State legitimacy and political obligation in justice for Hedgehogs: The radical potential of Dworkinian dignity

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 737-758

  Sreedhar, Susanne ^a   Delmas, Candice ^b  

^a USA   (United States)

^b BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954328967     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (151)

1. RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 9, 11, 19, on file with the Boston University Law Review). This paper is based on the draft version of this manuscript dated April 17, 2009. It is possible that the final published version of the book is revised in ways that may obscure some of what is said here.
2. Id. (manuscript at 7, 23-25, 187-91, 211-13, 260-62).
3. Id.
4. (manuscript at 7). The title of Dworkin's book is a reference to the aphorism by the Greek poet Archilochus, "[t]he fox knows many things, but the hedgehog knows one big thing," which inspired Isaiah Berlin's famous essay, The Hedgehog and the Fox. ISAIAH BERLIN, The Hedgehog and the Fox, in RUSSIAN THINKERS 22, 22 (Henry Hardy & Aileen Kelly eds., 1978). Berlin proceeds to divide writers and thinkers into two main categories: hedgehogs, for whom the world boils down to a single defining idea (for instance Plato, Dante, and Hegel), and foxes who draw on a wide variety of experiences (for instance Aristotle, Shakespeare, and Montaigne).
5. Id. at 22-23.
6. DWORKIN, supra note 1 (manuscript at 128).
7. Id. (manuscript at 11-12, 165-66).
8. Id. (manuscript at 202-05).
9. Id. (manuscript at 203).
10. Id.
11. Id.
12. Id. (manuscript at 204).
13. Id. (arguing that dignity may be protected if the government treats all those whom it governs as equal partners).
14. Id.
15. Id. ("[P]olitical obligation wholly fails for any group that is systematically denigrated in second-class citizenship - or none at all - as in the ante-bellum South, Nazi Germany, apartheid South Africa, the genocidal nations of Africa and the Soviet tyranny.").
16. Id. (manuscript at 202-06).
17. Id. (manuscript at 204).
18. Id. (manuscript at 203).
19. Id.
20. Id.
21. Id. (manuscript at 128).
22. Id.
23. Id.
24. Id. (manuscript at 15).
25. Id. (manuscript at 162).
26. Id. (manuscript at 164).
27. Id. (manuscript at 133-32).
28. Id. (manuscript at 132).
29. Id.
30. Id.
31. Id. (manuscript at 133) ("[W]e all live in an ethical culture that provides, at any time, the pallet of recognizable ethical values from which possibilities can be drawn.").
32. See id. (manuscript at 132).
33. Id. (manuscript at 135).
34. See id. (manuscript at 203).
35. See id.
36. See id.
37. Id.
38. See supra quotation accompanying note 17.
39. DWORKIN, supra note 1 (manuscript at 204) ("How can dignity be protected in [a democracy]... ? Only if government governs in such a way as to treat all those it governs as partners in a collective enterprise so that each can treat collective decisions - even those he disapproves - as issuing from a process in which he has an equal voice.").
40. Id. (manuscript at 132) (stating that authenticity "assigns each person a non-delegable responsibility for identifying and then pursuing his own conception of what it is to live well").
41. Id. (manuscript at 133).
42. Id. (manuscript at 133-34) (emphasis added).
43. Domination is distinct from limitation, as Dworkin stresses. Id.
44. We are inescapably limited, influenced by our environment, confined to the "cultural palette" of our community. For instance, the life of the ancient Samurai is not available in late twentieth century urban United States: the character played by Forest Whitaker in Jim Jarmusch's Ghost Dog: The Way of the Samurai cannot fulfill his ethical ideals so long as the socio-cultural conditions indispensable for the Samurai lifestyle are missing. He abides by its code of honor but ultimately remains a mafia hit man. Such limitations, however, do not constitute domination. GHOST DOG: THE WAY OF THE SAMURAI (Pandora Filmproduktion 1999).
45. See supra quotation accompanying note 17.
46. DWORKIN, supra note 1 (manuscript at 133-34).
47. Id. (manuscript at 134).
48. Note that Dworkin seems to disavow use of the word "autonomy," id., distinguishing it from authenticity, but a close reading reveals that it is only certain theorists' misguided use of the notion that he disavows. Id. (describing some philosophers' conception of the value of autonomy as "a demeaning view of authenticity"). We suspect he would not object to our use of "autonomy" in this context.
49. See id. (manuscript at 204).
50. Id. (manuscript at 203).
51. Id. (manuscript at 132-33).
52. Id. (manuscript at 162, 166).
53. Id. (manuscript at 202).
54. Id. (manuscript at 199, 202).
55. Id. (manuscript at 203).
56. See id. (manuscript at 204) (recognizing it is counterintuitive to hold that the subjects of most political communities over history had no moral duty to obey the laws of their community).
57. Id. (manuscript at 202-05).
58. Id. (manuscript at 204-05).
59. Id. (manuscript at 204).
60. Id. (manuscript at 209).
61. Id. (manuscript at 204).
62. Id.
63. Id. (manuscript at 216) ("[W]e do not recognize that moral authority unless the rulers' governance is legitimate and we do not accept government as legitimate unless it treats those over whom it claims moral authority with the right attitude.").
64. Id.
65. Id. (manuscript at 209).
66. Id. (manuscript at 204).
67. See supra text accompanying note 61.
68. DWORKIN, supra note 1 (manuscript at 216).
69. Id. (manuscript at 202).
70. Id.
71. Id.
72. Id. (manuscript at 204).
73. Id.
74. Id.
75. Id.
76. Id.
77. Id.
78. Id.
79. See id. (manuscript at 205).
80. Id. (manuscript at 204).
81. Id.
82. Id.
83. Id.
84. Id.
85. Id.
86. Bhikhu Parekh, A Misconceived Discourse on Political Obligation, 41 POL. STUD. 236, 239 (1993). According to Parekh, this is the ninth traditional assumption of theorists thinking about political obligation.
87. Id. at 237-39.
88. See DWORKIN, supra note 1 (manuscript at 204) (stating that every citizen owes the other citizens a duty to try to secure a legitimate government).
89. See id.
90. Id. (manuscript at 167).
91. Id. (manuscript at 210).
92. See id. (manuscript at 202).
93. Id. (manuscript at 228). Dworkin presents these two conditions as a restatement in concrete terms of the conditions of legitimacy presented earlier. According to Dworkin, as we noted, the state is legitimate if, and only if, (a) it acknowledges the responsibility and right of each citizen to make her own decisions about the personal ethical values that will shape her life; and (b) it judges the fates of all citizens as equally important. Id. (manuscript at 216). Note that the second condition is especially intended to prohibit ethical paternalism. See id. (manuscript at 133) ("We cannot escape influence, but authenticity requires us to resist domination. The distinction is of great ethical importance: it is the difference between limitation and subordination.").
94. Id. (manuscript at 202).
95. Id. (manuscript at 205).
96. RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 17 (1996) (describing the constitutional conception of democracy and its goal that political institutions treat all members of the community with "equal concern and respect").
97. RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 358 (2000) ("According to the partnership conception, government by 'the people' means government by all the people, acting together as full and equal partners in a collective enterprise of self-government.").
98. DWORKIN, supra note 1 (manuscript at 240-41).
99. Id. (manuscript at 241).
100. Id.
101. ROBERT A. DAHL, POLYARCHY: PARTICIPATION AND OPPOSITION 34-35 (1971).
102. Id. at 5-6.
103. Id. at 7.
104. Id. at 8.
105. Id.
106. See DWORKIN, supra note 1 (manuscript at 40-41).
107. See id. (manuscript at 202-04).
108. DAHL, supra note 97, at 28-29.
109. Id.
110. Id. at 29.
111. Id. at 93.
112. Id. at 94.
113. See supra text accompanying notes 84-87.
114. DWORKIN, supra note 1 (manuscript at 210).
115. See supra note 96 and accompanying text.
116. DWORKIN, supra note 1 (manuscript at 204-05).
117. Id. (manuscript at 204) (acknowledging that political obligation failed for minorities in the ante-bellum South).
118. See id. (manuscript at 247) ("[F]ormal discriminations . . . now belong, we hope, mainly to history in the mature democracies.").
119. Id. (manuscript at 204).
120. See id.
121. Id.
122. Id.
123. Id.
124. See supra text accompanying note 61.
125. DWORKIN, supra note 1 (manuscript at 232).
126. Id. (manuscript at 234).
127. Id.
128. Id. (manuscript at 231).
129. Id. (manuscript at 235-36).
130. Id. (manuscript at 236).
131. Id. (manuscript at 128).
132. -1 U.S.C. § 7 (2006); 28 U.S.C. § 1738C (2006).
133. Martha Nussbaum has argued explicitly for this point MARTHA C. NUSSBAUM, FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION AND CONSTITUTIONAL LAW 127-28, 132 (2010).
134. DWORKIN, supra note 1 (manuscript at 204).
135. See id. (manuscript at 247).
136. Id.
137. More than twenty states have passed voter identification laws. National Conference of State Legislatures, State Requirements for Voter ED, http://www.ncsl.org/Legislatures/Elections/ElectionsCampaigns/ StateRequirementsforVoterID/tabid/16602/Default.aspx (last visited Jan. 28, 2010).
138. Under an Indiana law (subsequently repealed), voters were required to produce proof of identification at the polls (typically a driver's license). IND. CODE ANN. § 3-11-8-25.1 (West Supp. 2007),
139. invalidated by League of Women Voters of Ind., Inc. v. Rokita, 915 N.E.2d 151 (Ind. Ct. App. 2009). In a 6-3 decision in April 2008, the Supreme Court upheld the law. Crawford v. Marion County Election Bd., 553 U.S. 181, 188-89 (2008). The dissenting opinion, written by Justice Souter and joined by Justice Ginsburg, declared the voter identification law unconstitutional, concluding that "the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old."
140. Id. at 237 (Souter, J., dissenting). Following the decision in Crawford, the Court of Appeals of Indiana subsequently held the voter identification law unconstitutional. Rokita, 915 N.E.2d at 168-69. Voter identification laws also have a disproportionate impact on blacks.
141. In Florida State Conference of the NAACP v. Browning, the United States Court of Appeals for the Eleventh Circuit approved Florida's system for purging the voting lists by a 2-1 ruling. Fla.
142. State Conference of NAACP v. Browning, 522 F.3d 1153, 1155 (2008). The dissenting judge, Chief Judge Barkett, was the only one to spell out the disparate racial impact.
143. Id. at 1176 (Barkett, C.J., dissenting) (arguing that the Florida law deprives over 14,000 citizens the right to vote, many of whom are minorities). She noted that while black voters made up 13% of the scanned pool, they comprised 26% of those who were purged; whites made up 66% of the pool, but represented only 17% of the rejected group.
144. Id. at 1176 n.4.
145. David Cay Johnston, Income Gap Is Widening, Data Shows, N.Y. TIMES, Mar. 29, 2007, at C6. Analysis of Internal Revenue Service 2605 tax data showed that "the top 300,000 Americans collectively enjoyed almost as much income as the bottom 150 million Americans."
146. Id.
147. "While total reported income in the US increased almost 9 percent in 2005,... average incomes for those in the bottom 90 percent dipped slightly compared with the year before, dropping $172, or 0.6 percent." Id. According to the report, "[t]he gains went largely to the top 1 percent, whose incomes rose to an average of more than $1.1 million each, an increase of more than $139,000, or about 14 percent."
148. Id.
149. SAMUEL FREEMAN, RAWLS 225 (2007).
150. DWORKIN, supra note 1 (manuscript at 202).
151. Id. (manuscript at 245-46).