Dworkin dismisses the first claim because he believes
there is no fixed combination of talents or traits that constitute merit, even
in an abstract sense. Thus
it seems that the right to be judged on merit is not an objection to affirmative
action, since race could potentially be a legitimate means of determining merit
in the circumstance where it would best serve the needs of the public. Dworkin
also dismisses the second possibility—to be judged as an individual—simply because
colleges routinely dismiss applicants as part of a group, without necessarily assessing them as
individuals beforehand. One example that immediately comes to mind is minimum
GPA standards. At first glance, the third possibility sounds plausible because,
according to Dworkin, it suggests the principle that every citizen has a
constitutional right not to suffer a disadvantage in “competition” for a public
benefit due to prejudice or contempt for his or her race, religion, sect, etc. The
crucial point here is that exclusion based on race is considered unacceptable
only if it is motivated by prejudice
or contempt. Clearly this is not the case with affirmative action.

Discussions regarding the
ethics of affirmative action are typically filled with concepts such as “oppression”
and “discrimination,” “infringement” and “contravention.”  Libertarians,
in particular, may be expected to object affirmative action on these grounds. Surprisingly,
however, there are certain strands of libertarianism – namely Nozick’s interpretation
of distributive justice (entitlement theory) and self-ownership – that seem to
support the practice of affirmative action. Upon historical examination, one will
inevitably discover that the current distribution of holdings in the United
States has been significantly affected by recurring historical injustices (as
defined by the principles of justice in holdings) committed against minority
groups. In order to avoid Hardin’s “tragedy of the commons,” Nozick employs
the Lockean proviso. He explains that if an appropriation violates the proviso,
one must “compensate the others involved so that their situation is not
thereby worsened” (Nozick, 214). Similarly, one must provide compensatory
reparations if a transfer is made unjustly. In some instances, the existence of
past injustices is evident yet the original offenders are not available to
compensate those affected by these violations. These types of situations are
addressed through Nozick’s principle of rectification.

Some people have used the
term “reverse discrimination” to describe affirmative action, a policy aimed at
correcting the results of past discrimination. This claim suggests that
affirmative action is somehow subject to the same moral judgment as racial and
gender discrimination in the past. Both views, however, are fundamentally different.
Race and gender discrimination assumes the doctrine of racial inferiority,
while affirmative action makes no such assumption. One
might make a different objection: Taxation for affirmative action is akin to
seizure of product or property by the state and is, therefore, unjust on
libertarian grounds. Nevertheless, the state requires some funding in order to
perform certain functions. Protection of the citizens against rights violations
is one such acceptable function. These funds would inevitably be found through
taxation as expecting individuals to voluntarily provide funds would result in
numerous complications and difficulties; for example, some may provide more
funding than others and others no funding at all, making their equal protection
through said funding questionable.

If the
protection of rights is justly fundable through taxes, taxation for the means
of ensuring compensation is likewise fundable. The state must ensure this
because it cannot expect those who have committed injustices warranting
compensation to make such compensations voluntarily.  In cases where
direct compensation is not possible, rectification is necessary; though no
offending party is present to compensate, rectification demands redress of
wrongs. If protection against violations of the principles of justice in
holdings and assurance of compensation are both justly fundable through taxes,
funding for rectification of past violations of these principles is also justly
funded through taxes. Still, one may push the point of unjust taxation further.

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Let us
assume that all members of a society are taxed (to assist with the
implementation of affirmative action). One might argue that those not directly
benefitting from the program, namely upper-class white males, are effectively
paying the direct cost of wrongs they did not participate in. Nozick’s account
of the Lockean proviso on appropriation includes a “historical shadow” – once
it is known that one’s ownership of property violates the proviso, there are
“stringent limits” on what one may do with it (Nozick, 214). Likewise,
violating the principle of justice in transfer involves a comparable historical
shadow; if unjust acquisition may limit one’s property rights, unjust transfer
may also limit one’s property rights. In this way, having unjust holdings not
only limits the offender’s property rights but also the property rights of
those to whom the offender transfers this property. Therefore, though it might
seem that white males are unjustly paying the direct cost for a past harm, in
this instance they are experiencing limits on their property rights due to the
stringent limits on their rights to the property transferred to them
(illegitimately) by their ancestors.

Walzer’s theory of complex
equality is comprised of two ideas: Each kind of resource must be distributed
in accordance with the principle appropriate to its sphere and success in one sphere
must not “spill” over to allow domination or monopolization in another – “no
citizen’s standing in one sphere…can be undercut by his standing in some other
sphere” (Walzer, 493). For Walzer, any race-sensitive preference in the
professional arena corrupts the sphere of “office” in order to serve the sphere
of “welfare.” If society can preserve the boundaries of the spheres, then,
Walzer argues, there is no need for any overall comparison of individuals
across the spheres. In other words, one need not worry that some people have Ferraris
and others not even a car.

This position offers a view
of society as one that is at peace with its own traditions and conventions,
without the constant strains, comparisons/judgments, and regulation of “simple”
equality. Citizens live together in harmony, though no one has exactly the
wealth or education or opportunities of anyone else, because each understands
that he or she has received what justice requires within each sphere. A citizen
in this society does not think that his or her self-respect or standing in the
community depends on any overall comparison with that of others.

This ideal of complex
equality is unattainable. It tells us to look at social conventions to discover
the appropriate principles of distribution for specific goods, but the very
fact that we debate about what justice requires, in particular cases, shows
that we have no such conventions. Walzer writes: “there are standards (roughly
knowable even when they are also controversial) for every social good and every
distributive sphere in every particular society” (Walzer, 488). Yet many issues
seemingly belong to no settled sphere of justice – they are endlessly debated,
subject to negotiation and compromise. This seems to be the case with
affirmative action policies. Hence, the
principles of justice we use to decide which features of a community are
relevant to a just distribution of its goods and opportunities must be
principles we accept because they seem right.
Their traditional or conventional value or role is of secondary importance.  


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