Equality and Opportunity: Reconciling the Irreconcilable
| Published date | 01 November 2005 |
| Date | 01 November 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00571.x |
REVIEWARTICLE
Equality and Opportunity: Reconciling the Irreconcilable
Timothy Macklem
n
Lesley A. Jacobs,Pursuing Equal Opportunities: The Theory and Practice of
Egalitarian Justice, Cambridge: Cambridge University Press, 2004, x ivþ280pp, pb
d15.99, hb d45.00.
INTRODUCTION
‘Equality literally understood’, Michael Walzer once wrote, ‘is an ideal ripe for
betrayal . . . . [W]e may dream of a society where all the members are equally
honored and respected. But though we can give everyone the same title, we know
that we cannot refuse to recognize ^ indeed, we want to be able to recognize ^ the
many di¡erent sorts and degrees of skill, strength, wisdom, courage, kindness,
energy and grace that distinguish o ne individual from another.’
1
The betrayals that
concernedWalzer, and that his deeplyattractive book attempted to forestall, are the
betrayals that lead to hierarchy. As is well known, his solution was to permit hier-
archies within particular spheres of justice while forbidding the sorts of conversion
that permit people to use their success in one sphere toobtain success i n some other
sphere. Lesley Jacobs, in a similarly engaging, down-to-earth, and accessible book,
is frankly sympathetic toWalzer’s project, but has a di¡erent audience in mind.
2
WhereWalzer’s concernwas to o¡er an ideal of equality that reached out to those
who take seriously the distinctions between people, and the values that give rise to
those distinctions, Jacobs’ concern is to retrieve the particular ideal of equality of
opportunity from the objections of its more radical critics, those who are com-
mitted to equality of welfare and would to that end ignore or suppress any distinc-
tions between people that yield inequality of result.Where Walzer spoke to non-
egalitarians Jacobs is speaking to other egalitarians.Yet he no less thanWalzer seeks
to dissolve con£ict by reconciling the irreconcilable. He suggests to welfarists that
theycan be egalitarians and opportunists without risk of contradiction, and so can
be committed both to the idea that people are not to be distinguished (in the egali-
tarian manner) and to recognising the characteristics and values that distinguish
them (in the opportunistic and competitive manner).
3
n
Kings’ College London. I would like to thank John Gardner and an anonymous referee for their
helpful comments.Thanks also to the No.19Routemaster, inthe comforts of whose upper deck I read
Jacobs’book in daily stages, and developedthe outl ines of myresponse.
1 M. Walzer, Spheres ofJustice: A Defence of Pluralism and Equality, (Oxford: OxfordUniversity Press,
198 5) xi .
2 L. A. Jacobs, Pursuing Equal Opportunities: The Theory and Practice of Egalitarian Justice (Cambridge:
CambridgeUniversity Press, 2004). Page references in the text are to this book.
3 I should say at once that I have previously expressed my doubts on this score: seeT. Macklem,
BeyondComparison:Sex and Discrimination(Cambridge: Cambridge UniversityPress, 2003) 1¡.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(6)MLR 1016^1033
Paradoxical though it may seem, reconciling the irreconcilable is often an hon-
ourable ambition, and in particular, the very stu¡ of decent politics.Where values
are incompatible, as they often are, the people committed to those values may
sometimes avoid con£ict and achieve freedom by living in isolation from one
another, as individuals oras communities, in therelevant dimensions of their lives
or more comprehe nsively.
4
More typically, however, and indeed, almost always in
the end, they are bound to live together, and so are driven to negotiate relation-
ships that allow them to interact with one another in ways that accommodate
their incompatible commitments, without expecting either side to conform to
the demandsof the other. As a Canadian scholar,Jacobs is inevitably familiar with
the challengeof maintaining a communityi nwhich people areable to talk to one
another without becoming English, French or bilingual, as the case may be. In
such a community it is the task of good politics to fosterthe kinds of unprincipled
compromise that constitute a linguistic modus vivendi. As Bernard Williams once
pointed out, a modus vivendi is nothing to be sneezed at when the alternative is
something worse, as is very often the case.
5
More generally, it has been claimed
that thevery ambiguityand obscurityof certain politicalideals, such as equality, is
the source of much, perhaps all, of their value, for it fosters political resolutions
precisely because and to the extent that it conceals the incompatibilities that
would otherwise divide people and bring them into con£ict.
6
Yet reconciling the irreconcilable has its price as well as its value, for the resolu-
tions it yields are unstable because they are arbitrary, and politically debilitating
because they are obscure.
7
The Canadian linguisticdebate, for example, is not only
interminable but impenetrable. Generations of political energy have been lost in
wa¥e, and will continue to be so as long as Canada persists. In certain settings this
may not much matter, for the price may be well worth paying. However, the price
is one that sits uneasily with Jacobs’ avowed aim of retrieving and articulating a
defensible principle of equality of opportunity. It raises the question of whether he
has, or could have, anything ultimately satisfying to say to the audience he has in
mind. For what he hopes to o¡er is a philosophical answer to those who doubt the
value of equality of opportunity, an answer that is persuasive partly because it is
grounded not only in the abstractions of conventional philosophical enquiry, but
in the kindsof concrete understanding that the social sciences yield.
4 As did the Puritan settlers of New England inthe 17th centurya ndas do the Amish in Pennsylva-
nia today.
5 The observation was made in passing at a seminar conducted jointlywith Ronald Dworkin at the
Universityof Oxfordi n 1995.
6 For a recent instance of this suggestion see M. Cavanagh, Against Equality of Opportunity (Oxford:
Oxford University Press, 2003) 87. It has often been noted that the commitment to equality
expressed by the United States Supreme Court in Brown vBoard ofEducation, 347 US 483 (1954)
concealed a disagreement among the members of the Court as to the meani ng of equality that
was later revealedin Regent s of the University of California vBakke,438 US 265 (1978), a disagreement
that might have prevented the decision in Brown had it not bee n cloaked in the ambiguity and
obscurity of the idea of equal ity.
7 And when they becomecentral to a politicalculture, as in Canada, theymay falsely suggestthat all
good political resolutions are of this character, so making thepractice of politics thereparadigmati-
callycompromising in this sense and,correspondinglyand consequently, unstable and debilitating.
TimothyMacklem
1017rThe Modern LawReview Limited 2005
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