Hart, Nozick, Dworkin (in that order)

There was an old person of Ware,
Who rode on the back of a bear:
When they ask’d, – ‘Does it trot?’–
He said ‘Certainly not!
He’s a Moppsikon Floppsikon bear!’
Edward Lear

Another couple of notes on current reading.

Herbert Hart’s essays “Between utility and rights” and “Rawls on liberty and its priority” make some interesting critical points on Nozick, Dworkin and Rawls – to be precise, the Nozick of Anarchy, State and Utopia, the Dworkin of Taking Rights Seriously and the Rawls of A Theory of Justice. I’ll cover Nozick (again) and Dworkin in this post, Rawls in a separate post.

Hart’s comments on Nozick are a bit less knockabout than the comments I mentioned in the previous post, but no more favourable. Hart presents ASU as one long series of exercises of the definitional fiat: if you define the right to own property as fundamental (and not, say, the right to life), and if you define taxation as logically equivalent to forced labour – one of several hyperbolical flourishes which Nozick seems to use both for effect and in earnest, in a “ha ha only serious” sort of way – then it follows that only the most minimal of minimal states can be legitimate, and so on. (Hence Nozick’s iconic status with right-Libertarians and other anti-state economic liberals. To be fair, Nozick’s model also has some far from conservative implications when it comes to present-day property ownership, given that only freely-undertaken transfers of title are treated as legitimate – and this with a fairly demanding definition of ‘free’.) If you define your terms thus and so, in other words, the model you build will give the conclusions you’re looking for. I don’t know if Hart ever read Schutz, but reading this paper I was strongly reminded of this passage, which forms the conclusion to Schutz’s essay “Common sense and scientific interpretation of human action”:

The relationship between the social scientist and the puppet he has created reflects to a certain extent an age-old problem of theology and metaphysics, that of the relationship between God and his creatures. The puppet exists and acts merely by the grace of the scientist; it cannot act otherwise than according to the purpose which the scientist’s wisdom has determined it to carry out. Nevertheless, it is supposed to act as if it were not determined but could determine itself. A total harmony has been pre-established between the determined consciousness bestowed upon the puppet and the pre-constituted environment within which it is supposed to act freely, to make rational choices and decisions. This harmony is possible only because both, the puppet and its reduced environment, are the creation of the scientist. And by keeping to the principles which guided him, the scientist succeeds, indeed, in discovering within the universe, thus created, the perfect harmony established by himself.

Defining people as independent property-owners – rather than, say, as interdependent community-builders – Nozick succeeds (indeed) in discovering within the universe, thus created, the perfect harmony established by himself.

But perhaps this isn’t the worst thing a political philosopher can do. To be more precise, for me this sort of frankly other-worldly (u-topian) system-building isn’t the most difficult or annoying thing a political philosopher can do. If Nozick stacked the deck – or rather, substituted a pack of cards of his own design – it’s no more than Marx did. What I find far harder to deal with is an approach taken by both Rawls and Dworkin (what little I’ve read of them), which I’d characterise as a kind of mundane idealism. It’s not that they don’t have ideas for a better world, or that they don’t build systems – Rawls in particular could never be accused of either of those failings. It’s that the ideas they have, and the systems they build, are tethered to (their) contemporary social conditions in ways I find unpredictable, arbitrary and unjustified. Marx had his blind spots – Kate Soper said once that when Marx dreamed of being able to “hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner“, she wanted to know who had made the dinner – but the human fundamentals he starts from are pretty fundamental (they don’t include money, for a start). Both Rawls and Dworkin seem to bob back and forth between blank-slate system-building and the most cautious, considered, Overton window realism, in a way which (for me) makes them very hard to get to grips with. The effect is to build an ideal world on some curiously unexamined foundations – as if to say that, come the revolution, we could spend the morning hunting and the afternoon lobbying our MP, then rear cattle in the evening and write a letter to the Guardian after dinner.

Hart wasn’t a Marxist – and he certainly wasn’t a utopian – so these aren’t exactly his criticisms of Rawls or Dworkin. But they’re not a million miles off. In Taking Rights Seriously, Dworkin presents individual rights in terms of the need to guarantee equal respect for all. Rights are thus a brake or side-constraint on the utilitarian pursuit of the common good; Dworkin refers specifically to ‘anti-utilitarian rights’. The idea is not simply that utilitarianism may sacrifice any individual’s freedom and well-being for the greater good of society, and that inviolable individual rights will prevent this happening; the problems with this superficially attractive idea were pointed out long ago (see previous post). Dworkin’s argument starts further down the line, conceding that some freedoms should in fact be sacrificed for the good of society, but maintaining that others should not – as we do when we argue that teachers should be free to punish children in their care but not to use physical force; or, that employers should be free to terminate employment after a disciplinary offence, but not to do so on the grounds of religion or ethnicity. In making statements like these, Dworkin argues, we are effectively mapping out a set of (anti-utilitarian) rights. But what are the boundaries of this set of rights and how can they be identified?

At this point I would be inclined to shrug and misquote Harold Macmillan – “Politics, dear boy, politics”. (Or – stretching the Macmillan image a bit – “Struggle, dear boy, struggle”.) Dworkin, who was made of sterner stuff, argued that the rights which should be protected are those which would qualify on utilitarian grounds – or (what amounts to the same thing) those which would gain majority support in a free vote – under certain conditions. The key condition is that the preferences to be considered in the utilitarian argument – or (less straightforwardly) the preferences on the basis of which votes would have to be cast in order to be valid – are self-directed; other-directed preferences would count for nothing. So, for example, “All in favour of making Wesleyan Methodism the state religion” is (arguably) self-directed but wouldn’t pass. “All in favour of freedom of worship for you and your family” is self-directed and would pass. “All in favour of denying freedom of worship to Wesleyan Methodists” might pass, but it’s other-directed and so shouldn’t be allowed to. Hence, freedom of worship is an anti-utilitarian right. If other-directed preferences are allowed to count, Dworkin argued, the effect is tantamount to double-counting: I’m not only getting what I want (freedom for me) but negating someone else’s vote for what they want (no freedom for Wesleyan Methodists). On the other hand, if other-directed preferences are not expressed (or even felt) – if nobody, or hardly anybody, wants to deny anyone freedom of worship in the first place – the right ceases to be anti-utilitarian, fades into the background and ultimately ceases to exist. If you can get the same result by referring to “rights”, “common sense” and “the way things are done”, few people will choose the first option – or have any need to.

Hart finds all of this puzzling. (As an aside, the more I read Hart the more I envy anyone who knew him – let alone anyone who had him as a supervisor. I imagine that his expressions of puzzlement were a warning sign that you would come to fear, or relish.) The idea that rights – not the expression or effective assertion of rights, but the rights themselves – are time- and place-dependent is a stumbling-block; as Hart points out, this would mean that citizens of the most liberal and empowering society would have the fewest rights, which seems counter-intuitive to say the least. Hart’s argument focuses mainly on the (metaphorical?) image of double-counting and the idea of other-directed preferences, both of which he finds to be much more slippery, and harder to generalise, than Dworkin acknowledged. The idea of double-counting, in fact, he simply finds incoherent, once it’s generalised beyond simple examples of policies which explicitly disadvantage a targeted group – do we add one for every individual (other than the voter him or herself) who is either benefited or disadvantaged by a vote, since our vote counts for one extra vote for or against their interests? (And if so, how many valid – single-counted – votes would be left?) Hart finds the broader idea of other-directed preferences more substantial but just as problematic. He notes (using slightly different terms) that Dworkin would count a heterosexual voter’s opposition to gay rights as an other-directed preference; he then asks why, if the same voter came round to supporting gay rights, this preference would not also be considered ‘other-directed’ and hence inadmissible.

Two answers seem to be available, both difficult to argue. Hart’s own conclusion is that discounting positive other-directed preferences in this way would be absurd. We could theorise this position by argue that other-directed preferences should be seen as admissible – and, perhaps, that they should not be seen as other-directed – when their tendency is to promote overall equality of respect. The problem with this argument is that it relies on smuggling substantive ideas of the good back into an argument which purports to float free of them. Which is to say, the concept of equality of respect does not, in itself, give us the means to differentiate between ‘good’ and ‘bad’ examples of the ‘other-directed preference’. Shaw’s inversion of the Golden Rule – “Do not do unto others as you would have them do unto you. They may have different tastes.” – is glib and shallow, but it remains (annoyingly) pertinent. If I believed that human flourishing was best secured through the institution of heterosexual monogamy, I could argue that those social arrangements which promote it pay the most respect to all individuals, however uninterested in that institution they might be at the moment. Encouraging the expression of homosexual feelings would then be a disrespectful other-directed preference, despite its superficial liberalism: it would express the contemptuous view that some people were unable to overcome their base and self-destructive urges – as if to say that the liberal response to alcoholism was to set alcoholics free to drink themselves to death. Equally, it could be argued that laws mandating maximum working hours or a minimum wage are not founded on respect for the worker (or self-respect for oneself as worker) but on other-directed disrespect for the employers who would be inconvenienced by them – a prejudice against business which should not be given consideration. And so on.

Alternatively – and more consistently with the letter of Dworkin’s argument – we could argue that even altruistic other-directed preferences should not be counted: that only the preferences of those directly affected should be taken into consideration. The problem with this approach is that it would delegitimate social solidarity among anyone whose shoe didn’t pinch in exactly the same place, depoliticising rights discourse to a disabling extent. It would, for example, make it inadmissible for supporters to advance the rights of a group whose members were not themselves demanding them – a familiar scenario in the context of groups as disparate as children in care, migrant workers and abused women. Something like this does in fact appear to have been Dworkin’s position, although he avoided its more alarming implications by supplementing his modified version of preference utilitarianism with deontological arguments. In other words, he held that altruistic other-directed preferences should not in fact be counted as individual preferences, but that they should be attended to as the expression of views which might be independently (‘ideally’) correct, irrespective of how many or how few people held them. By this point, though, we are not so much smuggling an idea of the good into a utilitarian argument as moving out of the utilitarian argument altogether to shack up with an idea of the good.

Whichever way you take it, Dworkin’s argument against other-directed preferences seems to boil down to saying that majority votes – and utilitarian greater-good arguments – are problematic when they justify things that are wrong; the question of what actually is wrong remains open (and, I would add, political). It could be argued that these considerations of value pluralism have nothing to do with equality of respect – in other words, that these are arguments we would have been having anyway – but in fact that’s the point: Dworkin’s metric gives us no guidance precisely when we need it. Hart concludes by casting doubt on whether it is possible to derive anything of substance from the notion of equality of respect: after all, a law forbidding the practice of any religion is just as equal in its respect for belief as a law allowing complete religious freedom. (Both have an impact on the lives of all believers – and no non-believers.) In terms of equal application, Hart adds ghoulishly, “kill everyone” is just as good a command as “kill no one”.

Dworkin replied to Hart’s criticisms, in a paper with the unhelpful title of “Is there a right to pornography?” (try googling “Dworkin pornography” and see what you get). I have read it – the section on Hart at least – but I’ve got to admit defeat. I’m honestly not sure what Dworkin was saying, although there seemed to be a certain amount of question-dodging and subject-changing going on. I can recommend John Hart Ely’s 1983 paper on the Dworkin/Hart exchange, “Professor Dworkin’s External/Personal Preference Distinction”; Ely engages much more closely with Dworkin than I have the energy for, but he ends up seeming equally unimpressed (“Professor Dworkin has led us a merry chase, but each of the alleys has proven blind”).

Hart seems to have found Rawls considerably more substantial than Dworkin; he praises A Theory of Justice highly. But issues remain.


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