I would like to thank Steve Andrews, Avigail Eisenberg, Will Kymlicka, David Lyons, Alistair Macleod, Richard Miller and Henry Shue for helpful advice, comments and criticism on various drafts of this paper.

1. The suggestion that the market illuminates these values has been systematically explored in recent years by Buchanan, J., The Limits of Liberty: Between Anarchy and Leviathan (Chicago: University of Chicago Press, 1975);Google Scholar Gauthier, D., Morals By Agreement ((Oxford: Oxford University Press, 1986);Google Scholar and Narveson, J., The Libertarian Idea (Philadelphia: Temple University Press, 1988).Google Scholar For these theorists the attraction of the market derives in large part from the idea that a theory of distributive justice concerns fundamentally a notion of mutual advantage. Justice (and morality more generally) is construed as an artifice through which mutually advantageous relations between self-interested individuals can be established and maintained. Mutual advantage theories of justice are often contrasted with theories that view justice as fundamentally a matter of showing impartial concern for all individuals. The debate between justice as mutual advantage and justice as impartiality is thoroughly explored by Barry, Brian, Theories of Justice (Oxford: Oxford University Press, 1989).Google Scholar Dworkin’s theory is clearly a theory of justice as impartiality. The criticisms of his theory that I develop here all take for granted that the “justice as impartiality” perspective is essentially sound.

2. Dworkin, R.“In Defense of Equality” (1983) 1 Soc. Phil. and Policy 24 at 38.Google Scholar

3. In this paper I do not explore Dworkin’s account of the relationship of the market to liberal ideals of liberty and neutrality. However, these themes are pursued in some detail in my Ph.D. dissertation Liberalism, Justice and Markets.

4. The precise character of Rawls general conception of justice is that “all social primary goods—liberty and opportunity, income and wealth, and the bases of self-respect—are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured.”: Rawls, J., A Theory of Justice (Cambridge MA: Harvard University Press, (1971) at 303.Google Scholar

5. Sen, A., “Equality of What?” in McMurrin, S. ed., The Tanner Lectures on Human Values, vol. 1 (Salt Lake City: University of Utah Press, (1980)Google Scholar and Sen, A., Inequality Reexamined (Cambridge: Harvard University Press, 1992).Google Scholar

6. Although the work of Rawls and Dworkin still dominate the field, there are a number of other influential accounts of distributional equality. Sen has argued for a conception of ‘basic capability equality’: ibid. Richard Arneson has defended a theory of ‘equal opportunity for welfare’ in Arneson, R., “Equality and Equal Opportunity for Welfare” (1989) 56 Phil. Studies 77, and G.A. Cohen has developed an ‘equal access to advantage’ conception of distributional equality:Google Scholar Cohen, G., “On the Currency of Egalitarian Justice” (1989) 99 Ethics 906.CrossRefGoogle Scholar

7. Dworkin identifies the egalitarian thesis as “fundamental and axiomatic” in Dworkin, R., Taking Rights Seriously (Cambridge: Harvard University Press, 1977)Google ScholarPubMed at xv, and speaks of the “liberal’s axiomatic principle of equal concern and respect” in Dworkin, R., A Matter of Principle (Cambridge: Harvard University Press, 1985) at 210.Google Scholar

8. R. Dworkin, supra note 2 at 24. Another formulation of the abstract egalitarian thesis supplied by Dworkin is to the effect 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”: Dworkin, R., “What is Equality? Part III: The Place of Liberty” (1987) 73 Iowa L. Rev. 1 at 7.Google Scholar

9. Dworkin, ibid. at 25.

10. By incorporating a principle of individual responsibility within egalitarianism G.A. Cohen thinks that egalitarian theories can capture what is attractive about certain libertarian approaches to justice: Cohen, supra note 6 at 933.

11. It is, of course, a tricky matter determining the choices and preferences for which people must be held responsible. Obviously, the degree of voluntariness will be a central determinant, but there is a lot of room for dispute about what constitutes voluntary choice.

12. Dworkin, R., “What is Equality? Part 1: Equality of Welfare; Part II: Equality of Resources” (1981) 10 Phil. & Publ. Affairs 185–246 and 283–345 at 284.Google Scholar

13. Ibid. at 293.

14. Ibid. at 285.

15. There is a large literature in economics that employs some version of the envy test as a criterion of ‘equity’. It is clear that Dworkin has been influenced by at least some of this literature. Hal Varian provides a very useful overview of much of the relevant economic literature and its relationship to Dworkin’s theory Varian, H., “Dworkin on Equality of Resources” (1985) 1 Economics and Phil. 110.Google Scholar

16. Dworkin, supra note 13 at 285–86. Strictly speaking, Dworkin cannot rule out the possibility that a divider would arrive at the same distribution as that generated by auction. He must hold that whereas a divider may make a mistake, the auction is infallible.

17. Here is a simple illustration of the problem of arbitrary bundle composition. Suppose the divider is faced with the task of distributing 99 oranges and 99 apples to three people—A, B and C. One distribution that will pass the envy test is to give each person 33 oranges and 33 apples. Since each person’s bundle of resources is identical, no one can prefer the bundle held by someone else. However, this division might arbitrarily favour some tastes over others. Suppose, for instance, that A likes apples and oranges equally well, while B likes only apples and C likes only oranges. A’s taste for a mixed diet is favoured over the tastes of B and C who would prefer a different ratio of oranges and apples in their own bundle. This initial distribution satisfies the envy test but is arbitrary in that it favours A’s tastes and is thus unfair.

18. The problem of ‘expensive tastes’ is extensively discussed by Dworkin with reference to equality of welfare theories of equality. Such theories fail to provide a sound interpretation of the distributional consequences of a commitment to abstract equality because they require that resources be devoted to the satisfaction of some expensive tastes in a way that violates the standard that people must be treated as equals: Dworkin, supra note 12 at 185–246.

19. Dworkin, , “What Is Equality? Part III”, supra note 8 at 26.Google Scholar

20. Buchanan, A., Ethics, Efficiency and the Market (Totawa: Rowman and Allanheld, 1985) at 14–15.Google Scholar

21. It is interesting that Dworkin seems to identify the objectivist approach as one potentially suitable way of fleshing out the abstract idea of equality of resources: Dworkin, supra note 12 at 226. Surprisingly, however, he does not elaborate or pursue his own suggestion. Thomas Scanlon argues that objectivist criteria of well-being have an important role to play in a theory of distributive justice: Scanlon, T., “Preference and Urgency” (1975) 75 J. of Phil. 655 at 655–69.CrossRefGoogle Scholar

22. Dworkin, , A Matter of Principle, supra note 7 at 205.Google Scholar

23. Dworkin, supra note 2 at 28. See also Dworkin, , “Liberal Community” (1989) 77 Cal. L. Rev. 479 at 485–86.Google Scholar

24. There is also the problem of determining just what resources play an important role in securing the ‘circumstances of authenticity’.

25. Scanlon, supra note 21 at 658.

26. Dworkin, , “What is Equality? Part III”, supra note 8 at 34–36.Google Scholar

27. Ibid. at 35.