What about Bert?

Jeremy Waldron

  • Sovereign Virtue: The Theory and Practice of Equality by Ronald Dworkin
    Harvard, 511 pp, £23.95, June 2000, ISBN 0 674 00219 9

In the 13th chapter of this formidable collection of Ronald Dworkin’s writings on equality, we are asked to consider a problem about health cover. The chapter is entitled ‘Playing God: Genes, Clones and Luck’, and the problem has to do with the availability of health insurance to those who are revealed, by genetic testing, to have a higher than ordinary risk of contracting some disease that may require expensive medical treatment.

Suppose the present decline in the quality of the NHS is not arrested and the system continues to deteriorate, until it is little better than Medicaid in the US, a grubby, grudging and inadequate safety net for those who can’t afford private insurance. And suppose that at the same time our ability to predict the incidence of genetically-based disease continues to improve, so that companies offering medical insurance can do so on the basis of detailed individual profiles of the genetic susceptibilities of potential policy-holders. Presumably the insurers – like any prudent bookmaker – will want to fine-tune the bets they make on the health of a given individual to reflect the likelihood that expensive treatment will be required in the lifetime of the policy. They may still offer cover for a person who, genetic testing reveals, is predisposed to multiple sclerosis, for example, but offer it at a premium several times higher than that paid by a person with no such predisposition. Since private health cover is expensive anyway, and since genetic predisposition does not correlate with the ability to fork out large sums of money, many of those who are most vulnerable (or most detectably vulnerable) to disease are likely to be left languishing in an area of the health system that is unable to respond to their needs. Good healthcare, covered by insurance, will be for the prosperous or the genetically robust; those in whom fate has combined poverty and genetic vulnerability will be left to the uncertain mercy of a ragged safety net.

Might this nightmare be avoided? Many people believe that if it can be avoided at all, it can only be at a serious cost to liberty. We could, perhaps, prohibit genetic testing or we could use strict privacy laws to prevent insurers from demanding (or acting on) genetic test results for those applying for cover. But that seems to impinge on the insurers’ freedom to look after their own economic interests; one might as well prohibit a bookmaker from adjusting his odds to reflect the form of a horse.

Can we avoid the nightmare prospect by limiting the private insurance market to a marginal rather than a dominant role in the area of healthcare? I guess a British government could make such a massive investment in the quality of the NHS that fewer and fewer people would have reason to seek private medical insurance. But to do that, it would have to find ways of resisting common complaints about the unfairness of supporting the NHS out of taxes paid by people who would rather use their money to buy insurance. Their complaint is that they are being forced to pay twice for healthcare – once through their own choice, in their dealings with insurance companies, and a second time through the tax system to support the NHS. The prosperous may say that they have no intention of ever availing themselves of NHS services. Still, unless they are forced to support it, the service will decline, and there will be no decent health cover for the poor and the genetically unfortunate.

We seem to have here a classic conflict between liberty and equality: liberty, on the part of the insurers and their prosperous or fortunate clients; and equality on behalf of those – the most vulnerable – who we know will fall through the cracks of a system that responds with market incentives to the information provided by genetic science. Equality commands us to ensure that something as important as health cover is equitably distributed, and not denied to a section of the population simply because of their greater vulnerability or misfortune. But liberty reproaches us for placing any restriction on people’s ability to order their own affairs.

A genuine contest between liberty and equality, says Ronald Dworkin, is a contest that liberty must lose. That claim, which pervades the more theoretical part of Dworkin’s book and explains its title – equality is not just one value among others, but the sovereign virtue of a social system – has seemed to many readers wildly counter-intuitive. If it is meant as a prediction – ‘The NHS will triumph in the end’ – it is over-optimistic, to say the least. More likely it is meant as a normative statement: liberty cannot hold its own against equality in the realm of justification, however much the cynical or the ignorant may flock to its side.

But even there it seems dangerously wrong. Surely the truth about value is that there are many good things – liberty and equality among them – and wisdom reveals that we cannot always have as much as we would like of the one, without some cost in terms of the other. To say, as Dworkin does, that liberty should always capitulate to equality when the two conflict in a case like the one I have outlined, seems to imply that people’s decisions about their own lives don’t matter – decisions like whether to buy insurance, whether to go into the insurance business, how to conduct that business etc. Or it seems to imply that free choice shrinks into moral insignificance in the presence of some issue of equity. Such a dismissive approach to liberty, many will say, is surely morally wrong.

Morally wrong, and jarringly out of tune with the times, others will add. If anything is the sovereign virtue in the modern world, it is surely freedom, not equality. What have the last ten years shown if not the triumph of free markets over the sort of dinosaur schemes of social provision that egalitarians like Dworkin seem to favour? If we have learned anything, these critics will say, it is that the civil and political liberties which liberals favour cannot be secure unless they are associated with a degree of economic freedom that is based firmly on market incentives and assigns responsibility to individuals for the individual choices they make. From this perspective, equality falls decidedly and permanently into a shabby and discredited second place in the contest of values, well behind the upbeat slogans of freedom, choice and responsibility. And indeed, Dworkin acknowledges at the very beginning of this book that equality is ‘the endangered species of political ideals’. Against a background of market triumphalism, he would seem to have his work cut out to bring it back from the brink of extinction, let alone establish its sovereignty.

Since the late 1970s, Dworkin has devoted prodigious energy to meeting this challenge. In my view the effort has been largely successful, in ways that I will try to explain in a moment. But even those who are not convinced will recognise, I think, that Dworkin’s writings on equality have contributed to a considerable tightening-up of what was previously a rather flabby and platitudinous area of discussion in political philosophy.

This is particularly true of a pair of articles published in 1981 in the journal Philosophy and Public Affairs. (These, ‘Equality of Welfare’ and ‘Equality of Resources’, are reprinted now as Chapters 1 and 2 of Sovereign Virtue.) The argument there was that egalitarians ought to pay careful attention to what one might call the currency of equality. Following themes presented in seminars he taught jointly at Oxford with the economist Amartya Sen, Dworkin insisted that we should focus our attention on the question, ‘Equality of what?’ What (exactly) should an egalitarian try to equalise – or, more realistically, which inequalities should he try to mitigate? A society might aim to reduce inequality of income or inequality of wealth, or welfare, or satisfaction, or access to resources. It could aim to diminish inequality of opportunity, or, even more modestly, it could confine its egalitarianism to an equality of basic rights.

This question has been around for a while, in one form or another. Dworkin’s distinctive contribution has been to insist that it is not enough for the egalitarian to ‘come up with’ an answer. It has to be a defensible answer; indeed, it has to be an answer that can be defended on egalitarian grounds. We have to be able to use equality to answer the question, ‘Equality of what?’ That means paying attention to a deeper and more abstract commitment to equality that might underlie and explain our surface-level commitment as a matter of policy to equality of this or equality of that. (And it is this deeper commitment, not any particular policy aim, that Dworkin thinks is sovereign and must prevail in any contest with liberty.)

Consider again the person I imagined at the beginning of this review – the person with a genetic predisposition to, say, multiple sclerosis. Call the person Bert. Suppose an egalitarian society were to dole out to Bert (in the form of a voucher or a cash payment) an amount of money to take care of medical needs which was exactly the same as the money doled out to all its members, including those without any such condition. This monetary equality might strike us as unequal in a deeper sense. A given cash sum translates into lower wellbeing for Bert, for it costs Bert much more – in the way of resources such as wheelchairs, nursing aid etc – to achieve the same level of basic satisfaction as his more fortunate fellow citizens. And even before Bert falls ill, the same amount of money will buy less insurance cover for him, if an insurer learns about his susceptibility to the disease.

Does this mean that our deeper aim should be something like equality of satisfaction? Should we be attempting to eliminate disparities in the amount of suffering or frustration that people feel? But that also seems objectionable. It implies we should allocate more money to the person with expensive tastes or grandiose ambitions. And it is surely unfair to those who place less store by freedom from pain or freedom from disappointment – athletes, for example, or a certain sort of scholar or scientist. They would end up having to subsidise what – to them – is the expensive taste for physical comfort that others have, but which they have disciplined themselves out of.

Dworkin believes that, in the end, we should favour equality in regard to access and control of material things – equality of resources – rather than equality in regard to mental states like satisfaction or freedom from pain. Society should not try to govern the process by which people make something of value out of their lives and experiences. And it shouldn’t be in the business of telling them to aim high or low, or take any particular attitude to pain or disappointment. That’s a matter of their own conception of what makes life worth living. What a society does and should control, however, is the basis on which material resources – everything from minerals to medicines – are put at people’s disposal. It governs this through its system of property, through its social services, and in the way the economy is regulated. It is these systems and this governance, Dworkin believes, that must be assessed at the tribunal of equality. Even the institutions of market economy and private property must be shown to be defensible in their basis and operation by reference to the interests of all.

Here we begin to see the force of the book’s main thesis – that some sort of commitment to equality is inescapable. No democratic government could possibly survive in the modern world if it proposed publicly simply to ignore or sideline the interests of some group of citizens – the urban underclass, for example, or those like Bert who are particularly vulnerable. There may not be a lot of sincerity in this, but even the most savage welfare reforms or privatisation schemes are invariably defended as being in everyone’s interest; and the insincerity is the tribute that political cynicism pays to equality as a sovereign virtue.

So what does this abstract equality entail for people like Bert? The market proposal, remember, is that he should buy health cover in the insurance market, just like everyone else. Now, as it stands, this proposal ignores the fact that the background distribution of resources (wealth and income) may involve inequalities and deprivations that could not possibly be justified at the tribunal of equal concern. A ‘compassionate conservative’ might try to meet that concern by offering Bert extra cash or a voucher, if he is too poor to afford the insurance premiums that ordinary citizens pay. But that still leaves the fact that cover for Bert is much more costly than comparable cover for others.

Some may say: ‘Well, that’s a matter for Bert. What he chooses to do with his fair share of resources is up to him.’ This might be an adequate response if he were clamouring for extra funds for cosmetic surgery, or to prolong his life beyond eighty. It might strike a chord if his condition were due to his own choices (smoking, for example), or if his difficulty in getting insurance could be traced to his own earlier improvidence. But none of that can be said about Bert. His genetic predisposition was detectable long before he had the opportunity to insure himself at a reasonable rate. He is the victim of what might be called ‘brute bad luck’, and Dworkin reckons it would be a violation of equal concern simply to leave him to his own devices. At the very least, we should contrive to secure for him something approximating the cover he would have chosen if he’d had a fair chance to make advance provision for the situation that now confronts him. And given certain plausible assumptions about actual insurance markets, this may well require us to move back in the direction of quality, but compulsory, NHS-style cover.

What, now, of liberty? It is Dworkin’s view that an account like the one just given, oriented as it is to the ideal of equal concern, already pays as much tribute to liberty as liberty deserves. By distinguishing between brute bad luck and what Dworkin calls ‘option luck’ – the outcome of risks willingly undertaken – it already incorporates a high level of respect for individuals leading their own lives and taking responsibility for their own choices. It does not require us to underwrite people’s choices or protect them against failures they have risked or setbacks they have had an opportunity to insure themselves against. But it denies that all misfortunes are like that, or can be dealt with in the same insouciant spirit.

Certainly, there is a sense in which something like liberty is restricted by Dworkin’s egalitarianism. Those who are taxed to pay for Bert’s medical expenses may complain that they are less free to do what they like with their money than they would be in a wholly privatised economy. And they are right, in the sense that they cannot now do exactly as they please. But Dworkin argues that the liberal tradition has always distinguished liberty from licence. Licence is freedom to do whatever you wish irrespective of the consequences for others, including the consequences for others’ freedom: it is what the master loses when we prohibit slavery and what the drunk driver loses when we regulate traffic. It is not a plausible political ideal, not even for libertarians. Liberty, on the other hand, is an ideal of freedom already oriented to respect for the equal freedom of others; and the fact that equality – equal freedom for all – must be built into the conditions that distinguish liberty from licence shows the force of the Dworkinian dictum that any contest between liberty and equality is one liberty must lose. No plausible libertarian ideal proposes to maximise the freedom of one section of society (whites, say, or men) at the expense of the freedom of another: equality is always respected as the appropriate basis for the distribution of liberty. So what looks like a contest between two separate ideals is revealed instead as two aspects of the same package. In the simplest terms (and this is cruder than the way Dworkin puts it), when freedom is mentioned, we ask ‘Freedom for whom?’ and the answer is ‘Equal freedom for all’; and when equality is mentioned, we ask ‘Equality of what?’ and the answer is ‘Equal liberty’, or in Dworkin’s terms, ‘Equal concern for each person’s life, and equal respect for the basis on which they have chosen to live it.’

To return to our example: we should not allow ourselves to be pulled up short by the possibility that the prosperous and the fortunate may lose the freedom to do as they please with their money. We need to ask whether the freedom that is lost here is liberty or licence, and one way of approaching that question is to ask whether it is consistent with the equal freedom of all, in relation to the use of material resources. Most political theorists are willing to draw this distinction, but they are not always willing to follow it where it leads, to the assessment of systems of property, that is, of the basis on which people’s lives are governed and restricted so far as access to resources is concerned. They want to insulate property from this inquiry, which means refusing to countenance tough questions about whether that institution really does embody (as it usually claims to embody) respect for the freedom of all.

The densest and most difficult arguments in Sovereign Virtue are in the early chapters, ‘Equality of Resources’ and ‘The Place of Liberty’, where Dworkin refuses to flinch from this assignment. Those chapters constitute a substantial contribution to the literature on social justice, a contribution whose implications go far beyond the conundrums about health care that I have explored here.

Other reviewers have complained that Dworkin’s strategy in these chapters is an affront to the plurality of values. They say it is dangerous not to recognise that sometimes we have to make hard choices between genuinely competing values like liberty and equality. Certainly, a case can be made that Dworkin is sometimes too quick to synthesise, to paper over apparent conflicts. In his 1998 Dewey Lectures at Columbia – ‘Justice for Hedgehogs’ – he made a virtue of this propensity, insisting that we have a responsibility to interpret values like ‘democracy’, ‘equality’, ‘liberty’ and ‘justice’ in a way that minimises the conflict between them. One might take exception to this as a general strategy. Still, this leaves open the possibility that philosophical argument might dissolve some of the conflicts of value alleged by conventional wisdom.

That is what this book succeeds in showing: maybe there are areas where we should face up to irreconcilable conflicts of values. But the alleged conflict between liberty and equality (in policy areas like health cover) is not one of them. That it has been so regarded for so long is a tribute to the power of interest over argument. People have said they are interested in liberty, but are unwilling to answer the question, ‘Is that liberty for everyone?’ or unwilling to pursue the implications of an affirmative answer to that question for the whole of social policy and political economy.

Sovereign Virtue is not an easy book to read, and Dworkin’s doggedness in argument is infuriating to some. But it’s worth persevering with, and the doggedness pays off. Political philosophy is always in danger of being nothing more than an exhibition of ‘common sense’ or political correctness or elegant self-righteousness. By showing how difficult it is to argue well about equality – how dense the arguments have to be, how convoluted the examples – Dworkin succeeds in removing this most prominent value from that parade of amateurs. He explodes the platitudes that have traditionally been used to determine whether someone’s views on equality were ‘sound’ and he manages to map out a terrain on which honest and respectable argument about equality can be conducted. These are major achievements, and the papers collected in Sovereign Virtue must be regarded now as classics in political philosophy.