatment’ (which corresponds with formal equality as I have defined it, so long as economic equality is not considered) and ‘treatment as an equal’: “What rights to equality do citizens have as individuals which might defeat programs aimed at important economic and social policies, including the social policy of improving equality overall? There are two different sorts of rights they may be said to have. The first is the right to equal treatment, which is the right to an equal distribution of some opportunity or resource or burden. Every citizen, for example, has a right to an equal vote in a democratic state; that is the nerve of the Supreme Court’s decision that one person must have one vote even if a different and more complex arrangement would better secure the collective welfare. The second is the right to treatment as an equal, which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else. […] [T]he right to treatment as an equal is fundamental, and the right to equal treatment, derivative. In some circumstances the right to treatment as an equal will entail a right to equal treatment, but not, by any means, in all circumstances”8.
3.3. Dworkin is right, I think, when he says that the government must treat people with equal concern and respect, but fails to make it clear why this would be, as he claims, a postulate of political morality9. (In Justice for Hedgehogs, Dworkin makes an effort to present a metaethical theory10, although he would himself not use this vocabulary, presenting in this regard, too, an alternative of his own11. The theory leaves a number of things to be desired, but this is not the place to go into these matters.) ‘Respect’ is most convincingly associated with power (this issue is explored in section 6.9). In any event, Dworkin states: “Equal concern is the sovereign virtue of political community – without it government is only tyranny […]”12, but this is a false dilemma, fueled by a rhetorical use of the word ‘tyranny’. After all, what does ‘tyranny’ mean?
For Aristotle it is a kind of monarchy in which only the interest of the monarch is served13. The problem with this notion is that in another kind of monarchy than a tyranny, the monarch would also have the interests of others in mind, which is not necessarily the case; he could, e.g., simply enforce laws that the public finds agreeable in order to appease them. Hobbes’s view is the following: “[A King and a Tyrant] differ […] in the sole exercise of their command, insomuch as he is said to be a King, who governs wel, and he a Tyrant that doth otherwise. The case therefore is brought to this passe, That a King legitimately constituted in his Government, if he seeme to his Subjects to Rule well, and to their liking, they afford him the appellation of a King, if not, they count him a Tyrant […]”14.
To ‘govern well’ is a criterion relating to content. It would perhaps be preferable to opt for a criterion that stresses the procedure, and focus on the rule of law; in a democratic state where the rule of law applies, this means, inter alia, that elections are held (to ensure that the government acts as the people (i.e., the electorate) wants it to). To be clear: democracy is just an example. The rule of law can apply without there being a democratic form of government15. In this respect, I agree with Raz when he says that “[…] the rule of law is […] not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies”16. So long as the procedure is legitimate, the regime cannot be characterized as tyrannical. That is not to say that such a regime would necessarily be desirable (since it is compatible with a form of government in which minorities are discriminated against), but that is another matter. (It is certainly a matter relevant to the present study, so I must address it, but that does not necessarily mean that it must be analyzed in detail here.)
One may agree with Dworkin’s remark about the government’s task without at the same time adopting his evaluation of it, by proposing the following, I think, more compelling, alternative. Anyone would want the government to treat people with equal concern and respect for the simple reason that if unequal treatment were accepted, and one cannot know if one will one day belong to a relevant minority (be it in a respect that has immediate consequences, such as being handicapped or unemployed, or one whose consequences may be difficult to assess, such as one’s race or adherence to a religion), it is simply rational (prudent, in the non-‘moral’ sense discerned above) to agree with a basic scheme for all parties involved. (This is basically what Rawls also suggests, though, crucially, on another basis than I do.) The fact that a line is still drawn somewhere (animals are excluded from such a scheme; some rights are protected in some societies, but usually to a very limited degree17) seems to be a sign that basic equality is the criterion to grant rights in the most important cases.
3.4. This is not Dworkin’s approach, however, which differs from both Rawls’s account and my own, to be expounded in chapter 6. He states: “[…] I believe that we are now united in accepting the abstract egalitarian principle: government must act to make the lives of those it governs better lives, and it must show equal concern for the life of each”18. This gives rise to the question what ‘each’ means. Apparently, this refers to each human being, which needs a defense, and this is precisely what is lacking in Dworkin’s approach, which introduces an assumption at this level. Pojman stresses the weakness, or at least abstract nature, of Dworkin’s position in this regard when he interprets Dworkin’s justification to respect individual rights as follows: “It is a given, something intuitively self-evident. The notion of equal natural rights based on equal human worth simply becomes the assumption that replaces earlier religious or Kantian metaphysical assumptions”19. Dworkin appeals to “the principle of intrinsic value”, supposedly shared by “almost all of us”, which “[…] holds that each human life has a special kind of objective value”20. The notion of ‘intrinsic value’ is vague, however, and, besides, for something valuable to exist an assessor of its value seems indispensable, which makes the word ‘intrinsic’ problematic21. If someone should want to avoid this problem by awarding mankind this role, it is not surprising that he would consider mankind (his own species) the only (or at least most) valuable being22.
Yet I would not plead the expansion of the domain of those supposedly having such a value, but rather presume that none does, for the simple reason that such a basis seems too unstable or vague to reach a convincing position. If Dworkin argues, on the basis just outlined, that “Someone’s most basic human right […] is his right to be treated by those in power in a way that is not inconsistent with their accepting that his life is of intrinsic importance and that he has a personal responsibility for realizing value in his own life”23, someone else might argue that animals are entitled to the same treatment (though presumably merely on the basis of the first of these principles), and another, who considers the entire notion of ‘intrinsic value’ meaningless, that such a basis is absent for each case (both human and non-human). The last situation would, if one should want to found one’s scheme on such a notion, seem to result in a lack of a solid basis to grant rights at all. Since this situation reflects my position, it is incumbent on me to provide an alternative approach. I will postpone doing this until the present matter will have been sufficiently explored. To that end, I will start with an inquiry of the notion of ‘human dignity’ in order to determine whether this may be a viable candidate to buttress a theory such as that of Dworkin.
The major problem with Rawls’s account lies in his unwillingness to clarify the significance of rationality; Dworkin’s position is more abstract, not specifying any feature but opting for an ‘intrinsic value’ as the decisive element to deem beings equal to one another. The problem of vagueness that this alternative brings is supplemented by the fact