For my sins I was recently re-reading Ronald Dworkin’s Taking Rights Seriously (1978), in particular its chapter 9, “Reverse Discrimination.” The book has not aged well, and this chapter in particular today sounds even more like a dated period piece than the construction of a philosophical argument than it did when I first read it in 1994.
In any case, in a book that invites us to ‘take rights seriously,’ one may be surprised to find this sentence: “An individual’s right to be treated as an equal means that his potential loss must be treated as a matter of concern, but that loss may nevertheless be outweighed by the gain to the community as a whole” (p. 227).
Thus infringing an individual’s “rights” is indeed “a matter of concern,” but if the utilitarian calculus indicates that that infringement leads to greater overall utility, then we might not only be justly allowed to proceed with the infringement, but we may even be morally required to do so. The issue at stake in this chapter is the claim of some whites that the fact that they were being held to different and higher standards for admission to things like law and medical schools than were members of other races was an instance of unequal—and therefore possibly unconstitutional or otherwise illegal—treatment. Dworkin argues that no Constitutional right is violated by this “reverse discrimination,” and he goes on to argue that no moral right is violated either. The alleged moral right is the right all individuals have to be treated equally, for which Dworkin argues elsewhere in the book (see esp. chap. 6, “Justice and Rights”). In the case of reverse discrimination, however, Dworkin argues, as he states in the sentence above, that that right may be infringed when the public good requires it.
All this is quite surprising, given that Dworkin claims in the book’s “Introduction” that the whole point of his book is to argue that “Individual rights are political trumps held by individuals,” and that “a collective goal is not a sufficient justification for denying [individuals] what they wish, as individuals, to have or to do” and “not a sufficient justification for imposing some loss or injury upon them” (p. xi). Indeed, the book’s chapter “Justice and Rights,” argues, as Dworkin explains, “that our intuitions about justice presuppose not only that people have rights but that one right among these is fundamental and even axiomatic. This most fundamental of rights is a distinct conception of the right to equality, which I [Dworkin] call the right to equal concern and respect” (p. xii; italics supplied). Dworkin specifically and repeatedly argues that his conception of individual rights is incompatible with “the theory of utilitarianism” (p. vii and passim).
It is difficult to reconcile Dworkin’s position on rights and utility, on the one hand, with his position on reverse discrimination, on the other. But perhaps that goes to show only that it is not ultimately possible to subscribe both to a robust theory of individual rights and to utlitarianism. The two will inevitably conflict, at which point one will have to choose which wins. One might wish to have both, but one’s moral and political position can serve, finally, only one master.