The Catholic Lawyer Volume 25 Number 2 Volume 25, Spring 1980, Number 2 Article 4 The Politics of Jurisprudence: Liberty and Equality in Rawls and Dworkin Stephen C. Hicks Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Jurisprudence Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE POLITICS OF JURISPRUDENCE: LIBERTY AND EQUALITY IN RAWLS AND DWORKIN STEPHEN C. HICKS* Law as a general system of rules impartially applied acts as the me- dium of sovereign governmental order harmonizing the interests of indi- viduals and groups in society as equally and fairly as possible. The indi- vidual is free within the rules establishing security and order and is free from law which is not conducive to the general good. Similarly, an indi- vidual is free to pursue his own ends if they are compatible with the greatest happiness of the greatest number and also is free not to act on behalf of the common good. While these boundaries are defined by law, the actual social relations within them are the concern of ethics or psy- chology, not legislation.' Thus, political theory as utilitarianism sees the law according to its own representation of the good and its own descrip- tion of human nature. This is the original coordination of individual soci- ety and the body politic in our tradition. Moreover, despite the impor- tance of the twentieth century technological revolution and the transition from the standard of the greatest happiness of the greatest number to that of social welfare, both John Rawls' Theory of Justice and Ronald Dwor- kin's Taking Rights Seriously find utilitarianism to be representative enough of prevailing political attitudes to constitute their analytical start- ing points. Between Blackstone and Austin, however, there occurred a transformation in our way of being in law, which still characterizes the modem world, that both Rawls and Dworkin realize tends to narrow the place of law in our lives, reduce the law of human experience and make * Associate Professor of Law, Suffolk University Law School; M.A., 1971; LL.B., 1972, Downing College, England; LL.M., 1974, University of Virginia. I See J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF THE STUDY OF JURISPRUDENCE, 118-91 (1965). POLITICS OF JURISPRUDENCE 107 politics the only viable context for the determination of the ends of law's usefulness. Both Dworkin and Rawls address the adjustment of the balance in representative democracy between majority and minority interests. Dwor- kin's criterion is the relevance of minority goals, Rawls' are the principles of fairness. They deal with the same parts of the balance, namely princi- ples of distribution, as either equal treatment in Dworkin or according to the difference principle in Rawls, and at the other end of the scale, the fundamental right of treatment, as an equal in Dworkin and as liberty in Rawls. Finally, both base their theories on the dignity, respect, and politi- cal concern due individuals. But what they mean by each of these parts and the relationships among them is different. Underlying Rawls' theory is an ideal of social rather than political reciprocity, which means that individuals should be free from participation in the choices of the political process that do not operate in favor of the least advantaged representative individual concerned. The effect, therefore, is to reduce or restrain the very role of government-the agent of society acting for the common good. What underlies Dworkin's theory is an ideal of political respect whereby all have an equal voice in the means of choice without necessarily equality of distributed goods. As a result, one of Dworkin's main arguments is that minorities must have equal political power in some situations. This is readjustment within society according to the principle of equality, but up to the point only of an equal political say, and it rests on a traditional utilitarian concept of social morality, which sees the individual as a rational self-interested ego in a representative capacity and as subject within an objective system of law and order. Rawls' theory, on the other hand, admits readjustment ac- cording to equality but only up to the point of a like liberty for all. He argues that when there is liberty, rather an equal political say, we will have a better society. Moreover, this depends on individuals who are moral and disinterested in their social or interpersonal relations so that their concerns for the common good are limited to fairness rather than its maximization at the price of individual, minority, or social liberty. Com- mon to these two approaches is not just their starting point, namely, utili- tarianism, but the ethical ideal of respect. I shall try to show how Dwor- kin's sense of this is more traditional and Rawls' more fundamental, and what this means. Also, I shall try to suggest ways in which Rawls' sense can be more clearly thought of, and then what this shows of our thinking of rights and law generally. It is very significant that our experience of law as well as concept of law is now part of the focus of legal thought. That is, we are seeing law and man as interdependent once again, whether it is the state that is transparent to society through social morality or society that is transparent to individuals through personal morality. This occurs, moreover, at the same time as the alternative forms of social and liberal 25 CATHOLIC LAWYER, SPRING, 1980 democracy and their respective principles of social and political justice are being redefined. Thus the interdependence of law and man widens our perspective of justice to include at least society as well as politics. This is a significant move within the positivistic tradition. I shall begin with Dworkin's theory because he is more consistent with the whole evolution of the tradition, although his immediate ances- tor is probably Mill, for he shares with Mill a concern for the appropriate limits of government rather than the fact or the usefulness of government. Dworkin begins with the observation that there are two senses to "rights," which are a perennial source of confusion. In the weak sense, rights are good for one. In the strong sense, rights defend liberty from governmental interference.2 The utilitarian calculation of the greatest good is irrelevant to such strong rights, for the right to disobey is an essential feature of rights against the government, no matter what their political or economic rationale. There is, therefore, no general duty to obey the law because it is conditioned upon respect for these rights. On the other hand, there is no general liberty either, certainly not in the loose sense of license, for what Dworkin means by liberty is the kind of effective independence that is threatened by political inequality and paternalistic legislation.3 He claims, therefore, that rights are fundamental to the coordination of social liberty and political equality, and equality is the fundamental value of the whole system. The two senses of rights mean equal treatment in the distribution of resources and, more importantly, mean the right to treat- ment as an equal, which is based on equal respect and appears as equal participation in the political decision-making process.' The relationship between the two is such that there arises a right to equal treatment, apart from utilitarian calculations on the best distribution for maximizing the common good, only if that is necessary for treatment as an equal. Other- wise, if there exists treatment as equals, so the strong sense of rights is satisfied, the calculation of the common good democratically represents society's own inviolable concept of justice.5 According to Dworkin, the difficulty with the accepted constraint of utilitarianism is that the determination of the common good reflects ex- ternal preferences that are invariably not based on equal respect.' Thus, rights against the government arise when it effects only external prefer- ences and offends the premise of equal political respect which underlies the basic right to treatment as an equal. Moreover, he claims it is because of the tendency of the will of the majority to override equal respect and 2 R. DWORKnN, TAKING RIGHTS SERIOUSLY, 188-92 (1977). Id. at 263. Id. at 198-99, 272-73. Id. at 204-05. Id. at 276. POLITICS OF JURISPRUDENCE treatment as an equal that an individualistic and subjective notion of a right to liberty has gained credence.7 Liberty is not fundamental, how- ever, rights are. And equality is prior to liberty, because within existing political organization, freedom is contingent on social ends. This means the equality due a citizen in a representative democracy. That is, a citi- zen is at least equal before the law, and equal in law in its broadest politi- cal sense so as to participate in the determination of the common good.8 Therefore, if there is no violation of equal respect or the right to treatment as an equal, equal treatment in the distribution of resources can be al- tered to effect valid social ends, if the overall result is an increase in residual quality or the balance of effective political power. This is utilitarianism in reverse. Minorities can impose benefits on society at the price of the majority's external preferences so long as 'the exercise of minority rights in pursuit of their personal preferences does not violate anyone's rights to treatment as an equal.