Excerpt from Ronald Dworkin. Jurists: Profiles in Legal Theory by Stephen Guest
Objectivity in Law and Morality
The problem of objectivity is what many people find as the major stumbling block to understanding Dworkin’s theory. It comes as a surprise to people that Dworkin thinks there are right answers to evaluative, and therefore moral, questions. Nevertheless, most people think there are right answers to such questions. People disagree whether abortion is morally permissible, for example, and their disagreement is just about what is right. Those who think it wrong and those who think it right at least agree that there is a “right or wrong” about it. In what follows, unlike the pattern of the rest of the book, I have traced Dworkin’s arguments in chronological order. Not only do we get a fuller understanding but there is pedagogic interest in the way his present thesis—that truth in law is dependent on nothing more mysterious (or less mysterious) than correct legal argument—was developed from two early ideas. The first lies in his attack on Devlin’s idea that public opinion was a criterion of morality and the second lies in his idea that there were practical reasons why the positivists would choose provability—or demonstrability as he used to call it—as a criterion of truth in law (e.g., accordance with a rule of recognition).
LORD DEVLIN AND TAKING A MORAL POSITION
Dworkin’s first arguments about the objectivity of moral reasoning arose in his criticism of Lord Devlin’s thesis that, in certain instances, the state has the right to use the criminal law to enforce matters of morality. The state couldgauge what was a matter of morality by using the ordinary juryman’s view (that of the man in the “Clapham omnibus”) based on his deep feelings of intolerance, indignation and disgust.” Devlin had put forward this thesis in his famous lecture of 1958. Unlike most of Devlin’s critics, Dworkin sees merit in the general thesis because of the direct connection it makes between democracy and morality. The idea of a consensus permitting different moralviews is genial to democracy in which each individual should enjoy equality of respect; the Clapham man’s vision contains an implicit egalitarian premise that the ordinary man’s views count in determining our moral environment.
Dworkin analyses the assumptions that Devlin makes about the nature of morality. Dworkin thinks that the idea of a “public morality” is more complex than the description of a juryman’s feeling at a particular time can allow, and that Devlin is wrong to suppose that an accurate gauge of it could be gleaned from crude expressions of public feeling. Instead, public feeling, or juryman outrage, is subject to a rational “sieve” which sorts out mere expressions of feeling from expressions of a genuine “moral position.”
We must, for example, produce reasons for our views.3 They do not have to be particularly abstract or philosophical but the expectation is that we should at least understand that there are reasons for what we claim. (“I hate gays.” “Why?” “Oh, no reason.”) And prejudiced views are not moral views.
The person who says, “I hate gays because they are sissies” fails to express a genuinely moral position. Naturally, this is not to say that what counts as a prejudiced point of view will never be controversial; you and I may disagree whether our different views on positive discrimination, for example, are based on prejudice. The common view that “everyone is prejudiced” is not at all helpful, either, for that just means that we all have different views, some right and some wrong. Mistakes of fact, too, do not qualify as moral reasons. To use Hart’s well-known example, it was wrong of the Emperor Justinian to have said that homosexuality was morally bad because it caused earthquakes, for there is just no evidence to show any connection between homosexuality and earthquakes. Emperor Justinian’s view did not constitute a moral position: there is no factual evidence upon which his view could conceivably have been based. (I assume he meant that being gay incurred the wrath of God, who caused earthquakes, but if so, there are still problems with the view.)
Mere repetition of a view is insufficient to establish a moral position, too. The person who says that homosexual conduct is wrong because “a friend told him so” supplies an insufficient reason since we expect the genuine expression of a moral view to be one which a person endorses himself to be true. That is not to deny that we can learn from others, or that there might be a special category of religious reasons of an authoritative sort. Emotional reactions also are insufficient. “That action makes me sick” is not a sufficient reason since we expect a reason why, and in any case we think that one good way of attacking a moral position as confused is by simply saying that the argument for it is emotive. We tend to think here with persistent emotive statements that the speaker is obsessive, or has a phobia. It is easy to imagine other sorts of disqualifying reasons once we get the idea. The rules of logic must hold some sway, and there are all sorts of subjects about which we just can’t have moral views. You just cannot have moral views about gold, for example, and you can’t consider tempests irresponsible.
Dworkin’s chief point is that a community consensus on morality runs deeper than a surface description of what people in fact, at a certain time and in a certain mood, think or feel. Any sensible conception of consensus exists at the level of reason or conviction and crosses surface differences.
To those who are suspicious of any attempt to oppose “the common man’s view” with “reason,” it will come as a surprise to learn that Dworkin is not opposed to the ideas both that there is a community morality (democracy, for example) and that the community’s morality should count. “What is shocking and wrong” about Lord Devlin’s thesis, says Dworkin, “is not his idea that the community’s morality counts, but his idea of what counts as the community’s morality.”
CONVENTION AND CONSENSUS AS BASES FOR MORALITY
From his criticism of Devlin, it becomes clear that the difference between a convention and a public consensus is important for Dworkin. In his view, morality is not constituted by public conventions which say conduct is morally required or permitted by the test of what most people think. Otherwise slavery would have been right once, or we would be driven to weak justifications of the wrongness of, say, rape of the form “well, everybody thinks it is wrong.” A consensus instead means a coincidence of the same convictions.
In our community there is a coincidence of independently held convictions that rape is morally wrong. But that fact of consensus is not the reason for thinking rape wrong since we think it is wrong for quite independent reasons, such as assault, dominance, distress, pain . . . the list is long. If rape were wrong by convention, there would be a parroting mistake of the sort I discussed in the previous section. Yet another way of putting it is to say the last reason one would give for saying that rape is wrong would be that everyone thought it to be wrong. That would be a disastrous way to teach children if it were the only way they were taught morality, for example.
Of course, some conventions provide a reason for behaving in a particular way as, for example, the convention that you take your hat off in church; this, however, turns out to be only the conviction that you should not offend others and you follow the convention in order not to do so. It is not that you follow the rule simply because other people consider that you should. There is, true, a misleading and unimportant sense in which morality is defined by convention, as where we say, “Theirs was a morality of slavery.” The triviality, and danger, of the use of the word “morality” in that phrase becomes clear when we use phrases such as “the morality of the Nazi party was immoral.” The relevant distinction here was drawn neatly by Bentham and Austin between “positive” and “critical” morality; positive morality being social conventions created by man (and hence possibly evil) and critical morality the standards by which those social conventions are judged. Hart later used the distinction in Law, Liberty and Morality against Lord Devlin’s equation of public consensus with morality in order to show that public consensus in itself might harbor prejudice, lack of logic, repetition of views and so on.
This distinction is present throughout Dworkin’s writings. In Taking Rights Seriously, he criticizes the conventional rule of recognition theory, in his second attack on the model of rules (“The Model of Rules II”). The paper in which he does this, in my view, is one of the best of his early papers and is often overlooked; it was originally published in the Yale Law Journal. The argument in its basic form merely repeats the argument above in relation to the judicial duty to decide according to the law. Dworkin first argues that that duty cannot be exhaustively defined by the rule of recognition because judges have duties to decide according to law when the rule of recognition has run out in hard cases. Secondly, the judicial duty cannot even be partly defined by the rule of recognition because that would be to confuse positive with critical morality. He uses the example of the vegetarian who declares, in a way which is familiar and intelligible in moral conversation, that everyone has a duty not to eat meat, meaning not that there is such a convention but that there are independent reasons why we should be vegetarian.
To the critic who says that Dworkin’s argument is correct about the nature of moral argument but not about the arguments needed to establish the legal, judicial duty, I think he is right to reply that legal positivism cannot be invoked in its own support. Further reasons, he says, are necessary to show why the duties incumbent on a judge are not moral duties; the straightforward assertion that judicial duties are fully defined by convention is insufficient. It follows that the rule of recognition “mistakes part of the domain of the law for the whole” because it misses out the identification of the judicial duty in hard cases. Further, it makes the usual confusion a consensus of official (and other) views about what constitutes law with the existence of conventions for identifying law. In other words, that the officials of a community recognize criteria for the identification of law should be understood as meaning that they accept independent and critical reasons for recognition and that coincidence in thought shows just that—consensus—rather than the acceptance of a convention. The objectivity of morality for Dworkin, then, does not depend on an external world—“out there”—of moral reality in the form of conventions.
REFLECTIVE EQUILIBRIUM AND THE DUTY TO CREATE
Dworkin’s dismissal of the “out thereness” of the plain fact theory has a moral edge. He wants moral responsibility to attach to people, not to entities existing outside us, maybe unknown to us. In one of his most interesting essays, “The Original Position” in the Chicago Law Review in 1973,7 he makes significant analyses of two of Rawls’s most fundamental theses, the starting-points of moral reasoning by way of “reflective equilibrium” and, when political questions are asked, the “original position.” “Reflective equilibrium” is the name that Rawls gives to the methodology of moral reasoning. It envisages an equilibrium being attained between moral intuitions, or convictions, and abstract positions on general questions of morality (moral theories) that we hold. The “equilibrium” between the two should be reached by our comparing our intuitions with our structured moral beliefs. Sometimes our intuitions embarrass our theories, as when our intuition that just wars are morally permissible embarrasses our theory that innocent life must never be taken. The process of reflective equilibrium thereby supplies justification to our moral psychology. Either the theory is modified or developed in a way that can explain the intuition (say, for example, innocent life must not intentionally be taken, with some attendant theories about what constitutes innocent life and what intention means), or the intuition begins to lose its impact and finally disappears given the coherence of the theory.
Of course, the abstract positions on general moral questions that we hold will make sense of the particular intuitions we have. The process is ongoing. We modify, or even eventually abandon, intuitions in the light of our generalizations and acquire new intuitions both in the light of theory and new experiences. Arguments we have with others about moral issues should develop in the same way. We test intuitions we hold against general positions we hold. We embarrass others by pointing to inconsistencies between their intuitions and their general positions. Dworkin’s view is that Rawls’s description of the method of reflective equilibrium is ambiguous between two models of moral reasoning (which I shall shortly compare). I think Dworkin’s view is that Rawls’s idea is insufficiently prescriptive and runs the danger of appearing to be a successful moral psychology, showing admirably the development of a person’s moral beliefs but not clearly why any person should engage in it.
We shall recognize the first model because it is an “out there” view. Dworkin calls it the “natural” model, because it supposes that reflective equilibrium is fundamentally concerned to expose an already existing set of moral truths.
It has the following consequence for moral thought. When there appears to be an irreconcilable clash between moral intuitions and moral theory, there is no immediate cause for concern. We assume, under this model, that the solution, the reconciliation, is possible but that we do not ourselves possess the knowledge or mental acumen to make that reconciliation. The solution outstrips us, but that does not matter. The second model, the one Dworkin favors, is the “constructive” model. According to this, there is a duty upon us to make the reconciliation, and to construct the answer. There is no “out there” to absolve us from that responsibility and, of course, from Justice for Hedgehogs we should now appreciate that Dworkin thinks that it is the unity of value thesis, combined with our personal moral responsibility to attempt reconciliation of apparently conflicting values in terms of other, perhaps more abstract values we endorse, that supports this view.
Dworkin regards moral reasoning as something we should engage in to make coherent the different judgments on which we act. People must not renege on this responsibility by simply assuming, as the natural model assumes, that moral intuitions can have a “correctness” that can outstrip their explanatory powers. They are not permitted to say, when faced with prima facie conflicting intuitions (say, about just wars or prohibiting abortion), that some reconciling explanation exists although it has not been, and may not be, discovered by men. This is a strongly secular thesis, demanding that we act on principle rather than faith, placing responsibility firmly on the individual. Reflective equilibrium is to be understood in terms of ingesting and reworking basic moral intuitions and being prepared to act according to a plan understood to be as coherent as a person can possibly get. He may not get it right, but the duty is upon him to try nevertheless.
In Justice for Hedgehogs Dworkin specifically returns to Rawlsian reflective equilibrium; he says his own method is “more ambitious and more hazardous” because Rawls allowed “subordination, compromise, and balancing amongst different values” (for example, insisting on the “lexical priority” of liberty to equality). Dworkin says instead that each value in his own (similar) method must be assessed in the light of others and should be driven by “truth”; in particular, he thinks that Rawls’s account is of a range of values much smaller than his own. The idea of the construction of moral judgments is important for another reason. In a society of relative agreement, the idea of community is connected with the idea of public articulation about principles of justice.This is an idea that Dworkin develops in his theory of integrity.
"TIES" AND INDETERMINACY
In some earlier articles and lectures Dworkin had allowed the possibility of a “tie,” that is, a situation where a judge may be faced with arguments that are equally balanced on either side. This is a middle position, one where there is a genuine indeterminacy—where there is no right answer to the proposition being debated. Dworkin considers the question in Chapter 13 of Taking Rights Seriously, entitled “Can Rights be Controversial?” where he says that it is possible to imagine an enterprise or practice whose “ground rules” recognize the possibility of a tie; he denies there that such ground rules are part of the foundations of legal argument in the Anglo-American system. This chapter has been taken by some to mean that Dworkin was making a descriptive claim about “the Anglo-American legal enterprise,” and that he has failed to appreciate that there “really” are ties, as though the question were one which was easily settled. This article, and these remarks, stand consistently with Dworkin’s later develope d idea of interpretation. Judgments about the objectivity of law are interpretive judgments and so judging there to be ties in the law cannot be ruled out.
Dworkin’s view is that legal argument, like moral argument, requires decision, and always demands the best decision, that being the one that applies the true proposition. The recourse to ties may (although not necessarily) be a failure in responsibility to make the best decision. It could represent “copping out,” where the judge who says “This is all so difficult and I’m just going to toss a coin” would be an example. It is one kind of decision, and decision itself either way will have some benefits if only to settle the matter, but in a court case it would be highly irresponsible not to consider the merits of the arguments of each side and decide in accordance with the balance of reasons. None of this excludes the possibility of discourses, or areas of value, or “domains” as Dworkin now speaks, where it is appropriate for propositions to have “tie” value, perhaps particularly in literature, where some interpretations are right just because they recognize that scenes, phrases and so on are fundamentally ambiguous, sometimes intentionally so. Dworkin says we should appreciate that there is no “default” position, when we are uncertain about whether a proposition is true or not, that it is indeterminate. Whether a proposition lacks truth value must be the result of an interpretive judgment. Merely being uncertain about whether something is true, or false, or indeterminate, is just a psychological state that doesn’t affect the truth value one bit.
I recall Dworkin using the following example on several occasions during the seminars that he and Gareth Evans gave in Oxford during 1973–74 on objectivity in law and morality. A company runs a competition to advertise its breakfast cereal. A number of questions are set, matching heads to bodies of famous rock stars. There is also a “tie-breaker” question that does not admit of a demonstrable right answer as, obviously, the questions about the rock stars do, which asks competitors to say in a jingle of a set number of words what the virtues of the particular brand of cereal are. Five competitors obtain right answers to the head and body matching and, unlike some competitors who have also obtained right answers here, have written their jingles within the word limit. The task is then left to the competition judge to decide between them, on the basis of the tie-breaker, which one should receive the prize on the basis of the jingle. In other words, the judge has to decide which of the five entries is the “best” one. There are no precedents, nothing. Yet, would it seem right if the judge were random in his selection? Don’t we expect some judgment? What does the judge do? Both Evans and Dworkin thought it couldn’t be ruled out that some answers would be better than others; further, that it would be odd if the best answer weren’t the right answer. Dworkin was more explicit about responsibility in the situation and his position here receives much emphasis in Justice for Hedgehogs; the judge has a responsibility to search out to the best of his abilities reasons that favor one side rather than another.
Before dismissing the competition as a game, Dworkin thought the judge must attempt to understand the reasons that competitors have to suppose that one entry might be better than another and, if necessary, go back and look at the entries with the mission of deciding which was the best. Nothing much follows from cornflake jingles. But where a decision must be made, say, between two people about who is to carry the financial responsibility after a major road accident, there is a feeling of urgency. For law, Dworkin’s position lies between the twin extremes of a pre-existing moral reality and a total subjectivity of values. The truth of propositions of morality springs from the importance of morality, from the commitment we should have when asserting propositions about how, morally, we should act. If moral propositions, and hence legal propositions, have to be “objective” then it is in this sense we have to understand them: “A true interpretive claim is true because the reasons for accepting it are better than the reasons for accepting any rival interpretive claim.”
This may seem to some to be irredeemably subjective; however, the argument does not force that conclusion. The requirement that moral intuitions or convictions be made coherent is one check, and that check is clearly one that is testable against other people’s working out of coherent positions against their own intuitions and convictions. Objectivity is marked by reasons for and against. A requirement of publicity still obtains (and perhaps that is the force of the question, “Where does the proposition come from?”) although that requirement is one of public reasons in general, and needn’t refer to an independent metaphysical reality.
THE "CRITICAL" AND "SKEPTICAL" VIEWS
Dworkin attracts many skeptical responses, mainly due to the perceived “subjective” nature of his views. His arguments amount to nothing, it is said, because rational argument about these matters is not possible. But skepticism comes in a number of different forms and it is important to be clear about these. Consider, for example, the situation in a typical court. To understand skepticism we need an “ordinary” view to be skeptical about.
The lawyers for each litigant, and the judge, as well as many others, are all participants in an argumentative institution. By that I mean that everybody concerned accepts that the institution has some sort of “meaning,” and that the part each person plays in it makes some sort of sense. Common and related responses are as follows:
(i) Some say that being engaged in the legally argumentative mode assumes courts to be applying “conflicting” rules in a “smoothing” and perhaps unconscious way, thus endorsing hidden bad values;
(ii) Others say that the assertion that “everyone accepts” the meaning of law, morally endorses it in some insidious way, perhaps endorsing capitalist or masculine values, or perhaps just endorsing a generally conservative way of directing the community;
(iii) Others say that the ordinary view doesn’t allow for the “insider mole” who is working away at changing things, for example, by working in a law school. Understanding these three responses is helped by the idea of the “insider” and the “outsider” to an institution.
This metaphor is used widely in different ways. It is present in Hart, whose distinction between internal and external points of view marked a step in the development of legal philosophy.
What are Dworkin’s positions on these matters? He clearly thinks that the concept of law, those “discrete ideas about which agreement collects,” is an interpretive and therefore “insider’s” view concerning the moral justification of a particular community’s use of coercion. First, the idea that the institution of law suffers from internal conflicts must itself be an interpretive position; it can’t be true by fiat. And the idea also sits perfectly well with a non-skeptical position. A practicing lawyer has no difficulty in understanding that, if there are conflicts, he is under a duty to try to resolve them (he does it by distinguishing cases, or over-ruling, or “confining a case to its facts,” for example). A much stronger form of skepticism, however, looks from the outside, and decides that law, as an institution, is inherently flawed and conflicting. Insiders, according to this skepticism, will not be able to make sense of it for reasons arising from the nature of law itself. This difficult—and perhaps ultimately obscure—view becomes clearer if we think of it in the light of the sense in which Marxism viewed law and its embodiment in a capitalist conception of property as exploitative. But this version of skepticism, too, is interpretive: it is global internal skepticism. It says all law is flawed because it is capitalist and thus exploitative. The sooner it goes the better. The third “insider mole” response is interpretive, too. The mole’s task depends on the ordinary view but attacks it in the same way as either the first or second forms of skepticism, that is, either partially or globally.
Dworkin makes use of the metaphor of the “outsider” and the “insider” to describe two kinds of skepticism. He distinguishes between external skepticism and internal skepticism. External skepticism of moral values, or the Archimedean view (because Archimedes calculated he could lift the Earth if he were sufficiently external to it and had both a long pole and a fulcrum), denies that there is any special metaphysical realm of which moral judgments are a description and by virtue of which values are either true or false. It is a form of skepticism that is “disengaged,” because it places the skeptic in a position in which he does not have to argue for any particular moral (or value) judgment he makes. It is, instead, a matter of mere “opinion” for him. The external skeptic both requires there to be something “out there” to make moral judgments true and then denies that there is anything “out there” to make them true and so establishes her skepticism. It is supposedly not an interpretive position but a “metaphysical” one.
This view receives further comment in Justice for Hedgehogs. If the “metaphysical skeptic” claim rests on the idea that “out-thereness” is needed to make a moral judgment true, that must be an interpretive judgment about what makes moral judgments true. Just as a utilitarian might say “assuming utilitarianism to be true, since the greatest happiness principle favors prohibiting early-term abortion, the judgment that early-term abortions are morally prohibited must be true,” an “Archimedean” might say “assuming out-thereness to be true, the judgment that early-term abortions are morally prohibited cannot be true.” And if the Archimedean thinks it is not false, then it follows that she is making a moral judgment that early-term abortions are morally permissible. How can the Archimedean escape this? She wants there to be no morality because there is no scientific evidence for it; she doesn’t act like that, of course, in her ordinary life, but with her philosophical hat on, there is no morality. She can’t get to that position by laying down conditions for what counts as morally right; she can’t escape logic (if something is not prohibited, then it is clearly permitted). Moral judgment does not require something in addition by way of a description of something existing “objectively” in order for it to have substance; and the external skeptic fails to be “external” for just that reason; scientific objectivity is irrelevant. The assertion that, for example, torturing babies is wrong does not require an extra judgment about the objectivity of the assertion. “We use the language of objectivity,” says Dworkin, “not to give our ordinary moral or interpretive claims a bizarre metaphysical base, but to repeat them, perhaps in a more precise way, to emphasize or qualify their content.”
Dworkin does, on the other hand, allow internal skepticism, which is engaged. So a person who says that there is no morality because God is dead, engages with moral propositions by denying their force; he makes a deeper philosophical moral assumption—that there would be morality if God were alive—which he accepts and from which he derives his skepticism.
All this works for other fields of value such as interpretive claims in literature and other artistic fields. An interpreter is skeptical in this sense in judging that an intelligible interpretation of Hamlet was not possible because the play completely lacks coherence. The skeptic is here prepared to grapple with the substance of the arguments about which she is being skeptical; she requires coherency for interpretation to take off and there is just no coherence here (as the Archimedean requires “out-thereness” and there is just no “out-thereness” there). There is nothing stopping the skeptic taking a broader skeptical view, say, that literary criticism itself is pointless because it tries to make order out of something that is necessarily conflicting, or that it deals only in fantasy, or serves no useful or important purpose in human affairs. Dworkin calls this last kind of internal skepticism “global” internal skepticism, because its skepticism is “global” about literary criticism. Internal skepticism may also arise in relation to a social institution such as law. A person might take the view that, on any interpretation, adjudication fails to make sense because its various rules and principles are too fundamentally conflicting to be resolved or made coherent in any way.
THE DISAPPEARANCE OF EXTERNALISM
What follows is a refinement of Dworkin’s views over three decades on what is often called “the one right answer” thesis. Later, in Chapter 9 on Justice for Hedgehogs, I deal with the different dimensions of that problem as it developed originally from criticisms that his promotion of the idea that argument in hard—controversial—cases was argument about what the law was.
I think everything I report Dworkin saying there is completely compatible with what he says in Justice for Hedgehogs (some of which was aired earlier in his 1996 paper “Objectivity and Truth: You’d Better Believe It”). If, as independence seems to require, value can only derive from value, Dworkin does not think this matters. He says it is merely a restatement that value exists in an independent domain from science. Science also derives from science and, indeed, it is even common to think that this is one of science’s virtues. The problem is we don’t yet have the confidence we should have with arguments of value that we do in fact have with science; our modes of arguing value are comparatively under-developed. It is not surprising, given the successes of science in the last two hundred or so years, that scientific method has dominated the way we think about truth. Moral philosophers— and others—who suppose that scientific accounts of truth are required for value have too often, in Dworkin’s terms, wrongly encouraged “a colonial philosophy setting up embassies and garrisons of science within value discourse to govern it properly.”
Unity of value would not make sense if judgments of value could not be true or false. Justification would not be an issue and moral judgments would be relegated to matters of mere taste. However, as Dworkin points out, it is normal for us to act and talk as though there were moral truth. In the ordinary way, we consider the act of torturing babies “just for the hell of it” as morally wrong quite independently of what others believe, and we wouldn’t have any hesitation in forcing our judgment on the torturer. We normally think that the wrongness of child torture can be justified independently from a report of our “feelings” about the matter. On the other hand, there is no scientific evidence for the truth of such moral beliefs. What people in fact believe, what past histories tell us, and feelings are, we understand, often irrelevant and often unclear guides. So widespread skepticism about whether there are moral truths is unsurprising.
Nevertheless, Dworkin claims that there is no threatening skeptical position against the objectivity of value. Either such skepticism is contradictory, or it is merely a roundabout way of making a moral judgment. However, he is keen to point out that there is a genuinely skeptical position that does not threaten the objectivity of value, because it derives from value itself; for that reason—it is internal to value—Dworkin calls it internal skepticism.
His example is the view that morality is not universally applicable because of cultural difference. This, he says, states a moral view (which he thinks is wrong, incidentally) because it claims that a statement of morality is false if its applicability crosses cultures. Dworkin has always been clear that he has no deep quarrel—one that challenges the coherence of the idea—with internal moral skepticism, because, he says, such skepticism expresses a coherent hypothetical moral view. He concentrates his energy, however, on the external skeptics. Their claim is that either there is no moral objectivity because
(i) it is an error to suppose that there are things in the world (Dworkin calls them “morons”) according to which moral judgments could be objective (error skeptics), or
(ii) because ordinary moral judgment can be re-described in a way that shows they have a different and subjective status (status skeptics).
Both the error and status skeptics are external to morality, Dworkin says. They each believe they look at morality “from the outside” in a detached and disengaged way and, from this external perspective, make a value-free judgment about it. Dworkin deals with these positions in turn. Error skepticism, according to Dworkin, is self-defeating because it relies on the claims that moral judgments can be true only if they are proved by empirically determinable facts and that there are no such facts. He then says that this is only an internally skeptical position. Take abortion. The external error skeptic says abortion is neither morally wrong nor wrong. Dworkin concedes that there are no “morons” in the world that make either of these statements true. But, he says, if there is nothing to make abortion right or wrong, it can only follow, according to the external error skeptic’s claim, that abortion is morally permissible. It further follows that the “external error skeptic” contradicts her claim that first-order moral judgments lack objectivity (and that our ordinary talk about morality is defective).
Status skepticism, on the other hand, is the main kind of skepticism amongst professional philosophers. Such skepticism uses a well-known distinction between first-order and second-order moral claims. First-order claims are ordinary moral judgments; second-order claims are about such judgments, just like the difference between doing arithmetic as in “2 + 2 = 4” and talking about arithmetic as in “arithmetic is taught in schools.” First-order claims of morality can’t be true or false according to status external skepticism because a second-order claim about them is that they are not descriptive of anything but are only “expressions” (of feelings or emotions, say).
Summing up, error skepticism says ordinary moral claims are “misconceived” (there are no “morons” out there) and status skepticism says such claims are “misunderstood” because they should be understood in a more accurate way. Status skepticism, according to Dworkin, is the popular form because it at least allows us—unlike “error skepticism”—to keep our convictions such as that abortion is wrong.
But in spite of its popularity amongst philosophers, he says, status skepticism is also self-defeating; no meaning is added by such claims as “abortion is objectively wrong” or “abortion is wrong is true” or “it is an external fact that abortion is wrong.” Rather, these expressions only express emphasis; they are just a more graphic way of saying that abortion is wrong. Since the status skeptic denies them, just like the error skeptic, these denials must also be first-order moral claims. Dworkin employs no special logic or sleight of hand to establish this straightforward argument. Why, again, are these moral claims different from philosophical claims? If the status skeptic claims that these moral expressions are part of our semantics, his claim is disproved by our semantic practices because people who claim that torturing babies is wrong clearly mean something different from “this is what they feel”; it is instead the reason for that feeling. And they certainly don’t mean it is true for them but not true for others.
Some philosophers argue that our moral beliefs are ‘really’ desires for a state of affairs we would be willing to bring about, because beliefs don’t motivate; since desires can’t be true or false then, they argue, there is no moral objectivity. But Dworkin denies that beliefs don’t motivate. For a start, that I have a desire at the least will on many occasions imply a belief I have (my desire that the killing stop implies I believe that murder is wrong) and in any case it is possible to believe something is morally right but have the desire to do exactly the opposite. Dworkin gives as an example Richard III’s desire to do what he knew to be wrong: “I’m determined to prove a villain.”
Yet another form of status skepticism asserts that second-order statements aren’t re-writes of first-order statements but exist in a completely different philosophical discourse. Dworkin takes Richard Rorty as an exemplar of this sort of argument. It works quite well for explaining fiction. Lady Macbeth makes true statements from within the play but in another discourse, because she is fictional, her statements can’t be objectively true. Rorty applies this argument more generally. He says, for example, that we can play a mountains “language-game,” which is independent of whether mountains actually exist, and so we can do the same with a morality language-game. The philosophical language-game is independent of whether morality is objective.
Another such line is taken by the “projectivists” who appear to say that we can be committed to morality and act according to its dictates, but that these are only commitments that are “projected” onto the world, and thus without attendant objectivity. In these cases, Dworkin says the language game strategy fails because it does not supply an argument showing why the alternative language is not a restatement of the original first-order claim.
Unlike fiction, we cannot show that there are different language games whose difference prevents us from asserting that moral judgment is true beyond its own respective game. By contrast we know very well why Macbeth is fiction. (Dworkin says he can’t see that Rorty’s use of capital letters—“The World as It Is In Itself ”—will do the trick).
Dworkin achieves something significant here; he reinterprets Hume not as moral skeptic but quite the opposite, as someone who supported the independence of value from science. The Humean principle, as Dworkin calls it, tells us that we can have confidence in looking to value to justify our moral judgments and therefore not be skeptical of morality at all. The independence of value is important for his book; it requires that values are interconnected and mutually supporting. And what Dworkin has also done is demolish the idea of second-order theorizing about morality. That domain is captured by morality (tying it to science, or to language, is just irrelevant) and so Dworkin is free to develop a full account of morality based entirely on evaluative judgments. This cuts so much deadwood from the so-called metaphysics of morality or moralizing. For too long, debate about the credibility of morality itself has existed under the shadow of reality determined by science and this has been to the disadvantage of morality. The realists amongst moral philosophers try to show the interaction between “morons” and ourselves, and fail, while the anti-realists, who believe in mind-dependent morality, exist under the same shadow, for they have to say, bearing the realist camp in mind, that morality is somehow made up, coming entirely from within. This is, as Dworkin says, “an entirely bizarre assignment. How can they be values if we can just make them up?” Morality cannot be just a matter of taste, mattering only to the person whose taste it is.
Where do Dworkin’s arguments on skepticism get us? The crucial point is, I think, that Dworkin disapproves of the casting off of one very important moral responsibility by the simplistic assertion that there is nothing “objective” in the world by virtue of which moral judgments are only “opinion.” Our moral responsibility is to make our views publicly accountable. The problem with the metaphysical approach is that it appears to deny any possibility for responsible argument. It thus denies the need for a public stance other than, perhaps, a declaration of what a person is going to do. We should be able to hold the skeptic to account for his “opinion.” In any case, as a matter of sociology, in the practical world of law, not only are there few global internal skeptics (Marx perhaps), but a belief in external skepticism makes absolutely no difference to legal argument:
The skeptical challenge, sensed as the challenge of external skepticism, has a powerful hold on lawyers. They say, of any thesis about the best account of legal practice in some department of the law, “That’s your opinion,” which is true but to no point. Or they ask, “How do you know?” or “Where does that claim come from?” demanding not a case they can accept or oppose but a thundering knock-down metaphysical demonstration no one can resist who has the wit to understand. And when they see that no argument of that power is in prospect, they grumble that jurisprudence is subjective only. Then, finally, they return to their knitting—making, accepting, resisting, rejecting arguments in the normal way, consulting, revising, deploying convictions pertinent to deciding which of competing accounts of legal practice provides the best justification of that practice.
My advice is straightforward: this preliminary dance of skepticism is silly and wasteful; it neither adds to nor subtracts from the business at hand. The only skepticism worth anything is skepticism of the internal kind, and this must be earned by arguments of the same contested character as the arguments it opposes, not claimed in advance by some pretense at hard-hitting empirical metaphysics.
We can, of course, be skeptical about all this by denying the possibility of genuine argument about legal and moral issues. Is there really such a genuine subjective doubter?
People like arguments that demonstrate, or prove, or otherwise provide a convincing “knock-down” effect. A theory that legal argument in pivotal cases does not consist of such arguments thus appears weak. Nevertheless, theories cannot be wrong because people just want them to be wrong and so we shall examine the claim that there can be no right answers unless they can be proved right. Some people object to the idea that there can be true propositions of law but will accept that there can be “best” or “better” answers. A consideration of this view is instructive because it throws some light on the hold that the demonstrability thesis has on people. It is very common, too, for people to say of a non-demonstrably true proposition that it is not true “but only a matter of opinion.” But there is nothing to be gained by saying that although a proposition is the best statement of the law it cannot be true. Why not say that the true statement of law is one that expresses “the best” view of it? What advance on clarity has otherwise been made? Further, we must not confuse “doing our best” to produce a correct, true statement of the law with producing the correct statement, because, of course, we could be wrong. This common confusion shows, I think, the real problem people have with undemonstrable truth. How can we know, how can we be certain, that the proposition is true, or “the best”? People want certainty when none is possible. It does not follow that there can be no correct or true propositions. The judge who does his best may get the law wrong, but his best endeavor is nevertheless an endeavor to state the correct proposition of law.
The fact that something is “only my opinion” does not release it from the arena of truth. It used to be people’s “opinion” that the world was flat, but that opinion turned out, it now seems, to have been false. We form opinions all the time which turn out to be true or false. In fact, the function of the phrase “in my opinion” is often used precisely in the recognition of the fact that the speaker recognizes that he may be wrong and that therefore the opinion is capable of being wrong or right. A much better question to be concerned with here is whether the concept of truth shared by lawyers is a good or sensible one. Given that they do employ the concept of truth, that concept might be confused or wrong, in the same way that it seems reasonable to say that people were once confused and wrong in thinking the world was flat.
There are two important matters to consider. First, is a concept of truth that exceeds demonstrability a good one for people to use generally? We might answer that question by considering, for example, other areas of discourse to see whether there is a general use for it. Second, if it is good for general use, are there special reasons why it should not be sensible for lawyers to employ it? Note that we can make short work of the assertion that truth cannot possibly exceed demonstration, for that assertion cannot itself be demonstrated to be true. Consider the following statement of the demonstrability thesis:
Only propositions that can be demonstrated, or proved, to be true, are capable of being true or false.
We can’t demonstrate this to be true. Pro-demonstrabilist as embarrass themselves by asserting it. I think much of the nonsense that is spoken about Dworkin’s “one right answer” thesis ends here. I’ve seen so much time wasted by angry people at Dworkin’s seminars where they start (ignoring the substance of what he has to say, for example on rights) and finish with: “But that can only be your subjective point of view, Professor Dworkin, because you can’t prove it.” The argument is embarrassing. The interesting question is what leads them to accept the demonstrability thesis. Does it have something to commend it? More important, is it within our power to adopt it or some other criterion or definition of truth? We can, after all, adopt definitions (or postulates, axioms, guides, stipulations and so on) to guide our reasoning in other fields, such as geometry or economics or wartime codes. Such postulates are chosen not because they are true but for other reasons. “The cat is on the mat” may be an unpractical, unworkable code, because too easily broken, for “the missile is on target.” If practical considerations are therefore the clue to the justification of at least some kinds of postulates, are practical considerations relevant to the adoption of the demonstrability thesis in law, regarding it now as a postulate? My view is that the case to be made for the adoption of the demonstrability thesis in law turns out to be no more than the case for positivism. It is, presumably, that laws should only be seen as “existing,” that is, being true or false, or valid or invalid, when their existence, truth or validity can be demonstrated by reference to actual official practice so that, for example, the “defect of uncertainty” may be cured, or so that reasonable expectations may be fulfilled.
The arguments against this view, however, approach the problem of what is a sensible conception of law and legal argument, and not arguments that depend upon some fixed, immutable idea of truth “out there.” In other words, the appeal to the demonstrability thesis, as if it were an independent argument, is misleading.
NOT "NO RIGHT ANSWER" BY DEFAULT
In the domains of value, Dworkin does not say there is always a right answer. Rather, it is not the case that there is no right answer. So he thinks there are right answers on all sorts of matters (he thinks, as do you and I, that it is right that we do not torture children) but on others there are not, for example, on the question of whether claret is “nobler” than white burgundy.
Nevertheless it follows from the above (and he says it), that he thinks that the question of whether there is a right answer in an evaluative domain is itself an evaluative question. Many philosophers take the view that in such domains it follows by default from the indeterminacy—the inability to “knock down” as the Archimedean thesis requires—that there cannot be a right answer to that matter.
Take the question of whether abortion is wicked or not. Here there is controversy and people may simply be uncertain as to the answer in some clearly defined circumstances. However, it does not follow from our actual psychological state of uncertainty that there is no right or wrong of the matter. This is not to say all indeterminate judgments lack a truth value. If neither Picasso nor Beethoven was a greater artist than the other then that means that comparisons (of that sort) between them are indeterminate.
But that is quite different from saying: I am uncertain whether Picasso or Beethoven is greater, therefore we cannot assign a truth value to any statement that claims one to be better than the other. Claims that a matter is indeterminate require something more than a report of a psychological state (whether a state of uncertainty in me or a state of uncertainty arising from the fact that two or more people have different views) and, it turns out, the argument has to be one of the same order, and as demanding, as an argument for saying that a particular value claim is determinate. In other words, there is again no Archimedean point from which value judgments, determinate or indeterminate, can be assessed for their truth. As we have seen, Dworkin thinks there can be good arguments for internal skepticism in literary interpretation. Nevertheless, he also suggests that it is healthy to discern conflict since seeing conflict is often a more constructive diagnosis that leads us to seek “deeper divergent understandings.”
We should return to law. Positivism, Dworkin says, takes the default line on questions of legal controversy. In hard cases, where judges, lawyers and law students are uncertain about what the law is, positivism says that it follows that there is no truth of the matter and so purported legal claims here can be neither true nor false. So when judges decide, they are making new law. Since the default argument is false, and we have every reason to suppose that the sorts of reasons advanced by lawyers and so on of the ordinary legal sort are those which determine whether legal claims are true or not, it is highly plausible to say that the criteria of truth are not contained in some Archimedean universe. This conclusion removes a great deal of the misunderstanding that has bedeviled purportedly skeptical accounts of what legal reasoning is about. Dworkin’s injunction is that any other kinds of approaches are time-wasting because they are beside the point.
A SHORT SUMMING UP
It is clear that Dworkin is not a total subjectivist, inserting his “own values” into other people’s lives. That is a crude but very popular view about anyone who expresses views forcefully. It is clear, too, that he is far from claiming there is “a right answer” to all moral questions buried somewhere if only we could find it. Is the middle road, built, as I have suggested, on reason and commitment, possible? You must ask yourself two questions in order to consider the feasibility—and desirability—of this middle position.
First, should moral judgments be subject to (although perhaps not necessarily the product of) any form of rational sifting or are they essentially arbitrary assertions?
Secondly, when you yourself make a genuine—heartfelt—moral judgment do you really believe that what you assert is anything other than true?
We should now be acquainted with Dworkin’s views on the interpretive nature of social practices, his views on the fundamental simple-mindedness of legal positivism and the superiority, flexibility and complexity of integrity.
We are also armed with his views on the objectivity of certain kinds of controversial propositions. It is next necessary to examine the relationship between the fundamental idea for him of the equal objective worth of human beings and the idea of integrity. We have seen, too, the way Dworkin develops the connection between the idea of community and the treatment of the citizens who compose it through the idea of integrity. What does “treating people as equals” really mean? It is this very abstract idea of “treating people as equals,” one of Dworkin’s most fundamental ideas, which I shall now examine.