Beyond Naturalism: On Ronald Dworkin
The Battle of Kolin is not much remembered these days, although it was a brutal, bloody slaughter. It was fought between Prussia and Austria on June 18, 1757, as part of Frederick the Great’s long campaign to extend his territories at the Austrians’ expense. This time, however, he found the Austrians well prepared and well led. His army was outnumbered, and nearly 14,000 of his 32,000 men lost their lives. At the height of the fighting, Frederick is supposed to have screamed at his troops: “You scum! Do you want to live forever?”
The story became notorious around the German-speaking world. Many years later, Goethe said he was reminded of it when he read the first German translation of Lucretius’ famous Epicurean poem, De Rerum Natura. The association was to the point, for Frederick was an avowed Epicurean (as an absolute monarch, he could afford to be open about his lack of religious faith). He had even written a poem (in French) “in imitation of the Third Book of Lucretius,” whose subject was “the vain terrors of death and the fear of an afterlife.” No doubt, Frederick was an aggressive, ruthless militarist, but if he was a tyrant, then he was a tyrant of a particularly modern kind—one who claimed to be pursuing the common good as “the first servant of the state.”
For Enlightenment materialists like Frederick, the idea of the immortal soul was no more than superstition. Without it, there was no reason to give human beings any special status in the universe. As Jeremy Bentham said, “call them machines: so they were but happy ones, I should not care.” Now, two and a half centuries later, the fear of God handing down rewards and punishments in the next world has shrunk dramatically, and Frederick’s angry accusation points toward a more modern dilemma. Once human beings lose their fear of death, what becomes of the value of human life?
If all there is to being human is the series of experiences, pleasurable or painful, that we go through, then, seen from an objective standpoint, one stream of experiences is no different from any other. So, if it is necessary to eliminate one—or many—streams in order to bring more, longer and more pleasurable ones into existence… well, why not? On the other hand, from the inside, what do individuals have except this set of pleasures and pains? Who but a monster could blame us for hanging on to it with all the strength we can muster?
In short, while materialism encourages that characteristically modern form of political collectivism in which sacrifices that bring about the greater good are taken to be morally imperative, at the same time it leads to a world of individuals who have a sense of their own absolute uniqueness and importance—if only to themselves. The attempt to find a standpoint that can integrate this radical individualism with the claims of the common good is the great underlying ethical and political problem of modern life. It also gives a framing perspective to Ronald Dworkin’s marvelous little book, Religion Without God, and helps explain how a brilliant young lawyer like Dworkin should have ended up pondering issues of theology.
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Dworkin had a long and spectacularly successful career: outstanding student at Harvard, Rhodes Scholar at Oxford, Harvard Law School, a clerkship with Judge Learned Hand, professorships at Yale, Oxford, New York University and University College London. In the course of it, he gave many public lectures and wrote numerous books and articles. Religion Without God was his last book, completed just before he died in February 2013. The sprawling body of Dworkin’s work can be read as a single whole, however—as an extended love letter to that most cherished of all Supreme Court decisions, Brown v. Board of Education.
Brown raises issues of immense difficulty. What made it correct and its predecessors (say, Plessy v. Ferguson) incorrect? Or was each correct in its own time? If Brown was rightly decided, then why? A proper answer to those questions would require a full theory of legal interpretation—and, sure enough, Dworkin spent the best part of fifty years developing and refining one. Furthermore, to justify Brown v. Board of Education, one would need to explain why the decisions of courts have the authority to override even the settled will of the majority in some circumstances. Dworkin addressed that problem (the “counter-majoritarian difficulty,” as it is known), too. His answer is implicit in the title of the book, published in 1977, that established him as one of the essential figures, along with Robert Nozick and John Rawls, in the modern revival of liberal political philosophy: Taking Rights Seriously.
Any account of the law must of course include rights, indispensable elements of the complex network of permissions, claims, duties, warrants and exemptions by which laws knit individual actors together into political communities. But do rights have their existence only because of the existence of formal, enacted law? This is not what Dworkin thinks; things go in the other direction, he argues. For Dworkin, rights are fundamental and give the law its moral framework. Indeed, he claimed (though for most people unpersuasively) that they give the law its very identity as law. Rights, he says in a typically vivid phrase, are “trumps.”
So if rights are being violated—if human beings are held as chattel slaves, for example—then the fact that a democratic majority voted in favor of the arrangement makes absolutely no difference: no political procedure could possibly make it justifiable. On this view, morality sets limits on politics and, to the extent that courts are the embodiments of morality—if they are the “forum of principle,” as Dworkin liked to call them—their exercise of authority to oppose political wrongdoing is legitimate.
But Dworkin went further: rights don’t just limit democratic authority; they also explain where democratic authority comes from. In addition to rights, Dworkin says, human beings have interests—for example, in having income and leisure. In contrast to rights, however, interests must often be compromised. Yet here, too, rights play a role. In a world in which people are seen as equal bearers of rights, interests may be justifiably balanced and traded against one another only provided that the interests of different people are considered equally. It is in giving expression to this kind of equality—the right to “equal consideration”—that the principle of majority rule matters. If we allowed a minority to outweigh the majority, that would mean the interests of the minority were being weighted more heavily than those of the majority, and so moral equality would be violated. Only through majority rule, Dworkin argues, does “each count for one and none for more than one.”
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Grant the idea that human beings are surrounded by this invisible shell of inherent rights and everything fits together. But there are still two obvious (and connected) objections: What reason is there to think that these strange things called “rights” exist, and what lets us recognize them in enough detail to determine how far they extend? If we turn back to the eighteenth century, the authors of the Declaration of Independence make it clear where they think rights come from: God. Men are “endowed by their Creator with certain unalienable Rights,” a view that the American founders took more or less directly from the seventeenth-century British philosopher John Locke. At about the same time, in Germany, Immanuel Kant was equally emphatic: “the Rights of Man,” he wrote, are “God’s most sacred institution.” So is the idea of rights as prior to law no more than a hangover of religion? Bentham certainly thought so: “Right, the substantive right, is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons”—Bentham means, no doubt, Christianity and its priests—“come imaginary rights, a bastard brood of monsters, ‘gorgons and chimaeras dire.’”
One reply—Richard Rorty was among its best-known advocates—is to say that, although rights don’t have a foundation in religion, they don’t need them: morality is just about the ways that people judge and respond to various situations, and rights theory is the name for one kind of response. To say that you believe in “rights” is no more than a substantivized way of expressing that you are convinced there are things that ought not be done to people, even in pursuit of a good end. There’s no need to think that rights are some spooky kind of entity hovering behind the ways that people think and behave. To borrow a phrase from Rorty, ascribing rights to people is “the way we do things around here.”
Yet there is a very important difficulty with this “subjectivist” position. When ruthless utilitarian aggregators defend their view, they can justify it by pointing to the way it leads to the advancement of something that is evidently good (happiness) or the avoidance of something bad (suffering). It means that there is an immediate, intuitively plausible response when utilitarians are asked what kinds of values underpin their moral theory. Yet what justification can be given by someone who rejects that view? What is it about the individual whose life would otherwise be sacrificed for the collective good that makes the sacrifice wrong? To say that she or he has a right not to be put to death in order to save others is just to put a name to the problem. We also need, it seems, a satisfying reason why—something about the victim that explains why he or she has a value that overrides instrumental calculations about the greatest good. It is at this point that religious-sounding vocabulary tends to slip back into the discussion. Rawls, for example, talks about each person having an “inviolability founded on justice,” although he does not explain just what “inviolability” might amount to.
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I think Dworkin took something like Rorty’s position when he published Taking Rights Seriously in 1977. But thirty-six years later, by the time of Religion Without God, he held a different and far stronger view: human beings do indeed have a special value that can’t be overridden (religious thinkers commonly call it “human dignity”), though not because it comes from God. To the contrary, values exist independently of God.
If morality were just a matter of God’s will, then presumably whatever God willed would be good for that reason and no more. But if God is indeed just, it must be possible for human beings to recognize independently why his commands are good. Of course, goodness is essential to God, so he could not conceivably will anything that was not good—but, still, it is not his willing something that makes it good. As Seneca once wrote, “I do not obey God; I agree with him.” So, Dworkin argues, any reasonable religion must acknowledge the priority of value over the will of the Deity. But in that case, the supernatural narrative of creation, revelation and prophecy that surrounds the moral teachings of religion is dispensable.
Dworkin still wants to call his attitude “religious” because, although he does not believe in the existence of God, he “accepts the full, independent reality of value” and hence rejects the naturalistic view that nothing is real except what is revealed by the natural sciences or psychology.
Yet if values exist as “fully independent,” how can we have access to them? As Dworkin admits, there are no experiments we can conduct to confirm their existence. Dignity—the “God particle” that sustains the existence of human rights—will not be detected by any scientist. On the contrary, the realm of value is “self-certifying,” so the only evidence for the existence of values is the truth of the things that we say about them. And the evidence for that truth is what, exactly—that we agree about values? But disagreement about values is where we came in. Even if we accept that we carry within ourselves an inner kernel of transcendental value, would it give us a way of telling where the claims of the collective end and the prerogatives of the individual begin?
Dworkin is always wonderfully clear and honest about what is involved in his position—it is part of what makes his book such a pleasure to read—and he concludes his discussion of the nature of value by explaining its limitations:
I will not have convinced some of you. You will think that if all we can do to defend value judgments is appeal to other value judgments, and then finally to declare faith in the whole set of judgments, then our claims to objective truth are just whistles in the dark. But this challenge, however familiar, is not an argument against the religious worldview. It is only a rejection of that worldview. It denies the basic tenets of the religious attitude: it produces, at best, a standoff. You just do not have the religious point of view.
This expresses precisely my own reaction. I cannot see that describing the target of our disagreements about value as existing in a fully independent, objective realm is anything more than religion lite: the religious idea of eternal goodness without the miraculous elements of omnipotent divine will and personal immortality. Yet I am at one with Dworkin in thinking that even a fully secular individual should contemplate the universe not just with curiosity and wonder but with reverence and gratitude. Still, behind me I hear a voice—a Nietzschean one, perhaps—that tells me that what Dworkin and I are looking at is no more than a penumbra, the few rays that remain in the sky after the sun of revealed religion has set. If that is so, then the coming night may be dark indeed.