1. Dworkin, Ronald, Foundations of Liberal Equality, in The Tanner Lectures on Human Value XI (Grethe B. Peterson, ed., 1990), Vol. II, (hereinafter Liberal Equality).Google Scholar

2. Id. at 5–6, 20.

3. Id. at 36–42. Dworkin's distributive theory and the roles assigned to liberty and democracy within that theory are described in a series of four previous articles: Dworkin, Ronald, What Is Equaiity? Part 1: Equality of Welfare, 10 Phil. & Pub. Affairs 185–246 (1981)Google Scholar (hereinafter Equnality Part 1); Dworkin, Ronald, What Is Equality? Part 2: Equality of Resources, 10 Phil. & Pub. Affairs 283–345 (1981)Google Scholar (hereinafter Equality Part 2); Dworkin, Ronald, What Is Equality? Part 3: The Place of Liberty, 73 Iowa L. Rev. 1–54 (1988)Google Scholar (hereinafter Equality Part 3), and Dworkin, Ronald, What Is Equality? Part 4: Political Equality, 22 U.S.F.L. Rev. 1–30 (1987)Google Scholar (hereinafter Equality Pary 4).

4. Liberal Equality, supra note 1 at 41.Google Scholar

5. Id. at 20, 88–90.

6. Id. at 89.

7. Id. at. 7.

8. Id. at 110. Dworkin acknowledges that a successful political theory must have “consensual promise” as well as “categorical force.” Id. at 25–26.

9. Id. at 57–71.

10. Id. at 43–47. 64, 69, 75–86.

11. Id. at 71–75.

12. Id. at 36–42, 90–91. Dworkin's previous articles on equality of resources are cited at note 3, supra.

13. Liberal Equality, supra note 1 at 101.Google Scholar

14. Id. at 113–18.

15. Id. at 57.

16. See Liberal Equality, supra note 1 at 57–58, 64, 67–69, 75–86, 106–10.Google Scholar

17. Id. at 66.

18. Id. at 66–71.

19. Id. at 69.

20. Id. at 102.

21. Dworkin illustrates this with an analogue to art. An artist does not simply perform according to a standard of good art—he must conceive the project he will undertake. At the same time, he does not work in a vacuum. Inescapably, his project will be shaped by his surroundings—the history of art to date, the social environment, and so forth. Id. at 64–66.

The relation of an individual to the challenge of ethics bears a certain resemblance to the relation of a judge to law in Dworkin's jurisprudence. A good judge, according to Dworkin, identifies the best set of principles (as measured by his political convictions) that can be fitted to institutional history and practice. See Dworkin, Ronald, Laws Empire, 255–58 (1986)Google Scholar. So too a reflective ethical liberal works out a sense of the challenge he should respond to, by shaping a set of ideals that fits tolerably well with his personal history and ethical identity. It would be risky to make much of this analogy, but the method, at least, is similar.

22. At first Dworkin speaks only of limitations, as distinguished from parameters. Liberal Equality, supra note 1 at 66–71Google Scholar. Later, opportunities appear as the positive companions to limitations. Id. at 102.

23. Luck is an example. Talents and disabilities are classed as opportunities (or limitations) for purposes of distribution: therefore resources should be adjusted to compensate for differences in ability. Id. at 108. Yet Dworkin also says, somewhat inconsistently, that each individual must determine for himself whether his possession of a particular talent should count as a parameter of his ethical challenge. Id. at 102; see id. at 108 n.55. This problem is discussed further in the text at notes 76–81, infra.

24. Id. at 59–66.

25. In many ways, the challenge model assumes a liberal view of the person. For criticism of Dworkin, Rawls, and others on this ground, see Sandel, Michael J., Liberalism & the Limits of Justice, 7–11 (1982)Google Scholar. But as I understand it, Dworkin does not claim that his theory is neutral on this point. See Equality Part 2. supra note 3 at 302 (acknowledging a conception of the person).Google Scholar

26. The challenge model of ethics seem quite consistent with a defense of liberalism based directly on the ideal of autonomy. see Raz, Joseph, The Morality of Freedom, 369–429 (1986)Google Scholar. Dworkin, however, is not offering a “perfectionist” argument of this kind. See generally Alexander, Larry, Harm, Offense, and Morality, 7 Can J. Law & Juris. 199–216. at 213–15 (1994)CrossRefGoogle Scholar (on different ways of defending liberalism).

27. I am grateful to Professor Patrick Neal for his helpful comments on the challenge model of ethics, which I cannot do full justice to in this space.

28. Liberal Equality, supra note 1 at 72–73.Google Scholar

29. Dworkin says that “if living well means responding in the right way to the right challenge, then a life fares worse when the right challenge cannot be faced.” Id. at 73. Further, “our [unjust] culture offers no examples we can study of lives that flourished or were deemed successful in circumstances as they should be.” Id. at 74. Thus, it is necessary to live in a society that is actually just. Dworkin also states that in contrast to the challenge model of ethics, the impact model of ethics does not count “third-party injustice” against any individual's ethical success. Id. at 71. See also Dworkin, Ronald, Liberal Community, 77 Cal. L. Rev. 479–504, at 502–04 (1989)CrossRefGoogle Scholar (ethical “integration” of the individual and the community in matters of justice).

30. Id. at 72. By putting the argument in terms of resources, Dworkin assumes the outcome of an argument he has not yet presented—the argument that justice is a matter of resources rather than welfare. See Id. at 93–98; text at note 50, infra.

31. Liberal Equality, supra note 1 at 72–73.Google Scholar

32. More precisely, Dworkin states that ethics can be divided into two categories: (1) personal well-being, which refers to a good life for oneself, and (2) morality, which refers to proper treatment of others. He then elects to use the term ethics, in the course of his lectures, to mean well-being as distinguished from morality. Id. at 9.

33. Id. at 73.

34. See Nagel, Thomas, Equality & Partiality, 10–20 (1991)Google Scholar (people inevitably occupy both personal and impersonal standpoints in regard to ethics and politics).

35. Liberal Equality, supra note 1 at 74.Google Scholar

36. Id. at 70.

37. Id. at 74–75. Dworkin gives the example of Michelangelo, financed by the wealth of the Medici—although this suggests a lapse in the direction of an “impact” model of ethical success.

38. Id. at 75.

39. Not only because it tries one's patience with the author's idiolect.

40. Liberal Equality, supra note 1 at 67.Google Scholar

41. For an account of the rise of liberalism in response to religious belief in corporate responsibility, see Heriot, Gail L., The New Feudalism: The Unintended Destination of Contemporary Trends in Employment Law, 28 Ga. L. Rev. 167–222, at 175–90 (1993).Google Scholar

42. See note 3, supra.

43. Liberal Equality, supra note 1 at 36Google Scholar; Equality Part 2, supra note 3 at 285–90.Google Scholar

44. See Equality Part 2, supra note 3 at 284–85 (market)Google Scholar; Equality Part 3. supra note 3 at 25–29Google Scholar (a “liberty/constraint system” allowing freedom in use of resources, subject to the limits that are necessary to provide security). Dworkin's auction and market are subject to correction in case of prohibitive transaction costs, to redistribution to compensate for disparities in talent and luck, and to intervention to eliminate the effects of prejudice. See Equality Part 2, supra at 296–304, 314–34Google Scholar: Equality Part 3, supra at 31–34, 35–37.Google Scholar

45. Liberal Equality, supra note 1 at 39, 97–98, 106–10Google Scholar; Equality Pari 2, supra note 3 at 289, 294–95, 304–14.Google Scholar

46. Liberal Equality, supra note 1 at 37Google Scholar. More specifically, Dworkin recommends transfer payments patterned on a hypothetical market for insurance against the possibility that the market will not value what the insured is able to produce. See Equality Part 2, supra note 3 at 296–304, 314–34.Google Scholar

47. Liberal Equality, supra note 1 at 108–110.Google Scholar

48. Id. At 37–38. This is developed in Dworkin, , Equality Part 3, supra note 3.Google Scholar

49. Liberal Equality, supra note 1 at 91–92, 93–104.Google Scholar

50. Id. At 103.

51. Id. At 93–98. Further arguments against a conception of justice based on equality of welfare are set out in Equality Part 1, supra note 3.

52. Liberal Equality, supra note 1 at 98–104.Google Scholar

53. Id. At 102.

54. This idea is discussed in Dworkin, Ronald, Liberalism, in A Matter of Principle 181–204, at 189–98 (1985)Google Scholar; Dworkin, Ronald. Why Liberals Should Care About Equality, in A Matter of Principle, supra 205–213, at 205Google Scholar (hereinafter Why Liberals Should Care); Dworkin, Ronald, What Rights Do We Have?, in Taking Rights Seriously 266–78, at 272–73 (Cambridge: Harvard University Press 1978)Google Scholar; Dworkin, , Equality Part 3, supra note 3 at 7–12.Google Scholar

55. Equality Part 3, supra note 3 at 7.Google Scholar

56. Id. Gerald Postema has suggested that this may not be an egalitarian principle at all, but only a principle of support that is egalitarian in effect because it applies generally, to all citizens. See Postema, Gerald J., Liberty in Law's Empire, 73 Iowa L. Rev. 55–95, at 56–70 (1987)Google Scholar. See also Raz, Joseph, The Morality of Freedom, supra note 26 at 227–29 (“rhetorical egalitarianism”).Google Scholar

57. Cf. Nagel, Thomas, Equality & Partiality, supra note 34 at 130–38Google Scholar (on the intrinsic value of art, science, and perhaps all fine things).

58. See Dworkin, Ronald, Can a Liberal State Support Art?Google Scholar, in A Matter of Principle, supra note 54, 221–33, at 221Google Scholar. Dworkin concedes that public Funding of cultural institutions does not fit within the standard economic justification for state provision of public goods. This is because culture shapes preferences; therefore it is impossible to know what aspects of culture people would prefer to support. Yet Dworkin argues that it is fair to assume that people would wish to preserve the structure of cultural and intellectual life, if not its specific content Hence, the state is justified in providing “indiscriminate subsidies” designed to maintain a rich and varied background for artistic appreciation and innovation.

59. Liberal Equality, supra note 1 at 85 n.44.Google Scholar

60. If we could be confident that people would pay to preserve these goods, then the extra resources enjoyed by academic lawyers would simply be a happy consequence of the choices they had made. See Equality Part 2, supra note 3 at 304–06Google Scholar (individuals can justly retain resources they gain on account of productive labor, subject to adjustments for differences in talent). But as Dworkin explains, the effect of culture on preferences makes it impossible to know whether and what people would pay. Dworkin, Ronald, Can a Liberal State Support Art?, supra note 58 at 226–28.Google Scholar

61. Liberal Equality, supra note 1 at 85 n.44.Google Scholar

62. On satiable and insatiable theories of justice, see Raz, Joseph, The Morality or Freedom, supra note 26 at 235–44.Google Scholar

63. See text at notes 36–39, supra.

64. Liberal Equality, supra note 1 at 100.Google Scholar

65. Consider that it is only in the most prosperous societies that women have been able to undertake projects beyond the physical care of their families.

66. Equality Part 2, supra note 3 at 304–06.Google Scholar On the challenge view of ethics, each person must “pay the price” of the life he wishes to lead, in terms of opportunity costs to others of whatever resources it requires. Id. At 294. So too, a person who chooses to produce what others value should realize the benefit of choice. Moreover, the possibility of trade and profit assists in the valuation of resources, because it enables others who want a finished product to bid indirectly on the raw material necessary to produce it. Id. at 304–305.

67. Id. at 296–304, 314–34.

68. The level of tax depends on the predicted outcome of a hypothetical insurance market. See text at notes 75 and 85, infra. Dworkin believes people would insure against low earning capacity at a fairly low level, because a high level of coverage would entail the risk of an onerous premium for those who turned out to have talent. Equality Part 2 at 319–20.Google Scholar But of course he has no data.

69. For a sample of views within this general description, see Gewirth, Alan, Reason & Morality, 312–17 (1978)Google Scholar (“basic” goods and goods that increase equality of opportunity); Waldron, Jeremy, The Richt to Private Property, 332–35, 377–86, 439–41 (1987)Google Scholar (a right to possession of resources the individual “takes seriously as necessary for his well-being”); Wiggins, David, Claims of Need, in Needs, Values, Truth 1–57, at 56 (1987)Google Scholar (whatever is required by “our evolving sense of what it is fair for people to be asked to do and endure,… our sense of entitlement that must normally accrue to effort or achievement or inheritance or settled expectation or whatever, and…our untheoretical sense of the relative strength of the various classes of need claims”).

70. Rawls, John, A Theory of Justice, 14–15, 75–83 (1971).Google ScholarSee Nagel, Thomas, Equality & Partiality, supra note 34 at 63–74Google Scholar (presumptive priority for the worst off). For that matter, there is nothing about liberal ethics (taken to mean the challenge model of ethics and the proposition that justice, however defined, is a parameter of ethical success) that rules out a libertarian conception of justice in which a set of holdings is just if it is justly acquired and justly transferred. See Nozick, Robert, Anarchy, State, & Utopia 150–53 (1974).Google Scholar But I suspect that Dworkin would not count this as a theory of justice; therefore I will stay within the bounds of familiar patterned distributive principles.

71. Equality Part 2, supra note 3 at 285–286.Google Scholar

72. Dworkin occasionally seems to accept the possibility of some relaxation of equality in the interest of variety. See Equality Part 2, supra note 3 at 330. But see id. At 295 (equality trumps variety).

73. In an article on the role of liberty within his political theory, Dworkin addresses the problem of how we might implement the ideal of equality of resources in the “real world.” An ideal distributive system would allow substantial liberty in the use of resources, as well as familiar liberties of expression and association, because these liberties are necessary to ensure that resources are correctly valued. Equality Part 3, supra note 3 at 25–37.Google Scholar In the real world, we should employ “improvement strategies” that proceed by identifying both “resource deficits” and “liberty deficits” in the present distribution. Because liberty deficits are incommensurate with resource deficits, no policy can be considered an improvement if it restricts important liberties below the level at which they could be exercised in a plausible “defensible distribution” of resources. Id. At 37–40. The catch, of course, is in the determination of what liberties people could exercise within a defensible distribution. Freedom of expression might fare quite well (because it does not cost much), but more mundane liberties of the sort that affect the variety of available resources could be curtailed by distributive necessity.

74. See text at notes 43–45, supra.

75. Equality Part 2, supra note 3 at 314–34.Google Scholar

76. Id. at 301, 327. Dworkin says “we need not make counterfactual judgments that are so personalized as to embarrass us.” Id. at 298.

Dworkin also seems willing to assume that people who earn little must lack talent or skill and would work productively if they could. See Why Liberais Should Care, supra note 54 at 208.Google Scholar In his leading article on equality of resources, Dworkin acknowledges the problem of moral hazard and proposes a form of co-insurance in response: Compensation payments are to be set at a level that does not fully make up the deficiency in earnings. Equality Part 2, supra note 3 at 324–25.Google Scholar Yet in the end he seems willing to resolve doubts in favor of lack of ability rather than lack of effort. See Id. at 327–28.

77. See text at notes 16 and 25, supra. Another problem is that, in theory, the talented must choose to use their talents (at least if their talents are detectable). Having turned up with valuable talent, they must pay premiums under the insurance plan, yet they are not entitled to compensation if they choose a lower-paying occupation. Equality Part 2, supra note 3 at 302.Google Scholar As Dworkin points out, this problem disappears when we move from the ideal to a secondbest solution of progressive income taxation and redistribution—but only at the cost of more averaging, which disregards the differences in ethical choices people have made.

78. Equality Part 2, supra note 3 at 302.Google Scholar Dworkin does not take the position that talents are communally owned or that talents should somehow be equalized. But he does argue that equality of resources requires compensation for the differences that personal resources, such as talent, make to one's share of material resources. See id. at 301, 311–12.

79. Liberal Equality, supra note 1 at 64–69.Google ScholarSee also Equality Part 2, supra note 3 at 288–89Google Scholar (on the interrelation between valuation of resources and ethical choice).

80. Equality Part 2 at 413–17.Google Scholar

81. Liberal Equality, supra note 1 at 108–10.Google Scholar

82. See Equality Part 2, supra note 3 at 303–04 (cravings).Google Scholar

83. See Alexander, Larry and Schwarzschild, Maimon. Liberalism, Neutrality, and Equality of Welfare vs. Equality of Resources, 16 Phil. & Pub. Affairs 85–110 at 95–103 (1987).Google Scholar

84. Equality Part 2, supra note 3 at 328–34.Google Scholar

85. Id. At 314–24.

86. Id. At 325–26.

87. See id. At 333–34; Why Liberals Should Care, supra note 54 at 207–08.Google Scholar

88. Equality Part 2, supra note 3 at 304–06.Google Scholar

89. For feminist criticism along these lines, see, e.g., MacKinnon, Catherine A., Feminism Unmodified, 5–10, 32–45 (1987)Google Scholar; Littleton, Christine A., Reconstructing Sexual Equality. 75Google ScholarCal. L. Rev. 1279–1337 (1987)Google Scholar; Minow, Martha. Foreword: Justice Engendered, 101Google ScholarHarv. L. Rev. 10–95 (1987)Google Scholar; Olsen, Frances, The Family & the Market: A Study of Ideology & Legal Reform, 96Google ScholarHarv. L. Rev. 1497–1578 (1983)Google Scholar; Radin, Margaret Jane, Market-Inalienability, 100Google ScholarHarv. L. Rev. 1849–1937 (1987).Google Scholar

90. Liberal Equality, supra note 1 at 87–88.Google Scholar In a sense, Dworkin's belief that life in a just society is a condition of ethical success is an instance of what he calls “ethical priority”—identification of one's own success with the success of a larger community.

91. Elsewhere, Dworkin has proposed that in an ideal distribution, an auction of resources would be conducted against the background of an appropriate “liberty/constraint system,” which would serve to ensure a correct valuation of resources. Eqtiality Part 3, supra note 3 at 25–26.Google Scholar This background of liberties and constraints on liberty would include what Dworkin, calls a “principle of independence,”Google Scholar designed to protect (in some way) against the effects of systematic prejudice. Id. At 36–37. Perhaps this principle could be used to address concerns about the effects of power on preferences, but if so, Dworkin has only shifted the controversy to a new battlefield.

92. Liberal Equality, supra note 1 at 115–17.Google Scholar

93. Id. At 13–114.

94. Id. At 114.

95. See Alexander, Larry, Liberalism, Religion, & the Unity ofEpistemology, 30 San Diego L. Rev. 763–97, pp. 765–67 (1993).Google ScholarSee also Raz, Joseph, The Morality of Freedom, supra note 26 at 110–62Google Scholar (on the errors of antiperfectionism).

96. See text at notes 28–35, supra.

97. See Berlin, Isaiah, Two Concepts of LibertyGoogle Scholar, in Four Essays on Liberty 118–72, pp. 131–54 (1969)Google Scholar (on positive liberty and its illiberal effects).

98. Liberal Equality, supra note 1 at 75–86, 116.Google Scholar

99. Liberal Equality, supra note 1 at 115.Google ScholarSee also Why Liberals Should Care, supra note 54 at 205Google Scholar, stating that the state “must impose no sacrifice or constraint on any citizen in virtue of an argument that the citizen could not accept without abandoning his sense of his equal worth.”

100. Elsewhere, Dworkin speaks or the “communal life” of a political community as the appropriate sphere of collective decision-making. See Dworkin, Ronald, Liberal Community, supra note 29 at 496–99.Google Scholar Yet he does not fully explain how we can identify the content of communal life as distinguished from private life. Some might say that religion (if not sex) is a communal concern.

101. Equality Part 4, supra note 3 at 3–8, 19–28.Google Scholar

102. Dworkin sutes that ethical liberals cannot accept a compromise on justice. Liberal Equality, supra note 1 at 101.Google Scholar

103. The necessity for a political compromise on justice also may threaten the overall success of Dworkin's project. His object was to describe a continuous path from ethics to politics, one that does not rely on an artificial compromise that is contrary to anyone's personal convictions and therefore without categorical force. If justice counts as a personal conviction, and if people disagree about justice, he has not succeeded in arguing continuously from ethics to a political arrangement that could be carried out peaceably.

104. By “ecumenical,” Dworkin appears to mean amenable to wide acceptance. See Liberal Equality, supra note 1 at 110–13.Google Scholar

105. Id. at 112.

106. Why Liberals Should Care, supra note 54 at 205.Google Scholar Of course, the people we are imagining—libertarian art collectors, for example—may still complain. But Dworkin might respond that they have no just cause for complaint, or at least no cause to complain that his system is illiberal.