The Permission Society. Timothy Sandefur
in the political decision” about how “goods and opportunities are to be distributed.”59 This is only a right to take part in a collective, political choice about how to distribute resources, including freedom – essentially, a right to vote, not a right of private enjoyment.
Because his theory was based on distributing things in society, Dworkin had trouble justifying simple, personal freedoms – the right to go on a picnic, the right to compose a poem, or the right to marry a person of one’s choice – that have little political valence. True, he referred to a right of “moral independence”60 – the right to pursue the good life one sees fit – and argued that people should not be allowed to interfere with each other’s independence by imposing their notion of the good life on other people. But laws that interfere with “moral independence” do not interfere with a person’s right to participate in political decisions about distribution, which is the right he labels “fundamental.” It’s unclear, therefore, how moral independence could fit into his argument.
Dworkin insisted his theory would prohibit deprivations of personal freedoms because the people affected by such deprivations “suffer ... because their conception of a proper or desirable form of life is despised by others,”61 which he considered unacceptable. But this only begged the question, because he gave no reason to nullify decisions motivated by such disapproval, as long as those decisions do not interfere with a person’s more “fundamental” right to participate in political choices about the distribution of property or freedom.
When, in one essay, he focused in the question of “external preferences” – efforts by some people to tell others how to live – Dworkin was at last forced to turn to the libertarian theory of rights that he had rejected when arguing that there is no general right to freedom. His argument proceeded this way: a basic principle of democracy is that everyone gets an equal vote. But that principle would be undermined by a rule that, for example, allowed some people to vote twice as often as others. This proves that some kinds of political desires are automatically ruled invalid by the deeper principles of democracy.62 So, too, with moral beliefs about how others should live. Because such beliefs also have distorting consequences, they should be considered an invalid basis for a person’s vote.
To say that a deeper value – equal freedom, moral independence, or a right to guide one’s own life – takes precedence over democratic decision-making is to say that our natural right to freedom trumps any effort by government to dictate how we should live. Dworkin was embedding rules that protect liberty into his view of democracy – even though he had started by denying that there was any such general right to liberty. Asked why he thought democracy should remain “neutral” about people’s moral choices, Dworkin answered that he “assumed” the goal of politics is to create a society in which people can “make the best and most informed choice about how to lead their lives.”63 But that is exactly the basic right to freedom he had set out to disprove.
The Right to Lead Our Own Lives – Always
This was not the only way Dworkin contradicted himself. The “assumption” that politics should enable us to lead our own lives is ultimately incompatible with the idea that justice is accomplished by “distributing” rights. To take a talented basketball player’s earnings away does not enable him to lead his own life, for one thing. For another, Dworkin’s “assumption” suggests that there are some rights that may never be justly redistributed by the state. But that means that distribution cannot be the foundation of justice, as he claimed. Instead, some rights must be too important to be “distributed.”
This objection came to the surface when Dworkin argued that government should not limit someone’s freedom “in virtue of an argument that the [person] could not accept without abandoning his sense of equal worth.”64 Presumably, “that sense of equal worth” is not itself one of the “goods, opportunities, and liberties” that the state may redistribute. But what about the self-worth of people who resent being forced by the welfare state to support idle people out of their paychecks? What about the basketball player’s sense of self-worth in a society that considers his talent to be “morally irrelevant”65 and seizes his justly acquired earnings to give to others?
We see a hint of an answer when Dworkin writes that laws persecuting atheists or other religious minorities would fail his “equal concern and respect” test because “[n]o self-respecting atheist can agree that a community in which religion is mandatory is for that reason finer.”66 But many self-respecting property and business owners are just as offended by laws that seize their belongings in order to “distribute” them to others. If “self-worth” or “equal dignity” are so important, then the same principles would also protect the rights of property owners. In casting about for a strong foundation for individual rights, therefore, Dworkin ended up finding a principle that really is fundamental – a substantive limit on what the state may “distribute.” But it was the general right to liberty he rejected: the right to pursue one’s own life and keep the fruits of one’s labor. Whether called “a sense of equal worth,” or “moral independence,” or an “assumption” that politics should enable people to “lead their lives,” this was just the old-fashioned presumption of freedom.
Why did Dworkin take this bizarre detour? Because as a political liberal, he hoped to fashion an answer to critics who accused him of hypocrisy for endorsing strong protections for “personal” and “political” rights such as sexual privacy and free speech while simultaneously denigrating “economic” rights such as private property and the freedom to make contracts. If, as Dworkin argued, “there is no such thing as any general right to liberty,”67 and the justification of “any specific liberty” can differ from the justification for any other, then it would be perfectly consistent for him to support some kinds of freedom while ignoring other freedoms: he could argue that atheists should not have their rights infringed, while also holding that the government could override “the right to liberty of contract sustained in the famous Lochner case.” “I cannot think of any argument,” said Dworkin, “that a political decision to limit such a right” as freedom of contract would “offend the right of those whose liberty is curtailed to equal consideration and respect.”68
The self-contradiction here is obvious. The Lochner case involved a New York law that banned bakers from working more than ten hours a day in bakeries. A product of lobbying by organized labor, Progressive activists, and owners of machine-run bakeries who saw restrictions on working hours as a way to restrict their competition,69 the New York Bakeshop Act was rooted in just the sort of “external preferences” that Dworkin otherwise considered inadmissible. It was not a decision expressed by bakers themselves but a law imposed on them and on bakery shop owners by the state legislature. The act was plainly designed to dictate the choices bakery workers might make about how to lead their lives – it gave force to government’s disapproval about certain types of economic decisions, and it violated the right of moral independence on the part of baker Aman Schmitter and his employer, Joseph Lochner. This was precisely why the Supreme Court ruled in their favor and struck the law down. Bakers, the court declared, were “equal in intelligence and capacity to men in other trades or manual occupations” and were “able to assert their rights and care for themselves” without needing the government’s “protecting arm.” Laws “interfering with their independence of judgment and of action” were “meddlesome”70 and demeaning. As mature adults, Lochner and Schmitter were “in no sense wards of the state.”71 The Bakeshop Act was unconstitutional because it offended their right to have their own economic choices accorded equal consideration and respect.
Dworkin’s effort to distance himself from Lochner was simply a failure. He was right about one thing: political decisions that dictate how others should live their lives ought not to be given the same respect as the choices people make about their own lives. But that argument only makes sense from the perspective of the libertarian position endorsed in the Lochner decision. Dworkin’s commitment to individual freedom clashed with his effort to justify modern liberalism’s hostility toward economic liberty, as symbolized by Lochner. To the degree that his argument supported personal freedom,