The New York Review of Books

To the Editors:

Ronald Dworkin’s review of my Spheres of Justice [NYR, April 14] is also, and quite legitimately, a defense of his own approach to moral and political philosophy. It raises hard questions about how that enterprise ought to be carried on, but it provides, I’m afraid, easy answers. It avoids the difficulties of morality and politics. Indeed, that avoidance is, if I understand Dworkin correctly, the greatest advantage that he claims for his approach. I would like to argue (again) that the difficulties are unavoidable.

My own claim is that we cannot distribute goods to men and women until we understand what the goods mean, what parts they play, how they are created, and how they are valued, among those same men and women. Distributions flow out of and are relative to social meanings. But this argument fails, according to Dworkin, because social meanings are not in fact shared. They are “endlessly contested and debated.” Our political arguments, he says, begin with disagreements about how this or that good functions in our social life and about what principles are appropriate to its distribution. Such disagreements can’t be resolved unless we move outside our own traditions and understandings and appeal to “general” principles. We have to turn to an “inclusive formula that can be used to measure justice in any society” (my emphasis). I expect that Dworkin plans to propose such a formula, and I don’t doubt that his proposal will be technically interesting and philosophically skillful (see his provisional statement, which is already very clever and very elaborate, in Philosophy and Public Affairs, Summer and Fall, 1981). But it probably won’t surprise him if people find his formula contestable and if the debates go on “endlessly.” The suggestion that someone is going to end the contest with a single knock-down argument is a piece of philosophical impetuosity.

What is the best way of carrying on the argument? Curiously, Dworkin has himself provided an excellent model in his account of how “hard cases” ought to be decided in a legal system like our own (Taking Rights Seriously [Harvard University Press, 1977], pp. 81-130). Hard cases are contestable cases, and in an important sense the contest is endless: the judge’s decision is merely one moment in an ongoing argument. But in principle, Dworkin insists, the judge can make the right decision. Exactly how he does this is not entirely clear; Dworkin’s account is at once persuasive and ambiguous, and I shall pursue only one strand, which seems to me the most powerful strand, of his reasoning. The judge reaches the right decision not by appealing to principles external to the legal system, but by exploring the internal principles of the system itself—and of the legal and political culture in which it is embedded. He searches for “the political morality presupposed by the laws and institutions of the community” (p. 126). That is exactly the procedure that I too would recommend, and for all my “relativism,” I share Dworkin’s sense that in a particular case, in a particular culture, there is, in principle, a right decision. To be sure, Dworkin stipulates a miraculously intelligent judge, a stand-in for the author, who is named Hercules. But Hercules is not privy to some universal theory of justice; he is merely superhumanly learned in his own tradition, patient and skillful in studying its history, its underlying philosophy, and its institutional details. He teases out the deepest understanding of the “legal community.”

I can think of no better way of discovering the appropriate distributive principles for medical care, political power, bureaucratic office, education, punishment, and so on. The moral world, of course, is more loosely structured than the legal world: there is no basic text like the constitution and no authoritative decisions (precedents), but there is a history; there are institutions and practices and underlying ideas. We must interpret these as best we can in order to get some grasp on the character of the goods we distribute to one another (they have no abstract or general character, or none that will help in determining who, among ourselves, should get how much of what). There will be different interpretations and, absent Hercules, no final and definitive interpretation. But that is not to say that we can’t mark off better from worse arguments, deep and inclusive accounts of our social life from shallow and partisan accounts.

Dworkin seems to think that such a procedure will have no critical bite. But he recognizes readily enough that Hercules can be a legal critic, and he ought to recognize that I can be (I often am) a social critic. Social critics commonly don’t, and certainly needn’t, invent the principles they apply; they don’t have to step outside the world they ordinarily inhabit. They appeal to internal principles, already known, comprehensible to, somehow remembered by, the people they hope to convince. Most often, as I have tried to show, they claim that such and such a good is not being distributed in accordance with its own meaning and the principles that flow from that meaning, but has been usurped and tyrannically controlled by men and women who hold some other good. They complain that religious communion is available only on terms set by the powerful, or that offices are bought and sold by the wealthy, or that pubishment falls upon the poor rather than upon the guilty, or that the best commodities and services are reserved for members of the Party, and so on.

But this sort of complaint won’t make for determinate criticism, according to Dworkin, unless one assumes (as he claims I do) that the different spheres of distribution, within which this or that principle is appropriate, are “fixed and preordained,” established “on an all-or-nothing basis.” I don’t in fact make any such assumption; indeed, it is contrary to the method and intention of my book. Social goods and distributive spheres have first to be found through a process of empirical investigation, and then they have to be understood through a process of interpretation. They have the forms they take in a particular society; there are no preordained forms. It is entirely possible, on my view, that for some goods we will have complex rather than unitary distributive principles; and it is possible too that the boundaries we draw around a particular good, our understanding of what counts as a commodity, an office, or a punishment, will change over time.

“We cannot just rule out in advance,” Dworkin writes, “the possibility that though justice requires the state to intervene in the market for medicine in order to ensure that the poor have some care, it does not require that the poor be provided the same medical care the rich are able to buy. Walzer takes the opposite view that justice demands a full national service.” Not quite right: I don’t rule out in advance, but consider and reject the possibility that Dworkin raises; and I argue that “justice demands” a more egalitarian distribution in our society because of what medical care means to us, the value we collectively assign to it, and the decision, already made, to provide it out of communal resources for some but not all the members of the community (Spheres of Justice, pp. 86-91). The argument is historical, sociological, contingent. Dworkin wants an entirely different kind of argument, so that one might say at the end, flatly, that a rich society that leaves medical care to the market “would not be a just society.” I am in fact disinclined to say that just like that, for it may be the case that the wealth of some particular society ought to be spent on the cure of souls, not of bodies, or on defense, or drama, or education. I don’t see how these priorities can be philosophically determined. But that is not to rule out radical criticism, for the actual distribution of salvation, security, and culture is likely to be distorted, has historically been distorted, by wealthy and powerful elites, and it is one of the tasks of moral philosophy (and of social theory too) to explain and condemn the distortions.

The case is the same with place and office. Here I criticize an argument that Dworkin made some years ago about the Bakke case (NYR, November 10, 1977), and he responds to my criticism, though without quite saying what is going on. “Walzer…believes that a certain conception of talent is automatically assigned to certain university places and professional offices, no matter how thoroughly the community is divided about this.” Not quite right: I argue at considerable length (Spheres of Justice, Chapter 5) against the “automatic assignment” that meritocrats commonly make, and I try to account for the leeway that search and selection committees have and ought to have. But such committees don’t have infinite leeway; powerholders are constrained in the way they give out offices by what offices are in the United States today. Dworkin thinks of offices, or at least of a very large number of offices, as a kind of currency, a social resource, to be distributed on essentially utilitarian grounds. But offices, like all other social goods, are not just things lying about to be used in any way we please; they are the products of a particular history; they have a special meaning in our culture—a meaning in this case hinted at though by no means fully revealed by, the revolutionary slogan about careers open to talents. I try to explore that meaning, inadequately, I suppose, since I am not Hercules. But without such an exploration, no distributive claim can ever be anything but arbitrary, no enforcement of a claim anything but tyrannical.

Let me come back to the problem of disagreement. Dworkin has some fun with the notion that people disagree about the meanings they share: if they disagree, he says, there are no shared meanings. In fact, two different kinds of disagreement are possible, which I have probably not sufficiently distinguished. First, people can disagree within a cultural tradition. They interpret meanings in somewhat different ways, or they take different positions on boundary disputes and on overlapping or entangled goods. This is the best way to understand current arguments about quotas and affirmative action. Dworkin’s position on these questions has not figured in the actual debates; perhaps it is genuinely original, a philosophical feat. The standard arguments are very different from his, and they all pay tribute (there is honesty and hypocrisy on both sides) to the common understanding of office—which connects its distribution, though not very strictly, to talent and performance. This kind of disagreement displays rather than denies the existence of shared meanings.

Second, people disagree because they come out of radically different cultural traditions, as in many third world states today. I was thinking of cases of this second sort when I suggested that divided societies might have to provide “alternative distributions.” Does this mean, Dworkin asks, “medical care for the poor in some cities, but not in others”? It might mean that, if the different cities were inhabited by people with, say, radically different understandings of medical care. If the populations were mixed, as they most often are, then it might be (morally) necessary to work out a political accommodation. Politics must sometimes substitute for justice, providing a neutral frame within which a common life slowly develops. (Even this is a critical idea, allowing us to deny the justice of imposed, rather than negotiated, distributions.)