Title: A Feminist Looks At Ronald Dworkin's Theory of Equality

Author: Catherine J. Iorns

Organisation: School of Law, Murdoch University

Language: English

Keywords: Feminism, Dworkin, Equality

Abstract: This piece is a "work in progress", dealing with Dworkin's theory of equality and its related social vision from a feminist perspective. Criticisms of method and substance are put forward. Methodologically, there is too much emphasis upon abstract principles. Also, issues of sex appear to intrude into

Dworkin's notionally objective stance (the "independence" principle). The implications of this depend upon what social/familial structures are carried over from current society. Linguistic analysis, although not decisive, supports the view that structures oppressive to women are envisaged. A notable substantive problem is the theory's reliance on a questionable public/private distinction. Also, the emphasis given to and the role placed upon private resources and related phenomena seems to run counter to feminist concerns, and in places goes unjustified. The definition of equality fails to address the reality of the oppression of women in the real world. The author criticises the central freedom/equality dichotomy. There seems an unstated assumption of the continuance of modes of oppression of women, especially in the private sphere. The issue of insurance for child bearing is a key example. Reservations are expressed regarding the theory of political power and political equality.

Contact Name: Michael Pendleton

Contact Address: Murdoch University Law School, PO Box 1014,

Canning Vale, Western Australia 6155

Contact Phone: +09 61 360 2976

Contact e-mail: [email protected]

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Creation date: 22 December 1993

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A FEMINIST LOOKS AT RONALD DWORKIN'S THEORY OF EQUALITY

By Catherine J. Iorns

INTRODUCTION

There are few opportunities provided by modern law school curriculums to take a course, the sole purpose of which is to analyse and compare solely modern liberal philosophers' theories of equality. When the opportunity arose for me I jumped on it, not because I knew much about modern philosophy but precisely because I did not.(1) Given Ronald Dworkin's influence on modern jurisprudence, it was not surprising that Dworkin's theory of equality was first up, nor that we spent more time on it than on other theories, continually returning in order to compare it with some of the later theories that we discussed. While we looked at the four parts of Dworkin's theory of equality,(2) as well as some criticisms that have been made of them by other philosophers,(3) in none of our discussion was a feminist perspective ever raised.

The primary hurdle to discussing feminist objections was that they often challenged the basic precepts of liberalism itself, while the course was unashamedly accepting those precepts and conducting inquiry solely within the liberal tradition.(4) But this did not eliminate all my (ad hoc) objections, so I attempted a more systematic assessment of Dworkin's theory from a feminist perspective. This paper is the result of that attempt.

In Part I of this paper I briefly outline some feminist concerns (including concerns in respect of philosophical methods as well as substance) by way of background to the feminist analysis. In Part II, I briefly describe the elements of Dworkin's theory of equality. In Part III, I assess Dworkin's theory from a feminist perspective, utilising the feminist concerns outlined in Part I. Finally, I try to draw some conclusions from the analysis. By way of a disclaimer I must

note that this is not a discussion of all the different criticisms that could be, or have been, made of Dworkin's theory; it is merely my reactions and comments from a feminist perspective.(5)

I: SOME FEMINIST CONCERNS ABOUT POLITICAL PHILOSOPHY

PHILOSOPHICAL METHODS

The general, overriding concern of feminists about philosophical method is over the philosopher's perspective or viewpoint from which he or she theorises. The feminist criticism is that the perspectives that have been used in the past, and continue to be used, are particularly male perspectives(6) and that, in ignoring the experiences and the perspectives of women, the use of such perspectives results in theories which maintain the subjection of women. For example, the philosophical tradition is one of distinctions and dichotomies. The primary distinction is that between the mind and body, where the mind and its activities are superior to the body and its experiences. This creates the distinction between knowledge and experience, whereby only certain things are thus said to count as knowledge; physical experience is not one of them.(7) In contrast, feminist analysis emphasises the experience of women and the central importance of that reality to theory. Thus theory, rather than being created 'top down,' should instead be built from the bottom up, from the shared experiences of those to whom the theory is meant to apply.(8) Feminist analysis thus focuses on what is commonly referred to as 'revision' - a deconstruction of the existing principles and structures of thought and a reconstruction of how they might look if considered from another perspective, the perspective of women's experience.(9)

Liberal political theory provides no exception to such criticism. The liberal method of inquiry assumes that any adequate moral or political theory must be objective in the sense of being unbiased.(10) The best way to achieve this is thus thought to be for the philosopher to detach himself or herself from 'contingent' properties" such as race, class or sex.(11) At the most basic level, feminist theory commonly disputes that a truly neutral or objective standpoint has been used; instead, a male standpoint has excluded the female view and is continuing to subjugate women as a class. However, while all versions of feminism(12) have this much in common, they differ on the extent and detail of their criticisms. Liberal feminists (not surprisingly) accept this methodological concept of the use of a neutral observer; they merely argue for the adoption of a truly neutral and objective perspective -- i.e., one where the bias toward the male perspective has been eliminated by the inclusion of considerations of women's experience. Other versions of feminism take issue with the very concept of objectivity: they argue that all knowledge reflects the interests and values of particular social groups,(13) so there can be no such thing as even a "truly" neutral, objective perspective from which to create a political theory.(14) They similarly deny that the theories produced by methods that purport to utilise an objective perspective are universally applicable or that they embody universal or human values. They therefore argue that, in order to avoid the continued subjection of women, all moral and political theories must explicitly consider and address their work from the standpoint of women.(15)

SUBSTANCE

Feminist criticism of the substance of political theories focuses on whether they endorse - and are thereby likely to maintain - the subjection of women to men. The subjection of women takes many and varied forms, and the forms differ among and between the various different categories of political theories; I will focus here solely on the basic features more typical of liberalism.

Early political theories, in particular, tended to either assume or argue that women were not rational, were not liberal individuals, and thus were not part of the subject-matter of the philosophy.(16) Susan Moller Okin demonstrates that some greatly influential male philosophers, adopting a male perspective, have regarded women in solely functional terms (these being related to reproduction and maintenance of men's and society's needs within families).(17) The result is that women have been relegated to a private, functional role and, in some philosophies, cannot even be considered as citizens, let alone as men's equals in the public or private spheres.(18) Early feminists consequently concentrated on the public sphere by showing that women were rational, liberal individuals with more than a functional capacity who were thus able to be citizens in the public sphere and were thus entitled to treatment as subjects of the relevant political theory.(19)

More recently, even as women are accepted as citizens and liberal individuals,(20) they have still been seen in primarily functional terms such that, while a woman without a family is entitled to (act like a man and) participate in the public sphere, their natural and therefore proper role has been considered to be reproductive and nurturing, thus perpetuating their subjection via continued and assumed relegation to the private sphere.(21) Feminist analysis has thus criticised both the public and the private spheres: trying to enable women with or without families to participate fully in the public sphere at the same time as improving their conditions and status in the private sphere, while attempting, simultaneously, to modify and/or break down the barriers between the two. Thus, in addition to arguing for conditions enabling participation in the public sphere, a minimum feminist position is that a moral or political theory must not define women functionally or relegate them to the private sphere of the family.(22) It is also argued that the private sphere be made more public (although to differing extents and in different ways, depending on the version of feminism).(23)

While all feminists agree on this minimum, there are fundamental aspects of liberalism about which many disagree. Liberal feminists agree with the basic precepts of liberalism and maintain, e.g., that equality of opportunity for the good life is the right goal (rather than, e.g., complete substantive equality) and that rewards should be based on merit.(24) The debate is thus still framed in terms of equality, liberty, and justice, with a strong emphasis on liberal individualism and a reliance on rights to achieve these ends; at the risk of making a generalisation, liberal feminists merely argue for a wider role for the state in ensuring equal opportunity.(25)

Other versions of feminism do not share the faith in the precepts of liberalism, including the goal of mere equality of opportunity in achieving the elimination of the subjection of women.(26) They instead argue for more radical and interventionist measures in order to achieve substantive equality. I will not address here the philosophical criticisms of the fundamentals of liberal theory as it is a liberal theory that is being evaluated in this paper; it will thus fall foul of these fundamental criticisms as a matter of course.(27) I note, however, the common disagreement with the liberal focus on individualism, the prominence of rights, and the definition of justice as equality of opportunity. The first two of these aspects have not only been criticised from other feminist philosophical viewpoints(28) as not being helpful means for the achievement of the end of

substantive equality, but have also been criticised from a very different perspective which argues that they are distinctly male concepts, embodying male values, and are thus inappropriate as means or ends for women. The difficulty with the concept of justice as equality of opportunity is similar: it is from the conclusion that the end of justice (especially as defined as equality of opportunity) is a distinctly male concept that the other two elements -- as means to the end of justice -- are rejected.

The challenge that these concepts are peculiarly male comes from a perspective other than political theory: it is provided by work on psychological theory and women's development. While various studies have come to the conclusion that men and women grow up differently socialised,(29) Carol Gilligan has found, through empirical study of girls' and boys' psychological development, that the two sexes reason differently and have very different views on interpersonal relationships and thus on the world.(30) Gilligan found that the boys in her study tended to abstraction and to focus on justice, rights, and autonomy, while the girls tended to the particular and to focus on responsibility, connection, and empathy.(31) These different perspectives are what are referred to respectively as an ethic of justice and an ethic of care.(32) Other psychologists had previously noticed that men and women tend to reason differently;(33) what was significant was that these psychologists considered that the female(34) method of reasoning was inferior to the (male) use of abstract, general principles which, to them, exemplified the ultimate stage in (human) moral reasoning.(35) It is this judgement of inferiority that has been challenged by Gilligan's studies. It has become clear that the two types of minds simply put different values on the different methods of reasoning; one is not inherently superior to the other.

The relevance of Gilligan's study to a moral or political philosophy is (at least) twofold. First, it suggests that the inclusion of the women's perspective as argued for by all versions of feminism may mean more than referring to shared experiences; it may also include a reference to a different method of thought and prioritising. Secondly, Gilligan's findings that men and women see matters such as justice and equality differently (when it is precisely these concepts that such philosophers deal in!) suggests that a theory that resonates with or seems appropriate for one group may not for the other. This is particularly so with respect to liberal theories because the female view of the world challenges basic liberal premises. Instead of seeing the world as a ladder, as atomistic and hierarchical, where human interactions are seen as individuals competing for positions in the hierarchy,(36) the female view is that the world is a web of relationships. The holders of this view are not concerned with climbing ladders but with keeping the web intact, with balancing everyone on it. Instead of seeing rights and procedural rules as beneficial for ensuring that the competition is fair, the female view sees even fundamental rights such as liberty and equality of opportunity as detrimental for encouraging separation and autonomy, and often as simply irrelevant to solving moral and other conflict.(37) Instead of limiting the concept of duty to non-interference with others and their rights, the view from the web produces a morality with an emphasis on responsibilities rather than rights.(38) Finally, this relevance is particularly acute where the theory in question ignores the perspective of a historically subjugated group because that theory may continue the subjugation of that group. While there is no general feminist agreement on the use to which Gilligan's findings should be put, there is at least agreement on the aim of the end of the subjection of women.(39)

One aspect of moral and political theorising that often bridges the traditional gap between form and substance is the language used to discuss the theory. Language can both identify and obscure the true position of women in any theory. Because of this, it can often tell us both about the theorist and the theory itself. For example, a philosopher who really does only envisage that men constitute the subject-matter of the philosophy will use masculine pronouns (and other related words such as possessives) to refer to these

subjects. However, even a philosopher who uses gender-neutral language (such as "they" or "persons"), or even includes feminine pronouns (as in "he or she"), may be using it falsely. This has the effect of obscuring the reality that the theory assumes that persons participating in the public sphere (men and women who can act like men) are the subject-matter of the theory and is not applicable to persons (typically women) who inhabit the private sphere. The effect of this "false gender neutrality"(40) -- often referred to as "add women and stir"(41) -- obscures the oppression of women in the private sphere and is thus unlikely to offer any true liberation from that oppression.

The primary ways that in which oppression in the private sphere is obscured are by "ignoring the irreducible biological differences between the sexes, and/or by ignoring their different assigned social roles and consequent power differentials, and the ideologies that have supported them"(42) -- in other words, by ignoring the experiences of women. In short, language can be an indicator of the substance of a theory, but it will take an assessment of the substance to see if seemingly gender-neutral language is in fact falsely neutral.

II: DWORKIN'S THEORY OF EQUALITY

At a broad level Ronald Dworkin's work has been devoted to developing and defending liberal political theories. More specifically, one of Dworkin's primary concerns has been to argue that equality is the central value within, and basis of, liberalism. The aim of Dworkin's essays on equality is thus to find a plausible definition of equality: to give content to the term. Moreover, within the liberal

tradition Dworkin is not a classical liberal but is concerned with the defence of a welfarist liberal philosophy. That is, he believes that the state may interfere with individuals' liberties not merely to prevent harm to others but also to redistribute wealth and resources. Thus, Dworkin's aim is to find a (plausible) conception of equality that can be used to guide the state's redistribution of resources and justify the state's interference with individual liberty in that redistribution.(43)

In his first essay on equality(44) Dworkin distinguishes two root concepts of equality: the equality of welfare and equality of resources. Within equality of welfare Dworkin identifies various different conceptions of welfare that might be adopted in order to satisfy the ideal of equality of welfare. However, Dworkin argues that none of these different conceptions provide an acceptable ideal. Instead, Dworkin argues that only a conception of equality of resources can provide that.

In his second essay on equality(45) Dworkin attempts to define a plausible conception of equality of resources. The resources relevant to his enquiry are "whatever resources are owned privately by individuals."(46) Dworkin's metric for equality is the envy test: a division of resources is equal if, when it is complete, no-one would prefer someone else's bundle of resources to his or her own bundle.(47) The method of achieving equality is not strict equal division(48) but via a market mechanism, where the primary market consists of

the resources in question and a secondary market consists of insurance.

The mechanism of the primary market that Dworkin uses is a Walrasian auction where all productive resources are eventually sold. At such an auction all potential bidders (in Dworkin's hypothetical auction the bidders are shipwreck survivors dividing up all the resources in the island; he refers to them as immigrants) receive "an equal and large number of clamshells" with which to bid.(49) When all the resources are distributed according to the auction Dworkin argues that "the envy test will have been met."(50) Dworkin then argues that a more elaborate version of the auction could be used "to provide a scheme for developing or testing equality of resources in a community that has a dynamic economy, with labor, investment, and trade."(51)

The primary elaboration that Dworkin makes of the initial, basic auction is in the creation of the secondary market in insurance. The need for this secondary market is described as arising once the auction is successfully completed. This is because people will be free to use, including trade, their resources, which will be affected by three things: differing levels of skill (including lack of skill

and/or what Dworkin calls handicaps); ("brute") luck, good or bad; and gambles (or "option luck"), which may turn out good or bad. Dworkin argues that the link between all of these three factors is insurance: in theory, people can take out insurance (i.e., gamble) against future possibilities of bad luck.(52) If there was equality of opportunity of taking out insurance then equality of resources would not require redistribution in the future if that bad luck eventuated, for example.(53)

Dworkin argues that this concept can be used to compensate for all "physical or mental handicaps."(54) The amount required to compensate someone who does develop a handicap would be the amount of insurance that "the average person would have purchased insurance" against getting such a handicap.(55) This amount would be paid from "some fund collected by taxation or other compulsory process but designed to match the fund that would have been provided through premiums if the odds [for all people of developing that handicap] had been equal."(56)

Dworkin next considers how talents might be treated in order "to create a society in which the division of resources would be continuously equal."(57) Dworkin assumes that, after the distribution of resources at the auction, people will work to produce new resources and trade their resources. In this scenario Dworkin argues that, when assessing the amount of a person's resources under the envy test, "the total package of work plus consumption" must be included so as to take into account the person's life as a whole.(58) Thus, the envy test is applied diachronically: "it requires that no-one envy the bundle of occupation and resources at the disposal of anyone else over time, though someone may envy another's resources at any particular time."(59)

The difficulty that arises in this context is that of unequal talents. While Dworkin argues that the distribution of resources should be able to varied by differing ambitions, it should not be so varied by endowments (i.e., talents). This means that "the role of talent must be neutralized."(60) Dworkin's proposed method is "the periodic redistribution of resources through some form of income tax."(61) The level of redistribution would be set in a manner similar to that for handicaps: by asking how much insurance at what cost would one buy against suffering the lack of any particular skills. Even an answer that merely fixed "rough lower limits on average" would provide "a device for fixing at least the lower bounds of a tax-and-redistribution program satisfying the demands of equality of resources."(62)

The difficulty with this in practice is the same as for handicaps: that of not being able to form life plans and attitudes without some knowledge of one's talents or handicaps, and therefore not knowing what to bid for at the auction in order to fulfil one's life plans and ambitions. However, Dworkin considers that this objection is most serious for talents: "if we suppose that no-one has any idea what talents he [sic] has, we have stipulated away too much of his personality to leave any intelligible base for speculation about his ambitions, even in a general or average way."(63) Dworkin's solution is to stipulate that, before the auction begins, each immigrant knows his "tastes, ambitions, talents, and attitudes toward risk"(64) but has no knowledge of "what income level his own talents will permit him to occupy."(65) Thus, the opportunity to buy insurance will now not be against having or not having a talent or handicap, but will be against not being able to earn an income of a certain level (that level being chosen by the "immigrant"). Dworkin argues that this hypothetical insurance scheme could be translated into a tax-and-redistribution scheme that could cope with complex societies.(66)

Dworkin concludes this discussion of equality of resources by comparing his theory to other theories of justice. Dworkin notes that his theory "travels very far from the boundaries of the nightwatchman state."(67) In relation to Rawls' theory of justice, Dworkin notes that Rawls' "difference principle is an interpretation of equality of resources" but "a rather different interpretation than [Dworkin's] conception."(68) Dworkin also comments that his bidders' self-knowledge is one important difference between his theory and Rawls' original

position.(69)

In his third essay on equality(70) Dworkin considers the relationship between equality and liberty.(71) Many liberal political theories consider that liberty and equality are independent ideals that are in fundamental conflict with each other.(72) In an earlier book Dworkin argues that liberty, including the right to particular liberties such as freedom of speech, religion and conviction, are derivable from the fundamental right to equality. In this essay Dworkin defends

this thesis within the context of the specific right to equality of resources.

While there may be genuine conflicts between liberty and some conceptions of equality, Dworkin argues that this is not the case when we take equality of resources as our conception of distributional equality. Instead:(73)

According to equality of resources, the rights to liberty we regard as fundamental are a part or aspect of distributional equality, and so are automatically protected whenever equality is achieved. The priority of liberty is achieved not at the expense of equality, but in its name.... [R]ights adequate to an attractive conception of liberty are given so foundational a place under equality of resources that conflicts between these rights and that view of distributional equality cannot arise.

Dworkin attempts the reconciliation between liberty and equality via two methods. The first method is definitional; the second is by reasoned argument.

In his definitional defence, Dworkin argues that the fundamental "abstract egalitarian principle" is at the base of all conceptions of equality, including his conception of equality of res.(74) This principle stipulates that "government must act to make the lives of those it governs better lives, and it must show equal concern for the life of each."(75) Dworkin argues that "the egalitarian

principle itself requires government to attend to liberty, because it requires government to have equal concern for the lives of those it governs."(76) In the hypothetical auction this requirement of equal concern is met by bidders having equality of purchasing power (subject to compensation for initial talents and handicaps).

The requirement of liberty is further built into the definition of the auction because the market mechanism presupposes a system of liberties in order to make it a fair and proper market. The bidders must know before they bid what liberties and constraints will exist after the auction(77) -- for example, on how resources may be used after the auction -- so liberty cannot be auctioned off as a resource.

Just as "the envy test presupposes a liberty/constraint system, and cannot be used to yield one . . . . [s]o the definition equality of resources offers of an ideal egalitarian distribution must include a specification of the liberties essential to equality."(78)

In Dworkin's second approach, he reaches the same result in respect of the place of liberty in his theory of equality, but via more lengthy, reasoned argument. I will not provide the detail of Dworkin's second method, as it is not all relevant to my task in this paper. However, during his argument, Dworkin makes a number of elaborations of his hypothetical auction and thus of the detail of his theory of equality, which I will describe.

One such elaboration is that all resources must be offered for auction in the most abstract form possible.(79) This is so as to be the most sensitive to different bidder's plans and preferences, which is solely in order to enhance equality between the bidders.

Dworkin also makes a clarification of the role of opportunity costs as a measure of equality. It is implicit in the use of the auction, as well as in the use of the envy test to measure when a distribution of resources is equal, that the unit of measure is opportunity cost: "[t]he value of any transferable resource one person has [is] the value others forgo by his having it." Dworkin stresses in this third essay that auctions with different baselines will produce different results, each of which may satisfy the envy test. So Dworkin tries to find the "true opportunity costs of a set of resources,"(80) and thus select the appropriate baseline (including provisions about liberty). It is with this argument that Dworkin concludes that "the true opportunity cost of any transferable resource is the price that others would pay for it in an auction whose resources were offered in as abstract a form as possible, that is, in the form that permits the greatest flexibility in fine-tuning bids to plans and preferences."(81) Thus, this

principle of abstraction and this notion of true opportunity costs establish "a general presumption of freedom of choice at the core of equality."(82)

This presumption leads us to a further elaboration of the auction. Dworkin argues that there may be no constraints in the auction on the grounds of religious or personal morality.(83) This endorses the general liberal thesis of neutrality between competing conceptions of the good life. Dworkin justifies this by showing that it is necessary for his theory of equality of resources.(84) One way that this ties in with Dworkin's theory of equality is in relation to the

notion of opportunity costs. Looking at the principle of neutrality between different conceptions of morality, from this point of view, each person's view of their social -- including moral -- setting that he or she claims is necessary in order to pursue his or her conception of the good life may be evaluated using the measure of opportunity costs, just as physical resources were measured. Thus, they may "be tested by asking how far these requirements can be satisfied within an egalitarian structure that measures their cost to others."(85) No-one is given "for nothing in advance" a moral baseline which imposes costs on others.(86)

One constraint on complete freedom of choice that Dworkin does allow is the correction of externalities created by some individuals at the expense of others.(87) In the hypothetical ideal auction, the auctioneer would decide what measures were necessary to achieve the desired correction.(88) Thus, any "[c]constraints on freedom of choice are required and justified, according to that principle [of correction], if they improve the degree to which equality of resources secures its goal, which is to achieve a genuinely equal distribution

measured by true opportunity costs."(89) Thus, the primary restriction on the imposition of corrective constraints is that they cannot offend the principle of neutrality among competing conceptions of morality.(90)

Other liberties that Dworkin argues "flow from equality in private ownership" include "the parties' freedom to engage in activities crucial to forming and reviewing the convictions, commitments, associations, projects, and tastes that they bring to the auction and, after the auction, to various decisions about production and trade that will reform and redistribute their initial holdings."(91) Thus, Dworkin argues, there is "justification for affording special protection to freedom of religious commitment, freedom of expression, access to the widest available literature and other forms of art, freedom of personal, social and intimate association, and also freedom of non-expression in the form of freedom from surveillance."(92) Further, "the auction would not commence until all parties wanted to exploit these opportunities ["to form, reflect on or advocate convictions, attachments or preferences"(93)] no further."(94) While Dworkin does not describe it in so many words, what he is envisaging is a pre-auction retreat where all potential bidders decide on their life plans and

preferences.(95) This ensures that "people's personalities will be taken as properly developed so that auction calculations can proceed."(96) Moreover, Dworkin argues that, just as equality of resources clearly requires authenticity, authenticity clearly requires the basic liberties that he listed.(97)

The final elaboration of the initial auction that Dworkin makes is the imposition of a requirement that "the auction's results will not violate the abstract egalitarian principle" through the operation of prejudice. As an example of what he wants to avoid, Dworkin hypothesises that, as his hypothetical, ideal auction presently stands, racists who were "sufficiently numerous" could organise "to buy tracts of land for housing from which they will thereafter exclude blacks."(98) However, because "a political and economic system that allows prejudice to destroy some peoples' lives does not treat all members of the community with equal concern," it would violate the fundamental egalitarian principle that Dworkin argues is at the root of equality of resources. He thus argues that he needs to impose on the auction a "principle of independence" in order to avoid such results and achieve equality. While Dworkin does not define clearly what he means by "independence," he considers that it is a means "to place victims [of prejudice] in a position as close as possible to that which they would occupy if prejudice did not exist."(99)

Dworkin spends the rest of his third essay discussing how the "fantasies of equality of resources"(100) which he has devised can be used in today's real world. The first step is to imagine what general distribution would result from such an auction; this is the "ideal" distribution.(101) Next, we have to decide how to improve upon our present situation and make it closer to the ideal. Dworkin posits an "ideal real world, where inequality survives and technical

problems are formidable, but where people are nevertheless fully committed

to making distribution more equal."(102) Dworkin labels distributions that take us as close as technically possible to the ideal distribution as "defensible egalitarian distributions."(103) Dworkin then considers the "real real world in which political difficulties are, if anything, more menacing than technical ones."(104) Dworkin argues that the standards by which to measure progress in the real real world are the defensible distributions devised in the ideal real world scenarios. Thus, criticisms can be directed at failures of political will to

achieve more egalitarian results that are technically possible.

Dworkin's primary concern at this stage is "whether constraints on freedom are a permissible means of bringing us closer to a defensible distribution, even though no such distribution would itself allow those constraints."(105) Putting the question more directly: "Can freedom properly be compromised, in the real real world, as a means of reducing the inequality found there?"(106) Dworkin's answer to this question is: maybe; it depends. Dworkin argues that no-one's liberty may be constrained to an extent greater than it would be under the

most plausible defensible egalitarian distribution (DED). Thus, a reduction in the level of liberty enjoyed by some in the real real world might not be considered to be a violation of liberty if they presently enjoy more liberty than they would under the most plausible DED. The only stipulation on any reduction of real real world liberty in the name of equality is that the proposed reduction not take the person in question below their DED level. Finally, Dworkin shows that what we label as fundamental freedoms -- Dworkin posits, as an example, the right of homosexuals to sexual intimacy -- will not be violated even under his proposal for making changes to the real real world.

Dworkin's theory about equality of resources concerns solely resources subject to private ownership. Dworkin has been concerned to examine "the just allocation of material resources and opportunities, and the shape and proper boundaries of individual liberty."(107) All of this took place without consideration of the distribution of political power. Dworkin's fourth essay on equality concerns precisely the distribution of political power; it addresses the question: "What political institutions and processes should an egalitarian community have?"(108)

Dworkin's starting point is the fundamental egalitarian principle "that government must act to make the lives of citizens better, and must act with equal concern for the life of each member."(109) Thus, any answers to the question posed must satisfy that egalitarian principle. Dworkin next eliminates from consideration all forms of government other than democratic forms(110) and proceeds to examine what conception of democracy provides equal concern and respect for its citizens. Interestingly, Dworkin rejects the conception of government typically thought of as liberal: that a democracy should distribute

equally political power over decisions (i.e., a concern with process rather than substance or outcomes of democratic decisions). Dworkin accepts, instead, the view that "the best form of democracy is whatever form is most likely to produce the substantive decisions and results that treat all members of the community with equal concern."(111) Interestingly, however, Dworkin concludes that the only form that satisfies such a conception of democracy "requires equality of vote within districts, and presumes equality of impact across them"(112) -- i.e., one that also satisfies what is commonly thought of as procedural equality. Perhaps of even more interest is his conclusion about how we should view political power:(113)

If a community is genuinely egalitarian in the abstract sense -- if it accepts the imperative that a community collectively must treat its members individually with equal concern -- then it cannot treat political impact or influence as themselves resources, to be divided according to some metric of equality the way land or raw materials or investments might be divided. Politics, in such a community, is a matter of responsibility, not another dimension of wealth.

III : CRITIQUE OF DWORKIN'S THEORY

There are aspects of Dworkin's theory that can give feminists hope that women and men will be able to emerge from Dworkin's ideal egalitarian distribution in equality.(114) For example: women are eligible to bid at the auction;(115) the fundamental egalitarian principle ensures that everyone should be treated with equal concern and respect; the independence principle is designed to prevent the operation of prejudice, including sexism, at the stage of the auction; no

specific societal or familial structures are specified or said to be known by the bidders, so it could possibly be taken as open; the discussion of talents and (lack of) knowledge about future income assumes that the bidders -- including women -- will be earning incomes and thus be in the paid workforce after the auction; the operation of the principle of freedom of choice indicates that women would be free to choose their occupation; the neutrality between moral baselines supports the proposition that no moral baseline that imposes costs on

women can be adopted; if any externalities were created that imposed hidden costs on women, these could be corrected just as Dworkin argues that the costs of pollution could be; any attributes that handicapped women could possibly be compensated for through the operation of the redistribution mechanism (i.e., based on Dworkin's hypothetical insurance); in the implementation of the ideal egalitarian distribution in the real real world women's levels of liberty could be raised and men's present liberty to oppress women could be lowered as equality of resources were approached; the form of government chosen would be that best able to produce equality of resources, including equality between men

and women. All of these aspects could give rise to the breakdown of the

hard distinction between the public and private spheres as well as to a breakdown in the division of men's and women's roles within those spheres.

Despite these apparent attractions, however, a closer look at the elements of Dworkin's theory shows that there exist many aspects that are inconsistent with this vision. In this critique I will address both the methodological and substantive aspects of Dworkin's theory which pose problems for feminists.

Methodologically, Dworkin arrives at his plausible conception of equality through the application of abstract principles. In this sense his theory is built from the top down rather than the bottom up. For example, Dworkin does not take present problems as a starting point and see how to resolve them (other than the general problem of inequality of resources); instead he prefers to rely on his intuition about what principles are important in a moral or political theory. In this general approach, Dworkin necessarily falls foul of a basic

feminist concern about such theories.

In attempting to define equality in the ideal world, Dworkin follows the traditional liberal method of inquiry in using a supposedly detached, objective and neutral stance from which to create the ideal egalitarian distribution of resources. The method Dworkin uses is the auction where the people determining the distribution of resources (the bidders) are placed behind a "veil of ignorance,"(116) so to speak, about their future position in life. It is not entirely clear precisely which personal attributes the bidders are ignorant of, but it is clear that Dworkin's objective is for these ("detached") bidders to be able to make decisions not based solely on their personal position in life.

In using this technique, Dworkin is clearly subject to the criticism that there is no such thing as a truly neutral perspective from which to create such a theory. What is less clear is how far Dworkin falls foul of the liberal feminist position that a supposedly objective position must be truly objective and not, in reality, constituted by a male perspective. In order to address this issue one has to

assess what factors the bidders are both knowledgeable about and ignorant

of, and what impact or relevance they will have.

The liberal principle of objectivity entails that the philosopher or decision-maker detach himself or herself from contingent properties such as race, class, or sex.(117) Without clear evidence to the contrary one thus initially assumes that this is what Dworkin is trying to do here. However, while it is difficult to clearly determine whether he is following this tradition, Dworkin gives contradictory indications, suggesting a likely departure from this tradition.

Recall that Dworkin specifies that bidders must be able to form -- and bid on the basis of -- life plans and ambitions; they must therefore know as much about themselves as possible, which must include their own tastes, ambitions, talents and attitude toward risk.(118) However, one thing that Dworkin does specifically eliminate from the bidders' knowledge about themselves is their "economic or social class."(119) The issue is thus whether race and sex are also eliminated, even though Dworkin does not specifically do so, or whether they must also be included in the bidders' knowledge about themselves.

If the presumption is made that race and sex is to be ignored then Dworkin's auction would be truly egalitarian and would satisfy liberal feminist concerns. It would mean that no-one's role in life would be pre-determined by present views of what is thought appropriate for their sex or race (as it is, for example, for the philosophers criticised by Okin with respect to the functional definition of

women).(120) However, I suggest that, instead, bidders do know their own race and sex.

A simple argument for imputing such knowledge is that Dworkin comments several times that bidders must know as much as possible about their own attributes, personalities and ambitions; as class is the only attribute that Dworkin states that they do not know, then bidders must know everything else, including their race and sex. A more complicated and precise argument can be made using Dworkin's later stated concerns about the operation of prejudice, particularly in relation to racism.

It is clear from Dworkin's discussion of his "independence" principle that bidders at the auction know enough about their personalities to know whether they are racist or not.(121) Further, they seem to also know what their own race is -- they know who to organise together with in order, for example, to exclude blacks from a housing area. While Dworkin provides rules to prevent the operation of racism, this does not prevent people from themselves harbouring racist prejudices against other particular races. It appears, therefore, that Dworkin's bidders are real, tangible people, with visible characteristics that

include at least race.

An alternative hypothesis is that bidders know whether they are racist or not but don't know which race they themselves are. Under this hypothesis all racists can buy land at the auction with the intention of later excluding other races from their area. After the auction, they would find out, for example, who is white and who is black and then do the organising and excluding. I suggest, however, that this interpretation is untenable because of the way that this

discussion of race is used in Dworkin's essay. Dworkin discusses this scenario in order to impose on the auction itself the principle of independence so as to enable victims of prejudice to avoid its operation. This can only be relevant if the organising and excluding takes place at the stage of the bidding at the auction; this means that bidders must know at least their own race, and presumably also the race of other bidders.(122)

So, what about sex? Dworkin is silent on whether the bidders are aware of their sex. Further, there are not the same type of specific examples used in relation to sex as there are for race, so it is harder to make clear inferences from other parts of his theory. Yet, I suggest that an inference can be made that bidders are aware of their sex before the auction.

Dworkin's independence principle is created to deal not just with race but with prejudice in general (at the stage of the auction). Prejudice on the basis of sex would violate the fundamental egalitarian principle as much as prejudice on the basis of race would. While the same examples do not exist to support a hypothesis that Dworkin is envisaging that the bidders know their sex, I suggest that organisation to purchase resources and to exclude women solely on the basis of sexism would be subject to defeat in the same way that collusion on the basis of racism was: sexism would have to be included with racism under the

general rubric of prejudice or else the fundamental egalitarian principle would

be violated. Further, similar arguments could be made in relation to other forms of prejudice (homophobia, for example); so other attributes such as sexual preference will also be known to the bidder.

A further argument that people must know their sex at the stage of the auction is provided by the requirement that bidders must know all their attributes so that they can form life plans and make bids on the basis of those life plans. If bidders know all their various attributes, and the ability to bear children is a significant attribute, then bidders must know whether they have the ability to become pregnant; as this ability is specific only to one sex then bidders must be

aware of their sex. Consequently, it seems that the bidders must be taken to be aware of at least their sex. In conclusion on this point, it thus seems that the only attribute about bidders that is not known is what class they belong to -- i.e., what resources they each hold.

A criticism of this knowledge is indicated by Okin's enthusiasm for standpoints without such knowledge. For example, Okin considers that "the great brilliance of Rawls's original position" consists in the complete detachment of Rawls's equivalent of bidders from any personal attributes, because this eliminates any possible bias in the assessment of what is good for "each and every" person in society.(123) This indicates that Okin is afraid that simple knowledge of one's

sex necessarily makes a difference in life plans, by virtue of having different reproductive functions.

An alternative view is that the simple fact of reproductive differences do not need to entail different life plans to the extent that they will produce different distributions of resources. Under this view, the implications of the knowledge of one's sex depend largely on what else is taken for granted. For example, if the present familial and societal structures are taken for granted -- where one's sex makes a big difference to one's life plans -- then there would necessarily be differences in life plans at the stage of the auction. Such differences in life plans at the auction would result in a similarly large difference in the resources bid for, as well as in the resulting distribution of resources after trading, etc, after the auction. If Dworkin did assume such familial and societal structures he

would not even be addressing the resources issues properly, let alone other aspects of the subjugation of women. If, on the other hand, the future is genuinely open, where women could genuinely choose their life plans according to their talents and attributes, then even knowledge of ones' sex need not result in such differences in life plans. However, there is clearly a problem of possible bias towards certain societal and familial structures that bidders are likely to have because they do know their sex. If there is an equal number of men and women bidding, then perhaps neither bias would be allowed to dominate. If the

auction reflected the present public sphere, where men dominated, then there would clearly be a problem with the possible bias of men toward family structures in their favour that happened to oppress women. Clearly, the worst possible combination from a feminist standpoint would be where bidders are aware of their sex, where it was assumed that present (liberal, gender-structured) forms of family and society would continue to exist, and where -- in line with that vision -- only those participating in the public sphere would get to bid (and make decisions on the future). As we know that bidders are aware of their sex, a primary task is thus to assess what kinds of assumptions about family and society that Dworkin makes in his theory.

In addressing the substance of Dworkin's theory and the possible criticisms which can be made of it from a feminist perspective I will first address the language used by Dworkin and then the particular aspects of the theory itself.

In all of his essays on equality Dworkin frequently uses plurals, such as "people, "bidders" and "immigrants." This enables Dworkin to use the pronoun "they" and avoid having to identify whether it is males or females that he is talking about. Unfortunately, when Dworkin uses the singular, he only refers to the feminine very rarely: the predominant pronoun or possessive used is "he" or "his". However, while this is common to all of his essays, the effect differs between them.

In Dworkin's first and second essays -- which were both published in 1981 -- he consistently ignores the possibility that a "person" or "someone" could be a "she." Indeed, in his first essay, every time a generic noun is used, the pronoun used is masculine.(124) When Dworkin uses examples identifying people with names, then Dworkin does comparatively well in using women's names as well as men's, even if the men's are more common.(125) In contrast, when Dworkin uses examples identifying people not by name but by occupation or activity, then the pronouns used are, again, all masculine.(126) This use indicates that, while women can be subjects of his theory, men predominate, particularly in relation to activities and occupations in the public sphere.

Dworkin's second essay is much the same. For example, in the first section of his second essay, Dworkin argues for the use of the auction to distribute goods and postulates the shipwreck survivors, or immigrants, dividing up all possible resources on an island via the auction. In the relevant three-and-a-half pages(127) Dworkin refers to the immigrants or bidders, singular and plural, only once using a feminine pronoun or possessive.(128) In contrast, Dworkin

uses "they" five times and "he" or "his" 34 (!). Further, this is not an isolated example: in the section entitled "Labor and Wages"(129) all of the pronouns and examples used are masculine. In the section "Underemployment insurance"(130) it is the same until the very last paragraph, where only here does Dworkin include an example involving a woman.(131) Moreover, this is the only example in his second essay using a named woman (which Dworkin admits was not even his own creation(132)), compared with __ examples identifying particular men. This is even worse than his first essay. Indeed, throughout the second essay the players in the game are predominantly male, even when initially referred to in gender-neutral terms. Generally, the people forming ambitions,(133) finding preferences,(134) bidding,(135) envying,(136) gambling,(137) working,(138) with talents(139) and handicaps(140) - even the auctioneer(141) - are envisaged as being male. Further, the person buying insurance not only appears to be male, but is married with children and has the responsibility for building a suitable house for his (apparently dependent) family.(142) Perhaps the most damming example is that the "person" whom Dworkin considers is "at the center of equality of resources" is described as male.(143) I suggest that, in both of these essays, Dworkin has not even tried to be truly gender-neutral(144) -- at the most, this can be described as only semi-gender-neutrality.

Dworkin's third essay differs slightly from the first two. When discussing liberty Dworkin is truly neutral, referring to "person", for example, and not replacing it with a masculine pronoun. When he elaborates on the auction, however, he reverts back to the use of "he" and "himself," etc, and the auctioneer continues to be male.(145) In fact, the only feminine pronouns used in the whole essay are those used to refer to parties in John Rawls' original position(!).(146) The difference between this essay and the previous two is that Dworkin excuses himself in his second footnote with the sentence: "All singular pronouns are intended to represent both female and male, unless the context otherwise requires."(147) This shows a clear intention to be viewed as gender-neutral. The issue is thus whether he is truly or falsely neutral.

In his fourth essay Dworkin is concerned with political equality so his subject-matter is "citizens." He accordingly refers to his subject- matter in much more gender-neutral terms. For example, "citizens" can be "him or her,"(148) particularly those who can vote and participate in the political process.(149) The only flaw is that when Dworkin is not referring to citizens in general but to particular persons, he reverts to using solely masculine pronouns.(150) But, overall, Dworkin clearly envisages voters, and thus citizens, as being men and

women.

As this discussion of Dworkin's language shows, there are very few examples using women which show precisely how he views women. Of the named women he does use in examples, only Jill and Deborah provide any indication -- however slight -- of this. Jill (as is Jack) is said to be "reasonably successful in [her] chosen occupation,"(151) but Jack and Jill are given very different dreams and views about their lives: "Jack believes that with all these resources he could solve the riddle of the universe, which would be the greatest imaginable achievement for human beings, while Jill believes the riddle unsolvable, and has no comparable dream in hand."(152) While it is not definitive, it certainly fits the stereotypical view of men as the thinkers and the dreamers, the solvers of the larger puzzles of Life, and women as concerned with the practical, with the particular problems of day-to-day life.

Deborah is the only woman given a specific occupation. The problem with her example is that "Deborah is beautiful and could in fact earn at the ninetieth percentile as a movie star."(153) In contrast, the named men earning an income in that essay either grow tomatoes or want to be a farmer.(154) This feeds into the stereotypes of which occupations in the public sphere are more suitable for men and for women and, further, reinforces the (unfortunately predominant) view that beauty is a "singular talent"(155) that only some women have but which, because it is highly valued, all women should strive for.

While it could be objected that this is too much to infer from such small examples, whether the examples were chosen because they are illustrative of the norm or whether these aspects were not deliberately chosen (i.e., they just popped out'), they still feed into stereotypical views about women that feminists are trying to change. The problem for our exercise is that, in feeding into some

views about women, they make one think that Dworkin might also hold other stereotypical views about women, such as that their functional role in child-bearing and rearing makes them particularly suited to the private sphere. These example are clearly not conclusive in themselves, but they can certainly reinforce any other indications found in Dworkin's essays about the proper roles of women and men in his philosophy(156).

Taking all of these essays together, it seems that, just from the language that Dworkin uses, the subject-matter of Dworkin's philosophy differs depending on the context. In relation to bidding at the auction and subsequently producing and trading resources, the subject is predominantly male. It is clear just from the one use cited in his second essay that women can be bidders at the auction -- and thus, presumably, be subjects of his theory in the real, real world -- but the predominant use of male terms show that this will not be common. In relation to voting and political power, women are clearly subjects as much as men are, although it seems that men will predominate in political positions and related activities. Further, it seems that women in the private sphere are not participating in the resource trading and producing that is relevant to Dworkin's theory. This indicates that the work relevant to Dworkin's theory is solely that undertaken in the public sphere. In other words, it looks as though Dworkin's auction mirrors the present liberal public sphere, where women can vote on an equal footing with men, but do not participate in resource and political activities in the public sphere to as great an extent as men do.

If this is the case then Dworkin's gender-neutrality is a false neutrality. If Dworkin offers no prescription for change to the present liberal public and private spheres in accordance with feminist analysis and criticism then he cannot offer women any liberation from the discrimination they presently face in the public sphere, let alone the oppression faced by those in the private sphere. While the language that Dworkin uses indicates that he is not concerned with oppression faced by women (possibly even oppression which is a result of resource inequality(157)) it will require a closer look at the substance of his theory before this conclusion can be fairly made.

The first substantive issue to address is the choice, in Dworkin's first essay, of equality of resources over equality of welfare. There cannot be much argument at a conceptual level against choosing equality of resources over equality of welfare because it is true that the various conceptions of welfare that Dworkin examines do presuppose some kind of equality of resources. It thus makes sense to look first at the concept of equality of resources at a basic level. Here, I wish merely to point out that it does not mean that we cannot go back to issues of welfare once the distributional levels are sorted out.

Dworkin's next fundamental step is to assume that, when looking at resources, the relevant domain of equality is of resources owned privately by individuals, and that equality of political power and of power over commonly owned resources are to be treated as separate issues. Such complete and "arbitrary"(158) separation of public and private power is objected to by all versions of feminism on the basis that it perpetuates the oppression of women in the private sphere. Dworkin, in his second essay on equality, leaves open the

issue of what the interrelationship of public and private resources will be when he has addressed political equality. However, his essay on political equality, holding that political power is not a resource to be redistributed under his theory of equality of resources, illustrates his commitment to a system of separation of public and private spheres, with different rules governing each sphere.

I suggest that the form of ownership rights to resources is something that must be debated and justified, not just assumed, and that this will entail the justification of the rights to use that property and of any limits to those rights. Only then should questions of allocation arise. In contrast, Dworkin's envisaged system of private ownership of resources includes the standard 'bundle of rights' that go with the property. But, as Postema points out, "[a]ny complete theory

of justice must define conditions under which command over resources of the world is justified."(159) Dworkin's assumption that initial entitlements are to be in private ownership prejudices a finding that private ownership of the world's resources will be justified by his theory. This is particularly so when questions of political power, which will be relevant to community decision-making over resources, is left outside any such justification. Dworkin, in assuming that that he even can come up with a theory of a just distribution of resources when focusing solely on private ownership of such resources ignores the possibility that other views may produce a different view of property ownership and of the present public/private property division. For example, a female view of community and webs of relationships could entail collective decision-making in respect of resources that were integral to community life. I therefore suggest that Dworkin's assumption about private property assumes the male view of the world and does not leave room for other views such as the female view to be considered, let alone be justified by the demands of justice and equality.

Next, Dworkin chooses the envy test as the measure of equality. [[ Not sure about this paragraph, especially situated here: While this metric has the advantage of taking into account the opportunity costs of resources to other people, its primary disadvantage from a feminist standpoint is that it does not take into account enough factors. While this inadequacy of the envy test is due solely to the inadequacy of equality of resources in achieving the liberation of women, this inadequacy is well illustrated here. The problem is that feminists do not just complain about (or envy) the resources (including consumed resources) of men. For example, they also complain about the status and prestige that men receive from the public sphere and the devaluation of women in the private sphere; they complain about the power imbalance that is in men's favour, and the leisure time that men seem to get so much more of than women (remember, a women's work is never done). So, where the envy test fails is in its asking the wrong question: feminists want to transform work and consumption relationships, not just the distribution of resources, more quitably. The envy test illustrates how equality of resources may not be able to achieve that by itself. ]]

A difficulty with the use of this test from a female perspective is that it assumes a male view of the world and of human relationships: it presupposes that the satisfaction of any one individual's desires is of primary importance. This limits any role that the interests of the community might play in constraining the personal interests of individuals. It thus limits the possible imposition of duties based upon responsibilities to others in the social web (i.e., based upon the female view of the world) and encourages, instead, a rights-based, competitive view of societal relations. As this is the basic measure of equality, it is unlikely that a standard of equality of resources could embody a view that is even a compromise between the male and female views.

Dworkin's next step encourages this conclusion. Dworkin argues that the use of the envy test -- which states that no distribution is equal where someone prefers someone else's bundle to their own -- means that a market device is needed in order to regulate trades between people's bundles.(160) While Dworkin recognises that the economic market has "come to be regarded as the enemy of equality"(161) he nevertheless argues that the market should be central to his theory. I, however, do not find this argument (for making the market central to his theory) persuasive.

First, the only reason that Dworkin can assume that a market device is needed is that he already assumes the existence of autonomous, competing individuals and that they are competing for private ownership of property. If a different view of the "competitors" or the "competition" were taken, a different view of the necessary method of distribution could result.

Second, Dworkin also assumes that trading under the neutral rules of the market is a fair method of exchange. A major feminist criticism of the market is that its supposedly neutral rules are not neutral but in fact affect the outcomes reached by trading under such rules. This is related to the criticism that the institutional structure that allows a person to bid and make choices not merely reflects those choices but also affects the person's view of the range of possible

choices and therefore of the outcome of those choices.(162) This is primarily because of the values that such a structure promotes; this is related back to the inherently individualistic nature of the bidding and the fact that the bidding is in relation to privately owned resources, as discussed above. As feminist scholars point out -- particularly those scholars who have researched the development of personality -- male and female gender personalities are constructed rather than

inherent in either sex. For example, the ethic of care shows up most strongly in those who have been taught to care for, and those who have had the care of, others. They thus come to see the world in those terms. Those who have been taught to compete in the market, to advance up the ladder, come to see the world in those terms. The significance is that these people come to value those things that they are taught to value and devalue those things that are not integral to their world. This necessarily restricts their vision of what they might value

if their world were different and therefore limits the possible options for the allocation of resources. It therefore cannot be said that the market is a neutral device; instead it's use may affect the resulting distribution.

Dworkin does recognise that his use of the auction does assume "that what is valuable in life is individual ownership of something rather than more cooperative enterprises of the community or some group within it."(163) However, he disagrees that this is an objection to the use of a market device and instead fobs it off saying that it is really "an objection against the idea of private ownership over an extensive domain of resources, which is better considered under the title of political equality."(164) I disagree with Dworkin's simplistic

characterisation of this objection. It is not an objection to private ownership per se, but an objection to, first, the assumption that this is the only aspect relevant to a consideration of equality of resources and, second, to the adoption of a device to achieve equality of resources which is said to be neutral but in fact only works if certain assumptions such as private ownership are made and which, moreover, is likely to predetermine the kinds of distributions that result from its use. Further, Dworkin never specifically returns to this objection in his essay on political equality. One would assume that he envisages that his

general discussion of political equality has taken care of it. However, Dworkin is careful to point out that he does not consider that political power is a resource in the way that privately-owned resources are and should not be subject to the same metric of equality.(165) This reinforces the centrality of privately-owned resources and of the market to Dworkin's theory, without ever justifying either of them. My objection thus still stands.

This criticism of supposed neutrality of the market is also linked with one of the criticisms of Dworkin's retreat.(166) Dworkin's retreat is supposed to provide a neutral zone within which people can reflect upon and determine their basic life plans, which will enable them to determine what resources they will bid for at the auction. There are, however, at least three problems with this. As only one of these criticisms is linked with the market I will discuss it here and leave the others for discussion below.(167) If those in the retreat know that the background constraints are those of liberty and other principles fundamental to liberal philosophy, and if they know that the market is to govern the bidding for and distribution of resources, then how can the values of the female view of the world be effectively promoted? Such values would go against some of the rules of the game that have already been set. Posit someone standing up and attempting to persuade others that they owed duties of care to each other and that perhaps communities of bidders could cooperate in bidding for resources that would be important to the community, small or large. I suggest that it would be laughed at because the notion of property being owned privately by the highest single bidder -- which forms the basis of the activity that they are undertaking -- is not consistent with sharing and caring, nor with collective decisions or with collectively owned property. I therefore suggest that Dworkin's retreat cannot overcome objections over the inability of the use of the market to accommodate any views of the world other than a strictly liberal, male view.

While it could be argued that most of this criticism is attacking liberalism itself, and not just Dworkin's attempt to create a theory within liberalism, I suggest that this is too simplistic a defence. Even a liberal theory does not require a market mechanism to govern the distribution of goods where the aim is to achieve equality of those resources (as opposed to equality of opportunity, for

example). The advantage of working within liberalism is clearly that such a

choice requires less justification than it might otherwise. But even liberal feminists take issue with, for example, the present boundaries between the public and private spheres, and between the public and private categories of resources. What Dworkin's method does is assume the positions of the relevant boundaries without justifying them. A further problem with such assumptions common to the present liberal position is that they suggest that other present assumptions -- such as those in relation to the role of women, or other liberal feminist concerns -- may simultaneously be being assumed with or entailed by the primary assumptions. It is for reasons such as these that I suggest that Dworkin's assumptions are objected to by all versions of feminism.

Returning to the problems inherent with Dworkin's retreat. Both remaining problems relate to the formation of life plans and preferences. First, As Postema criticises, it is impossible to decide on life plans without any idea of what resources will be available to satisfy these plans.(168) I suggest also that it is impossible to form life plans genuinely independent of the social structure in

which people will live. Even the people in Rawls' original position were assumed to have an idea of the concept of family and society; such people were merely ignorant of their position in that society. But, if these concepts of family and society are already understood then the issue becomes: which concepts are being understood? Dworkin does not address this specifically, so we must then ask whether Dworkin is assuming present liberal conceptions. If that is the case then this will entail the adoption of life plans and preferences based on such familial and societal conceptions. This will in turn inhibit the adoption of alternative conceptions of family and society (e.g., ones which might be argued for by feminists), which will in turn continue the subjugation of women in the private sphere.(169)

Second, Dworkin provides that the ideal egalitarian distribution will be determined by hypothesising about the general distribution of results of an auction "held in our youths," after which "we had produced, traded and consumed from our immediate post-auction position ever since."(170) The problem with this is the notion of holding the auction in our "youth." If Dworkin meant to refer to childhood, there would be a problem with being too young to fully develop personality -- including talents, ambitions, preferences, etc. -- at the retreat (unless that retreat lasted throughout childhood!). Indeed, Dworkin's discussion of handicaps and insurance indicates that he is instead

envisaging that "youth" refers to that stage at the end of childhood and

entry into adulthood (i.e., late adolescence, which is also referred to as a stage of "youth"): Dworkin comments that people either born with a handicap or who develop one during childhood will take it into account when making life plans at the auction.(171) This clearly has the advantage that it enables ambitions, etc, to be formed and resources to be traded without the difficulties posed by childhood and undeveloped personalities. However, this appears to presuppose that the youths in question have been reared to the point at which they are mature enough to make the transition from childhood to adulthood -- when they will be mature enough to form life plans and to bid in the auction.

I suggest that this transition to adulthood looks suspiciously like it will also be like the present transition from the private to the public sphere. It also looks as though Dworkin is envisaging that children will be reared in families as we know them, particularly as he does not indicate anything to the contrary. This necessarily falls foul of feminist criticisms that the present, private familial structures should be modified in order to end the oppression of women within them and that the distinction between the public and private spheres needs

to be modified and/or broken down. Further, it suggests (or is at least most consistent with) that only those in the public sphere are able to bid at the auction

The fundamental egalitarian principle that Dworkin places at the foundation of his theory is also subject to feminist criticism. While there is no problem with the principle in the ideal world, where everyone starts at an equal position, this is not the case in the real real world. Instead, everyone in the real real world is

unequal and the aim is to move toward where they would be if everyone had at

least started as equals. Where there are groups of people, such as women, who are oppressed by others then it is reasonable to suggest that the government should pay more attention to the oppressed in order to eliminate their oppression (for example, through affirmative action programs). Further, feminists in particular argue that "those it governs" must truly mean everyone in society -- for example, that it should include women and children in the private sphere and not just voters in the public sphere. Only this can ensure that

parents with the responsibility for others will get the attention necessary to

eliminate subjugation. For example, if a solo mother of four children is given the same amount of government support as a childless man or woman, this does not show equal concern for the life of the mother and the man, let alone for those of the children. This is linked to the feminist concern with the definition of equality as sameness instead of a more realistic sense of equality across difference: people cannot be treated exactly the same if they are in fact in fundamentally different positions.(172) In sum, the feminist concern with Dworkin's fundamental egalitarian principle is in its application to the real real world. Because of the concern, it is problematic as a base for Dworkin's theory of equality.

The other liberties that Dworkin assumes in his theory are also problematic. The liberties that Dworkin arrives at as fundamental -- those that flow from equality in private ownership -- are said to include such things as freedom of religion and of expression. Further, Dworkin stresses in his essay on liberty that the liberties at the baseline of equality of resources means that "[e]quality of

resources is...an inherently liberal conception of equality."(173) While the aim of that essay is to identify the place of liberty within equality, it also shows how traditionally liberal Dworkin's interpretation of that liberty -- including fundamental freedoms that constitute part of that liberty -- is. This is problematic for liberal feminists who argue that some such freedoms -- most notably, the freedom of expression, including "access to the widest available literature and other forms of art"(174) -- as currently interpreted and applied, perpetuate the oppression of women.(175) Dworkin does not even consider any such drawbacks with his traditional interpretation and instead puts such liberties at the baseline of his theory.(176) If these are at the base of the theory, it does not seem that they can be challenged from within the theory. Thus, from the concept of "equality in private ownership" flows the continued oppression of women, the worst aspect being its assumption and not its justification. This amounts to more evidence that Dworkin really assumes a comparatively traditional liberal view of his ideal society and does not envisage any fundamental changes to that structure.(177)

The principle of neutrality on morality that Dworkin imposes on the auction -- the principle that no-one can impose on others a moral baseline that also imposes costs on those others -- is an important restriction. Feminists argue for precisely that, and argue for the correction of the "externalities" imposed by others' morals. However, I suggest that Dworkin's theory can only be made consistent with this principle if a restrictive interpretation is placed on its scope. It is inconsistent to posit both that the present liberal forms of society and family will exist and that there must be neutrality among moral baselines: present society imposes costs on women who play roles within present families in the private sphere. Thus, either Dworkin must allow an overhaul of present familial and societal structures or he must restrict the principle of neutrality to operation where it is not inconsistent with such liberal structures. The problem with arguing that Dworkin allows for an overhaul is that there is no other evidence of this. This absence is particularly conspicuous because it would be such an important, fundamental change to the real real world that one would expect it to be addressed. Further, there are many other aspects of his theory that indicate an assumption of the present liberal structures. I therefore suggest that the latter interpretation is, unfortunately, the more consistent with his theory and thus the more likely.

The rule against the operation of prejudice at the auction is subject to the same kinds of comments. If the rule was interpreted in line with feminist analyses, it could eliminate the operation of prejudice against women. But this would again entail a change that goes against liberal premises; if that was intended, one would think that it would be addressed. Further, this interpretation is also inconsistent with other elements of Dworkin's theory. I therefore suggest that it is more likely that Dworkin envisages that the principle should be interpreted more in line with the typical liberal concern with prejudice; this, as a rule, is not interpreted to include the relegation of women to the private sphere or the devaluation of work done by those in the private sphere.

In relation to the implementation of Dworkin's ideal egalitarian distribution (or at least the defensible egalitarian distribution) in the real real world, Dworkin's primary concern is how far freedom can be compromised in the name of reducing inequality. There are three problems with this. First, feminists -- including liberal feminists -- may not see this as the primary problem with implementation. While liberal feminists are concerned about equality of opportunity and the freedom to take opportunities, they see that the primary

problem for most women is the lack of real opportunity, due to relegation

to the private sphere. Thus the idea of freedom and liberty to exploit opportunities means something different to feminists: not a freedom from government interference but freedom from oppression in order to enable them to have the opportunities to exploit. This generally requires not freedom from government interference but from non-interference in their oppression.

A second way that feminists reject this freedom/equality dichotomy is by disagreeing that the implementation of the ideal distribution as a fight between freedom and equality and arguing that it is instead a fight between freedom for some (women) and freedom for others (men). Under a feminist interpretation of Dworkin's argument, the reduction of freedom for men to oppress women -- especially in the private sphere -- would be perfectly legitimate as it would not take such men below the level of liberty that they would enjoy under the most plausible DED (as envisaged by feminists). But, this is only if the liberation of women from subjugation in the private sphere is a goal of Dworkin's ideal distribution, and is thus included in the DED. As I have suggested, it seems that Dworkin assumes the existence of liberal societal and familial structures. Therefore, liberation of women from subjugation in the private sphere would not appear to be a specific goal of Dworkin's. If so, then a reduction in the liberty of men (to subjugate women in the private sphere) would not be justified because their DED level of that type of liberty would remain comparatively high (i.e., compared to what the level of that liberty would be if a feminist agenda were pursued), leaving them free to continue to oppress women..

The third difficulty is that Dworkin specifically notes that what we currently label as fundamental freedoms will not be violated even under his proposed changes. The problem with this is that the feminist agendas all challenge present assumptions about what are currently thought of as fundamental freedoms. For example, freedom of expression: while it is currently thought of as a fundamental freedom, feminists argue for a revision of its interpretation and application (the extent of revision varying with the version of feminism). Such a revision does not seem to be envisaged by Dworkin, which suggests that his theory does not seem to be aimed at the goal of providing real equality between men and women.

A further aspect of Dworkin's theory that bears out this suggestion is his concept of insurance against possible bad luck in not earning an income of a certain level. In this part of his theory Dworkin fails to address the consequences of being one sex or the other and thus fails to address the goal of equality between women and men. While Dworkin also does not address this in other parts of his theory, the failing is of greater consequence here.

In the feminist vision, an ideal society would not 'penalise' women for having children. In the present, liberal society women are so penalised because bearing children has entailed rearing them, which typically entails removal from or reduction in participation in the public sphere; this is a penalty because such public participation is valued more highly (especially in terms of awards of resources) than participation in the private sphere. How does this fit in with

insurance? Dworkin's insurance scheme is relevant because it indicates

how child-bearing and rearing will be treated in Dworkin's egalitarian society.

Dworkin establishes his insurance scheme in two stages. First, he posits insurance against having a handicap or not having a talent, where people do not know what handicaps or talents they may have in life. Second, he posits a situation where people do know what disabilities and talents they have, so the insurance becomes insurance against not earning a certain level of income -- again, where the insureds genuinely have no idea of their future level. The average amounts of insurance taken out would form the basis of a tax-and-redistribution program.

It is clear from Dworkin's discussion that those people taking out insurance will be in the business of at least attempting to earn a living in the future. The difficulty with his scheme is that it does not address or easily accommodate the particular role of women as child-bearers (and, in this society, child-rearers). In relation to the first stage of Dworkin's discussion of insurance (where people do

not know what handicaps or talents they may have) he stresses that, even if it is "contrary to fact,"(178) the odds of having or developing a particular handicap must be equal. But it is clear that the odds of bearing children (i.e., of becoming pregnant) are not distributed equally among members of society. Moreover, it is a condition that cannot even be treated as equally distributed for the purposes of Dworkin's insurance scheme. When odds are not equal, Dworkin uses the device of assuming equal odds only where handicaps "are not randomly distributed through the population, but follow genetic tracks."(179) However, the odds of bearing children is not a genetically linked trait, even if

it the odds are dependent on the fact of one's genetic makeup (i.e., that one is a woman). In fact, it seems that the only way for women to be compensated for the handicap that pregnancy causes to their activity in the public sphere is for the simple ability to bear children to be regarded as the handicap, whether one actually bears children or not. This ability is clearly randomly distributed as it is determined by whether one is a man or a woman. But the difficulty with this interpretation is that all women would thus be entitled to compensation just for being women, rather than for child-bearing and rearing. This is neither in the spirit of Dworkin's insurance scheme nor is it something that feminists argue for. I therefore suggest that the bearing and initial rearing of children cannot be treated as a handicap under Dworkin's scheme.(180)

A positive way to view not treating pregnancy as a handicap is that it would not be allowed to become a handicap. This can only entail the introduction of extra measures to accommodate pregnancy so that the woman in question is not disadvantaged by reason of being pregnant (nor of having to raise children for the initial period). According to liberal feminists, such measures would include paid maternity leave, child care and measures related to work and career prospects in the public sphere. However, Dworkin's chosen method for altering

such positions is via the redistribution of resources, which is calculated solely using the insurance mechanism. If pregnancy cannot be considered a handicap for the purposes of insurance because the odds of developing it are not equal, then it cannot be compensated for using this mechanism.(181) Such measures therefore could not be implemented to prevent pregnancy and early child-rearing from becoming a handicap, especially to those women wanting to participate in the public sphere.

Another advantage of not labelling the bearing and rearing of children as a handicap is the stigma that it would otherwise attach to these activities: it devalues pregnancy (and attendant child-rearing) by labelling it as a negative feature requiring special measures as compensation, putting it on a par with conditions "such as blindness or the loss of a limb."(182) Feminists would clearly prefer to instead label the bearing and initial rearing of children as a

positive talent. But the problem with considering this as a talent under Dworkin's theory is that those who have the talent would be subject to the

talent tax "to neutralize the effects of different talents."(183) This would reduce the resources of women and further subjugate them in the private sphere.(184)

This discussion illustrates how pregnancy does not fit easily into the first stage of Dworkin's insurance scheme. I suggest that Dworkin simply hasn't considered how to treat pregnancy because, if it had been considered, it surely would have been mentioned -- if half of the bidders are women then an example that pertains to so many bidders would be a desirable illustration or clarification to provide.

Even though Dworkin has not considered it, how is pregnancy likely to be treated in Dworkin's scheme? As I have already indicated, its absence from the discussion, coupled with the discussion above, indicates that Dworkin considers that pregnancy does not fit within his insurance scheme. If so, this is further evidence that he must be treating it as irrelevant to the sphere of earning and trading resources (etc) after the auction. This reinforces the implication that, when Dworkin refers to "Labor and Wage,"(185) he is only referring to that labour which produces resources for consumption and/or trade in the public

sphere and the resulting wage which will be subject to taxation. This must in turn mean that he is assuming that such resource activities are undertaken in a completely different sphere from child-bearing and early rearing, which in turn supports my suggestions that Dworkin is assuming that the public and private spheres are to remain separate with essentially the same functions as liberalism currently assigns them.

A reason why pregnancy would not fit within Dworkin's insurance scheme is also provided by the second stage of his discussion of insurance. The difficulty with this stage is that, again, bidders are clearly aware of their sex, while Dworkin again stipulates that the chances of earning a particular income are equal for all bidders. This means that either pregnancy can have no effect on income or it will affect earning capacity and is exempted from the insurance -- or tax-and-redistribution -- scheme because it is sex-specific.

The former would entail huge changes to the way society functions in order to eliminate the negative effect of child-bearing on women (and any necessary initial period of child-rearing that women must undertake, such as for breastfeeding). Such changes would entail at least a softening of the enforced barriers between the public and private spheres, as feminists currently argue for. However, I suggest at least that this was not intended by Dworkin. As my discussion of Dworkin's first stage of the insurance argument has shown, Dworkin appears to be assuming that the present divisions between the two spheres would continue to operate; if they were to miraculously disappear

at the second stage of his argument one would expect that he would have addressed that. This is particularly so when Dworkin spends so much time and detailed argument on other comparatively minor points; surely he would have explicitly argued for -- or at least addressed -- a change such as this.

It seems more plausible, because it is consistent with other aspects of this theory, that Dworkin is envisaging that resource trading will take place in the liberal public sphere, where pregnancy and child-rearing will considerably affect one's income-earning ability (as it does today). But, because this income-earning disability is sex-specific (making the odds of having it uneven), it would not be subject to Dworkin's insurance scheme. The unfortunate result is that

pregnant and child-rearing women would not be entitled to redistributed resources in their time of low-income. This, funnily enough, looks very similar to the present liberal society, where the solution to such problems is seen as entailing the pregnant woman's placement in the private sphere -- even if she was previously working in the public sphere -- and her dependence on an income-earner who remains in the public sphere and who is not subject to the same problem.(186) This then starts the cycle of dependence that typically involves the woman remaining in the private sphere and continuing to care for the child(ren) after any necessary minimum period because of the disruption to her earning-ability that that time off has caused and the disruption that a period in the private sphere would cause to the supporting man's earning ability.

This is exactly the result that feminists decry but, unfortunately, this is the result most consistent with Dworkin's stated theory, as well as with the conclusions that I have reached in respect of other aspects of this theory.

A partial solution proposed by liberal feminists is the elimination of the disruption to earning-ability caused by child-rearing (after the initial period) for either parent, so that both could participate in the public sphere.(187) This would more clearly separate the sex-specific aspects of child-bearing and rearing from the non-sex-specific ones. The non-sex-specific ones could indeed be compensated for under Dworkin's redistribution scheme, because the odds of developing the need for compensation would be even. However, the problem with this is that, again, it is a major change that Dworkin has not addressed. His omission in this matter is even more serious than for pregnancy and early child-rearing because it is an example that is likely to apply to most bidders -- men and women -- so its inclusion would be even more relevant to his theory. Further, it would entail even more major changes to the structure of society by further breaking down the barriers between the public and private spheres, making it even more necessary to include discussion and/or justification for such changes in Dworkin's work.

In sum, I suggest that Dworkin's (non-) accommodation of child-bearing and rearing within his theory supports the view of women indicated by the language he uses. That is, I suggest that Dworkin views women as largely inhabiting the private sphere to bear and rear children and only inhabiting the public sphere when such demands either do not exist or can otherwise be accommodated.

The final basic aspect of Dworkin's theory that I want to address is that concerning political resources. There is one aspect of this theory which feminists would agree with: the concern with achieving substantive goals rather than mere concern with process.(188) However, the difficulty that Dworkin's theory raises is that his substantive results may differ from those on feminist agendas. If Dworkin's substantive results include continuing the present relationships between public and private spheres and those people who inhabit them, then feminists will not want any form of democracy that best

produces those results.

Dworkin's proposition that politics is a matter of responsibility, not another resource to be divided equally receives mixed responses from a feminist perspective. On the positive side, a female perspective would agree that politics is a matter of responsibility: decisions are made on behalf of others in the attempt to lead the community to a substantive result -- it is all about care and concern for others. On the other hand, there are problems with not viewing it as a resource subject to equality (which in turn is dependent on viewing

resources as solely subject to private ownership(189)). While feminists would agree that political powers should not be seen as a private resource, it is still a present feminist concern that political power be seen as a public resource such that men and women as a class have equal power. It is true that simply adding more women to an existing (male) structure will not necessarily produce the substantive results feminists want. It is also true that equality if political power is most easily measured by counting the (private) male and female heads that hold power. However, if it is not seen as something to which equality even applies in the transition to the ideal world, women are less likely to achieve participation or representation and are thus even less likely to achieve the political will necessary to achieve the substantive results necessary to end their subjugation.

It is interesting to note that Dworkin specifically refers to the inequality of women and men in his discussion of political equality.(190) But the interesting thing is not just his acknowledgment of the lack of power of women in society, but his suggestion that equality of political power should not be our goal. Instead, he suggests that the removal of "economic, social and cultural discrimination against women" is the only appropriate goal; if the average political power of men and women is still unequal in a society which has removed such discrimination, that does not "count as a defect in social organization."(191)

Dworkin may be correct in suggesting that lack of political power is a result of "other, independently unjust features of our economic or political or social organisation."(192) However, while it sounds good, feminists are suspicious of any claims that they may, as a class, legitimately have less political power than men, as a class, even though all discrimination against women has been removed. My reaction is to question what interpretation of "discrimination" is being used. If it is being used in the traditional liberal way to refer to

discrimination against women participating in the public sphere on an equal

footing with men, while that will satisfy many liberal feminists' concerns it will not necessarily satisfy all of them. For example, it does not address the position of those women who choose to work in the private sphere and, without that, it makes true equality in the public sphere extremely hard to achieve. But, more importantly, it means that women as a class are still subject to discrimination through the devaluation of the private sphere in comparison with the public. Thus, while a liberal could argue that all discrimination had been removed,

another person could argue that much still remained, and no-one would

be able to agree on whether any existing inequality in political power

was problematic or not. So, while I agree that Dworkin's suggestion sounds logically possible in an ideal world, I doubt that it is empirically so in the less-than-ideal real world. For that reason, equality of political power remains a present goal of feminists. If that entails viewing political power as a resource, perhaps it can be viewed as a public resource and its division be circumscribed by considerations of responsibility. If this cannot be achieved under Dworkin's

theory then here, too, it falls short of feminist goals.

CONCLUSION [tentative only; will be expanded]

In Part I of this paper I outlined some common feminist criticisms of liberal philosophies, both their methodology and substance. I have tried to analyse the many different aspects of Dworkin's theory of equality to see if they meet these feminist concerns. On many points, Dworkin is simply not clear. I have thus had to make a large number of inferences from what he does say. Many of the conclusions that I have come to on the different aspects are merely that they "indicate" that Dworkin's theory falls foul of most -- if not all -- of the

criticisms outlined in Part I. While, in many cases, the indication that I perceived would not be enough on its own to produce an adverse judgment about Dworkin's theory, together they add up to a picture of a theory that is not even trying to address -- let alone rectify -- the subjection of women.(193)

The experience of women does not drive Dworkin's theory from the bottom up, nor does he take as a goal of his theory (from the top down) even the improvement of the position of women -- let alone their equality -- vis a vis men. The perspective from which Dworkin's theory is developed is not neutral or objective but, in reality, from the perspective of male dominance. All is known about the bidders except their resource holdings, where these bidders are both the subject-matter of Dworkin's theory and the perspective from which equality is derived. But the fact that the bidders are aware of their sex is not as serious as either the assumptions that are made about the structure of family and society after the initial auction or the limited class of who is entitled to bid.

My conclusions derived from examining the various aspects of Dworkin's theory bear out my initial findings based solely on the language that Dworkin uses. They show that the kind of society that Dworkin is assuming will exist is the present liberal society that is divided into a public and a private sphere. The public sphere is where political and resource activities will take place; the private is where family life -- including child-rearing -- will be situated. Those undertaking political or resource activities in the public sphere will be predominantly male. It is clear that women can participate in the public sphere -- they are certainly not prohibited -- but they will not be as numerous as men. This is primarily because a large proportion of women will retire to the private sphere to undertake the familial and child-rearing activities. While they will be able to vote as citizens, they will not be undertaking resource or political activities (other than consumption). The auction itself appears to be situated in the public sphere. If this is so then presumably only those participating in the public sphere will be entitled to bid for resources -- either on their own behalf or on behalf of their family.

While it initially looked as though some aspects of Dworkin's theory could, separately, provide hope for some optimism about the treatment of women, a closer look has not born that out. Not only would equality of resources not liberate women from all forms of oppression that they face, but it seems that not all women are even entitled to equality of resources. Thus, not only are women not liberated by the liberal assumptions that appear to be made by Dworkin, but they continue to be subjugated in the positions they are in.

It is possible that I am being too harsh on Dworkin. For example, he never actually says that families and women in the private sphere are represented by just one person at the auction. But, first, Dworkin assumes such a large number of other liberal premises that, without other indications to the contrary, it seems logical that this flows with the adoption of the others. Second, if women do get to bid, it can't stop there. Equality of resources is measured over time and after resource production and trading. If all women are in the same sphere at the beginning, would they continue to be so? If so, why are matters such as pregnancy and child-rearing not addressed as handicaps or talents? While this may sound weak, it is so consistent with what Dworkin does discuss that it is hard to discard my conclusions.

Therefore, not only does Dworkin not provide the hope that, for example, Okin suggests that Rawls' theory could provide for feminists, it provides us with dismay. While society needs its philosophers, women don't need another one who philosophises on equality while ignoring the very real inequalities suffered by women. If the dominance of women is obscured, and their disadvantages ignored, how can they be overcome? Without equality for women, how can we expect to achieve equality across society, whether it is of resources or of anything else?

NOTES

* BA, LLB(Hons), V.U.W., LLM, Yale; Lecturer in Law, Murdoch University, Perth, Australia. I thank Elizabeth Handsley, Sheila Mason Mullet and Sandra Berns for helpful comments on an earlier draft.

(1) The class referred to was entitled Contemporary Readings in Political Philosophy and was included in the 1990 Fall semester course offerings at Yale Law School. The class was taught by Jules L. Coleman, John A. Garver Professor of Jurisprudence, and analysed and compared the theories of equality propounded by Ronald Dworkin, Richard Arneson, Gerald Postema, and Martya Sen.

(2) Dworkin, "What is Equality? Part 1: Equality of Welfare" 10 (1981) _Philosophy and Public Affairs_ 185; "What is Equality? Part 2: Equality of Resources" 10 (1981) _Philosophy and Public Affairs_ 283; "What is Equality? Part 3: The Place of Liberty" 73 (1987) _Iowa Law Review_ 1; and "What is Equality? Part 4: Political Equality" 22 (1987) _U. of San Francisco Law Review_ 1. Hereinafter referred to as Part 1, Part 2, Part 3, and Part 4, respectively.

(3) For example, G.J. Postema's criticism of Dworkin's Part 3 in Liberty in Equality's Empire 73 (1987) _Iowa L.R._ 54 and Peter Shane's Compulsory Education and the Tension Between Liberty and Equality: A Comment on Dworkin 73 (1987) _Iowa L.R._ 97.

(4) Liberal political theory has various elements at its core. Primary is its commitment to individual autonomy and a conception that the role of the state is to protect that autonomy. Central is also a conception of neutrality; that is, that the state does not make judgements about the kind of life that people should lead. Equality and individual rights are also central to maintaining this scheme; such individual rights help individuals pursue their own life plans without interference from others.

(5) There is not just one feminist perspective but several. For example, Alison Jaggar classifies different views into four or five general categories of feminist theory, each with a different perspective. See infra n_. I try to draw from more than one, identifying which perspective I am adopting, wherever possible.

(6) Catharine MacKinnon refers to this as the male epistemological stance which does not comprehend its own perspectivity. Catharine A. MacKinnon, _Toward a Feminist Theory of the State_ (1989), 121-122.

(7) Related to this are the distinctions between reason and emotion, matters abstract and concrete, objective and subjective, universal and particular, and public and private. In all of these dichotomies the former is associated with the male and the latter with the female, with the former being considered superior to the latter. Feminists have examined these categories and criticised the distinctions as not being in accordance with women's experience or attitudes toward the world. (For example, see G Lloyd, _The Man of Reason: "Male and "Female" in Western Philosophy_(Minneapolis, University of Minnesota

Press, 1984). G Lloyd argues that the concept of reason has been made entirely from the male point of view.) In this respect, feminists consider that such ontological and epistemological issues are not separable either from each other or from political or moral issues.

(8) For a discussion of feminist method, including the importance of consciousness-raising in order to discover the shared experiences of women, see Mackinnon, supra note 6, chap's 5, 6.

(9) Note that this envisages both a different method of deducing the principles and theories and a different resulting content of those principles and theories.

(10) "Objective or unbiased value judgments are those that would be made by an individual who was impartial in the sense of giving no special weight to her own or to any other special interests." Alison M Jaggar, _Feminist Politics and Human Nature_ (1983), 357.

(11) Idem. Examples of modern philosophers who use this method include John Rawls (the veil of ignorance) and Bruce Ackerman (the neutral dialogue).

(12) My reference to "versions of feminism" adopts Alison Jaggar's phrase to refer to the fact that feminism is not monolithic and that different feminist views occur among the different"versions". The most common categories discussed are liberal feminism, marxist feminism, radical feminism, and socialist feminism. An additional category becoming more commonly discussed separately is that of feminists of colour. For the basic exposition of these different versions, see A. Jaggar & P. Rothenberg, _Feminist Frameworks_ (2 ed., 1984). For an in depth analysis of their views that are relevant to political

theory, see Jaggar, supra n _.

(13) See, e.g., id at 377-389.

(14) Jaggar, at 358.

(15) Jaggar calls the standpoint of women the standpoint from "women's true interests." Id, at 384.

(16) Jaggar, at 36.

(17) Okin, _Women in Western Political Thought_ (1979)

(18) E.g., Plato, Aristotle, Rousseau.

(19) See, e.g., Jaggar, supra n_, 36

(20) Although Jaggar comments that, even today, liberal feminists still have to argue that any differences between men's and women's achievements in the public sphere are a result of education and experience rather than some inherent inability on the part of women to participate as well and as fully in the public sphere as men. Ibid, 37

(21) See Okin, supra n_, especially Chap. 10. See generally, Okin, infra n [+1].

(22) See, e.g., Okin, _Justice, Gender and the Family_ (1989).

(23) See, generally, Jaggar, supra n_ & n_.

(24) Jaggar argues that the only rewards that liberalism considers relevant are the accumulation of wealth and social prestige. Jaggar, supra note _, at _.

(25) Examples of measures that will help ensure equality of opportunity for women include pregnancy and maternity leave, affirmative action policies, anti-poverty programmes, and women's shelters. See, e.g., Jaggar, supra n_, (at approx 180 of _Fem Politics & H.Nat_))

(26) See Jaggar, supra note _, at 185-203 for a detailed criticism of the liberal feminist position.

(27) For some of these criticisms, see Jaggar, supra note _, at 40-48. See, generally, Jaggar, supra n_ & n_. For more detailed criticisms, particularly that individualism, and therefore liberalism, is internally inconsistent and/or incoherent, see, e.g., V. Held, "Non-Contractual Society: A Feminist View" , _Science, Morality, and Feminist Theory_ (University of Calgary Press, Canada, 1987) 111, at 129 (suggests how the values of the family could replace the notion of thecontract as providing a theoretical base for societal relations); EH

Wolgast, _Equality and the Rights of Women_ (Cornell University Press, London, 1980); F. Olsen, "Statutory Rape: A Feminist Critique of Rights Analysis" (1984) 63 _Texas L.R._ 387, C. Pateman, _The Sexual Contract_ (Stanford University Press, California, 1988).

(28) For example, the viewpoints of Marxist feminism, radical feminism and socialist feminist, as described in Jaggar)

(29) For example, D. Dinnerstein, _The Mermaid and the Minotaur_ (Harper & Row, New York, 1976); N Chodorow, _The Reproduction of Mothering_ (University of California, Berkeley, 1978); C Gilligan, _In a Different Voice_ (Harvard University Press, Cambridge, Mass., 1982).

(30) Boys tend to be competitive and to abstract relationships, while girls play more cooperatively, fostering relationships and empathy for others. Gilligan comments that "men's social orientation is positional, while women's is personal." Gilligan, supra n. [-1], at 16. With respect to interpersonal relationships Gilligan comments that intimacy generally threatens males (the possible loss of their separate, individual identity) while it reassures females. Competition threatens females (the possible isolation and/or loss of personal

connection) but reassures males. C. Gilligan, "Why Should a Woman Be More Like A Man?" June 1982 _Psychology Today_, 68, at 70-71.

(31)

(32) The girls' way of looking at the world is what Gilligan calls the "different voice;" that is, it is different from the previously received way of looking at the world, different from the dominant paradigm.

(33) They have found that men used abstraction and free-standing logic with, above all, a focus on principles of justice, while women tended instead to focus on individual circumstances and actual situations, particularly considerations of empathy and care, rather than general principles such as justice and rights.

(34) These modes of thinking and reasoning have been described as "male" and "female". This is primarily because each is used predominantly by one sex. However, it must be stressed that some members of each sex may not use what is considered to be 'their' mode of thinking, and that all people use both methods, at least occasionally. Thus, while I shall refer to them as "male" and "female" modes of thinking, this is because they are stereotypically male or female; it does not imply that any one person will think a particular way simply because he or she is of a particular sex.

(35) See, e.g., L. Kohlberg, _The Philosophy of Moral Development_ (1981). Kohlberg developed a scale of moral development which begins with a focus on individual needs, moving to a focus on rules of obedience for public order and for approval, based on social norms, and finally to the focus on principles mentioned above. Kohlberg argued that all human beings move from one stage to the next, although not all people (particularly women) reach the final stage.

(36) As K. Karst puts it, "law is predominantly a system of the ladder, by the ladder and for the ladder." K. Karst, "Woman's Constitution", 1984 _Duke L. J._ 447, at 461.

(37) One problem with rights in liberal theory is that they do not solve the problem of deciding what values should be given priority in any given situation. In theory, liberty is given priority, but it does not specify whose liberty. In practice, rights analysis ignores the disparity of power between men and women and "liberty" has come to mean the liberty of men to compete on the ladder (in the market) and has suppressed the liberty of women. For example, as Catharine MacKinnon has put it, the zone of privacy which is protected by

individual rights and restricts public intrusion into our private lives perpetuates women's oppression; the "right of privacy is a right of men 'to be let alone' to oppress women one at a time." C. MacKinnon, _Feminism Unmodified_ (1987) at 32.

(38) It is also commonly referred to today as the market approach.

(39) I suggest, too, that these findings are relevant to the philosophical quest. Philosophers have focused on justice and equality because they have been thought to be the most important things to study -- the pinnacle of human reasoning about the world. If, as studies such as Gilligan's show, considerations of abstract justice and equality are not in fact what a lot of people believe to be central to their lives and to their moral reasoning about the world, then that calls

into question the validity of the traditional philosophical focus of inquiry.

(40) Okin, supra n_, 10-13

(41) Dale Spender's phrase.

(42) Okin, supra n_, 11.

(43) Note that Dworkin does not, in these essays, specifically argue that his version of equality equates with justice. However, I suggest that these two supposedly separate questions are so closely tied together that his theory of equality cannot be assessed completely independently from considerations of justice. One reason I say this is because of the ultimate welfarist end of redistribution of resources; this project is undertaken in the name of justice. Another is that Dworkin's belief in equality as the central value within

liberalism means that any liberal theory of justice is extremely likely to be based on a commitment to equality; moreover, this also means that his theory of justice is likely to be based on his own definition of equality.

(44) Part 1, supra, n. 2.

(45)

(46) Id, at 283. Dworkin leaves the issue of equality of political power, including power over publicly-owned resources for his fourth essay.

(47) Id, at 283.

(48) Id, at

(49) Id, at 286.

(50) Id, at 287.

(51) Id, at 290.

(52) The kinds of things that Dworkin considers as insurable handicaps include "general handicaps such as blindness or the loss of a limb" (id, 299) and mental incompetence (id, 300), as well as "more specialized" catastrophes, "like the insurance of musicians against damage to their hands, and so forth" (id, 299). A person may be born with such a handicap or they may suffer "some catastrophe" or develop them later in life (id, 297-300) .

(53) Id, at 297.

(54) Idem. Dworkin effectively treats handicaps as negative resources.

(55) Id, at 298.

(56) Idem. Dworkin admits problems in fixing the actual amount. For example, premiums bought would be affected by the kind of life that someone wanted to lead. But, he argues, particular problems in implementation do not make the idea of compensating handicapped people undesirable; it is still more desirable that the alternatives in that it is "aiming in the direction of the theoretical solution most congenial to equality of resources." Id. at 299.

(57) Id, at 304.

(58) It, at 306.

(59) Ibid.

(60) Id, at 312. Dworkin differs from many other liberal philosophers in this respect ( __ , for example) who consider that people should be able to benefit from the application of their talents.

(61) Ibid.

(62) Id, at 315.

(63) Id, at 316.

(64) Ibid.

(65) Id, at 317.

(66) For the method of this translation see id, at 324-326.

(67) Id, at 337. For Dworkin's discussion of Robert Nozick's theory see id, at 336-338.

(68) Id, at 339. For Dworkin's discussion of Rawls' theory see id, at 338-345. Note that Dworkin has argued elsewhere that Rawls' device of the original position cannot be taken as the starting point for a political philosophy but must in turn be justified by a deeper theory. Dworkin suggests that only an adequate interpretation of equality of resources can properly support it.

(69) Dworkin states: "my arguments have been designed to permit people as much knowledge as it is possible to allow them without defeating the purpose of the exercise entirely. In particular, they allow people enough self-knowledge, as individuals, to keep relatively intact their sense of their own personality, and especially their theory of what is valuable in life, whereas it is central to the original position that this is exactly the knowledge people lack." Part 2, supra n_, 345.

(70) Supra n_.

(71) Note that Dworkin is concerned in this essay with a negative conception of liberty: freedom from government interference in people's lives.

(72) Supra n _, at 3-5 for Dworkin's examples of supposed conflict.

(73) Id, at 12. Note also Dworkin's motivation for his attempt to reconcile lib and equality: "We must try to reconcile lib and equality, if we care for lib, because any genuine conflict between the two is a contest lib must lose." Id, at 13.

(74) Id, at 7-8.

(75) Id, at 7.

(76)

(77) Id, at 21.

(78) Id, at 23.

(79) To illustrate what he means by this Dworkin gives the example of the purchase of land:

(80) Id, at 27.

(81) Id, at 28.

(82) Id, at 29.

(83) Id, at 29-31.

(84) Note that Dworkin recognises that different versions of neutrality will meet different theories of equality. Id, at 30.

(85) Id, at 31.

(86) Ibid.

(87) An example Dworkin gives of an externality that would require correction is pollution of resources by someone who does not own those resources. Dworkin suggests that the auctioneer could use tort law to make pollution an actionable nuisance and thereby make the cost of the relevant resource higher, to reflect its true opportunity costs. Id, at _

(88) Id, at 32.

(89) Id, at 32-33.

(90) For example, "a proper liberty/constraint baseline cannot make any behaviour a crime on the ground that it offends shared or conventional morality." Id, at 33-34.

(91) Id, at 34-35.

(92) Id, at 35.

(93) Id, at 36.

(94) Id, at 35.

(95) I.e., "to form, reflect on or advocate convictions, attachments or preferences." Id, at 36.

(96) Id, at 35. See also id, at p. 35, n. 32.

(97) See supra, n [-5]

(98) Id, at _.

(99) Id, at 37. Note it is not clear whether Dworkin means that bidders must stay independent of each other and not organise together on the basis of prejudice or that bids must by independent from bidders' prejudices. While the intended effect of the principle is clear, so will suffice for now, this difference is addressed below.

(100) Id, at 38.

(101) Id, at 38.

(102) Id, at 46.

(103) Id, at 43.

(104) Id, at 46.

(105) Id, at 47.

(106) Id, at _.

(107) Postema, at 56.

(108) Dworkin, supra n _, at 2.

(109) Idem.

(110) Dworkin takes it as "self evident that a society committed to equal concern must be a democracy rather than, for example, a monarchy or dictatorship or oligarchy." Id, at 4.

(111) Id, at 3. Note that on this view, Dworkin rejects the proposition that judicial review of legislative action is necessarily undemocratic. On the contrary; if it is run according to the principles Dworkin sets out, it is an improvement in democracy. See id, at 28-30.

(112) Id, 23. Dworkin comments: "These requirements leave much open. They hardly speak to questions of vertical equality at all; they do not stipulate the size of districts, the form of representation,or which decisions must be left to which class or kind of officials, for example." Idem.

(113) Id, at 30.

(114) At least in respect of resources, which could give rise to a more substantive equality between men and women in society as a whole

(115) See infra n_ and accompanying text.

(116) This is the device used by John Rawls in _A Theory of Justice_ (1971).

(117) See supra n_.

(118) See supra n_ and accompanying text.

(119) Part 2, supra n_, 340. See also supra n_ and accompanying text.

(120) See supra n_ and accompanying text.

(121) See supra n_.

(122) An additional argument for my conclusion about race exists if the land to be auctioned is site-specific. That is, if people are to exclude others from their area and the specific areas of land are auctioned off, under Dworkin's discussion the organising and excluding would have to be done at the stage of bidding rather than afterward. I suggest that the land to be auctioned is site-specific rather than, for example, a scrip worth an indeterminate piece of land to be chosen later. This is because Dworkin desires to enable people to

pursue their life plans and goals with resources obtained at the auction;

this is better achieved with specific sites, with their various attributes known, than non-specified ones. However, even if this is not the case, and the resources are more abstract than I envisage, this does not detract from the force of my argument in relation to the independence principle.

(123) Okin, supra n_, 72.

(124) For example: "People's preferences change, for example, so that the question of how far someone's preferences for his life have been fulfilled overall will depend on which set of his preferences is chosen as relevant, or which function of the diferent preferences he has at different times." Part 1, supra n_, 194. Emphasis added. This example is typical of Dworkin's use of pronouns throughout this essay.

(125) The examples used in the essay are Arthur & Betsy, Amartya & Bimal, Charles, Jack & Jill, Lewis, Jude, and Tiny Tim & Scrooge.

(126) For example, Dowrkin's scholar (id, 223) and violinist (id, 243) are male, as are those people doing important things such as defending particular conceptions of equality of welfare (id, 195).

(127) Part 2, 285-288.

(128) Dworkin refers to "his or her desire to bid." Part 2, supra note_, at 286. Note that even this use of a feminine pronoun is coupled with, and secondary to, a male one.

(129) Part 2, supra n.2, 310-314.

(130) Ibid, 314-323.

(131) The example posits Deborah and Ernest (id, 323).

(132) Dworkin notes that Tomas Scanlon provided the example (idem, n.14).

(133) For example, ibid, at 302.

(134) Idem.

(135) For example, ibid, at 285 - 290.

(136) Idem.

(137) For example, ibid, at 296.

(138) For example, ibid, at 304-8 ( Adrian, Bruce, and Claude).

(139) For example, ibid, at 316.

(140) For example, ibid, at 298.

(141) For example, ibid, at 287; see also Part 3, supra n_, where the auctioneer is referred to many times and solely as being male.

(142) Id, 318. This indicates that the wife is not employed and is not buying underemployment inusrance.

(143) When discussing handicaps, Dworkin comments: "It is true that this argument produces a certain view of the distinctions between a person and his circumstances, and assigns his tastes and ambitions to his person. That is the view of a person that I sketched in the introductory section, of someone who forms his ambitions with a sense of their cost to others against some presumed initial equality of economic power, and though this is different from the picture assumed by equality of welfare, it is a picture at the center of equality of resources." Id, at 302; emphasis added. I suggest that this picture is not just of a gender-neutral person who forms ambitions but of a male person who does so.

(144) As Okin describes, those who use gender-neutral language make an effort to interchange male and female pronouns, for example, or use other genuinely inclusive language. Okin, supra n_, __.

(145) When elaborating on the auction (id, 17-37) there are many masculine pronouns used and no feminine ones. This is maintained when discussing implementation in the real world (id, 38-52), although there are considerably fewer pronouns used.

(146) Dworkin uses "his or her." Id, 14. However, as Okin demonstrates, Rawls is guilty of false gender-neutrality. Okin, supra n_, chap.5.

(147) Dworkin, id, 1. I note that this essay was written in 1987, which was six years after the first two, which would explain the change in attitude and attempt to be seen to be gender-neutral.

(148) Dworkin, Part 4, supra n_, 4.

(149) For example, id, 5.

(150) For example, when discussing the impact of a voter's vote Dworkin uses solely "he" (id, 9); "Senator X" is a "he" (id, 11); and a voting Rockefeller is a "he" (id, 12, 14).

(151) Part 1, supra n_, 213.

(152) Ibid, 215.

(153) Part 2, supra n_, 323.

(154) Adrian and Claude, respectively. Ibid, 305, 306, respectively.

(155) Ibid, 323.

(156) Including, for example, the references in Dworkin's Part 4 to scholars, politicians, and a violinist as men. See supra n_ and accompanying text.

(157) If Dworkin is assuming that the present public and private spheres are to continue to exist and that only people in the public sphere are entitled to bid at the auction, then women in the private sphere will largely be represented at the auction by their male partners and will not even be entitled to equality of resources, let alone full equality.

(158) Even Dworkin admits that this separation is arbitrary. Ibid, at 283.

(159) G. Postema, "Liberty in Equality's Empire" (1987) 73 _Iowa L. R._ 55, at 88.

(160)

(161) "Part 2", supra n. 18, at 284.

(162) As Postema stresses, "[s]upply can itself create demand." Postema, supra n. 30 , at 87.

(163) Part 2, supra n_, 290.

(164) Idem.

(165) See supra n_ and accompanying text.

(166) For other criticisms, see infra n_ and accompanying text.

(167) See infra notes _ and accompanying text.

(168) Postema, supra n. 30, at 85.

(169) This particularly so when the bidders are aware of their sex, as I have suggested is the case.

(170) Part 3, supra n_, 38.

(171) Dowrkin, Part 2, supra n_, 298.

(172) The most common examples used here are in relation to pregnancy. For example, a denial to all men and women of maternity leave does not really treat these people equally because the denial affects men and women differently.

(173) Dworkin, Part 3, supra n_, 54. Emphasis in original omitted.

(174) See supra n_.

(175)For example, witness the debate over pronography.

(176) See supra n_ and accompanying text.

(177) Further criticisms can be made of his assumption of such liberties at the baseline of his theory from the perspective of Gilligan's research: such a baseline is inconsistent with the female view of the world as not being governed by such rights and liberties

(178) Dworkin, "Part 2", supra n_, at 297.

(179) Idem.

(180) This conclusion is even stonger if, at this first stage, those taking out insurance are aware of their sex. Not only would this make it even harder to treat the odds of becoming pregnant as being equally distributed but the parties themselves would know whether or not they were likely to become pregnant. This would defeat the purpose of buying insurance -- as protection against future 'bad luck' -- and distort the tax-and-redistribution caluclations based on the level of insurance undertaken, thereby defeating Dworkin's scheme.

(181) An alternative would be to posit some other method of accommodating pregnancy that did not involve the redistribution of resources, but this would not be able to as effectively address the concerns of liberal feminists.

(182) Dworkin, Part 2, supra n_, 299. See also supra n_.

(183) Id, at p313.

(184) One could be cynical and suggest that the reason that pregnancy, and all that it entails, is oppressively devalued today is because men do not have the talent or ability to become pregnant and are jealous. This attitude is more likely to lead men to regard it as a talent to be taxed, not a disability to be compensated for, and thus lead to the double oppression of women.

(185)

(186) There are clearly exceptions in todays welfare states related to aid solo mothers. But this is not seen as a legitimate or desirable source of compensation for pregnancy and child-rearing; it is seen more as a temporary measure until a proper level of support is able to be obtained from other sources. The preferred solution is still the one I have identified.

(187) Such measures would include fully-paid parental leave and full child care, or payment in lieu of child care for those that provided it themselves. I.e., it would effectively entail payment for most domestic duties.

(188) Despite the typical liberal concern with process and equality of political power over decisions, feminists argue that perhaps there is no true equality of power - or even opportunity to exercise power - if the results are not being achieved. If so, the argument is that the process should be changed in order to achieve better results.

(189) See supra n_ and accompanying text.

(190) Part 4, supra n_, 14-15.

(191) Ibid, 15.

(192) Ibid, 14.

(193) That is, other than what might be achieved as a by-product of the achievement of equality of resources. However, I suggest that that will not be enough to even improve the position of most women in society. See text infra.