Vol. 10 No. 6 (June 2000) pp. 386-389.

SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY by Ronald Dworkin. Cambridge: Harvard University Press, 2000. 512 pp.

Reviewed by Lief Carter, Department of Political Science, The Colorado College.

Ronald Dworkin here knits together a series of essays, nearly all of them previously published that define and defend the primacy of the value of political equality in a legitimate political system. "No government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance" (p. 1). Chapters 1 and 2, originally published in 1981 in PHILOSOPHY AND PUBLIC AFFAIRS, spell out Dworkin's competing conceptions of "equality of welfare" and "equality of resources" and claim to demonstrate the philosophical superiority of the latter. Chapters 3-5, which originally appeared as law review articles, show how to reconcile liberty, democratic constitutionalism, and justice with the "sovereign virtue" of "equal concern."

Of the remaining nine chapters, the book publishes three for the first time. Four recreate articles first presented by the NEW YORK REVIEW OF BOOKS, and two first appeared as book chapters. With the exception of the first four chapters, the writing dates from the 1990s. The argument moves from theory to practice, with the first seven chapters of part one, on theory, consuming about two thirds of the book's text. The second part, devoted to practice, touches on familiar policy issues -- health insurance (it is appalling that we lack a national system) affirmative action (it is desirable yet widely misunderstood), gay and lesbian rights (he is for them), death and dying, cloning, and so on. For Dworkin fans, indeed for any analytical political philosopher who rejects the "new pragmatism" linguistic turn and relishes a complex argumentative structure, this book will provide many hours of intellectual stimulation. Just as we who are not ourselves great chess players or mathematicians can admire the minds of great chess players and mathematicians, so even skeptical readers may admire Dworkin's elegant and complex sense of how philosophers can do their work.

Dworkin's rhetoric of philosophical complexity necessarily defies the urge to summarize it faithfully. His chess game has too many pieces, and leaving any one of them out might distort the whole picture badly. The list of chess pieces that Dworkin's admittedly abstract argument invents includes: the principle of abstraction, the principle of authenticity, the baseline liberty/constraint system, the bridge strategy, the challenge model, the constitutive strategy, the principle of correction, the difference principle, the envy test, the improvement theory, the liberty deficit, the principle of independence, the interest strategy (sometimes the interest technique), the principle of redress, and the principle of victimization. Thus we get passages like:

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"The constitutive strategy, in contrast [to the interest strategy], seems more an all-or- nothing affair. The bridge version I used does recommend that some liberties be given a special place as rights in the baseline of ideal equality. I sketched a constitutive argument for what I called the principle of authenticity, which gives freedom of speech that special place, for instance. But that special role is internal to the calculation of ideal equality..." (p. 174). The architecture of Dworkin's theoretical argument borders on the rococo.

This book may only exasperate those pragmatic readers who believe that the linguistic turn represents a dramatic, desirable, and permanent paradigm shift. Readers, of whom I am one, who believe that the linguistic turn both improves our capacity to describe social and political processes AND offers a desirable escape from the profoundly illiberal practical consequences of essentialism, have plausible reason for throwing this book at a wall.

Take the arrogance factor. This book's subtitle promises to deliver THE theory of equality. Dworkin sprinkles "essential," "proper," "true," and "correct" analyses (as in someone's "essential well-being," p. 19, or "the correct account of equality", p. 2) throughout. Though Dworkin presents his essences as uncontestable, they aren't. The keystone concept of governmental legitimacy goes undefined. It has no separate entry in the excellently crafted index. Perceptive undergraduates can specify many definitions and examples of legitimate governments that do not meet Dworkin's proclaimed first principle that I quoted above. Also, does Dworkin really believe that, like Henry Higgins, "By George, I've got it!"? It's hard to imagine why writers would bother to develop such a complex abstract analysis unless they believed either that they had got it, like Newton discovering gravity, or that writing were a vehicle for strutting erudition and linguistic dexterity. It's almost as if Dworkin, having posited a Hercules, is now eager to show us how close he can come to achieving that heroic status.

Other "new pragmatist" readers might not throw the book at a wall, but they might sigh at the waste of paper. The 303 pages of theory will appeal primarily to people who already construct their worlds in the language of analytical philosophy. This handful of philosophy professors doesn't have much of a track record for changing the world, and the bulk of them presumably don't vote Republican anyway. In any event, as Stanley Fish points out repeatedly in THE TROUBLE WITH PRINCIPLE (1999), there is no reason to believe that human beings develop attitudes and beliefs and positions about issues in the reasoned way Dworkin presupposes in the first place.

Yet, in spite of this book's tautologies and neo-theologisms, its embrace of the notion (defunct since at least Hegel if not Socrates) that logic gets us to universals, it would be a mistake to chuck this book across a room. Indeed, new pragmatists who have already turned the linguistic corner know that language doesn't uncover essences in the first place, and that charging Dworkin with falsely doing so is thus a low blow. New pragmatists know that no language practice trumps another. We cannot say that Dworkin's rhetoric, or that of the current Pope, is more or less true than is the language of Richard Rorty, Donald Davidson, or for that matter the language of the militant right. The question is whether readers can make good use of

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Dworkin, and many reasons suggest that they can.

At the most obvious level, I'd bet that the large majority of readers of the LAW AND POLITICS BOOK REVIEW would heartily approve of Dworkin's political destination. We approve because we are already there. We already despair that the United States' political culture fails to provide the basic support systems and simple acceptance of the persistence of human difference that the political institutions of other post-industrial Western political cultures promote. We know that life becomes oppressive when bad luck, or the fear of it, drags people down. Thus, the least we can say of Dworkin is that it is nice to have such a committed and self-confident political ally. Every straw contributes to breaking the back of human mistreatment of our own kind.

More important, for all we know, Dworkian conviction, certitude, and gravitas help sell his conclusions to agnostics who do not personally care about theory, logic, or justice. The authoritative style, in short, may make it simply easier for such people to make good political choices. Perhaps judges looking for an authority to justify a decision that will let them "get on with it" can use Dworkin as authority in a way they could never use Fish or Rorty. The rhetoric of the Church works, for better or worse, regardless of its truth. Maybe Dworkin's rhetoric can work in the same way.

Finally, the practical chapters in the last third of the book are full of gems. Dworkin has transformed his elegant but sometimes antediluvian philosophizing of the 1970s and 1980s into the most sensitive of political and constitutional commentaries in the 1990s. From my personal academic perspective, Dworkin's move in this direction seems only to confirm my sense that the linguistic paradigm shift is real and permanent. However, this personal delight is just academic and of no consequence. What matters is that the "later Dworkin" writes most lucidly for the non-academic audience that DOES matter in the practical pursuit of justice and peace. His unpacking of Justice Kennedy's opaque majority opinion in ROMER v. EVANS (1996), originally published in the NEW YORK REVIEW OF BOOKS, glitters especially brightly. Consider how he presents the basic problem of how the Court, to nullify Colorado's popularly approved amendment banning laws protecting against sexual orientation discrimination, had to get around the problem that all laws by definition treat people unequally:

"[T]he North American Free Trade Agreement worked against the interests of some workers and in favor of others, environmental legislation injures some industries though not others, and state banking, securities, and professional regulations help some people but disadvantage others. So the Supreme Court has developed a more sophisticated...set of rules and distinctions.... The underlying rationale of these rules and distinctions is a theory about when a democracy is working well, so that those who lose out in a political contest cannot complain of procedural inequality or unfairness, and when it is defective, so that losses to some groups cannot be accepted as fair" (p. 458).

Without bogging down in case authority and official doctrine, Dworkin neatly unpacks the premises of CAROLENE PRODUCTS footnote 4 and the minimum rationality test, admits that it "would not be

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unconstitutional, in principle, for Colorado's constitution to forbid municipalities to adopt rent-control legislation, for example, even though that would pose special problems for people who rent" (p. 462), and then places the heart of Kennedy's opinion within this frame. It is a model of lucid political writing, a model for how academics can speak truth to power. When appellate judges write as well as the practical Dworkin writes, we cheer.

Bottom line: Pragmatists may put Dworkin's theoretical analysis to best use as a cure for insomnia, but the practical part two is often as bracing as a double frozen mocha on a hot summer day.

REFERENCES:

Stanley Fish, 1999. THE TROUBLE WITH PRINCIPLE. Cambridge: Harvard University Press.