The New York Review of Books continues to be my favorite magazine. It’s the only one I read regularly. Their 50th anniversary issue was particularly rewarding. In that issue, they published “several essays on or by writers and artists whose work meant something to us when we started.” One of these essays was “Law from the Inside Out” by Ronald Dworkin, in which he reflected on the development of his thinking from the very concrete to the abstract. This progression led him to integrate “concrete legal issues, questions of personal ethics and morality, broad political issues of social policy, and the most abstract, rarefied philosophical and metaphysical puzzles.” His conclusion was that these issues are interconnected and cannot be separated.
Early on he addressed “how courts should interpret the abstract constitutional language” and “how should judges decide what the law of some nation really is on some particular subject?” One particularly influential theory of law, legal positivism, has answered “that what the law is on some subject in no way depends on what the law ought to be.” Rather, according to this perspective, “what the law is depends … not on morality, but only on history: on what people given the appropriate authority have declared it to be.”
This approach is rooted in “anti-realism in moral theory,” which is based on “a more general theory of truth we might call ‘scientism’.”
This holds that the methods of the physical sciences provide the gold standard for any investigation, that only when these methods are available is it proper to speak of truth. According to scientism, once we see that moral argument is not amenable to scientific methods, we must abandon the idea that there is truth in morality.
Dworkin argued that this philosophy
provides only an incompetent description of the actual practice of law. Lawyers and judges typically make claims about what the law actually is that cannot be thought to be grounded just in what authoritative bodies have previously declared…. [And] a judge who sentenced a defendant to jail while admitting that the judge’s own view of the law is only an emotional expression would probably be sent to jail himself.
He pointed out that “it assumes that we share the concept of law the way we share the concept of a triangle, that is, that we all agree on the tests to use to decide whether a legal claim is true or false. But we do not.” As an alternative, he presented what he called “an interpretative theory of law” and declared, “What law is cannot be separated completely from what it should be.”
According to this theory, “An interpretation must fit the data—it must fit the practices and history it claims to interpret—but it must also provide a justification for those practices. It must, as I sometimes put it, show the practice in its best light.”
Identifying what law is therefore requires “some justification, however weak, in political morality,” which is also required in “other domains of interpretation,” such as “artistic and literary interpretation.” He tried to “show how the ‘value’ theory of interpretation illuminates the agreements and conflicts among critics in all these domains.”
However, Dworkin reported, “Most influential moral philosophers have denied this. They insist that claims about morality … are not really judgments and so cannot be either true or false.”
Dworkin considered this “anti-realist” view to be logically incoherent. He nailed his case with this brilliant summation:
Consider the proposition that rich people have no moral duty to help the poor of their own community. If that proposition is not true, then it is not true that rich people have that duty, and that is itself a moral claim. If no moral claim can be true or false, then that one can’t be true either, so anti-realism is self-defeating.
But if one agrees
there is truth in morality and politics and therefore in law. It remains to ask what truth there is. What is a life well-lived? What duties do we owe as individuals to other individuals? What duties do we collectively owe to others in politics? What is justice? Liberty? Equality? Democracy?
Dworkin answered with “two fundamental principles that I believe can provide the most coherent and attractive answers to all these questions.” These principles, the most important element in his essay, were:
First, that it is objectively important—important from everyone’s point of view—that each human life succeeds rather than fails: that people live well. Second, that each person has a fundamental, inalienable responsibility to take charge of his or her own life: that it is finally up to that person to decide what living well would mean and to pursue that life.
He then rephrased these principles in the following manner:
I argued, relying on Immanuel Kant’s thesis that no one respects his own humanity who does not respect humanity in other people, that we can define what we owe to other people as part of what we owe to ourselves. The key is the idea of dignity: it belongs to our own dignity to respect the dignity of other people.
What is fundamental to private morality, Dworkin argued, forms “the spine of public political morality as well.” He then applies this principle to economics with this insight:
We achieve true economic equality, for example, not when everyone has the same wealth, no matter what decisions he has made in the course of his life, but when what one has depends only on those decisions, and not on good or bad luck in health, accident, or inheritance. That idea of equality ties together the moral ideal of personal responsibility and the political ideals of distributive justice.
Never have I seen such an important incisive overview of how the philosophy of truth, morality, politics, and economics must all be addressed simultaneously, with clear thinking and compassion.