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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