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Murdoch University Electronic Journal of Law |
| Author: | Catherine J Iorns |
| Issue: | Volume 1, Number 1 (1993) |
INTRODUCTION
There are few opportunities provided by modern law school curriculums to take a
course, the sole purpose of which is to analyse and compare solely modern
liberal philosophers' theories of equality. When the opportunity arose for me I
jumped on it, not because I knew much about modern philosophy but precisely
because I did not.(1) Given Ronald Dworkin's influence on modern jurisprudence,
it was not surprising that Dworkin's theory of equality was first up, nor that
we spent more time on it than on other theories, continually returning in order
to compare it with some of the later theories that we discussed. While we
looked at the four parts of Dworkin's theory of equality,(2) as well as some
criticisms that have been made of them by other philosophers,(3) in none of our
discussion was a feminist perspective ever raised.
The primary hurdle to discussing feminist objections was that they often
challenged the basic precepts of liberalism itself, while the course was unashamedly accepting those precepts and
conducting inquiry solely within the liberal tradition.(4) But this did not
eliminate all my (ad hoc) objections, so I attempted a more systematic
assessment of Dworkin's theory from a feminist perspective. This paper is the result
of that attempt.
In Part I of this paper I briefly outline some feminist concerns (including
concerns in respect of philosophical methods as well as substance) by way of
background to the feminist analysis. In Part II, I briefly describe the
elements of Dworkin's theory of equality. In Part III, I assess Dworkin's
theory from a feminist perspective, utilising the feminist concerns outlined in
Part I. Finally, I try to draw some conclusions from the analysis. By way of a
disclaimer I must note that this is not a discussion of all the different
criticisms that could be, or have been, made of Dworkin's theory; it is merely
my reactions and comments from a
feminist perspective.(5)
I: SOME FEMINIST CONCERNS ABOUT POLITICAL PHILOSOPHY
PHILOSOPHICAL METHODS
The general, overriding concern of feminists about philosophical method is over
the philosopher's perspective or viewpoint from which he or she theorises. The
feminist criticism is that the perspectives that have been used in the past,
and continue to be used, are particularly male perspectives(6) and that, in
ignoring the experiences and the perspectives of women, the use of such
perspectives results in theories which maintain the subjection of women. For
example, the philosophical tradition is one of distinctions and dichotomies. The
primary distinction is that between the mind and body, where the mind and its
activities are superior to the body and its experiences. This creates the distinction between knowledge and
experience, whereby only certain things are thus said to count as knowledge;
physical experience is not one of them.(7) In contrast, feminist analysis
emphasises the experience of women and the central importance of that reality
to theory. Thus theory, rather than being created 'top down,' should instead be
built from the bottom up, from the shared experiences of those to whom the
theory is meant to apply.(8) Feminist analysis thus focuses on what is commonly
referred to as 'revision' - a deconstruction of the existing principles and
structures of thought and a reconstruction of how they might look if considered
from another perspective, the perspective of women's experience.(9)
Liberal political theory provides no exception to such criticism. The
liberal method of inquiry assumes that any adequate moral or political theory
must be objective in the sense of being unbiased.(10) The best way to achieve
this is thus thought to be for the philosopher to detach himself or herself
from 'contingent' properties" such as race, class or sex.(11) At the most
basic level, feminist theory commonly disputes that a truly neutral or
objective standpoint has been used; instead, a male standpoint has excluded the
female view and is continuing to subjugate women as a class. However,
while all versions of feminism(12) have this much in common, they differ on the
extent and detail of their criticisms. Liberal feminists (not
surprisingly) accept this methodological concept of the use of a neutral observer;
they merely argue for the adoption of a truly neutral and objective perspective
-- i.e., one where the bias toward the male perspective has been eliminated by
the inclusion of considerations of women's experience. Other versions of
feminism take issue with the very concept of objectivity: they argue that all knowledge reflects the
interests and values of particular social groups,(13) so there can be no such
thing as even a "truly" neutral, objective perspective from which to
create a political theory.(14) They similarly deny that the theories
produced by methods that purport to utilise an objective perspective are
universally applicable or that they embody universal or human values. They therefore
argue that, in order to avoid the continued subjection of women, all moral and
political theories must explicitly consider and address their work from the
standpoint of women.(15)
SUBSTANCE
Feminist criticism of the substance of political theories focuses on whether
they endorse - and are thereby likely to maintain - the subjection of women to
men. The subjection of women takes many and varied forms, and the forms differ
among and between the various different categories of political theories; I
will focus here solely on the basic features more typical of liberalism.
Early political theories, in particular, tended to either assume or argue that
women were not rational, were not liberal individuals, and thus were not part
of the subject-matter of the philosophy.(16) Susan Moller Okin demonstrates
that some greatly influential male philosophers, adopting a male perspective,
have regarded women in solely functional terms (these being related to
reproduction and maintenance of men's and society's needs within families).(17)
The result is that women have been relegated to a private, functional role
and, in some philosophies, cannot even be considered as citizens, let
alone as men's equals in the public or private spheres.(18) Early feminists
consequently concentrated on the public sphere by showing that women were
rational, liberal individuals with more than a functional capacity who were
thus able to be citizens in the public sphere and were thus entitled to
treatment as subjects of the relevant political theory.(19)
More recently, even as women are accepted as citizens and liberal
individuals,(20) they have still been seen in primarily functional terms such
that, while a woman without a family is entitled to (act like a man and)
participate in the public sphere, their natural and therefore proper role has
been considered to be reproductive and nurturing, thus perpetuating their
subjection via continued and assumed relegation to the private sphere.(21) Feminist
analysis has thus criticised both the public and the private spheres:
trying to enable women with or without families to participate fully in
the public sphere at the same time as improving their conditions and status in
the private sphere, while attempting, simultaneously, to modify and/or break
down the barriers between the two. Thus, in addition to arguing for conditions
enabling participation in the public sphere, a minimum feminist position is
that a moral or political theory must not define women functionally or relegate
them to the private sphere of the family.(22) It is also argued that the
private sphere be made more public (although to differing extents and in
different ways, depending on the version of feminism).(23)
While all feminists agree on this minimum, there are fundamental aspects of liberalism about which many disagree. Liberal
feminists agree with the basic precepts
of liberalism and maintain, e.g., that equality of opportunity for the good
life is the right goal (rather than, e.g., complete substantive equality) and
that rewards should be based on merit.(24) The debate is thus still framed in
terms of equality, liberty, and justice, with a strong emphasis on liberal
individualism and a reliance on rights to achieve these ends; at the risk of
making a generalisation, liberal feminists merely argue for a wider role for
the state in ensuring equal
opportunity.(25)
Other versions of feminism do not share the faith in the precepts of liberalism, including the goal of mere
equality of opportunity in achieving
the elimination of the subjection of women.(26) They instead argue for more
radical and interventionist measures in order to achieve substantive equality. I
will not address here the philosophical criticisms of the fundamentals of
liberal theory as it is a liberal theory that is being evaluated in this paper;
it will thus fall foul of these fundamental criticisms as a matter of
course.(27) I note, however, the common disagreement with the liberal focus on individualism, the prominence of rights, and
the definition of justice as equality of opportunity. The first two of these
aspects have not only been criticised from other feminist philosophical viewpoints(28)
as not being helpful means for the achievement of the end of substantive equality,
but have also been criticised from a very different perspective which argues
that they are distinctly male concepts, embodying male values, and are thus
inappropriate as means or ends for women. The difficulty with the concept of
justice as equality of opportunity is
similar: it is from the conclusion that the end of justice (especially as defined as equality of opportunity) is a
distinctly male concept that the other two elements -- as means to the end of
justice -- are rejected.
The challenge that these concepts are peculiarly male comes from a perspective
other than political theory: it is provided by work on psychological theory and
women's development. While various studies have come to the conclusion that men and women grow up differently
socialised,(29) Carol Gilligan has found, through empirical study of girls' and
boys' psychological development, that the two sexes reason differently and have
very different views on interpersonal relationships and thus on the
world.(30) Gilligan found that the boys in her study tended to abstraction and
to focus on justice, rights, and autonomy, while the girls tended to the
particular and to focus on responsibility, connection, and empathy.(31) These
different perspectives are what are referred to respectively as an ethic of
justice and an ethic of care.(32) Other
psychologists had previously noticed that men and women tend to reason
differently;(33) what was significant was that these psychologists considered
that the female(34) method of reasoning was inferior to the (male) use of
abstract, general principles which, to them, exemplified the ultimate stage in (human) moral reasoning.(35)
It is this judgement of inferiority that has been challenged by Gilligan's
studies. It has become clear that the two types of minds simply put different values on the different
methods of reasoning; one is not
inherently superior to the other.
The relevance of Gilligan's study to a moral or political philosophy is (at least) twofold. First, it suggests that
the inclusion of the women's perspective as argued for by all versions of
feminism may mean more than referring to shared experiences; it may also
include a reference to a different
method of thought and prioritising. Secondly, Gilligan's findings that men and
women see matters such as justice and equality differently (when it is
precisely these concepts that such philosophers deal in!) suggests that a
theory that resonates with or seems appropriate for one group may not for the
other. This is particularly so with respect to liberal theories because the
female view of the world challenges basic liberal premises. Instead of seeing
the world as a ladder, as atomistic and hierarchical, where human interactions
are seen as individuals competing for positions in the hierarchy,(36) the
female view is that the world is a web of relationships. The holders of this
view are not concerned with climbing ladders but with keeping the web intact,
with balancing everyone on it. Instead
of seeing rights and procedural rules as beneficial for ensuring that the
competition is fair, the female view sees even fundamental rights such as
liberty and equality of opportunity as detrimental for encouraging separation
and autonomy, and often as simply irrelevant to solving moral and other
conflict.(37) Instead of limiting the concept of duty to non-interference with
others and their rights, the view from the web produces a morality with an
emphasis on responsibilities rather than rights.(38) Finally, this relevance is
particularly acute where the theory in question ignores the perspective of a
historically subjugated group because that theory may continue the subjugation
of that group. While there is no
general feminist agreement on the use to which Gilligan's findings should be
put, there is at least agreement on the aim of the end of the subjection of
women.(39)
One aspect of moral and political theorising that often bridges the traditional
gap between form and substance is the language used to discuss the theory. Language
can both identify and obscure the true position of women in any theory. Because
of this, it can often tell us both about the theorist and the theory itself. For
example, a philosopher who really does only envisage that men constitute the subject-matter
of the philosophy will use masculine pronouns (and other related words such as
possessives) to refer to these subjects. However, even a philosopher who
uses gender-neutral language (such as "they" or "persons"),
or even includes feminine pronouns (as in "he or she"), may be using
it falsely. This has the effect of obscuring the reality that the theory
assumes that persons participating in the public sphere (men and women who can
act like men) are the subject-matter of the theory and is not applicable to persons (typically
women) who inhabit the private sphere. The effect of this "false gender
neutrality"(40) -- often referred to as "add women and stir"(41)
-- obscures the oppression of women in the private sphere and is thus unlikely
to offer any true liberation from that oppression.
The primary ways that in which oppression in the private sphere is obscured are
by "ignoring the irreducible biological differences between the sexes, and/or
by ignoring their different assigned social roles and consequent power
differentials, and the ideologies that have supported them"(42) -- in
other words, by ignoring the experiences of women. In short, language can be an
indicator of the substance of a theory, but it will take an assessment of the
substance to see if seemingly gender-neutral language is in fact falsely
neutral.
II: DWORKIN'S THEORY OF EQUALITY
At a broad level Ronald Dworkin's work has been devoted to developing and defending
liberal political theories. More specifically, one of Dworkin's primary
concerns has been to argue that equality is the central value within, and basis
of, liberalism. The aim of Dworkin's essays on equality is thus to find a plausible definition of
equality: to give content to the term. Moreover, within the liberal tradition
Dworkin is not a classical liberal but is concerned with the defence of a
welfarist liberal philosophy. That is, he believes that the state may interfere with individuals' liberties not
merely to prevent harm to others but also to redistribute wealth and resources.
Thus, Dworkin's aim is to find a (plausible) conception of equality that can be
used to guide the state's redistribution of resources and justify the state's
interference with individual liberty in that redistribution.(43)
In his first essay on equality(44) Dworkin distinguishes two root concepts of
equality: the equality of welfare and equality of resources. Within equality of welfare Dworkin identifies
various different conceptions of welfare that might be adopted in order to
satisfy the ideal of equality of welfare. However, Dworkin argues that none of these different conceptions provide an
acceptable ideal. Instead, Dworkin argues that only a conception of equality of
resources can provide that.
In his second essay on equality(45) Dworkin attempts to define a plausible
conception of equality of resources. The resources relevant to his enquiry are
"whatever resources are owned privately by individuals."(46) Dworkin's
metric for equality is the envy test: a division of resources is equal if, when
it is complete, no-one would prefer someone else's bundle of resources to his
or her own bundle.(47) The method of achieving equality is not strict equal
division(48) but via a market mechanism, where the primary market consists of the
resources in question and a secondary market consists of insurance.
The mechanism of the primary market that Dworkin uses is a Walrasian auction
where all productive resources are eventually sold. At such an auction all
potential bidders (in Dworkin's hypothetical auction the bidders are shipwreck
survivors dividing up all the resources in the island; he refers to them as
immigrants) receive "an equal and large number of clamshells" with
which to bid.(49) When all the resources are distributed according to the
auction Dworkin argues that "the envy test will have been met."(50) Dworkin
then argues that a more elaborate version of the auction could be used "to
provide a scheme for developing or testing equality of resources in a community
that has a dynamic economy, with labor, investment, and trade."(51)
The primary elaboration that Dworkin makes of the initial, basic auction is in
the creation of the secondary market in insurance. The need for this secondary market is described as arising
once the auction is successfully completed. This is because people will be free
to use, including trade, their resources, which will be affected by three things:
differing levels of skill (including lack of skill and/or what Dworkin
calls handicaps); ("brute") luck, good or bad; and gambles (or "option
luck"), which may turn out good or bad. Dworkin argues that the link between all of these three factors is
insurance: in theory, people can take out insurance (i.e., gamble) against
future possibilities of bad luck.(52) If there was equality of opportunity of
taking out insurance then equality of resources would not require
redistribution in the future if that bad luck eventuated, for example.(53)
Dworkin argues that this concept can be used to compensate for all "physical
or mental handicaps."(54) The amount required to compensate someone who
does develop a handicap would be the amount of insurance that "the average
person would have purchased insurance" against getting such a
handicap.(55) This amount would be paid from "some fund collected by
taxation or other compulsory process but designed to match the fund that would
have been provided through premiums if the odds [for all people of developing
that handicap] had been equal."(56)
Dworkin next considers how talents might be treated in order "to create a
society in which the division of resources would be continuously equal."(57)
Dworkin assumes that, after the distribution of resources at the auction,
people will work to produce new resources and trade their resources. In this
scenario Dworkin argues that, when assessing the amount of a person's resources
under the envy test, "the total package of work plus consumption"
must be included so as to take into account the person's life as a whole.(58) Thus,
the envy test is applied diachronically: "it requires that no-one envy the
bundle of occupation and resources at the disposal of anyone else over time,
though someone may envy another's resources at any particular time."(59)
The difficulty that arises in this context is that of unequal talents. While Dworkin argues that the distribution of
resources should be able to varied by differing ambitions, it should not be so
varied by endowments (i.e., talents). This means that "the role of talent
must be neutralized."(60) Dworkin's proposed method is "the periodic
redistribution of resources through some form of income tax."(61) The
level of redistribution would be set in a manner similar to that for handicaps:
by asking how much insurance at what cost would one buy against suffering the
lack of any particular skills. Even an answer that merely fixed "rough lower
limits on average" would provide "a device for fixing at least the
lower bounds of a tax-and-redistribution program satisfying the demands of
equality of resources."(62)
The difficulty with this in practice is the same as for handicaps: that of not being able to form life plans and
attitudes without some knowledge of one's talents or handicaps, and therefore
not knowing what to bid for at the auction in order to fulfil one's life plans
and ambitions. However, Dworkin
considers that this objection is most serious for talents: "if we suppose
that no-one has any idea what talents he [sic] has, we have stipulated away too
much of his personality to leave any intelligible base for speculation about
his ambitions, even in a general or average way."(63) Dworkin's solution
is to stipulate that, before the auction begins, each immigrant knows his
"tastes, ambitions, talents, and attitudes toward risk"(64) but has
no knowledge of "what income level
his own talents will permit him to occupy."(65) Thus, the opportunity to
buy insurance will now not be against having or not having a talent or
handicap, but will be against not being able to earn an income of a certain
level (that level being chosen by the "immigrant"). Dworkin argues
that this hypothetical insurance scheme could be translated into a
tax-and-redistribution scheme that could cope with complex societies.(66)
Dworkin concludes this discussion of equality of resources by comparing his
theory to other theories of justice. Dworkin notes that his theory "travels
very far from the boundaries of the nightwatchman state."(67) In relation to Rawls' theory of justice,
Dworkin notes that Rawls' "difference principle is an interpretation of
equality of resources" but "a rather different interpretation than
[Dworkin's] conception."(68) Dworkin also comments that his bidders'
self-knowledge is one important difference between his theory and Rawls'
original position.(69)
In his third essay on equality(70) Dworkin considers the relationship between
equality and liberty.(71) Many liberal political theories consider that liberty
and equality are independent ideals that are in fundamental conflict with each
other.(72) In an earlier book Dworkin argues that liberty, including the right
to particular liberties such as freedom of speech, religion and conviction, are
derivable from the fundamental right to equality. In this essay Dworkin defends this
thesis within the context of the specific right to equality of resources.
While there may be genuine conflicts between liberty and some conceptions of
equality, Dworkin argues that this is not the case when we take equality of
resources as our conception of distributional equality. Instead:(73)
According to equality of resources, the rights to liberty we regard as fundamental are a part or aspect of
distributional equality, and so are automatically protected whenever equality
is achieved. The priority of liberty is achieved not at the expense of
equality, but in its name.... [R]ights adequate to an attractive conception of
liberty are given so foundational a place under equality of resources that
conflicts between these rights and that view of distributional equality cannot
arise.
Dworkin attempts the reconciliation between liberty and equality via two methods. The first method is definitional; the
second is by reasoned argument.
In his definitional defence, Dworkin argues that the fundamental "abstract
egalitarian principle" is at the base of all conceptions of equality,
including his conception of equality of res.(74) This principle stipulates that
"government must act to make the lives of those it governs better lives,
and it must show equal concern for the life of each."(75) Dworkin argues
that "the egalitarian principle itself requires government to attend
to liberty, because it requires government to have equal concern for the lives
of those it governs."(76) In the
hypothetical auction this requirement of equal concern is met by bidders having
equality of purchasing power (subject to compensation for initial talents and
handicaps).
The requirement of liberty is further built into the definition of the auction
because the market mechanism presupposes a system of liberties in order to make
it a fair and proper market. The bidders must know before they bid what
liberties and constraints will exist after the auction(77) -- for example, on
how resources may be used after the auction -- so liberty cannot be auctioned
off as a resource.
Just as "the envy test presupposes
a liberty/constraint system, and cannot be used to yield one . . . . [s]o the definition equality of
resources offers of an ideal egalitarian distribution must include a
specification of the liberties essential to equality."(78)
In Dworkin's second approach, he reaches the same result in respect of the
place of liberty in his theory of equality, but via more lengthy, reasoned
argument. I will not provide the detail of Dworkin's second method, as it is
not all relevant to my task in this paper. However, during his argument,
Dworkin makes a number of elaborations of his hypothetical auction and thus of
the detail of his theory of equality, which I will describe.
One such elaboration is that all resources must be offered for auction in the most abstract form possible.(79) This
is so as to be the most sensitive to different bidder's plans and preferences,
which is solely in order to enhance equality between the bidders.
Dworkin also makes a clarification of the role of opportunity costs as a measure
of equality. It is implicit in the use
of the auction, as well as in the use of the envy test to measure when a
distribution of resources is equal, that the unit of measure is opportunity cost:
"[t]he value of any transferable resource one person has [is] the value
others forgo by his having it." Dworkin stresses in this third essay that auctions
with different baselines will produce different results, each of which may
satisfy the envy test. So Dworkin tries to find the "true opportunity
costs of a set of resources,"(80) and thus select the appropriate baseline
(including provisions about liberty). It is with this argument that Dworkin
concludes that "the true opportunity cost of any transferable resource is
the price that others would pay for it in an auction whose resources were
offered in as abstract a form as possible, that is, in the form that permits
the greatest flexibility in fine-tuning bids to plans and
preferences."(81) Thus, this principle of abstraction and this notion
of true opportunity costs establish "a general presumption of freedom of choice at the core of
equality."(82)
This presumption leads us to a further elaboration of the auction. Dworkin argues that there may be no
constraints in the auction on the grounds of religious or personal
morality.(83) This endorses the general liberal thesis of neutrality between
competing conceptions of the good life. Dworkin justifies this by showing that
it is necessary for his theory of equality of resources.(84) One way that this
ties in with Dworkin's theory of equality is in relation to the notion of opportunity
costs. Looking at the principle of neutrality between different conceptions of
morality, from this point of view, each person's view of their social --
including moral -- setting that he or she claims is necessary in order to
pursue his or her conception of the good life may be evaluated using the
measure of opportunity costs, just as physical resources were measured. Thus,
they may "be tested by asking how far these requirements can be satisfied
within an egalitarian structure that measures their cost to others."(85) No-one
is given "for nothing in advance" a moral baseline which imposes costs
on others.(86)
One constraint on complete freedom of choice that Dworkin does allow is the
correction of externalities created by some individuals at the expense of
others.(87) In the hypothetical ideal auction, the auctioneer would decide what
measures were necessary to achieve the desired correction.(88) Thus, any
"[c]constraints on freedom of choice are required and justified, according
to that principle [of correction], if they improve the degree to which equality
of resources secures its goal, which is to achieve a genuinely equal
distribution measured by true opportunity costs."(89) Thus, the
primary restriction on the imposition of corrective constraints is that they
cannot offend the principle of neutrality among competing conceptions of
morality.(90)
Other liberties that Dworkin argues "flow from equality in private
ownership" include "the parties' freedom to engage in activities
crucial to forming and reviewing the convictions, commitments, associations, projects,
and tastes that they bring to the auction and, after the auction, to various
decisions about production and trade that will reform and redistribute their
initial holdings."(91) Thus, Dworkin argues, there is "justification
for affording special protection to freedom of religious commitment, freedom of
expression, access to the widest available literature and other forms of art,
freedom of personal, social and intimate association, and also freedom of
non-expression in the form of freedom from surveillance."(92) Further,
"the auction would not commence until all parties wanted to exploit these
opportunities ["to form, reflect on or advocate convictions, attachments
or preferences"(93)] no further."(94) While Dworkin does not describe
it in so many words, what he is envisaging is a pre-auction retreat where all
potential bidders decide on their life plans and preferences.(95) This ensures that "people's
personalities will be taken as properly developed so that auction calculations
can proceed."(96) Moreover, Dworkin argues that, just as equality of resources clearly
requires authenticity, authenticity clearly requires the basic liberties that
he listed.(97)
The final elaboration of the initial auction that Dworkin makes is the imposition
of a requirement that "the auction's results will not violate the abstract
egalitarian principle" through the operation of prejudice. As an example of what he wants to avoid,
Dworkin hypothesises that, as his hypothetical, ideal auction presently stands,
racists who were "sufficiently numerous" could organise "to buy
tracts of land for housing from which they will thereafter exclude
blacks."(98) However, because "a political and economic system that
allows prejudice to destroy some peoples' lives does not treat all members of
the community with equal concern," it would violate the fundamental
egalitarian principle that Dworkin argues is at the root of equality of
resources. He thus argues that he needs
to impose on the auction a "principle of independence" in order to
avoid such results and achieve equality. While Dworkin does not define clearly what he means by
"independence," he considers that it is a means "to place
victims [of prejudice] in a position as close as possible to that which they would
occupy if prejudice did not exist."(99)
Dworkin spends the rest of his third essay discussing how the "fantasies of
equality of resources"(100) which he has devised can be used in today's
real world. The first step is to imagine what general distribution would result
from such an auction; this is the "ideal" distribution.(101) Next, we have to decide how to improve upon
our present situation and make it closer to the ideal. Dworkin posits an "ideal
real world, where inequality survives and technical problems are formidable,
but where people are nevertheless fully committed to making distribution
more equal."(102) Dworkin labels distributions that take us as close as
technically possible to the ideal distribution as "defensible egalitarian
distributions."(103) Dworkin then considers the "real real world in
which political difficulties are, if anything, more menacing than technical
ones."(104) Dworkin argues that the standards by which to measure progress
in the real real world are the defensible distributions devised in the ideal
real world scenarios. Thus, criticisms can be directed at failures of political
will to achieve more egalitarian results that are technically possible.
Dworkin's primary concern at this stage is "whether constraints on freedom
are a permissible means of bringing us closer to a defensible distribution,
even though no such distribution would itself allow those constraints."(105)
Putting the question more directly: "Can freedom properly be compromised,
in the real real world, as a means of reducing the inequality found
there?"(106) Dworkin's answer to this question is: maybe; it depends. Dworkin
argues that no-one's liberty may be constrained to an extent greater than it
would be under the most plausible defensible egalitarian distribution
(DED). Thus, a reduction in the level
of liberty enjoyed by some in the real real world might not be considered to be
a violation of liberty if they presently enjoy more liberty than they would
under the most plausible DED. The only stipulation on any reduction of real
real world liberty in the name of equality is that the proposed reduction not
take the person in question below their DED level. Finally, Dworkin shows that
what we label as fundamental freedoms -- Dworkin posits, as an example, the
right of homosexuals to sexual intimacy -- will not be violated even under his
proposal for making changes to the real real world.
Dworkin's theory about equality of resources concerns solely resources subject
to private ownership. Dworkin has been concerned to examine "the just
allocation of material resources and opportunities, and the shape and proper
boundaries of individual liberty."(107) All of this took place without
consideration of the distribution of political power. Dworkin's fourth essay on equality concerns
precisely the distribution of political power; it addresses the question:
"What political institutions and processes should an egalitarian community
have?"(108)
Dworkin's starting point is the fundamental egalitarian principle "that government
must act to make the lives of citizens better, and must act with equal concern
for the life of each member."(109) Thus, any answers to the question posed
must satisfy that egalitarian principle. Dworkin next eliminates from
consideration all forms of government other than democratic forms(110) and
proceeds to examine what conception of democracy provides equal concern and
respect for its citizens. Interestingly, Dworkin rejects the conception of government
typically thought of as liberal: that a democracy should distribute equally
political power over decisions (i.e., a concern with process rather than substance
or outcomes of democratic decisions). Dworkin accepts, instead, the view that
"the best form of democracy is whatever form is most likely to produce the
substantive decisions and results that treat all members of the community with
equal concern."(111) Interestingly, however, Dworkin concludes that the
only form that satisfies such a conception of democracy "requires equality
of vote within districts, and presumes equality of impact across
them"(112) -- i.e., one that also satisfies what is commonly thought of as
procedural equality. Perhaps of even more interest is his conclusion about how
we should view political power:(113)
If a community is genuinely egalitarian in the abstract sense -- if it accepts
the imperative that a community collectively must treat its members
individually with equal concern -- then it cannot treat political impact or
influence as themselves resources, to be divided according to some metric of
equality the way land or raw materials or investments might be divided. Politics,
in such a community, is a matter of responsibility,
not another dimension of wealth.
III : CRITIQUE OF DWORKIN'S THEORY
There are aspects of Dworkin's theory that can give feminists hope that women
and men will be able to emerge from Dworkin's ideal egalitarian distribution in
equality.(114) For example: women are eligible to bid at the auction;(115) the
fundamental egalitarian principle ensures that everyone should be treated with
equal concern and respect; the independence principle is designed to prevent
the operation of prejudice, including sexism, at the stage of the auction; no specific
societal or familial structures are specified or said to be known by the bidders,
so it could possibly be taken as open; the discussion of talents and (lack of)
knowledge about future income assumes that the bidders -- including women --
will be earning incomes and thus be in the paid workforce after the auction; the
operation of the principle of freedom of choice indicates that women would be
free to choose their occupation; the neutrality between moral baselines
supports the proposition that no moral baseline that imposes costs on women
can be adopted; if any externalities were created that imposed hidden costs on
women, these could be corrected just as Dworkin argues that the costs of
pollution could be; any attributes that handicapped women could possibly be
compensated for through the operation of the redistribution mechanism (i.e.,
based on Dworkin's hypothetical insurance); in the implementation of the ideal
egalitarian distribution in the real real world women's levels of liberty could
be raised and men's present liberty to oppress women could be lowered as
equality of resources were approached; the form of government chosen would be
that best able to produce equality of resources, including equality between men and
women. All of these aspects could give
rise to the breakdown of the hard distinction between the public and
private spheres as well as to a breakdown in the division of men's and women's
roles within those spheres.
Despite these apparent attractions, however, a closer look at the elements of
Dworkin's theory shows that there exist many aspects that are inconsistent with
this vision. In this critique I will address both the methodological and
substantive aspects of Dworkin's theory which pose problems for feminists.
Methodologically, Dworkin arrives at his plausible conception of equality
through the application of abstract principles. In this sense his theory is
built from the top down rather than the bottom up. For example, Dworkin does
not take present problems as a starting point and see how to resolve them
(other than the general problem of inequality of resources); instead he prefers
to rely on his intuition about what principles are important in a moral or
political theory. In this general approach, Dworkin necessarily falls foul of a
basic feminist concern about such theories.
In attempting to define equality in the ideal world, Dworkin follows the traditional
liberal method of inquiry in using a supposedly detached, objective and neutral
stance from which to create the ideal egalitarian distribution of resources. The
method Dworkin uses is the auction where the people determining the
distribution of resources (the bidders) are placed behind a "veil of
ignorance,"(116) so to speak, about their future position in life. It is
not entirely clear precisely which personal attributes the bidders are ignorant
of, but it is clear that Dworkin's objective is for these
("detached") bidders to be able to make decisions not based solely on
their personal position in life.
In using this technique, Dworkin is clearly subject to the criticism that there
is no such thing as a truly neutral perspective from which to create such a
theory. What is less clear is how far Dworkin falls foul of the liberal
feminist position that a supposedly objective position must be truly objective
and not, in reality, constituted by a male perspective. In order to address
this issue one has to assess what factors the bidders are both
knowledgeable about and ignorant of, and what impact or relevance they will have.
The liberal principle of objectivity entails that the philosopher or decision-maker
detach himself or herself from contingent properties such as race, class, or
sex.(117) Without clear evidence to the contrary one thus initially assumes
that this is what Dworkin is trying to do here. However, while it is difficult to clearly determine whether he is following
this tradition, Dworkin gives contradictory indications, suggesting a likely
departure from this tradition.
Recall that Dworkin specifies that bidders must be able to form -- and bid on
the basis of -- life plans and ambitions; they must therefore know as much
about themselves as possible, which must include their own tastes, ambitions,
talents and attitude toward risk.(118) However, one thing that Dworkin does
specifically eliminate from the bidders' knowledge about themselves is their
"economic or social class."(119) The issue is thus whether race and sex are also eliminated, even
though Dworkin does not specifically do so, or whether they must also be
included in the bidders' knowledge about themselves.
If the presumption is made that race and sex is to be ignored then Dworkin's
auction would be truly egalitarian and would satisfy liberal feminist concerns.
It would mean that no-one's role in life would be pre-determined by present
views of what is thought appropriate for their sex or race (as it is, for
example, for the philosophers criticised by Okin with respect to the functional
definition of women).(120) However, I suggest that, instead, bidders do
know their own race and sex.
A simple argument for imputing such knowledge is that Dworkin comments several
times that bidders must know as much as possible about their own attributes, personalities and ambitions; as
class is the only attribute that Dworkin states that they do not know, then
bidders must know everything else, including their race and sex. A more
complicated and precise argument can be made using Dworkin's later stated
concerns about the operation of prejudice, particularly in relation to racism.
It is clear from Dworkin's discussion of his "independence" principle
that bidders at the auction know enough about their personalities to know
whether they are racist or not.(121) Further, they seem to also know what their
own race is -- they know who to organise together with in order, for example,
to exclude blacks from a housing area. While Dworkin provides rules to prevent
the operation of racism, this does not prevent people from themselves
harbouring racist prejudices against other particular races. It appears,
therefore, that Dworkin's bidders are real, tangible people, with visible
characteristics that include at least race.
An alternative hypothesis is that bidders know whether they are racist or not
but don't know which race they themselves are. Under this hypothesis all racists
can buy land at the auction with the intention of later excluding other races
from their area. After the auction, they would find out, for example, who is
white and who is black and then do the organising and excluding. I suggest,
however, that this interpretation is untenable because of the way that this discussion
of race is used in Dworkin's essay. Dworkin discusses this scenario in order to
impose on the auction itself the principle of independence so as to enable
victims of prejudice to avoid its operation. This can only be relevant if the
organising and excluding takes place at the stage of the bidding at the
auction; this means that bidders must know at least their own race, and presumably also the race of other
bidders.(122)
So, what about sex? Dworkin is silent on whether the bidders are aware of their
sex. Further, there are not the same type of specific examples used in relation
to sex as there are for race, so it is harder to make clear inferences from
other parts of his theory. Yet, I suggest that an inference can be made that
bidders are aware of their sex before the auction.
Dworkin's independence principle is created to deal not just with race but with
prejudice in general (at the stage of the auction). Prejudice on the basis of
sex would violate the fundamental egalitarian principle as much as prejudice on
the basis of race would. While the same examples do not exist to support a
hypothesis that Dworkin is envisaging that the bidders know their sex, I
suggest that organisation to purchase resources and to exclude women solely on
the basis of sexism would be subject to defeat in the same way that collusion
on the basis of racism was: sexism would have to be included with racism under
the general rubric of prejudice or else the fundamental egalitarian
principle would be violated. Further, similar arguments could be made in
relation to other forms of prejudice (homophobia, for example); so other
attributes such as sexual preference will also be known to the bidder.
A further argument that people must know their sex at the stage of the auction
is provided by the requirement that bidders must know all their attributes so
that they can form life plans and make bids on the basis of those life plans.
If bidders know all their various attributes, and the ability to bear children is a significant attribute, then
bidders must know whether they have the ability to become pregnant; as this
ability is specific only to one sex then bidders must be aware of their
sex. Consequently, it seems that the bidders must be taken to be aware of at
least their sex. In conclusion on this point, it thus seems that the only
attribute about bidders that is not known is what class they belong to -- i.e.,
what resources they each hold.
A criticism of this knowledge is indicated by Okin's enthusiasm for standpoints
without such knowledge. For example, Okin considers that "the great
brilliance of Rawls's original position" consists in the complete detachment
of Rawls's equivalent of bidders from any personal attributes, because this
eliminates any possible bias in the assessment of what is good for "each
and every" person in society.(123) This indicates that Okin is afraid that
simple knowledge of one's sex necessarily makes a difference in life
plans, by virtue of having different
reproductive functions.
An alternative view is that the simple fact of reproductive differences do not
need to entail different life plans to the extent that they will produce
different distributions of resources. Under this view, the implications of the
knowledge of one's sex depend largely on what else is taken for granted. For
example, if the present familial and societal structures are taken for granted
-- where one's sex makes a big difference to one's life plans -- then there
would necessarily be differences in life plans at the stage of the auction.
Such differences in life plans at the auction would result in a similarly large
difference in the resources bid for, as well as in the resulting distribution of resources after trading, etc,
after the auction. If Dworkin did assume such familial and societal structures
he would not even be addressing the resources issues properly, let alone
other aspects of the subjugation of women. If, on the other hand, the future is
genuinely open, where women could genuinely choose their life plans according
to their talents and attributes, then even knowledge of ones' sex need not
result in such differences in life plans. However, there is clearly a problem
of possible bias towards certain societal and familial structures that bidders
are likely to have because they do know their sex. If there is an equal number
of men and women bidding, then perhaps neither bias would be allowed to
dominate. If the auction reflected the present public sphere, where men
dominated, then there would clearly be a problem with the possible bias of men
toward family structures in their favour that happened to oppress women. Clearly,
the worst possible combination from a feminist standpoint would be where
bidders are aware of their sex, where it was assumed that present (liberal,
gender-structured) forms of family and society would continue to exist, and
where -- in line with that vision -- only those participating in the public
sphere would get to bid (and make decisions on the future). As we know that
bidders are aware of their sex, a primary task is thus to assess what kinds of
assumptions about family and society
that Dworkin makes in his theory.
In addressing the substance of Dworkin's theory and the possible criticisms
which can be made of it from a feminist perspective I will first address the
language used by Dworkin and then the particular aspects of the theory itself.
In all of his essays on equality Dworkin frequently uses plurals, such as
"people, "bidders" and "immigrants." This enables
Dworkin to use the pronoun "they" and avoid having to identify
whether it is males or females that he is talking about. Unfortunately, when
Dworkin uses the singular, he only refers to the feminine very rarely: the
predominant pronoun or possessive used is "he" or "his". However,
while this is common to all of his essays, the effect differs between them.
In Dworkin's first and second essays -- which were both published in 1981 -- he
consistently ignores the possibility that a "person" or "someone"
could be a "she." Indeed, in his first essay, every time a generic
noun is used, the pronoun used is masculine.(124) When Dworkin uses examples
identifying people with names, then Dworkin does comparatively well in using
women's names as well as men's, even if the men's are more common.(125) In
contrast, when Dworkin uses examples identifying people not by name but by
occupation or activity, then the pronouns used are, again, all masculine.(126) This
use indicates that, while women can be subjects of his theory, men predominate,
particularly in relation to activities and occupations in the public sphere.
Dworkin's second essay is much the same. For example, in the first section of
his second essay, Dworkin argues for the use of the auction to distribute goods
and postulates the shipwreck survivors, or immigrants, dividing up all possible
resources on an island via the auction. In the relevant three-and-a-half
pages(127) Dworkin refers to the immigrants or bidders, singular and plural,
only once using a feminine pronoun or possessive.(128) In contrast, Dworkin uses
"they" five times and "he" or "his" 34 (!). Further,
this is not an isolated example: in the section entitled "Labor and
Wages"(129) all of the pronouns and examples used are masculine. In the
section "Underemployment insurance"(130) it is the same until the very
last paragraph, where only here does Dworkin include an example involving a woman.(131)
Moreover, this is the only example in his second essay using a named woman
(which Dworkin admits was not even his own creation(132)), compared with examples
identifying particular men. This is
even worse than his first essay. Indeed, throughout the second essay the players in the game are
predominantly male, even when initially referred to in gender-neutral terms. Generally,
the people forming ambitions,(133) finding preferences,(134) bidding,(135) envying,(136)
gambling,(137) working,(138) with talents(139) and handicaps(140) - even the
auctioneer(141) - are envisaged as being male. Further, the person buying insurance not only appears to be male,
but is married with children and has the responsibility for building a suitable
house for his (apparently dependent) family.(142) Perhaps the most damming example is that the "person"
whom Dworkin considers is "at the center of equality of resources" is
described as male.(143) I suggest that,
in both of these essays, Dworkin has not even tried to be truly gender-neutral(144)
-- at the most, this can be described as only semi-gender-neutrality.
Dworkin's third essay differs slightly from the first two. When discussing
liberty Dworkin is truly neutral, referring to "person", for example,
and not replacing it with a masculine pronoun. When he elaborates on the
auction, however, he reverts back to the use of "he" and
"himself," etc, and the auctioneer continues to be male.(145) In fact,
the only feminine pronouns used in the whole essay are those used to refer to
parties in John Rawls' original position(!).(146) The difference between this essay and the
previous two is that Dworkin excuses himself in his second footnote with the
sentence: "All singular pronouns are intended to represent both female and
male, unless the context otherwise requires."(147) This shows a clear
intention to be viewed as gender-neutral. The issue is thus whether he is truly
or falsely neutral.
In his fourth essay Dworkin is concerned with political equality so his subject-matter
is "citizens." He accordingly refers to his subject- matter in much
more gender-neutral terms. For example, "citizens" can be "him
or her,"(148) particularly those who can vote and participate in the
political process.(149) The only flaw is that when Dworkin is not referring to
citizens in general but to particular persons, he reverts to using solely
masculine pronouns.(150) But, overall, Dworkin clearly envisages voters, and
thus citizens, as being men and women.
As this discussion of Dworkin's language shows, there are very few examples
using women which show precisely how he views women. Of the named women he does
use in examples, only Jill and Deborah provide any indication -- however slight
-- of this. Jill (as is Jack) is said to be "reasonably successful in
[her] chosen occupation,"(151) but Jack and Jill are given very different
dreams and views about their lives: "Jack believes that with all these
resources he could solve the riddle of the universe, which would be the
greatest imaginable achievement for human beings, while Jill believes the
riddle unsolvable, and has no comparable dream in hand."(152) While it is
not definitive, it certainly fits the stereotypical view of men as the thinkers
and the dreamers, the solvers of the larger puzzles of Life, and women as
concerned with the practical, with the
particular problems of day-to-day life.
Deborah is the only woman given a specific occupation. The problem with her
example is that "Deborah is beautiful and could in fact earn at the ninetieth
percentile as a movie star."(153) In contrast, the named men earning an
income in that essay either grow tomatoes or want to be a farmer.(154) This
feeds into the stereotypes of which occupations in the public sphere are more
suitable for men and for women and, further, reinforces the (unfortunately
predominant) view that beauty is a "singular talent"(155) that only
some women have but which, because it is highly valued, all women should strive
for.
While it could be objected that this is too much to infer from such small
examples, whether the examples were chosen because they are illustrative of the
norm or whether these aspects were not deliberately chosen (i.e., they just
popped out'), they still feed into stereotypical views about women that
feminists are trying to change. The
problem for our exercise is that, in feeding into some views about women,
they make one think that Dworkin might also hold other stereotypical views
about women, such as that their functional role in child-bearing and rearing
makes them particularly suited to the private sphere. These example are clearly
not conclusive in themselves, but they can certainly reinforce any other
indications found in Dworkin's essays about the proper roles of women and men
in his philosophy(156).
Taking all of these essays together, it seems that, just from the language that
Dworkin uses, the subject-matter of Dworkin's philosophy differs depending on
the context. In relation to bidding at the auction and subsequently producing
and trading resources, the subject is predominantly male. It is clear just from
the one use cited in his second essay that women can be bidders at the auction
-- and thus, presumably, be subjects of his theory in the real, real world --
but the predominant use of male terms show that this will not be common. In relation
to voting and political power, women are clearly subjects as much as men are,
although it seems that men will predominate in political positions and related activities. Further, it seems that
women in the private sphere are not participating in the resource trading and
producing that is relevant to Dworkin's theory. This indicates that the work
relevant to Dworkin's theory is solely that undertaken in the public sphere. In
other words, it looks as though Dworkin's auction mirrors the present liberal
public sphere, where women can vote on an equal footing with men, but do not
participate in resource and political
activities in the public sphere to as great an extent as men do.
If this is the case then Dworkin's gender-neutrality is a false neutrality. If
Dworkin offers no prescription for change to the present liberal public and
private spheres in accordance with feminist analysis and criticism then he
cannot offer women any liberation from the discrimination they presently face
in the public sphere, let alone the oppression faced by those in the private
sphere. While the language that Dworkin uses indicates that he is not concerned
with oppression faced by women (possibly even oppression which is a result of
resource inequality(157)) it will require a closer look at the substance of his
theory before this conclusion can be
fairly made.
The first substantive issue to address is the choice, in Dworkin's first essay,
of equality of resources over equality of welfare. There cannot be much
argument at a conceptual level against choosing equality of resources over
equality of welfare because it is true that the various conceptions of welfare
that Dworkin examines do presuppose some kind of equality of resources. It thus
makes sense to look first at the concept of equality of resources at a basic
level. Here, I wish merely to point out that it does not mean that we cannot go
back to issues of welfare once the distributional levels are sorted out.
Dworkin's next fundamental step is to assume that, when looking at resources,
the relevant domain of equality is of resources owned privately by individuals,
and that equality of political power and of power over commonly owned resources
are to be treated as separate issues. Such complete and
"arbitrary"(158) separation of public and private power is objected
to by all versions of feminism on the basis that it perpetuates the oppression
of women in the private sphere. Dworkin, in his second essay on equality, leaves open the issue
of what the interrelationship of public and private resources will be when he
has addressed political equality. However, his essay on political equality,
holding that political power is not a resource to be redistributed under his
theory of equality of resources, illustrates his commitment to a system of
separation of public and private spheres, with different rules governing each
sphere.
I suggest that the form of ownership rights to resources is something that must
be debated and justified, not just assumed, and that this will entail the
justification of the rights to use that property and of any limits to those
rights. Only then should questions of allocation arise. In contrast, Dworkin's envisaged system of
private ownership of resources includes the standard 'bundle of rights' that go
with the property. But, as Postema points out, "[a]ny complete theory of
justice must define conditions under which command over resources of the world is justified."(159) Dworkin's assumption
that initial entitlements are to be in private ownership prejudices a finding
that private ownership of the world's resources will be justified by his
theory. This is particularly so when
questions of political power, which will be relevant to community decision-making
over resources, is left outside any such justification. Dworkin, in assuming
that that he even can come up with a theory of a just distribution of resources
when focusing solely on private ownership of such resources ignores the possibility
that other views may produce a different view of property ownership and of the
present public/private property division. For example, a female view of
community and webs of relationships could entail collective decision-making in
respect of resources that were integral to community life. I therefore suggest that Dworkin's assumption
about private property assumes the male view of the world and does not leave
room for other views such as the female view to be considered, let alone be
justified by the demands of justice and equality.
Next, Dworkin chooses the envy test as the measure of equality. [[ Not sure about this paragraph, especially
situated here: While this metric has
the advantage of taking into account the opportunity costs of resources to
other people, its primary disadvantage from a feminist standpoint is that it
does not take into account enough factors. While this inadequacy of the envy
test is due solely to the inadequacy of equality of resources in achieving the
liberation of women, this inadequacy is well illustrated here. The problem is
that feminists do not just complain about (or envy) the resources (including
consumed resources) of men. For example, they also complain about the status
and prestige that men receive from the
public sphere and the devaluation of women in the private sphere; they complain
about the power imbalance that is in men's favour, and the leisure time that
men seem to get so much more of than women (remember, a women's work is never
done). So, where the envy test fails is in its asking the wrong question:
feminists want to transform work and consumption relationships, not just the distribution
of resources, more quitably. The envy test illustrates how equality of
resources may not be able to achieve that by itself. ]] A
difficulty with the use of this test from a female perspective is that it
assumes a male view of the world and of human relationships: it presupposes
that the satisfaction of any one individual's desires is of primary importance.
This limits any role that the interests of the community might play in
constraining the personal interests of individuals. It thus limits the possible imposition of duties
based upon responsibilities to others in the social web (i.e., based upon the female
view of the world) and encourages, instead, a rights-based, competitive view of
societal relations. As this is the basic measure of equality, it is unlikely
that a standard of equality of resources could embody a view that is even a
compromise between the male and female views.
Dworkin's next step encourages this conclusion. Dworkin argues that the use of
the envy test -- which states that no distribution is equal where someone
prefers someone else's bundle to their own -- means that a market device is
needed in order to regulate trades between people's bundles.(160) While Dworkin
recognises that the economic market has "come to be regarded as the enemy
of equality"(161) he nevertheless argues that the market should be central
to his theory. I, however, do not find this argument (for making the market
central to his theory) persuasive.
First, the only reason that Dworkin can assume that a market device is needed
is that he already assumes the existence of autonomous, competing individuals
and that they are competing for private ownership of property. If a different
view of the "competitors" or the "competition" were taken,
a different view of the necessary method of distribution could result.
Second, Dworkin also assumes that trading under the neutral rules of the market
is a fair method of exchange. A major feminist criticism of the market is that
its supposedly neutral rules are not neutral but in fact affect the outcomes
reached by trading under such rules. This is related to the criticism that the
institutional structure that allows a person to bid and make choices not merely
reflects those choices but also affects the person's view of the range of
possible choices and therefore of the outcome of those choices.(162) This
is primarily because of the values that such a structure promotes; this is
related back to the inherently individualistic nature of the bidding and the fact
that the bidding is in relation to privately owned resources, as discussed
above. As feminist scholars point out -- particularly those scholars who have
researched the development of personality -- male and female gender
personalities are constructed rather than inherent in either sex. For
example, the ethic of care shows up most strongly in those who have been taught
to care for, and those who have had the care of, others. They thus come to see
the world in those terms. Those who have been taught to compete in the market,
to advance up the ladder, come to see the world in those terms. The
significance is that these people come to value those things that they are
taught to value and devalue those things that are not integral to their world.
This necessarily restricts their vision of what they might value if their world
were different and therefore limits the possible options for the allocation of
resources. It therefore cannot be said that the market is a neutral device; instead
it's use may affect the resulting distribution.
Dworkin does recognise that his use of the auction does assume "that what
is valuable in life is individual ownership of something rather than more
cooperative enterprises of the community or some group within it."(163) However,
he disagrees that this is an objection to the use of a market device and
instead fobs it off saying that it is really "an objection against the
idea of private ownership over an extensive domain of resources, which is
better considered under the title of political equality."(164) I disagree
with Dworkin's simplistic characterisation of this objection. It is not an objection to private ownership per
se, but an objection to, first, the
assumption that this is the only aspect relevant to a consideration of equality
of resources and, second, to the adoption of a device to achieve equality of
resources which is said to be neutral but in fact only works if certain
assumptions such as private ownership are made and which, moreover, is likely
to predetermine the kinds of distributions that result from its use. Further,
Dworkin never specifically returns to this objection in his essay on political equality.
One would assume that he envisages that his general discussion of political equality has taken
care of it. However, Dworkin is careful to point out that he does not consider
that political power is a resource in the way that privately-owned resources
are and should not be subject to the same metric of equality.(165) This
reinforces the centrality of privately-owned resources and of the market to
Dworkin's theory, without ever justifying either of them. My objection thus
still stands.
This criticism of supposed neutrality of the market is also linked with one of
the criticisms of Dworkin's retreat.(166) Dworkin's retreat is supposed to
provide a neutral zone within which people can reflect upon and determine their
basic life plans, which will enable them to determine what resources they will
bid for at the auction. There are, however, at least three problems with this. As
only one of these criticisms is linked with the market I will discuss it here
and leave the others for discussion below.(167) If those in the retreat know
that the background constraints are those of liberty and other principles fundamental
to liberal philosophy, and if they know that the market is to govern the
bidding for and distribution of resources, then how can the values of the
female view of the world be effectively promoted? Such values would go against some of the rules of the game that
have already been set. Posit someone standing up and attempting to persuade others
that they owed duties of care to each other and that perhaps communities of
bidders could cooperate in bidding for resources that would be important to the
community, small or large. I suggest that it would be laughed at because the
notion of property being owned privately by the highest single bidder -- which
forms the basis of the activity that they are undertaking -- is not consistent
with sharing and caring, nor with collective decisions or with collectively
owned property. I therefore suggest that Dworkin's retreat cannot overcome
objections over the inability of the use of the market to accommodate any views
of the world other than a strictly liberal, male view.
While it could be argued that most of this criticism is attacking liberalism
itself, and not just Dworkin's attempt to create a theory within liberalism, I
suggest that this is too simplistic a defence. Even a liberal theory does not require a market mechanism to
govern the distribution of goods where the aim is to achieve equality of those
resources (as opposed to equality of opportunity, for example). The
advantage of working within liberalism is clearly that such a choice requires less justification than it might
otherwise. But even liberal feminists take issue with, for example, the present
boundaries between the public and private spheres, and between the public and
private categories of resources. What Dworkin's method does is assume the positions
of the relevant boundaries without justifying them. A further problem with such
assumptions common to the present liberal position is that they suggest that
other present assumptions -- such as those in relation to the role of women, or other liberal feminist concerns
-- may simultaneously be being assumed with or entailed by the primary
assumptions. It is for reasons such as these that I suggest that Dworkin's assumptions are objected to by all
versions of feminism.
Returning to the problems inherent with Dworkin's retreat. Both remaining
problems relate to the formation of life plans and preferences. First, As
Postema criticises, it is impossible to decide on life plans without any idea
of what resources will be available to satisfy these plans.(168) I suggest also
that it is impossible to form life plans genuinely independent of the social
structure in which people will live. Even the people in Rawls' original
position were assumed to have an idea of the concept of family and society; such
people were merely ignorant of their position in that society. But, if these
concepts of family and society are already understood then the issue becomes:
which concepts are being understood? Dworkin does not address this
specifically, so we must then ask whether Dworkin is assuming present liberal
conceptions. If that is the case then this will entail the adoption of life
plans and preferences based on such familial and societal conceptions. This will
in turn inhibit the adoption of alternative conceptions of family and society
(e.g., ones which might be argued for by feminists), which will in turn
continue the subjugation of women in
the private sphere.(169)
Second, Dworkin provides that the ideal egalitarian distribution will be determined by hypothesising about the general
distribution of results of an auction "held in our youths," after
which "we had produced, traded and consumed from our immediate
post-auction position ever since."(170) The problem with this is the notion of holding the auction in our "youth."
If Dworkin meant to refer to childhood, there would be a problem with being too
young to fully develop personality -- including talents, ambitions,
preferences, etc. -- at the retreat (unless that retreat lasted throughout
childhood!). Indeed, Dworkin's discussion of handicaps and insurance indicates
that he is instead envisaging that "youth" refers to that stage
at the end of childhood and entry into adulthood (i.e., late adolescence,
which is also referred to as a stage of "youth"): Dworkin comments
that people either born with a handicap or who develop one during childhood
will take it into account when making life plans at the auction.(171) This
clearly has the advantage that it enables ambitions, etc, to be formed and
resources to be traded without the difficulties posed by childhood and
undeveloped personalities. However, this appears to presuppose that the youths
in question have been reared to the point at which they are mature enough to
make the transition from childhood to adulthood -- when they will be mature
enough to form life plans and to bid in the auction. I suggest that this
transition to adulthood looks suspiciously like it will also be like the
present transition from the private to the public sphere. It also looks as though Dworkin is envisaging
that children will be reared in families as we know them, particularly as he
does not indicate anything to the contrary. This necessarily falls foul of
feminist criticisms that the present, private familial structures should be modified
in order to end the oppression of women within them and that the distinction
between the public and private spheres needs to be modified and/or broken
down. Further, it suggests (or is at least most consistent with) that only
those in the public sphere are able to bid at the auction
The fundamental egalitarian principle that Dworkin places at the foundation of
his theory is also subject to feminist criticism. While there is no problem
with the principle in the ideal world, where everyone starts at an equal
position, this is not the case in the real real world. Instead, everyone in the
real real world is unequal and the aim is to move toward where they would
be if everyone had at least started as equals. Where there are groups of
people, such as women, who are oppressed by others then it is reasonable to
suggest that the government should pay more attention to the oppressed in order
to eliminate their oppression (for example, through affirmative action programs).
Further, feminists in particular argue that "those it governs" must
truly mean everyone in society -- for example, that it should include women and
children in the private sphere and not just voters in the public sphere. Only
this can ensure that parents with the responsibility for others will get
the attention necessary to eliminate subjugation. For example, if a solo
mother of four children is given the same amount of government support as a
childless man or woman, this does not show equal concern for the life of the
mother and the man, let alone for those of the children. This is linked to the
feminist concern with the definition of equality as sameness instead of a more
realistic sense of equality across difference: people cannot be treated exactly
the same if they are in fact in fundamentally different positions.(172) In sum, the feminist concern with Dworkin's
fundamental egalitarian principle is in its application to the real real world.
Because of the concern, it is problematic as a base for Dworkin's theory of
equality.
The other liberties that Dworkin assumes in his theory are also problematic. The liberties that Dworkin
arrives at as fundamental -- those that flow from equality in private ownership
-- are said to include such things as freedom of religion and of expression. Further,
Dworkin stresses in his essay on liberty that the liberties at the baseline of
equality of resources means that "[e]quality of resources is...an
inherently liberal conception of equality."(173) While the aim of that
essay is to identify the place of liberty within equality, it also shows how
traditionally liberal Dworkin's interpretation of that liberty -- including
fundamental freedoms that constitute part of that liberty -- is. This is problematic for liberal feminists who
argue that some such freedoms -- most notably, the freedom of expression, including
"access to the widest available literature and other forms of art"(174) -- as currently interpreted
and applied, perpetuate the oppression of women.(175) Dworkin does not even
consider any such drawbacks with his traditional interpretation and instead
puts such liberties at the baseline of his theory.(176) If these are at the
base of the theory, it does not seem that they can be challenged from within the
theory. Thus, from the concept of "equality in private ownership" flows
the continued oppression of women, the worst aspect being its assumption and
not its justification. This amounts to more evidence that Dworkin really
assumes a comparatively traditional liberal view of his ideal society and does
not envisage any fundamental changes to that structure.(177)
The principle of neutrality on morality that Dworkin imposes on the auction --
the principle that no-one can impose on others a moral baseline that also
imposes costs on those others -- is an important restriction. Feminists argue
for precisely that, and argue for the correction of the
"externalities" imposed by others' morals. However, I suggest that
Dworkin's theory can only be made consistent with this principle if a
restrictive interpretation is placed on its scope. It is inconsistent to posit
both that the present liberal forms of society and family will exist and that
there must be neutrality among moral baselines: present society imposes costs
on women who play roles within present families in the private sphere. Thus,
either Dworkin must allow an overhaul of present familial and societal
structures or he must restrict the principle of neutrality to operation where
it is not inconsistent with such liberal structures. The problem with arguing that
Dworkin allows for an overhaul is that there is no other evidence of this. This
absence is particularly conspicuous because it would be such an important,
fundamental change to the real real world that one would expect it to be
addressed. Further, there are many other aspects of his theory that indicate an
assumption of the present liberal structures. I therefore suggest that the
latter interpretation is, unfortunately, the more consistent with his theory
and thus the more likely.
The rule against the operation of prejudice at the auction is subject to the
same kinds of comments. If the rule was interpreted in line with feminist
analyses, it could eliminate the operation of prejudice against women. But this
would again entail a change that goes against liberal premises; if that was
intended, one would think that it would be addressed. Further, this
interpretation is also inconsistent with other elements of Dworkin's theory. I
therefore suggest that it is more likely that Dworkin envisages that the
principle should be interpreted more in line with the typical liberal concern
with prejudice; this, as a rule, is not interpreted to include the relegation
of women to the private sphere or the devaluation of work done by those in the
private sphere.
In relation to the implementation of Dworkin's ideal egalitarian distribution
(or at least the defensible egalitarian distribution) in the real real world,
Dworkin's primary concern is how far freedom can be compromised in the name of
reducing inequality. There are three problems with this. First, feminists --
including liberal feminists -- may not see this as the primary problem with
implementation. While liberal feminists are concerned about equality of
opportunity and the freedom to take opportunities, they see that the primary problem
for most women is the lack of real opportunity, due to relegation to the private
sphere. Thus the idea of freedom and liberty to exploit opportunities means
something different to feminists: not a freedom from government interference
but freedom from oppression in order to enable them to have the opportunities
to exploit. This generally requires not freedom from government interference
but from non-interference in their oppression.
A second way that feminists reject this freedom/equality dichotomy is by disagreeing
that the implementation of the ideal distribution as a fight between freedom
and equality and arguing that it is instead a fight between freedom for some
(women) and freedom for others (men). Under a feminist interpretation of
Dworkin's argument, the reduction of freedom for men to oppress women --
especially in the private sphere -- would be perfectly legitimate as it would
not take such men below the level of liberty that they would enjoy under the
most plausible DED (as envisaged by feminists). But, this is only if the
liberation of women from subjugation in the private sphere is a goal of
Dworkin's ideal distribution, and is thus included in the DED. As I have
suggested, it seems that Dworkin assumes the existence of liberal societal and familial
structures. Therefore, liberation of women from subjugation in the private
sphere would not appear to be a specific goal of Dworkin's. If so, then a reduction in the liberty of men
(to subjugate women in the private sphere) would not be justified because their
DED level of that type of liberty would remain comparatively high (i.e.,
compared to what the level of that liberty would be if a feminist agenda were
pursued), leaving them free to continue to oppress women..
The third difficulty is that Dworkin specifically notes that what we currently
label as fundamental freedoms will not be violated even under his proposed
changes. The problem with this is that the feminist agendas all challenge
present assumptions about what are currently thought of as fundamental
freedoms. For example, freedom of expression: while it is currently thought of as a fundamental freedom,
feminists argue for a revision of its interpretation and application (the
extent of revision varying with the version of feminism). Such a revision does not
seem to be envisaged by Dworkin, which suggests that his theory does not seem
to be aimed at the goal of providing real equality between men and women.
A further aspect of Dworkin's theory that bears out this suggestion is his concept of insurance against possible bad
luck in not earning an income of a certain level. In this part of his theory
Dworkin fails to address the consequences of being one sex or the other and
thus fails to address the goal of equality between women and men. While Dworkin
also does not address this in other parts of his theory, the failing is of
greater consequence here.
In the feminist vision, an ideal society would not 'penalise' women for having
children. In the present, liberal society women are so penalised because
bearing children has entailed rearing them, which typically entails removal
from or reduction in participation in the public sphere; this is a penalty
because such public participation is valued more highly (especially in terms of
awards of resources) than participation in the private sphere. How does this fit in with insurance? Dworkin's
insurance scheme is relevant because it indicates how child-bearing and
rearing will be treated in Dworkin's egalitarian society.
Dworkin establishes his insurance scheme in two stages. First, he posits
insurance against having a handicap or not having a talent, where people do not
know what handicaps or talents they may have in life. Second, he posits a situation where people do
know what disabilities and talents they have, so the insurance becomes
insurance against not earning a certain level of income -- again, where the
insureds genuinely have no idea of their future level. The average amounts of
insurance taken out would form the basis of a tax-and-redistribution program.
It is clear from Dworkin's discussion that those people taking out insurance
will be in the business of at least attempting to earn a living in the future. The
difficulty with his scheme is that it does not address or easily accommodate
the particular role of women as child-bearers (and, in this society,
child-rearers). In relation to the first stage of Dworkin's discussion of
insurance (where people do not know what handicaps or talents they may have) he stresses that, even if
it is "contrary to fact,"(178) the odds of having or developing a
particular handicap must be equal. But
it is clear that the odds of bearing children (i.e., of becoming pregnant) are
not distributed equally among members of society. Moreover, it is a condition
that cannot even be treated as equally distributed for the purposes of
Dworkin's insurance scheme. When odds are not equal, Dworkin uses the device of
assuming equal odds only where handicaps "are not randomly distributed
through the population, but follow genetic tracks."(179) However, the odds
of bearing children is not a genetically linked trait, even if it the odds
are dependent on the fact of one's genetic makeup (i.e., that one is a woman). In
fact, it seems that the only way for women to be compensated for the handicap
that pregnancy causes to their activity in the public sphere is for the simple
ability to bear children to be regarded as the handicap, whether one actually
bears children or not. This ability is clearly randomly distributed as it is
determined by whether one is a man or a woman. But the difficulty with this
interpretation is that all women would thus be entitled to compensation just for
being women, rather than for child-bearing and rearing. This is neither in the spirit
of Dworkin's insurance scheme nor is it something that feminists argue for. I
therefore suggest that the bearing and initial rearing of children cannot be
treated as a handicap under Dworkin's scheme.(180)
A positive way to view not treating pregnancy as a handicap is that it would
not be allowed to become a handicap. This can only entail the introduction of
extra measures to accommodate pregnancy so that the woman in question is not
disadvantaged by reason of being pregnant (nor of having to raise children for
the initial period). According to liberal feminists, such measures would
include paid maternity leave, child care and measures related to work and
career prospects in the public sphere. However, Dworkin's chosen method for
altering such positions is via the redistribution of resources, which is
calculated solely using the insurance mechanism. If pregnancy cannot be
considered a handicap for the purposes of insurance because the odds of
developing it are not equal, then it cannot be compensated for using this mechanism.(181)
Such measures therefore could not be
implemented to prevent pregnancy and early child-rearing from becoming a handicap,
especially to those women wanting to participate in the public sphere.
Another advantage of not labelling the bearing and rearing of children as a
handicap is the stigma that it would otherwise attach to these activities: it
devalues pregnancy (and attendant child-rearing) by labelling it as a negative
feature requiring special measures as compensation, putting it on a par with
conditions "such as blindness or the loss of a limb."(182) Feminists
would clearly prefer to instead label the bearing and initial rearing of
children as a positive talent. But the problem with considering this as a
talent under Dworkin's theory is that those who have the talent would be
subject to the talent tax "to neutralize the effects of different
talents."(183) This would reduce the resources of women and further
subjugate them in the private sphere.(184)
This discussion illustrates how pregnancy does not fit easily into the first
stage of Dworkin's insurance scheme. I suggest that Dworkin simply hasn't
considered how to treat pregnancy because, if it had been considered, it surely
would have been mentioned -- if half of the bidders are women then an example that pertains to so many bidders
would be a desirable illustration or
clarification to provide.
Even though Dworkin has not considered it, how is pregnancy likely to be treated
in Dworkin's scheme? As I have already indicated, its absence from the
discussion, coupled with the discussion above, indicates that Dworkin considers
that pregnancy does not fit within his insurance scheme. If so, this is further
evidence that he must be treating it as irrelevant to the sphere of earning and
trading resources (etc) after the auction. This reinforces the implication
that, when Dworkin refers to "Labor and Wage,"(185) he is only
referring to that labour which produces resources for consumption and/or trade
in the public sphere and the
resulting wage which will be subject to taxation. This must in turn mean that
he is assuming that such resource activities are undertaken in a completely
different sphere from child-bearing and early rearing, which in turn supports
my suggestions that Dworkin is assuming that the public and private spheres are
to remain separate with essentially the same functions as liberalism currently
assigns them.
A reason why pregnancy would not fit within Dworkin's insurance scheme is also
provided by the second stage of his discussion of insurance. The difficulty with this stage is that,
again, bidders are clearly aware of their sex, while Dworkin again stipulates
that the chances of earning a particular income are equal for all bidders. This
means that either pregnancy can have no effect on income or it will affect
earning capacity and is exempted from the insurance -- or
tax-and-redistribution -- scheme because it is sex-specific.
The former would entail huge changes to the way society functions in order to eliminate the negative effect of
child-bearing on women (and any necessary initial period of child-rearing that
women must undertake, such as for breastfeeding). Such changes would entail at
least a softening of the enforced barriers between the public and private
spheres, as feminists currently argue for. However, I suggest at least that
this was not intended by Dworkin. As my discussion of Dworkin's first stage of
the insurance argument has shown, Dworkin appears to be assuming that the
present divisions between the two spheres would continue to operate; if they
were to miraculously disappear at the second stage of his argument one
would expect that he would have addressed that. This is particularly so when
Dworkin spends so much time and detailed argument on other comparatively minor
points; surely he would have explicitly argued for -- or at least addressed --
a change such as this.
It seems more plausible, because it is consistent with other aspects of this
theory, that Dworkin is envisaging that resource trading will take place in the
liberal public sphere, where pregnancy and child-rearing will considerably
affect one's income-earning ability (as it does today). But, because this
income-earning disability is sex-specific (making the odds of having it
uneven), it would not be subject to Dworkin's insurance scheme. The unfortunate
result is that pregnant and child-rearing women would not be entitled to
redistributed resources in their time of low-income. This, funnily enough,
looks very similar to the present liberal society, where the solution to such
problems is seen as entailing the pregnant woman's placement in the private
sphere -- even if she was previously working in the public sphere -- and her dependence
on an income-earner who remains in the public sphere and who is not subject to
the same problem.(186) This then starts
the cycle of dependence that typically involves the woman remaining in the
private sphere and continuing to care
for the child(ren) after any necessary minimum period because of the disruption
to her earning-ability that that time off has caused and the disruption that a
period in the private sphere would cause to the supporting man's earning
ability. This is exactly the result that feminists decry but,
unfortunately, this is the result most consistent with Dworkin's stated theory,
as well as with the conclusions that I have reached in respect of other aspects
of this theory.
A partial solution proposed by liberal feminists is the elimination of the
disruption to earning-ability caused by child-rearing (after the initial
period) for either parent, so that both could participate in the public
sphere.(187) This would more clearly separate the sex-specific aspects of
child-bearing and rearing from the non-sex-specific ones. The non-sex-specific ones could indeed be
compensated for under Dworkin's redistribution scheme, because the odds of
developing the need for compensation would be even. However, the problem with
this is that, again, it is a major change that Dworkin has not addressed. His
omission in this matter is even more serious than for pregnancy and early
child-rearing because it is an example that is likely to apply to most bidders
-- men and women -- so its inclusion would be even more relevant to his theory.
Further, it would entail even more major changes to the structure of society by
further breaking down the barriers between the public and private spheres,
making it even more necessary to include discussion and/or justification for
such changes in Dworkin's work.
In sum, I suggest that Dworkin's (non-) accommodation of child-bearing and
rearing within his theory supports the view of women indicated by the language
he uses. That is, I suggest that Dworkin views women as largely inhabiting the
private sphere to bear and rear children and only inhabiting the public sphere
when such demands either do not exist or can otherwise be accommodated.
The final basic aspect of Dworkin's theory that I want to address is that concerning political resources. There is
one aspect of this theory which feminists would agree with: the concern with
achieving substantive goals rather than
mere concern with process.(188) However, the difficulty that Dworkin's theory
raises is that his substantive results may differ from those on feminist agendas.
If Dworkin's substantive results include continuing the present relationships
between public and private spheres and those people who inhabit them, then
feminists will not want any form of democracy that best produces those
results.
Dworkin's proposition that politics is a matter of responsibility, not another
resource to be divided equally receives mixed responses from a feminist
perspective. On the positive side, a female perspective would agree that
politics is a matter of responsibility: decisions are made on behalf of others
in the attempt to lead the community to a substantive result -- it is all about
care and concern for others. On the other hand, there are problems with not
viewing it as a resource subject to equality (which in turn is dependent on
viewing resources as solely subject to private ownership(189)). While
feminists would agree that political powers should not be seen as a private
resource, it is still a present feminist concern that political power be seen as
a public resource such that men and women as a class have equal power. It is
true that simply adding more women to an existing (male) structure will not
necessarily produce the substantive results feminists want. It is also true
that equality if political power is most easily measured by counting the (private) male and female heads
that hold power. However, if it is not seen as something to which equality even
applies in the transition to the ideal world, women are less likely to achieve participation
or representation and are thus even less likely to achieve the political will
necessary to achieve the substantive results necessary to end their
subjugation.
It is interesting to note that Dworkin specifically refers to the inequality of
women and men in his discussion of political equality.(190) But the interesting thing is not just his acknowledgment
of the lack of power of women in society, but his suggestion that equality of
political power should not be our goal. Instead, he suggests that the removal of "economic, social
and cultural discrimination against women" is the only appropriate goal; if
the average political power of men and women is still unequal in a society which
has removed such discrimination, that does not "count as a defect in social organization."(191)
Dworkin may be correct in suggesting that lack of political power is a result
of "other, independently unjust features of our economic or political or
social organisation."(192) However, while it sounds good, feminists are
suspicious of any claims that they may, as a class, legitimately have less
political power than men, as a class, even though all discrimination against
women has been removed. My reaction is to question what interpretation of
"discrimination" is being used. If it is being used in the
traditional liberal way to refer to discrimination against women
participating in the public sphere on an equal footing with men, while that will satisfy many
liberal feminists' concerns it will not necessarily satisfy all of them. For
example, it does not address the position of those women who choose to work in
the private sphere and, without that, it makes true equality in the public
sphere extremely hard to achieve. But, more importantly, it means that women as
a class are still subject to discrimination through the devaluation of the
private sphere in comparison with the public. Thus, while a liberal could argue
that all discrimination had been removed, another person could argue that much still remained,
and no-one would be able to agree
on whether any existing inequality in political power was problematic or
not. So, while I agree that Dworkin's
suggestion sounds logically possible in an ideal world, I doubt that it is empirically
so in the less-than-ideal real world. For that reason, equality of political power remains a present goal of
feminists. If that entails viewing political power as a resource, perhaps it
can be viewed as a public resource and its division be circumscribed by
considerations of responsibility. If this cannot be achieved under Dworkin's theory
then here, too, it falls short of feminist goals.
CONCLUSION [tentative only; will be
expanded]
In Part I of this paper I outlined some common feminist criticisms of liberal
philosophies, both their methodology and substance. I have tried to analyse the
many different aspects of Dworkin's theory of equality to see if they meet
these feminist concerns. On many points, Dworkin is simply not clear. I have
thus had to make a large number of inferences from what he does say. Many of
the conclusions that I have come to on the different aspects are merely that
they "indicate" that Dworkin's theory falls foul of most -- if not
all -- of the criticisms outlined in Part I. While, in many cases, the
indication that I perceived would not
be enough on its own to produce an adverse judgment about Dworkin's theory, together they add up to a picture of a
theory that is not even trying to address -- let alone rectify -- the
subjection of women.(193)
The experience of women does not drive Dworkin's theory from the bottom up, nor does he take as a goal of his theory
(from the top down) even the improvement of the position of women -- let alone
their equality -- vis a vis men. The perspective from which Dworkin's theory is
developed is not neutral or objective but, in reality, from the perspective of male
dominance. All is known about the bidders except their resource holdings, where
these bidders are both the subject-matter of Dworkin's theory and the
perspective from which equality is derived. But the fact that the bidders are
aware of their sex is not as serious as either the assumptions that are made
about the structure of family and society after the initial auction or the
limited class of who is entitled to bid.
My conclusions derived from examining the various aspects of Dworkin's theory
bear out my initial findings based solely on the language that Dworkin uses. They
show that the kind of society that Dworkin is assuming will exist is the
present liberal society that is divided into a public and a private sphere. The
public sphere is where political and resource activities will take place; the
private is where family life -- including child-rearing -- will be situated. Those
undertaking political or resource
activities in the public sphere will be predominantly male. It is clear that
women can participate in the public sphere -- they are certainly not prohibited
-- but they will not be as numerous as
men. This is primarily because a large proportion of women will retire to the
private sphere to undertake the familial and child-rearing activities. While
they will be able to vote as citizens, they will not be undertaking resource or
political activities (other than consumption). The auction itself appears to be
situated in the public sphere. If this is so then presumably only those
participating in the public sphere will be entitled to bid for resources --
either on their own behalf or on behalf of their family.
While it initially looked as though some aspects of Dworkin's theory could,
separately, provide hope for some optimism about the treatment of women, a
closer look has not born that out. Not only would equality of resources not
liberate women from all forms of oppression that they face, but it seems that
not all women are even entitled to equality of resources. Thus, not only are
women not liberated by the liberal assumptions that appear to be made by
Dworkin, but they continue to be subjugated in the positions they are in.
It is possible that I am being too harsh on Dworkin. For example, he never
actually says that families and women in the private sphere are represented by
just one person at the auction. But, first, Dworkin assumes such a large number
of other liberal premises that, without other indications to the contrary, it
seems logical that this flows with the adoption of the others. Second, if women
do get to bid, it can't stop there. Equality of resources is measured over time
and after resource production and trading. If all women are in the same sphere
at the beginning, would they continue
to be so? If so, why are matters such as pregnancy and child-rearing not
addressed as handicaps or talents? While this may sound weak, it is so
consistent with what Dworkin does discuss that it is hard to discard my
conclusions.
Therefore, not only does Dworkin not provide the hope that, for example, Okin suggests
that Rawls' theory could provide for feminists, it provides us with dismay. While
society needs its philosophers, women don't need another one who philosophises
on equality while ignoring the very real inequalities suffered by women. If the
dominance of women is obscured, and their disadvantages ignored, how can they
be overcome? Without equality for
women, how can we expect to achieve equality across society, whether it is of
resources or of anything else?
NOTES
(1) The class referred to was entitled Contemporary Readings in Political
Philosophy and was included in the 1990 Fall semester course offerings at Yale
Law School. The class was taught by Jules L. Coleman, John A. Garver Professor
of Jurisprudence, and analysed and compared the theories of equality propounded
by Ronald Dworkin, Richard Arneson, Gerald Postema, and Martya Sen.
(2) Dworkin, "What is Equality? Part 1: Equality of Welfare" 10
(1981) Philosophy and Public Affairs 185; "What is Equality? Part 2: Equality of Resources" 10
(1981) Philosophy and Public Affairs 283; "What is Equality? Part 3: The
Place of Liberty" 73 (1987) Iowa Law Review 1; and "What is Equality?
Part 4: Political Equality" 22 (1987) U. of San Francisco Law Review 1. Hereinafter
referred to as Part 1, Part 2, Part 3, and Part 4, respectively.
(3) For example, G.J. Postema's criticism of Dworkin's Part 3 in Liberty in
Equality's Empire 73 (1987) Iowa L.R. 54 and Peter Shane's Compulsory Education and the Tension Between Liberty and
Equality: A Comment on Dworkin 73 (1987) Iowa L.R. 97.
(4) Liberal political theory has various elements at its core. Primary is its
commitment to individual autonomy and a conception that the role of the state
is to protect that autonomy. Central is also a conception of neutrality; that
is, that the state does not make judgements about the kind of life that people
should lead. Equality and individual rights are also central to maintaining
this scheme; such individual rights help individuals pursue their own life
plans without interference from others.
(5) There is not just one feminist perspective but several. For example, Alison
Jaggar classifies different views into four or five general categories of
feminist theory, each with a different perspective. See infra n. I try to draw from more than one, identifying which
perspective I am adopting, wherever possible.
(6) Catharine MacKinnon refers to this as the male epistemological stance which
does not comprehend its own perspectivity. Catharine A. MacKinnon, Toward a
Feminist Theory of the State (1989), 121-122.
(7) Related to this are the distinctions between reason and emotion, matters abstract and concrete, objective and
subjective, universal and particular, and public and private. In all of these
dichotomies the former is associated with the male and the latter with the
female, with the former being considered superior to the latter. Feminists have examined these categories and
criticised the distinctions as not being in accordance with women's experience
or attitudes toward the world. (For
example, see G Lloyd, The Man of Reason: "Male and "Female" in Western
Philosophy(Minneapolis, University of Minnesota Press, 1984). G Lloyd
argues that the concept of reason has been made entirely from the male point of view.) In this respect,
feminists consider that such ontological and epistemological issues are not separable either
from each other or from political or
moral issues.
(8) For a discussion of feminist method, including the importance of consciousness-raising
in order to discover the shared experiences of women, see Mackinnon, supra note
6, chap's 5, 6.
(9) Note that this envisages both a different method of deducing the principles
and theories and a different resulting content of those principles and
theories.
(10) "Objective or unbiased value judgments are those that would be made
by an individual who was impartial in the sense of giving no special weight to
her own or to any other special interests." Alison M Jaggar, Feminist
Politics and Human Nature (1983), 357.
(11) Idem. Examples of modern philosophers who use this method include John Rawls (the veil of ignorance) and Bruce
Ackerman (the neutral dialogue).
(12) My reference to "versions of feminism" adopts Alison Jaggar's phrase
to refer to the fact that feminism is not monolithic and that different
feminist views occur among the different"versions". The most common
categories discussed are liberal feminism, marxist feminism, radical feminism,
and socialist feminism. An additional category becoming more commonly discussed
separately is that of feminists of colour. For the basic exposition of these different versions, see
A. Jaggar & P. Rothenberg, Feminist Frameworks (2 ed., 1984). For an in
depth analysis of their views that are relevant to political theory, see
Jaggar, supra n .
(13) See, e.g., id at 377-389.
(14) Jaggar, at 358.
(15) Jaggar calls the standpoint of women the standpoint from "women's
true interests." Id, at 384.
(16) Jaggar, at 36.
(17) Okin, Women in Western Political Thought (1979)
(18) E.g., Plato, Aristotle, Rousseau.
(19) See, e.g., Jaggar, supra n, 36
(20) Although Jaggar comments that, even today, liberal feminists still have to
argue that any differences between men's and women's achievements in the public sphere are a result of education and experience
rather than some inherent inability on the part of women to participate as well
and as fully in the public sphere as men. Ibid, 37
(21) See Okin, supra n, especially Chap. 10. See generally, Okin, infra n [+1].
(22) See, e.g., Okin, Justice, Gender and the Family (1989).
(23) See, generally, Jaggar, supra n & n.
(24) Jaggar argues that the only rewards that liberalism considers relevant are
the accumulation of wealth and social prestige. Jaggar, supra note , at .
(25) Examples of measures that will help ensure equality of opportunity for
women include pregnancy and maternity leave, affirmative action policies,
anti-poverty programmes, and women's shelters. See, e.g., Jaggar, supra n, (at
approx 180 of Fem Politics & H.Nat))
(26) See Jaggar, supra note , at 185-203 for a detailed criticism of the
liberal feminist position.
(27) For some of these criticisms, see Jaggar, supra note , at 40-48. See, generally, Jaggar, supra n & n. For
more detailed criticisms, particularly that individualism, and therefore
liberalism, is internally inconsistent and/or incoherent, see, e.g., V. Held,
"Non-Contractual Society: A Feminist View" , Science, Morality, and
Feminist Theory (University of Calgary Press, Canada, 1987) 111, at 129
(suggests how the values of the family could replace the notion of thecontract
as providing a theoretical base for societal relations); EH Wolgast, Equality
and the Rights of Women (Cornell University Press, London, 1980); F. Olsen,
"Statutory Rape: A Feminist Critique of Rights Analysis" (1984) 63 Texas
L.R. 387, C. Pateman, The Sexual Contract (Stanford University Press,
California, 1988).
(28) For example, the viewpoints of Marxist feminism, radical feminism and
socialist feminist, as described in Jaggar)
(29) For example, D. Dinnerstein, The Mermaid and the Minotaur (Harper & Row, New York, 1976); N Chodorow, The
Reproduction of Mothering (University of
California, Berkeley, 1978); C Gilligan, In a Different Voice (Harvard
University Press, Cambridge, Mass., 1982).
(30) Boys tend to be competitive and to abstract relationships, while girls
play more cooperatively, fostering relationships and empathy for others. Gilligan
comments that "men's social orientation is positional, while women's is
personal." Gilligan, supra n. [-1], at 16. With respect to interpersonal
relationships Gilligan comments that intimacy generally threatens males (the
possible loss of their separate, individual identity) while it reassures
females. Competition threatens females (the possible isolation and/or loss of
personal connection) but reassures
males. C. Gilligan, "Why Should a Woman Be More Like A Man?" June 1982
Psychology Today, 68, at 70-71.
(31)
(32) The girls' way of looking at the world is what Gilligan calls the "different
voice;" that is, it is different from the previously received way of looking at the world, different from
the dominant paradigm.
(33) They have found that men used abstraction and free-standing logic with,
above all, a focus on principles of justice, while women tended instead to
focus on individual circumstances and actual situations, particularly
considerations of empathy and care, rather than general principles such as justice and rights.
(34) These modes of thinking and reasoning have been described as
"male" and "female". This is primarily because each is used
predominantly by one sex. However, it must be stressed that some members of
each sex may not use what is considered to be 'their' mode of thinking, and
that all people use both methods, at least occasionally. Thus, while I shall refer
to them as "male" and "female" modes of thinking, this is
because they are stereotypically male or female; it does not imply that any one
person will think a particular way simply because he or she is of a particular
sex.
(35) See, e.g., L. Kohlberg, The Philosophy of Moral Development (1981). Kohlberg developed a scale of moral
development which begins with a focus on individual needs, moving to a focus on
rules of obedience for public order and
for approval, based on social norms, and finally to the focus on principles
mentioned above. Kohlberg argued that all human beings move from one stage to
the next, although not all people (particularly women) reach the final stage.
(36) As K. Karst puts it, "law is predominantly a system of the ladder, by the ladder and for the ladder." K.
Karst, "Woman's Constitution", 1984 Duke L. J. 447, at 461.
(37) One problem with rights in liberal theory is that they do not solve the
problem of deciding what values should be given priority in any given
situation. In theory, liberty is given priority, but it does not specify whose
liberty. In practice, rights analysis ignores the disparity of power between
men and women and "liberty" has come to mean the liberty of men to
compete on the ladder (in the market) and has suppressed the liberty of women. For
example, as Catharine MacKinnon has put it, the zone of privacy which is
protected by individual rights and restricts public intrusion into our
private lives perpetuates women's oppression; the "right of privacy is a
right of men 'to be let alone' to oppress women one at a time." C.
MacKinnon, Feminism Unmodified (1987) at 32.
(38) It is also commonly referred to today as the market approach.
(39) I suggest, too, that these findings are relevant to the philosophical
quest. Philosophers have focused on justice and equality because they have been
thought to be the most important things to study -- the pinnacle of human
reasoning about the world. If, as studies such as Gilligan's show,
considerations of abstract justice and equality are not in fact what a lot of
people believe to be central to their lives and to their moral reasoning about
the world, then that calls into question the validity of the traditional
philosophical focus of inquiry.
(40) Okin, supra n, 10-13
(41) Dale Spender's phrase.
(42) Okin, supra n, 11.
(43) Note that Dworkin does not, in these essays, specifically argue that his
version of equality equates with justice. However, I suggest that these two
supposedly separate questions are so closely tied together that his theory of
equality cannot be assessed completely independently from considerations of
justice. One reason I say this is because of the ultimate welfarist end of
redistribution of resources; this
project is undertaken in the name of justice. Another is that Dworkin's belief
in equality as the central value within liberalism means that any liberal theory of justice is
extremely likely to be based on a commitment to equality; moreover, this also
means that his theory of justice is likely to be based on his own definition of
equality.
(44) Part 1, supra, n. 2.
(45)
(46) Id, at 283. Dworkin leaves the issue of equality of political power,
including power over publicly-owned resources for his fourth essay.
(47) Id, at 283.
(48) Id, at
(49) Id, at 286.
(50) Id, at 287.
(51) Id, at 290.
(52) The kinds of things that Dworkin considers as insurable handicaps include
"general handicaps such as blindness or the loss of a limb" (id, 299)
and mental incompetence (id, 300), as well as "more specialized"
catastrophes, "like the insurance of musicians against damage to their hands,
and so forth" (id, 299). A person may be born with such a handicap or they
may suffer "some catastrophe" or develop them later in life (id, 297-300) .
(53) Id, at 297.
(54) Idem. Dworkin effectively treats handicaps as negative resources.
(55) Id, at 298.
(56) Idem. Dworkin admits problems in fixing the actual amount. For example,
premiums bought would be affected by the kind of life that someone wanted to
lead. But, he argues, particular problems in implementation do not make the
idea of compensating handicapped people undesirable; it is still more desirable
that the alternatives in that it is "aiming in the direction of the
theoretical solution most congenial to equality of resources." Id. at 299.
(57) Id, at 304.
(58) It, at 306.
(59) Ibid.
(60) Id, at 312. Dworkin differs from many other liberal philosophers in this
respect ( , for example) who consider that people should be able to benefit
from the application of their talents.
(61) Ibid.
(62) Id, at 315.
(63) Id, at 316.
(64) Ibid.
(65) Id, at 317.
(66) For the method of this translation see id, at 324-326.
(67) Id, at 337. For Dworkin's discussion of Robert Nozick's theory see id, at
336-338.
(68) Id, at 339. For Dworkin's discussion of Rawls' theory see id, at 338-345. Note
that Dworkin has argued elsewhere that Rawls' device of the original position
cannot be taken as the starting point for a political philosophy but must in
turn be justified by a deeper theory. Dworkin suggests that only an adequate interpretation of equality
of resources can properly support it.
(69) Dworkin states: "my arguments have been designed to permit people as
much knowledge as it is possible to allow them without defeating the purpose of
the exercise entirely. In particular, they allow people enough self-knowledge,
as individuals, to keep relatively intact their sense of their own personality,
and especially their theory of what is valuable in life, whereas it is central
to the original position that this is exactly the knowledge people lack." Part
2, supra n, 345.
(70) Supra n.
(71) Note that Dworkin is concerned in this essay with a negative conception of
liberty: freedom from government interference in people's lives.
(72) Supra n , at 3-5 for Dworkin's examples of supposed conflict.
(73) Id, at 12. Note also Dworkin's motivation for his attempt to reconcile lib
and equality: "We must try to reconcile lib and equality, if we care for
lib, because any genuine conflict between the two is a contest lib must
lose." Id, at 13.
(74) Id, at 7-8.
(75) Id, at 7.
(76)
(77) Id, at 21.
(78) Id, at 23.
(79) To illustrate what he means by this Dworkin gives the example of the
purchase of land:
(80) Id, at 27.
(81) Id, at 28.
(82) Id, at 29.
(83) Id, at 29-31.
(84) Note that Dworkin recognises that different versions of neutrality will
meet different theories of equality. Id, at 30.
(85) Id, at 31.
(86) Ibid.
(87) An example Dworkin gives of an externality that would require correction
is pollution of resources by someone who does not own those resources. Dworkin
suggests that the auctioneer could use tort law to make pollution an actionable
nuisance and thereby make the cost of the relevant resource higher, to reflect
its true opportunity costs. Id, at
(88) Id, at 32.
(89) Id, at 32-33.
(90) For example, "a proper liberty/constraint baseline cannot make any behaviour
a crime on the ground that it offends shared or conventional morality." Id, at 33-34.
(91) Id, at 34-35.
(92) Id, at 35.
(93) Id, at 36.
(94) Id, at 35.
(95) I.e., "to form, reflect on or advocate convictions, attachments or preferences." Id, at 36.
(96) Id, at 35. See also id, at p. 35, n. 32.
(97) See supra, n [-5]
(98) Id, at .
(99) Id, at 37. Note it is not clear whether Dworkin means that bidders must
stay independent of each other and not organise together on the basis of
prejudice or that bids must by independent from bidders' prejudices. While the
intended effect of the principle is clear, so will suffice for now, this
difference is addressed below.
(100) Id, at 38.
(101) Id, at 38.
(102) Id, at 46.
(103) Id, at 43.
(104) Id, at 46.
(105) Id, at 47.
(106) Id, at .
(107) Postema, at 56.
(108) Dworkin, supra n , at 2.
(109) Idem.
(110) Dworkin takes it as "self evident that a society committed to equal
concern must be a democracy rather than, for example, a monarchy or
dictatorship or oligarchy." Id, at 4.
(111) Id, at 3. Note that on this view, Dworkin rejects the proposition that
judicial review of legislative action is necessarily undemocratic. On the contrary; if it is run according to
the principles Dworkin sets out, it is an improvement in democracy. See id, at
28-30.
(112) Id, 23. Dworkin comments:
"These requirements leave much open. They hardly speak to questions of vertical equality at all; they
do not stipulate the size of districts, the form of representation,or which decisions
must be left to which class or kind of officials, for example." Idem.
(113) Id, at 30.
(114) At least in respect of resources, which could give rise to a more substantive equality between men and women in
society as a whole
(115) See infra n and accompanying text.
(116) This is the device used by John Rawls in A Theory of Justice (1971).
(117) See supra n.
(118) See supra n and accompanying text.
(119) Part 2, supra n, 340. See also supra n and accompanying text.
(120) See supra n and accompanying text.
(121) See supra n.
(122) An additional argument for my conclusion about race exists if the land to
be auctioned is site-specific. That is, if people are to exclude others from
their area and the specific areas of land are auctioned off, under Dworkin's
discussion the organising and excluding would have to be done at the stage of
bidding rather than afterward. I suggest that the land to be auctioned is
site-specific rather than, for example, a scrip worth an indeterminate piece of
land to be chosen later. This is because Dworkin desires to enable people to pursue
their life plans and goals with resources obtained at the auction; this
is better achieved with specific sites, with their various attributes known,
than non-specified ones. However, even if this is not the case, and the
resources are more abstract than I envisage, this does not detract from the
force of my argument in relation to the independence principle.
(123) Okin, supra n, 72.
(124) For example: "People's preferences change, for example, so that the
question of how far someone's preferences for his life have been fulfilled
overall will depend on which set of his preferences is chosen as relevant, or
which function of the diferent preferences he has at different times." Part
1, supra n, 194. Emphasis added. This example is typical of Dworkin's use of
pronouns throughout this essay.
(125) The examples used in the essay are Arthur & Betsy, Amartya &
Bimal, Charles, Jack & Jill, Lewis, Jude, and Tiny Tim & Scrooge.
(126) For example, Dowrkin's scholar (id, 223) and violinist (id, 243) are
male, as are those people doing important things such as defending particular
conceptions of equality of welfare (id, 195).
(127) Part 2, 285-288.
(128) Dworkin refers to "his or her desire to bid." Part 2, supra
note, at 286. Note that even this use of a feminine pronoun is coupled with,
and secondary to, a male one.
(129) Part 2, supra n.2, 310-314.
(130) Ibid, 314-323.
(131) The example posits Deborah and Ernest (id, 323).
(132) Dworkin notes that Tomas Scanlon provided the example (idem, n.14).
(133) For example, ibid, at 302.
(134) Idem.
(135) For example, ibid, at 285 - 290.
(136) Idem.
(137) For example, ibid, at 296.
(138) For example, ibid, at 304-8 ( Adrian, Bruce, and Claude). (139)
For example, ibid, at 316.
(140) For example, ibid, at 298.
(141) For example, ibid, at 287; see also Part 3, supra n, where the auctioneer is referred to many times and solely as being male.
(142) Id, 318. This indicates that the wife is not employed and is not buying
underemployment inusrance.
(143) When discussing handicaps, Dworkin comments: "It is true that this argument
produces a certain view of the distinctions between a person and his
circumstances, and assigns his tastes and ambitions to his person. That is the
view of a person that I sketched in the introductory section, of someone who
forms his ambitions with a sense of their cost to others against some presumed
initial equality of economic power, and though this is different from the
picture assumed by equality of welfare, it is a picture at the center of
equality of resources." Id, at
302; emphasis added. I suggest that this picture is not just of a
gender-neutral person who forms ambitions but of a male person who does so.
(144) As Okin describes, those who use gender-neutral language make an effort to interchange male and female
pronouns, for example, or use other
genuinely inclusive language. Okin, supra n, .
(145) When elaborating on the auction (id, 17-37) there are many masculine
pronouns used and no feminine ones. This is maintained when discussing
implementation in the real world (id, 38-52), although there are considerably
fewer pronouns used.
(146) Dworkin uses "his or her." Id, 14. However, as Okin
demonstrates, Rawls is guilty of false gender-neutrality. Okin, supra n,
chap.5.
(147) Dworkin, id, 1. I note that this essay was written in 1987, which was six years after the first two, which
would explain the change in attitude and attempt to be seen to be
gender-neutral.
(148) Dworkin, Part 4, supra n, 4.
(149) For example, id, 5.
(150) For example, when discussing the impact of a voter's vote Dworkin uses
solely "he" (id, 9); "Senator X" is a "he" (id,
11); and a voting Rockefeller is a "he" (id, 12, 14).
(151) Part 1, supra n, 213.
(152) Ibid, 215.
(153) Part 2, supra n, 323.
(154) Adrian and Claude, respectively. Ibid, 305, 306, respectively.
(155) Ibid, 323.
(156) Including, for example, the references in Dworkin's Part 4 to scholars,
politicians, and a violinist as men. See supra n and accompanying text.
(157) If Dworkin is assuming that the present public and private spheres are to
continue to exist and that only people in the public sphere are entitled to bid
at the auction, then women in the private sphere will largely be represented at
the auction by their male partners and will not even be entitled to equality of
resources, let alone full equality.
(158) Even Dworkin admits that this separation is arbitrary. Ibid, at 283.
(159) G. Postema, "Liberty in Equality's Empire" (1987) 73 Iowa L. R.
55, at 88.
(160)
(161) "Part 2", supra n. 18, at 284.
(162) As Postema stresses, "[s]upply can itself create demand." Postema, supra n. 30 , at 87.
(163) Part 2, supra n, 290.
(164) Idem.
(165) See supra n and accompanying text.
(166) For other criticisms, see infra n and accompanying text.
(167) See infra notes and accompanying text.
(168) Postema, supra n. 30, at 85.
(169) This particularly so when the bidders are aware of their sex, as I have
suggested is the case.
(170) Part 3, supra n, 38.
(171) Dowrkin, Part 2, supra n, 298.
(172) The most common examples used here are in relation to pregnancy. For
example, a denial to all men and women of maternity leave does not really treat
these people equally because the denial affects men and women differently.
(173) Dworkin, Part 3, supra n, 54. Emphasis in original omitted.
(174) See supra n.
(175)For example, witness the debate over pronography.
(176) See supra n and accompanying text.
(177) Further criticisms can be made of his assumption of such liberties at the
baseline of his theory from the perspective of Gilligan's research: such a
baseline is inconsistent with the female view of the world as not being
governed by such rights and liberties
(178) Dworkin, "Part 2", supra n, at 297.
(179) Idem.
(180) This conclusion is even stonger if, at this first stage, those taking out
insurance are aware of their sex. Not only would this make it even harder to
treat the odds of becoming pregnant as being equally distributed but the
parties themselves would know whether or not they were likely to become
pregnant. This would defeat the purpose of buying insurance -- as protection
against future 'bad luck' -- and distort the tax-and-redistribution
caluclations based on the level of insurance undertaken, thereby defeating Dworkin's scheme.
(181) An alternative would be to posit some other method of accommodating pregnancy that did not involve
the redistribution of resources, but this would not be able to as effectively
address the concerns of liberal feminists.
(182) Dworkin, Part 2, supra n, 299. See also supra n.
(183) Id, at p313.
(184) One could be cynical and suggest that the reason that pregnancy, and all
that it entails, is oppressively devalued today is because men do not have the
talent or ability to become pregnant and are jealous. This attitude is more
likely to lead men to regard it as a talent to be taxed, not a disability to be
compensated for, and thus lead to the double oppression of women.
(185)
(186) There are clearly exceptions in todays welfare states related to aid solo
mothers. But this is not seen as a legitimate or desirable source of
compensation for pregnancy and child-rearing; it is seen more as a temporary
measure until a proper level of support is able to be obtained from other
sources. The preferred solution is still the one I have identified.
(187) Such measures would include fully-paid parental leave and full child
care, or payment in lieu of child care for those that provided it themselves. I.e.,
it would effectively entail payment for most domestic duties.
(188) Despite the typical liberal concern with process and equality of political
power over decisions, feminists argue that perhaps there is no true equality of
power - or even opportunity to exercise power - if the results are not being
achieved. If so, the argument is that the process should be changed in order to
achieve better results.
(189) See supra n and accompanying text.
(190) Part 4, supra n, 14-15.
(191) Ibid, 15.
(192) Ibid, 14.
(193) That is, other than what might be achieved as a by-product of the achievement
of equality of resources. However, I suggest that that will not be enough to
even improve the position of most women in society. See text infra.