Ronald's Dworkin liberalism and its relationshop to his Jurisprudence

Introduction

  Ronald Dworkin is a liberal thinker following in the tradition of the great liberal thinkers such as Locke, Rousseau, Montesquieu and Mill. For him "the nerve of liberalism" is a certain conception of equality.[1]
  In this essay it is proposed to examine aspects of Dworkin's notion of equality in the context of its application to resources, the political structure and jurisprudence. The examination will be necessarily limited. But it will attempt to grasp the essential ingredients of his theory of equality and subject it to analysis within the framework mentioned. One of the matters that will be particularly scrutinised is the contribution equality makes to each of the areas of application under review.
  The essay will be constructed in four parts and a conclusion. Part A will deal with Dworkin's theory of liberalism. It is necessary to start here because his ideas about equality in respect of resources, the political structure and jurisprudence find their root in his liberal philosophy. Part B will deal with his theory of resources. No serious attempt will be made to deal with why he rejects a theory of welfare, as space does not permit and in any case it seems outside the direct scope of this essay. Part C will deal with equality in the political structure giving particular attention to Dworkin's explanation of the value behind rights. Part D will deal with Dworkin's jurisprudence. It will focus on the value of the concept equal and respect within the judicial system. The conclusion will attempt to bring cohesion to the matters dealt with.

PART A

DWORKIN'S LIBERALISM

Dworkin's conception of liberalism is encompassed in two principles

1. (a) that governments
   "treat all those in its charge as equals, that is entitled to equal concern and respect" [2] and
   
2. (b) derived therefore
   "that the government treat all those in its charge equally in the distribution of some resource of opportunity, or at least work to secure the state of affairs in which they all are equal or more nearly equal in that respect [3] .
   

Of course these principles might not be just the prerogative of a liberal government. It might be argued, Dworkin says [4], that before the content of equal treatment can be articulated a government must have before it a theory of what might constitute the good life for citizens. Citizens cannot be treated as equal human beings unless it is known what precisely human beings are about. It would accordingly conclude that the content of equality it owes its citizens on the basis of these principles must be seen in terms of the good life for its citizens that has been politically endorsed. A liberal political structure would reject such an approach. A liberal approach is not to settle for one conception of the good life in the political structure. Rather, citizens in a liberal society have available to them as many conceptions of the good life as they wish. Does a government in a liberal society remain neutral or indifferent to these conceptions of the good life that its citizens might seek?[5] In the Tanner Lectures Ronald Dworkin indicates[6] a revision of his earlier view [7] that governments in a liberal society remain neutral. He had professed the "neutrality" view because he had reasoned that a government would not be treating its citizens as equals if it preferred one conception of the good life over another[8]. In his revised view [9] he argues that neutrality by a liberal government leads to a state of moral scepticism,

Dworkin sees liberalism as a theory of commitment. He distinguishes liberalism based on neutrality (the type of liberalism he ascribes to John Rawls, A Theory of Justice) from his liberalism based on equality. This liberalism of equality has a positive commitment to an egalitarian morality which rejects the economics of privilege[11] . Fundamental to this liberalism based on equality is a requirement for a government to treat its citizens as equals. A government in a society of liberalism based on equality will remain neutral only to the extent and to the degree that equality demands[12].

Dworkin in his Tanner Lecture draws the boundary between his theory of liberalism and that of Rawls. In Rawls' theory [13] the State stays neutral to the seeking of the good by citizens. There is a separation between personal conviction and the political life. The world of political life is a meld of the overlapping consensus of personal convictions. Dworkin categorises the separation between personal conviction and political life as "discontinuance"[15]. Dworkin wishes to bring personal conviction and political life together: to bring a morality to political life. He espouses a "continuity" theory which he sees as appealing to committed liberals because it integrates moral principle for those who want their convictions to match political life. We can see here the beginning of Dworkin's attempt to evolve an integrated political theory. An attempt to bring individual morality to the political arena and consequently into all facets of public life. It is also an attempt to synthesise the individual with the community. The individual notions of liberty with community notions of equality: he sees invasions of liberty as being just as much invasions of equality . Invasions of liberty are unjustified where there might be criminal sanctions against the private and personal activities of persons (eg criminal sanctions against homosexuality). They can only be justified as necessary for the security of persons, the protection of property or as a necessary function to produce an egalitarian distribution of resources. So in fact he connects politics and resources to rights, equality to liberty, in this attempt at integration.

In any liberal society (or any society) there are two major structures, the economic structure and the political structure. In respect of the economic structure, Dworkin says a liberal founding a new state would propound the following principles of "rough equality"
 

 These matters are satisfied through collective decision making and the market. Dworkin recognises the market economy has problems for equality. The market might present the most egalitarian place for the distribution of resources on the basis that people differ only in preferences. However, the problem is that people in the real world do not come to the market on an equal footing. They enter life with different talents, burdened by physical disabilities, subject to differing social economic and emotional backgrounds and so are disadvantaged in the market place. Accordingly, in a liberal society some modification of the market will be necessary in order to ensure a proper equality. This brings us to Dworkin's theory of resources.

PART B

EQUALITY OF RESOURCES

In Chapter 2 Equality of Resources in Sovereign Virtue [17] Dworkin outlines a system for market place equality. The system attempts to achieve equality in the context of a free market, people taking responsibility for their choices within the structure devised by Dworkin to compensate for disabilities, talents and unsought misadventure. He distinguishes two kinds of resources: personal and impersonal. Personal resources are physical and mental health, talent, strength - the qualities of mind and body necessary for achievement. Impersonal resources surround us and lie outside of us: land, raw materials, the goods we purchase etc.
He positions people on a desert island all with the same knowledge and no one having extra impersonal resources than any other person. All the impersonal resources on this island of rich resources are available for purchase at an auction. These resources are auctioned and the auction continues until no person would rather have the property acquired by another. In other words the situation is reached where each person is satisfied by the impersonal resources that they possess and is not envious of the goods acquired by anyone else. When that situation is reached equal distribution is achieved. Once equal distribution is reached some further factors require consideration:

1. (a) What happens about people who are handicapped? They will ultimately fall behind. Their equal footing at the commencement of the program of distribution will be lost. Equality will accordingly not be maintained
   
2. (b) Further, those with more talent will start on an equal footing but their talent will give them an advantage so that they will accumulate more riches. Again equality will not be maintained
   
3. (c) What happens to those who at some later time bemoan their choice of auction acquisition and want to change? They will maintain that they are no longer on an equal footing.
   

So far as the after-auction dissatisfied purchaser is concerned, that person will be bound by their choice. It is an issue of "option luck". Dworkin distinguishes "option luck" and "brute luck". The former results from choices we make and might later regret. The gambler who loses (or wins) has option luck. Option luck results from an exercise of liberty. Dworkin is mindful of securing liberty within the confines of equality. We exercise our liberty, but we are responsible for our actions. Equality does not require compensation for our bad choices (this also stifles the "free loader"). The victim of "brute luck" on the other hand requires assistance. When citizens are the victims of events over which they have no control (earthquakes) they suffer "brute luck". The handicapped person is someone who has been a victim of "brute luck". Unlike those whose choices bring option luck, the victims of "brute luck" have no choice. Brute luck relates to personal resources and after the auction of impersonal resources is complete and equality in relation to those resources satisfied, there will remain inequality in relation to personal resources. Envy may have been satisfied in relation to impersonal resources, but it will remain in relation to personal resources. This will be heightened as in time those with more personal resources are able to use them to prosper in their trade of external resources. This will lead to further envy and inequality. How might this situation be remedied?

 Dworkin devises a compensatory scheme for the victims of brute luck. This scheme is a hypothetical insurance scheme where even before birth, insurance could be effected against disability in a insurance market which would be government maintained. Premiums to cover the events of brute luck within society would be calculated and levied on the islanders. At the other end of the scale people would insure against their lack of talent and ability to earn income up to a certain percentile. Through this process of insurance "everyone has an equal opportunity of mitigating the disadvantage by insuring against it"[18]. Of course this scheme does not bring about perfect liberal equality, but it represents a substantial advance towards that goal. General taxation in addition would mimic this insurance program to provide redistribution and further equality.[19]

Dworkin's theory of resources is not about treating people equally. Rather it is about treating people as equals. (A theory that treated people equally would not make provision for disability or lack of talent). Further it also highlights the fact that Dworkin pays regard to liberty within his equality theory. People are bound by their choice (option luck). Free loaders are not advantaged. People must take responsibility for their choices: their option luck is not compensable. People operate in a market place in a competitive fashion restricted only within the equality parameters outlined. Their liberty is preserved in that they may take their chances in the market place. On the other hand, those disadvantaged through brute luck have their disadvantages compensated for through the insurance market. Their equality is maintained. The system devised gives each person sufficient and, so far as possible, equal resources to pursue their liberal "good life". It suppresses envy and increases opportunity. It allows

The resources theory has other elements that connect with Dworkin's overall liberal philosophy. Dworkin in his Tanner Lectures [21] offers two models of interpretation of ethical experience; models of critical value for leading an ethical life: the model of impact, and the model of challenge. The model of impact "holds that the value of a good life consists in its product, that is, in its consequences for the rest of the world"[22]. The mode of challenge "adopts Aristotle's view that a good life has the inherent value of a skilful performance[23]" . The former model is about "making a mark", the later is about the activity and its execution more than its impact. The latter, Dworkin argues, offers a better interpretation than the former, of ethical practices and instincts. This ethical model, interpretative of values, would, he says, favour a theory of resources as a means of distributive justice. A resources theory is not so much about getting what one wants, but about getting the resources to achieve what one sees as necessary for a good life. This is consistent with the model of challenge. (Dworkin disregards the equality of welfare as noted earlier[24] . He indicates in the Tanner Lectures[25] that no system could be devised that would satisfactorily achieve equality in welfare).

Another aspect of the resources theory is the manner it connects equality and liberty. Liberty is required for people to participate in the auction in order to establish the cost of impersonal resources and achieve equality. Liberty is required for people to use their resources and make the most of them. Invasions of liberty are not justified, Dworkin says,[26]

This quotation has a Lockean tone about it! Locke says

The similarity in the quotations is striking in the way that liberty is put aside in both instances for self protection and the protection of property. This protection, of course, comes from the political society. It is the structure of that society within the Dworkin notion of equality which will now be considered.

PART C

POLITICAL STRUCTURE

  Earlier in this paper we saw that Dworkin links personal conviction to the political structure as part of a theory of continuity. He sees politics as a "theatre of moral argument and commitment based in the responsibilities of community [29]. For this to happen political liberties must be preserved so as to serve the gaols of liberal equality. The preservation of these personal liberties and rights occurs as part of the modification to the liberal political structures in a democratic society.

In a democratic society, where persons are free to pursue their conception of the good, democracy in practice could easily be susceptible to corruption, to the advantaged manipulating the system for their personal objectives, to the dominance of those with economic power. It is necessary to have a scheme of individual rights to ensure the majority cannot swamp certain specific minority conduct.

  So this modification to the political structure like the modification to the economic structure is concerned with equal concern and respect.

  Dworkin proposes protection of certain rights eg freedom of speech or protection of sexual preference. At certain times some rights might be restricted. In time of war there might be a need for censorship for security purposes. In that situation there might be a need to restrict freedom of speech. But in normal circumstances certain rights will prevail although the majority might not necessarily approve of conduct undertaken pursuant to that right. For example, the majority might not approve (particularly at the present time and more particularly in the United States) of my proselytising on behalf of Osama bin Laden pursuant to my right of free speech.

  Dworkin's rationale for the preservation of rights is based on a version of utilitarianism.

  Utilitarianism in a democracy allows each person's personal preference (what each person wants for him or her self) to be set off against the personal preferences of others. But it also allows the external preferences of persons (motivated by external factors such as prejudice and being what they want or don't want for others) to be also taken into account and set off against the personal preferences of others. These external preference combined with the personal preferences give a double count against another's personal preference. This, Dworkin says, is unfair. The external preferences must be disregarded when establishing rights in the political structure. The external preferences based on prejudice, for example, are not sourced in equal concern and respect and should be ignored.

  This explanation of Dworkin's of the value behind rights raises a number of issues. Firstly as NE Simmonds [32] questions, is it really possible to distinguish between personal and external preferences? What may appear to be my personal preference in reality may be an external preference (or vice versa). Issues of emotional conditioning and sub conscious motivation come to mind. But as Simmonds points out there may be a fine line between a personal and external preference. My personal preference to own a Rolls Royce motor vehicle may cancel out a black person's preference to own the same vehicle (there being a limited number of those vehicles manufactured). My racist external preference that black persons are not worthy to own a Rolls Royce gives me a double count and that of course is to be ruled out. But is my preference not to see a black person driving a Rolls Royce a personal preference or an external preference? Further, and more importantly what status does Dworkin's rationale give rights? It is from our personal preferences that rights are to emerge. Our reasons for elevating an activity to a right may result from a number of factors. For some, it may be a concept of mankind steeped in some religious belief. For others, it may be on account of some humanitarian point of view. All of these personal preferences come together in some type of overlapping consensus to produce a majoritarian reservation of a right in society. Whilst the source of the right may be the "overlapping consensus", the legitimacy of the right will rest in the majoritarian affirmation. In other words the legitimacy of the right will rest on numbers. (We will return to this matter again under the following heading Equal concern and respect as a basis for political theory[33])

  Dworkin tells us that liberalism based on equality insists

  In the context of the above statement, liberal equality will allow certain "deviations" such as the government devoting special resources for training of the exceptionally gifted or for those capable of military service to assume a vastly greater share of the danger to others. It is apparent that liberal equality will not see people treated as ends. The concept of equal concern and respect ensure that worth and dignity are recognised. It would not be equality to ban the disabled from public swimming pools on the basis of the extra cost to the community for special physical access, provision of extra facilities and pool attendants. It would be equality to deny all access to public swimming pools to everybody to solve the inequality problem in respect of the disabled. On the other hand it would not be treating people as equals. It would be equality at the sacrifice of liberty (the sacrifice of the liberty and right of all to swim, in the above example). It would not be equal concern and respect. That is one aspect that the quality of concern and respect adds to the equality metric: it ensures the preservation of liberty. Equal concern and respect elevates the worth of human beings rather than leading to a "flattening" process.

Equal concern and respect as a basis for political theory

  The political process is aimed at the community as a whole and not individuals as such. It cannot satisfy the specific needs of each individual. It does its best to grapple with individual needs by trying to find a solution for everyone. This means it usually does not satisfy everyone, but it goes some way to more or less bring some measure of general satisfaction. What does the concept of equal concern and respect bring to this process? What if anything does the concept mean for the political structure? In his book The Morality of Freedom, Joseph Raz has this to say.

  To reduce equal concern and respect to a mere closure principles is to undermine its worth. Equality circumscribed by equal concern and respect, brings to equality a recognition of human worth. It ensures equality cannot be "levelled down" (an example of this was the swimming pool analogy on p 19). It ensures in the political domain that certain rights are preserved and not lost in "external preferences" (how far it succeeds in this is another issue). Equal concern and respect is more than a closure principle.

Raz further continues in a footnote[36]

  Again it must be said that Raz's observation is imprecise. There are aspects of the principle of equal concern and respect that may not produce the results that Dworkin might claim. On the other hand, the principle goes further than a mere exhortation that every person should count. The concept of equal concern and respect is erected by Dworkin as the absolute metric. It permeates his theory of resources, forms the basis of his rights theory and is the substance of his jurisprudence. It emerges because of his adoption of liberal philosophy and because he sees equality as "the nerve of liberalism"[37]

  Once the concept is erected as an absolute, its application is on the basis of the relative. So that (in an imprecise manner of speaking) the State will protect my right to vocally or verbally express myself but only in so far as that expression has that concern and respect, that others might equally expect for themselves. Note that the expression is not just equal reciprocity ("like an eye for an eye"). It is reciprocity on an equality basis of concern and respect. But it is still a relative basis, my interest balanced off (relative) to the remainder of the community. Because of this relativity, the question arises whether the concept does the work in the political domain that Dworkin claims for it.

  It was indicated earlier in this essay [38]that rights emerged when external preferences were put aside and personal preferences of the majority united to resolve on a right. The issue was raised at that stage whether, and how, personal preferences were distinguished, from external preferences and further when personal preferences were distinguished how much of those preferences were attributable to equal concern and respect. It was indicated that those preferences might find their source in a variety of cultural, religious, emotional psychological or humanitarian matters to name just a few.

  There is too, the question of the construction of a suitable structure for the determination of what constitutes a personal and external preference in reality. Dworkin criticises advocates of a theory of equality of welfare because he says they cannot construct a satisfactory theoretical structure of satisfactory distribution[39] . Yet, he does not produce a satisfactory practical structure where external and personal preferences can be determined and take effect. Dworkin himself says that no practical test for necessary preferences will be able to discriminate the personal and external elements in any individual overall preference.[40] However, he is putting forward a theory of rights, and surely if any theory must be verified in the real world then a theory of rights is the prime candidate. It is upon rights that the actions of citizens in any society must be ultimately justified. A theory of rights that does not work in the real world has no credibility (just as a theory of jurisprudence that did not work in the real world would lack credibility). A rights theory that will not sustain rights in practice is hardly of benefit. But there is a further and perhaps more important matter: what status does Dworkin's rationale give rights?

  Even if the personal preferences might be sourced to equal concern and respect so that some right might be crystallised, the legitimacy of the right would rest in the majority endorsing it, not in equal concern and respect as such. Having endorsed the right it might become part of some overall scheme such as a Bill of Rights to place it in a more secure position. However, that is just the beginning. The degree of maintenance of the right will depend on the way "the tune" of that right is played in the political structure. Equal concern and respect, whilst it may have a role in the manner that right is orchestrated, may not have a decisive role. Culture for example, may have a more decisive role. Culture until recently played a role so far as sexual preference was concerned for homosexuals. It was not that many years ago that homosexuality was a criminal offence. There was no talk then of equal concern and respect so far as homosexuals were concerned. Yet the concept of equal concern and respect would have been well received as a determinant of rights at that time. Perhaps a better example is the role of women in society. Culture has played a significant role in the place that women have occupied in our society. Liberal culture in particularly has contributed to this. The liberal culture distinguished the public and private spheres.

Liberal philosophy regarded the home as not the province of the law. The aphorism 'an Englishman's home is his castle' says it all. This cultural distinction in liberalism was partly to blame for defining the role of women and led to abuses within the domestic structure of violence, sexual abuse and economic deprivation. Accordingly, the basis of women's position in society not so long ago was arguably sourced in some cultural notion of equal concern and respect. Mary Wollestonecraft saw it as being treated with "propriety", which is arguably not so far from the concept of equal concern and respect.[42]

  It was no doubt appropriate, respectful and proper to treat women with propriety not so many years ago. The sexes may not have been equal (the male being the stronger!) but deference and propriety could well have been argued as indicative of women's biology, mothering skills, nurturing and home-making skills according her equal concern and respect. As Mary Wollstonecraft continued: [43]

  What then may we conclude? Equal concern and respect in the political structure does have a role to play. It may contribute to the establishment of rights and personal liberties in society as part of any individual's endorsement for establishing a right. However, the endorsement of rights by individuals may also arise from reasons outside equal concern and respect. Ultimately however the legitimacy of a right in a Dworkin liberal society will rest on the majority endorsing the right (and that endorsement may or may not be as a result of equal concern and respect or the process of the liberal continuity ethic that Dworkin attempts to construct). The continual recognition of that right may also be subject to the culture of society and the way society views the recognition of the right at any particular time. It is submitted these qualifications are restrictive of the work that Dworkin would wish the concept to achieve. However before any final conclusion regarding the achievements of the concept in Dworkin's philosophy can be made, the role of the concept in Dworkin jurisprudence must be considered.

PART D

THE LEGAL SYSTEM IN DWORKIN LIBERALISAM

  It is only to be expected that given that the Dworkin liberal society is based on a culture of equal concern and respect, that the judicial system of such a society would be responsive to that culture. Dworkin devises a judicial system that is required to apply law in a manner that achieves the best possible result so far as gaining equal concern and respect for the citizen.

  Basic to Dworkin's legal philosophy is the idea of equality that like cases must be treated alike. It is obviously unjust for a case to be decided in one fashion on one occasion and a similar case or cases to be decided differently on later occasions. Such an outcome makes justice unprincipled, subject to judicial whims, and leaves litigants in a position where they have no idea what the law might be that will be applied to them. Citizens are not being treated equally where like cases are decided differently.

  In order that like cases be decided in a like fashion, it is necessary for judicial officers to identity not just the precedents applicable to a case, but also the principles behind those precedents. The principles must be applied to the current matter for adjudication. In crystallising the principles behind past cases, the "point" of the decision making in regard to those cases must be considered. The establishment of the "point" behind a case will assist the adjudicator is making the best moral sense of it. The adjudicator's decision must fit the body of law applicable to it. Dworkin sees the body of law like a "chain" novel where the chapters are written by various authors. [44] In the writing of the novel it is essential that the authors write with the central plot and rationale of the novel in mind. They must write in a fashion with the characters behaving and reacting to each other in a consistent manner as the novel unfolds. The language used through out the novel must be the same (one chapter cannot be written in English, the next in Greek, the next in Latin etc). At the same time each chapter will bear the mark of each author as each author's individuality will find his or her way into the style of writing. In a similar fashion, the great story of the law is written by judges over the ages, but like the several authors of the chain novel, the judges must tell the law's story consistently and with integrity. Why? To bring to the story fairness, equality and justice, the rationale of the law. Like the chain novel authors, they must keep the "plot" and "purpose" in mind. Nevertheless like the chain novel authors they will leave their individual mark on the law's story. In their interpretation and evaluation of past precedents they will not shrink from disregarding any unfairness they cause. Precedents that do not result in persons being treated with equal concern and respect are not good precedents. Fair precedents have a gravitational like pull on the law giving it coherence and consistency. It is coherence and consistency that give the law integrity. Integrity in adjudication

  Law as integrity takes on its own morality striving to treat people as equals. Integrity as an adjudicative principle says that once a principle is recognised as fair it must be recognised in every situation. Why? Because people must be treated as equals. Integrity is an aspect of equality demanding principles of fairness be applied equally to everyone. That is the principle upon which integrity rests.

  Integrity is opposed to chequerboard situations. It would oppose the conscription of those born on days of even numbers and those born on days of odd numbers being exempted, in a situation where 50% of the nation was for war and 50% was against as a fair solution as to who should fight. Integrity speaks with one voice to all people equal[46] . But integrity has another role as a legislative principle as well as an adjudicative principle. It calls for coherence not just in adjudication but also, in legislation. We will deal with this aspect of integrity later in this part.[47] Accordingly at the heart of jurisprudence and the process of adjudication lies the overarching principle of equality, of treating people as equals.

  The issue arises whether the principle of equal concern and respect can be transposed from the political setting into the judicial setting. Why does this issue arise? One reason might be that the principle when used in the political structure is used in application to the community at large. In the political structure it is not possible to devise a procedural mechanism for each individual. The political process, on the contrary, is about devising a procedure that is suitable for everybody. Such a procedural process is necessarily in general terms and non specific. It is not tuned to a specific individual or individuals, but to the population at large. Of necessity it will not have regard to individual differences. Can it be said that equal concern and respect is too general a principle to have relevant meaning in the judicial process? (Perhaps echoing in some way the comment of Raz referred to earlier [48] that the principle was no more than a vague exhortation to treat people the same or as if they count). The judicial process whilst it may deal with political/societal type issues (in say constitutional matters) often is dealing with specific individuals. Is the concept of equal concern and respect too generic and non specific to be of use in individual cases? In a public law case the court might consider the constitutional implications the lowering of the age to vote. The Court may have regard to the fact that 18 year old citizens may be conscripted to defend their country. Is it to treat those 18 year old citizens with equal concern and respect to deny them the right to vote, an argument might run? In a legal argument about matters of political and constitutional matters concerning citizens at large, the principle of equal concern and respect has relevance. But is it so relevant to individual litigants? We do not speak in tort actions of persons being entitled to equal concern and respect, but rather of their being entitled to the conduct of that expected from a reasonable person (a more specific metric). Again, in crime cases we do not draw on equal concern and respect as a measure of conviction for the accused. We look at more specific metrics such as "mens rea" . We do not justify the action of wrongness in murder by developing an argument that the victim was entitled to equal concern and respect. On the contrary we need no justification for murder. It is wrong and that is the end of it! The same may be said of our notions of other crimes. We see them as wrong outside of any consideration of equal concern and respect. If we don't even speak of equality relevantly in consideration of these matters that fact alone would seem to belie its significance. It is submitted that these consideration call for caution in the way equal concern and respect is employed in the adjudication process.

  To highlight the application of equal concern and respect in the general and in the particular, let us consider the case of James v Eastleigh Borough Council[49]

  In James the plaintiff accompanied by his wife went to the Flemish Park Leisure Centre to gain entry to the public swimming pool. Both persons were aged 61years. Mrs James was allowed entry to the pool at no charge. The plaintiff was charged 75p for entry. The defendant provided in its terms and conditions of entry that persons of pensionable age would be admitted to the swimming pool free of charge. The definition of a pensionable age in the Social Security Act 1975 (S27(1)) was "(a) in the case of a man, the age of 65: and (b) in the case of a woman, the age of 60". The plaintiff challenged the defendant on the basis it was refusing him entry on the same terms that it admitted female entrants. He contended that was a breach of the Sex Discrimination Act 1975 on the basis he was being refused a service on the same terms as that service was offered to women. It was a matter of sexual discrimination.

  If the concept of equal concern and respect were applied to this case as a rationale for its decision what might be the outcome? The defendant might argue that as a public authority it was concerned to recognise senior citizens. The free entry proffered to senior citizens was directed to two matters (a) the contribution they had made to the community before leaving the workforce, (b) the fact that as a general rule, once senior citizens leave the workforce their access to income is limited. The free entry was a method of offering concern and respect to senior citizens in terms of equality. It recognised their lack of income brought about by age decreasing their opportunity to work. It recognised their contribution to society and placed this recognition in a tangible form by granting free access. The defendant might continue its argument that it was necessary to settle upon a criteria to formulate who might be categorised as a senior citizen. As a public body the defendant had to choose a broad criteria that was common to many, but obviously not tailored to each individual. A criteria of "pensionable age" was settled upon because there was an expectation that persons of pensionable age would have left the workforce and retired. In those circumstances they would fulfil the aims that the authority had in mind in making entry available at no cost. The fact that "pensionable age" was chosen as the criteria was about income and opportunity, not about sex.

  It might be noted that the policy sourced in equal concern and respect is operating here as a general over ruling principle being applied to the community at large to justify the position taken.

  What might the plaintiff argue? The plaintiff might say that as a particular application, the Council's policy applied to him as an individual leads to unfairness. It might be a policy of equal concern and respect in the general sense, but applied to him in particular it is the opposite. The effect of the policy upon him is sexual discrimination. He is being denied free entry for one reason only, so far as he is concerned, because he is not female and this for him is not equal concern and respect

  What is the point of this analysis? It indicates that so far as the public authority is concerned the concept of equal concern and respect is well suited as a criteria in application to the community at large. However, the concept in an individual situation may be too broad and as a result bring about a lack of equal concern and respect. The concept can be effectively argued on behalf of either party. On this basis it is submitted that the concept in the judicial settling may not be as readily employed as it might be in the political structure.

Bakke's Case

In A Matter of Principle [50] Dworkin sets out his reasoning why Bakkes's case [51] should have been decided differently in the context of equal concern and respect. Bakke was an applicant to the Medical School of the University of California. The School had 100 student places to fill. Of these 100 places, 16 were set aside for students from educationally and economically disadvantaged minorities. The School had formulated an affirmative action program designed to increase the number of black doctors in the USA. Bakke applied for one of the 84 remaining places, but he was unsuccessful in winning a place. To his disadvantage he was aged 33 years at the time (considered too old in other applications he had made to other schools). His failure to gain a place may have been attributable to a number of factors over which he lacked control eg his intelligence, his impression on interview etc. However the Medical School conceded that he may have gained a place under the criteria for entry as a disadvantaged minority student had he been black. (The criteria for 16 places in minority admission was less stringent than for the 84 remaining places). Bakke appealed against his failed application on the basis of race discrimination. He was successful in his appeal which ultimately went to the US Supreme Court.

  In analysing the case, Dworkin reasons the decision of the US Supreme Court was wrong. He puts forward his view which is referable to his concept of equal concern and respect. Bakke's claim expressed simply was that rejection of his application resulted because he was not black. Dworkin says, however, that being black is a factor over which one has no control - like intelligence. There is no discrimination in being rejected on the basis of properties one possesses that are beyond one's control. The discrimination or lack of equality in being black is about prejudice. It is about "public insult", Dworkin says[52] . There was in fact no public insult occasioned by Bakke on the basis of race. On the contrary Bakke's white race was wrongly regarded as superior, a matter that had brought about the affirmative action program. Accordingly although Bakke was not considered equally with the minorities under the minority program, no lack of equal concern and respect was occasioned by him. His consideration under the majority (84 place) program was dealt with by paying him the appropriate equal concern and respect. Therefore Bakke had no justification to complain. Dworkin further points out that the effect of affirmative action programs might well be that citizens are not treated equally, but they are still treated with equal concern and respect. This might not sit well with some citizens but he reasons there is a small sacrifice to the overall benefit to equality.[53]

  However there is another aspect to these matters. Has equal concern and respect been occasioned by the minority applicants? Might not they feel degraded and undermined by a process that permits them entry based on a criteria that is less than others. Might not their ability and integrity as medical practitioners be questioned in the wider community because of their favoured entry? Dworkin does not canvas this aspect of the matter other than to remark.[54]

But the point remains that the minority applicants are left with potential derision in the community, because of the lower standards applicable for their entry. Any such derision will only further marginalise their race, which is the result the program was designed to avoid. In those circumstances it is hardly a victory for equal concern and respect. Added to these considerations is the fact that there are obviously more effective ways to achieve the aims of the relevant affirmative action program scrutinised in Bakke's case. For example, further down the scale at the high school level, a coaching program or extra tuition program could be offered to all students from socially deprived backgrounds, on a State-wide basis, as a matter of general education policy. This would mean that when competing for post-high school positions, students of all races and backgrounds could compete equally and with dignity. It is submitted that Dworkin's application of the concept of equal concern and respect in Bakke's case has significant limitations, encouraging disharmony in the community and having the opposite effect to that sought.

  Another aspect of the reasoning adopted by Dworkin may also be called into question. He indicates that there was no "race" issue, because no lack of respect was proffered to Bakke: prejudice and derision not being the issue. Being black, Dworkin asserted in the absence of public insult, was a property like intelligence[55]. An unsuccessful applicant had no real reason to complain if that lack of success was attributable to insufficient intelligence. There is no doubt it might be reasonable to disqualify a person from a position if the lack of the necessary intelligence to perform the duties of the position is the disqualifying factor. However it would be most unreasonable to disqualify a teacher from a position if she had red hair[56] . It is submitted on that same basis it would be unreasonable to disqualify a person from a position on the basis of the colour of his or her skin. Surely for one person to treat another unreasonably is not to accord them equal concern and respect. (Unreasonableness being a specific of the generic equal concern and respect). It would seem Dworkin's Bakke argument might be turned against him, the "neutral" black skin even in the absence of derision, occasioning a lack of equal concern and respect.

Whilst it is submitted that the use of the concept equal concern and respect in adjudication has some limitations, there is no doubt that it is also of assistance. We have seen it is integral to the structure of the methodology of Dworkin's judicial reasoning. This methodology with its emphasis on bringing fairness and equality to the application of law is much to be preferred to the non-evaluative semantic positivist methodology. Further the judicial process is not just about adjudication. It also has a legislative function. In respect of this function the judicial process goes to the community at large. Equal concern and respect is an appropriate concept to apply because it is the generalised concept used by the political structure to apply to the community at large. The concept then becomes a seamless concept so far as legislation is concerned between the two structures. There is great appeal in this process. By constructing the methodology of interpretivism in the judicial structure based on the principles of equal concern and respect and then using the same principle to guide the political and judicial legislative method, Dworkin is attempting to achieve a fusion between the judicial and political structure to bring about a more equitable result in law making for the community. Integrity comes to play in this process. Integrity is born out of equal concern and respect. Whilst integrity demands consistency, it goes beyond consistency. Integrity has two principles

Integrity assumes that judges act differently from legislators in the course of judicial legislation. Judges must act on principle not policy. A "community of principle" that equal concern and respect demands, requires that judges advance arguments why the parties are now endowed with some novel right that may not have arisen in adjudication previously. But in advancing that argument of integrity a judge is required

Integrity sourced in equal concern and respect is instrumental in striving to make judicial interpretation, so far as it is possible within the confines of principle, consistent with community aspirations.

CONCLUSION

Central to Dworkin's theory is his liberal philosophy, a philosophy that he sees as distinguishable from that of Rawls. Dworkin tells us his theory is one of liberal equality whereas Rawls theory is one of liberal neutrality. The concept of equality is at the core of Dworkin's thought. His theory posits equality and then deals with liberty. He seems to place equality in priority over liberty although he would say that he secures the priority of liberty "not at the expense of equality, but in its name"[59]. Equality and liberty seem to be so bound together that they are inseparable: the fact that we all have liberty is a matter that makes us equal. Dworkin's attempts to link personal conviction and political life seem to be no more than an articulation of elements of liberty and equality in reality.

  Dworkin gives no rationale for his commencement point being liberalism. He assumes that it is the commencement point that we all agree upon. His justification for the starting point is in reality his description and explanation that emerges from that starting point. Rather than justify it he seems to say, "this is the result of it. Show me where I am wrong". But there is still the issue that to commence with the starting point, eg equality, some presumption about men and woman is made. That presumption contains concepts of human dignity, respect, morally etc as being applicable to men and women. One cannot help reflecting that there is a concept of men and women hiding in this presumption that Dworkin' will not articulate. That articulation would add a depth and further dimension to his philosophy.

  The theory of liberal equality takes us to the resources theory. In his resources theory Dworkin once again attempts to deal with the diversity of equality and liberty. He builds into his theory of equality of resources the need for choice. It is his way of ensuring that liberty is not left behind. The idea of choice permeates his theory of resources. People are to have a choice in acquisition of goods and in insuring against brute luck. They have a choice to prosper and produce. They are also required to be responsible for their actions. There is no free passage for the scrounger and the irresponsible.[60]

  Equality of resources for Dworkin means that everybody's interest has to be taken into account, not that everybody emerges equally.

  Security of prosperity and person are the only areas where liberty might be sacrificed, but apart from that, liberty is essential to give the resources theory choice and responsibility. This security will be provided through the political structure.

  Dworkin argues for a continuity theory between personal conviction and the political arena. Liberal ethics, he says, demands that people take a part in the political structure. He distinguishes his view from Rawls which he categorises as a neutral discontinuance theory. Rawls of course does not see his theory as an ethical one but a political one[61]. Although Dworkin labours to explain the difference between his approach and Rawls, it is difficult to see that in the reality of outcomes in the political structure, the result will not be one of overlapping consensus on either view. In a democratic society, not everyone will possess the liberal ethic of "continuity" impelled by the "challenge" approach to life. Another aspect of the Dworkin political structure that is questionable, is the value system that Dworkin ascribes to the crystallisation of rights. Under a Dworkin system of "continuity" his argument for rights based on personal preference has weight, as the personal conviction finds its way into the political arena to secure the right. But in reality there is some difficulty in seeing that happen. There is no structure to support the alternative of what will be a personal and impersonal preference, and how those determined preferences will be counted. Outside of a concept of man or woman from which rights might inherently emerge, Dworkin's theory of rights albeit sourced in a variety of views, would seem to find its legitimacy on some majoritarian basis. Further outside a concept of man or woman it is submitted that the maintenance and extent of these rights will ebb with the tide of culture and political mood.

  In the political arena the concept of equal concern and respect is ideal. It has an element of "having a bet each way". It is general enough to gain an overall consensus: something in it for everybody. This aspect it is submitted makes it not so suitable for the judicial process. The judicial process is not like the political process in that it trys to please everyone. Nor should it. The judicial process is based on principles, not policies. Of course there is more to equal concern and respect than the characteristic of "a bet each way". It has a strong equality character compatible with the judicial process. However it is submitted that because of the reasons already mentioned in this essay, the concept in some adjudication must be treated with caution. As a concept at the heart of the Dworkin jurisprudence methodology it works ideally. As a measure for judicial legislation it also has benefits in melding judicial legislation with political legislation. It must be pointed out that judicial legislation will differ from political legislation as it must always be based on principle (and of course Dworkin would not disagree with this). It is in adjudication as applied to the individual where the application of the concept is questioned. There will be situations, as previously indicated where the concept can be turned in favour of either party[62] . In that situation it is not particularly helpful. Accordingly it is submitted, that the use of the concept in the judicial structure must be qualified.

POSTSCRIPT

Equality is the fundamental notion of Dworkian liberalism. From there it becomes the fabric of the resources theory. In the fabric of the resources theory, liberty is weaved, to allow freedom in the market place and to cater for responsibility. In the political arena, equality in the notion of equal concern and respect, is the basis of rights although, it is submitted, the rationale for those rights, in the real world, lacks credibility. Equality, is again, the fabric of the Dworkian jurisprudence methodology and the overarching principle of the law.

Whilst Dworkin does not ignore liberty (on the contrary he would say that his resources theory, for example, secures liberty in the name of equality[63]) there is an unease that he has not dealt with it adequately. His theory of equality is about individuals relating with one another. The issue of who these individuals are that relate with one another is ignored. For an individual liberty is an issue. For the literary character Robinson Crusoe, there was no issue of equality until Man Friday came along. But there was an issue of liberty. He needed liberty to survive. For the lone Robinson Crusoe there were inevitable fundamental issues, arising from his individuality, issues as to who he was, what was his existence about etc. Dworkin does not deal with who individuals are, (which inter alia involves a liberty question) but how they relate (which involves an equality question). It is submitted, that the relation between individuals cannot be satisfactorily explained until individuals themselves are explained. In other words, Dworkin needs a concept of man/woman.