R. Dworkin

The Original Position

I trust that it is not necessary to describe John Rawlss famous idea of the original position in any great detail. It imagines a group of men and women who come together to form a social contract. Thus far it resembles the imaginary congresses of the classical social contract theories. The original position differs, however, from these theories in its description of the parties. They are men and women with ordinary tastes, talents, ambitions, and convictions, but each is temporarily ignorant of these features of his own personality, and must agree upon a contract before his self-awareness returns. Rawls tries to show that if these men and women are rational, and act only in their own self-interest, they will choose his two principles of justice. These provide, roughly, that every person must have the largest political liberty compatible with a like liberty for all, and that inequalities in power, wealth, income, and other resources must not exist except in so far as they work to the absolute benefit of the worstoff members of society. Many of Rawlss critics disagree that men and women in the original position would inevitably choose these two principles. The principles are conservative, and the critics believe they would be chosen only by men who were conservative by temperament, and not by men who were natural gamblers. I do not think this criticism is well-taken, but in this essay, at least, I mean to ignore the point. I am interested in a different issue. Suppose that the critics are wrong, and that men and women in the original position would in fact choose Rawlss two principles as being in their own best interest. Rawls seems to think that that fact would provide an argument in favor of these two principles as a standard of justice against which to test actual political institutions. But it is not immediately plain why this should be so. If a group contracted in advance that disputes amongst them would

Sovereign Virtue Revisited

egalitarian attitude I called the sovereign virtue of government. It must show everyone equal concern, and a proper concern for people who have been unlucky requires the latter choice. Of course, some people will turn out not to benefit from the hypothetical insurance redistributive scheme. But none of them can sensibly complain that the community should not have relied on general assumptions about insurance but should have designed individualized tests for deciding who would and who would not have insured at what level. Everyone’s taxes, including their own, would have been much higher if the community

Autonomy and the Demented Self

A person who becomes demented can be considered as he presently is, a demented person, or in light of his entire life, of which dementia is but the final stage. These two perspectives can provide conflicting determinations of the persons interests and preferences, since what is best for a demented person at the time may not make his life better overall and may be directly contrary to preferences expressed while competent. Reflection on the concept of autonomy--what faculties it requires, what its point is--provides a clear understanding of the rights of the demented patient.

Comment on Narveson: in Defense of Equality

Professor Narvesons comments about my papers on equality are both penetrating and comprehensive. I cannot hope to discuss all the issues he raises in any detail. But there is a special problem: his main question is about what I have not said. He asks how I might defend equality of resources other than simply by describing a version of it, and of course this question will require some extended discussion. But he is right to say that this is his most important question, and I should hate to lose the opportunity of encouraging discussion of it. So I shall begin with some general remarks about the defence of the idea of equality and then take up, in a very hasty and summary way, the other problems he discusses or raises. Please allow me, however, this apology and caution. I know that what I shall say about the defense of equality is at many points dogmatic and at others unmindful of very natural objections and replies. I want to answer Narveson only by showing in a rough and general way how far I think a defense of equality is possible, what kind of defense this can be, and what form it should take.

Uses and Abuses

THE RIGHT TO FREE EXPRESSION, ALREADY THREATENED BY THE EXIGENCIES OF THE WAR ON TERRORISM, SHOULD NOT BE FURTHER ABUSED BY WRONG-HEADED APPEALS IN ITS NAME

A new map of censorship

THE OLD ORDER CHANGES, YIELDING PLACE TO NEW, AND FREEDOM FINDS ITSELF IN DISARRAY, UNDER ATTACK FROM NEW ENEMIES AMONG ITS OLD CHAMPIONS

The Partnership Conception of Democracy

Professor Michelman takes up a central issue of political and constitutional theory in his intriguing Brennan Lecture-the bewitching idea that democracy means self-government. We say that democracy is valuable because in a democracy the people govern themselves, and it is this sense, rather than any supposed instrumental advantages democracy enjoys over other forms of government, that explains its great contemporary popularity. But we have great difficulty in stating what the claim of self-government means. Democracy cannot provide self-government in the most literal sense: individual citizens cannot have a veto on law or

Philosophy Morality and Law-Observations Prompted by Professor Fuller's Novel Claim

proposition, to the issue of racial discrimination? At what level of abstraction, in other words, should conventional morality be read? We believe that one who holds the abstract opinion but denies the more specific one holds inconsistent opinions. Does that entitle us, in computing the conventional morality, to disregard one of them? Which one? At least in part, our disagreement with those who do not think the specific proposition follows from the abstract one may be a disagreement of fact. Is a court entitled to find the pertinent facts in its usual style and disregard opinion based on a contrary perception of the truth? Still other difficulties flow from the accurate clich6 that a communitys moral standards are often honored in the breach. If we distinguish a mans critical behavior (meaning his acts of criticizing or commending others and supplying reasons and arguments therefor) from the rest of his behavior, we shall find many cases in which the lattgr is inconsistent with the former. Shall we say, if this inconsistency is sufficiently widespread with respect to certain principles, that these principles are therefore hypocritical and not to be counted as live standards of the community? Or shall we say that the notion of conventional morality is addressed to the critical behavior of a communitys members, and, therefore, includes these standards so long, at least, as the inconsistent behavior does not entirely erode their critical force? Even if we tie conventional morality to critical behavior, we cannot count all critical behavior, for we often criticize others on HeinOnline -113 U. Pa. L. Rev. 689 1964-1965 690 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:668 standards neither we nor they would recognize as moral. Can we supply the necessary techniques for distinguishing moral from other sorts of standards? A competent analysis of the concept of conventional morality is needed. It can be achieved, it seems to me, only by pooling the moral philosophers sensitivity to normative language and argument and the legal philosophers concern with the way in which community standards are generated and introduced into the legal process. Some may feel that the difficulties I have raised should be met not by exploring the concept of conventional morality but by dropping it, at least for legal purposes. This would perhaps be more expensive than they realize. We have mentioned some recognized examples of explicit and implicit reference to moral standards in statutory and constitutional law. More routine, and therefore less heralded, appeals to such standards so thoroughly permeate the legal process that it can scarcely be supposed that it could function without them. We have already noticed, as a sample, the importance of morality in the interpretation and enforcement of statutes. The administration of even so structured a legal event as a trial or an argument at law, to take a wholly different example, requires constant appeal beyond a code of procedures to community standards of fair play. The concept of a conventional morality serves the function of qualifying moral standards for all these uses, by placing them beside more traditional law in the background of public standards against which the community conducts its affairs. If we abandon the concept we buy relief from its perplexities, but at the cost of having to explain and justify without it the uses of morality in law. HeinOnline -113 U. Pa. L. Rev. 69

O que é uma vida boa

According to his new book, Justice for Hedgehogs, Ronald Dworkin establishes a different relation between morality and ethics founding the need to obey these norms through the distinction between good life and living well.

Two Conceptions of Democracy

A wide range of subjects comes to mind when we ask about the connections between democracy and knowledge. For example, how far a democratic government should help advance of knowledge through funding research, or through its copyright and patenting polices, or in myriad other ways. Or, a very different question: how far cultural democracy actually helps or hinders the development of knowledge and the dissemination of knowledge through television and other media.