For all that he tried to extend the scope of human sympathy in his influential oeuvre, Professor Ronald Dworkin, who died last year at the age of 81, was a divisive figure. To his critics, the US philosopher and scholar of constitutional law was the theorist-in-chief of ‘rights culture’ and the poster boy for an anti-democratic (and always progressive) judicial activism. To his admirers, he was a liberal hero, a standard-bearer for justice and fairness who stood up to demagogic politicians and the tyranny of the majority. To this extent his work was a shibboleth, or a fluid from which the litmus paper would emerge as decisively blue or red: whether or not you approved of it was a good indication of where you stood on such issues as abortion, gay marriage and school prayer.
Nevertheless, this right-left division tended to mask rather more than it revealed. For what made Dworkin’s work so interesting, and indeed so problematic, was the fact that he took the kind of moral certainty normally associated with the first constituency and deployed it in the cause of the second one. For Dworkin, improving the lot of women and enshrining the rights of oppressed minorities had nothing to do with identity politics or cultural relativism or ethnocentrism. It was the expression of a moral vision. Moreover, and since in Dworkin’s scheme there existed right answers to moral questions, the values informing this moral vision were the values it was morally right to hold.
In his 2011 book, Justice for Hedgehogs, Dworkin went further than ever before in elaborating this distinctive worldview. Drawing on Isaiah Berlin’s distinction (derived from the poet Archilochus) between the adaptable fox and the predictable hedgehog – the first knows many things, the second only one – he declared himself a philosophical hedgehog and advanced the theory of ‘the unity of value’, a large and old philosophical thesis which posits that ‘the truth about living well and being good and what is wonderful is not only coherent but mutually supporting’. Not only were there truths about value, Dworkin declared, but these truths were discoverable – discoverable not through God or science but through the consideration of whether our arguments that something is true are ‘adequate’ ones. Value judgments are true, he suggested, ‘in view of the substantive case that can be made for them.’
To call this argument circular is to state the obvious. The question is whether, in being circular, it necessarily has a hole in it, like a doughnut or a hula hoop. Dworkin, as one might expect, said it didn’t. For him, the world of value was circular in the same sense that the world of science was circular. That’s to say, it depends for its legitimacy on nothing outside its own terms of reference. Scientific endeavour is justified and adjudged to have been properly pursued according to the priorities of science. Similarly, the pursuit of morality and value derives its legitimacy from humankind’s belief in the importance of morality and virtue. Both paradigms are self-supporting.
I’ve never really bought this argument; and though I’m prepared to accept that in the process of not buying it I’ve employed a bit of circular reasoning of my own – or been obliged to swallow such circular reasoning as is involved in, say, my ‘belief’ in science – my scepticism more than survives a reading of Religion without God. Indeed, this short but ambitious book, which is based on the Einstein Lectures Dworkin delivered at the University of Bern in December 2011, is more revealing of its author’s shortcomings than anything I’ve read by him. Notwithstanding its posthumous publication and the fact that, had he lived a bit longer, Dworkin may have sharpened up his arguments, I emerged from it with a powerful sense that our man was pulling a philosophical fast one.
Of fundamental importance to its thesis is the concept of value outlined above. Dworkin takes as his starting point Einstein’s assertion that although he was an atheist he was also a ‘devoutly religious’ man, not because he believed in God, but because he discerned in the universe some transcendental and objective force working behind, or within, its laws. This gives Dworkin the springboard he needs to claim that religion is ‘deeper than God’ – that a belief in God is just one manifestation of religion in this wider sense. Indeed, for Dworkin, a belief in God is largely irrelevant to the religious worldview, which rests on two central judgments about value: 1) that human life is important and that it is up to individual human beings to live as if their lives have objective value – to live a good life, in other words – and 2) that nature and the universe are a source of intrinsic value and wonder – that they do not just inspire awe but demand it. To put it a slightly different way: human beings are a part of nature but also in one sense apart from it (because they are conscious of their place in it and have the ability to control their destinies) and it is the proper role of the religious worldview to recognise and celebrate these facts.
In order to arrive at this definition of religion, Dworkin has to reject not only naturalism – the theory that nothing in the universe is real except those mental and material phenomena that can be studied by the natural sciences – but also what he calls ‘grounded realism’ in its scientific and religious forms. In essence grounded realism posits that while fundamental values are real, these values are guaranteed by something independent of the world of value. So a primatologist or biologist might assume that morality is underwritten by nature, while a priest or theologian might assume that they are underwritten by God. Both make essentially the same assumption, namely that our ideas about what is moral are based on something external to morality – external because they are not themselves dependent on our capacity for morality.
Dworkin rejects this, insisting instead on what he calls ‘ungrounded realism’ – the view that morality only makes sense within a moral paradigm. If we think cruelty is ‘really wrong’ then we must believe in something more than the efficacy of altruistic behaviour as determined through evolution or God; we must believe, that is to say, that our convictions about what is moral and immoral are more than mutually supporting illusions. For Dworkin, this ‘more’ is objective value. As he puts it, ‘Nothing could impeach our judgment that cruelty is wrong except a good moral argument that cruelty is after all not wrong’. The world of value ‘is self-contained and self-certifying’.
As keen-eyed readers will have noticed, all of this is predicated on a fundamental distinction between fact and value. And since, in Dworkin’s definition, religion depends solely on the world of value, it doesn’t matter, ultimately, whether you favour the facts of science or the ‘fact’ (my scare quotes) of a supervising power: you still get to call yourself religious, so long as you believe in the intrinsic value of humanity and the intrinsic beauty of nature and the universe. The thing that divides godly and godless religion is merely a disagreement over facts. And this is much less important than the ‘faith in value’ that is available to both constituencies.
Having established this inclusive definition of religion, Dworkin then moves on to discuss its (theoretical) legal ramifications. Since most political constitutions and rights conventions contain protections for religion, the question of what we count as religion is obviously of fundamental importance. Dworkin argues for his own definition, though he admits that it is almost too expansive to be useful. What if, for example, an individual claimed that the good life was one in which people were free to accumulate huge amounts of personal wealth without the inconvenience of paying any tax? Or what if a member of a fascist organisation claimed that as far as he was concerned the value of life was undermined by miscegenation and multiculturalism? ‘Once we break the connection between a religious conviction and orthodox theism,’ Dworkin writes, ‘we seem to have no firm way of excluding even the wildest ethical eccentricity from the category of protected faith.’
Dworkin’s solution? We should no longer consider religious belief a ‘special right’, like freedom of speech, but part of what he calls (and has previously called) the general right to ‘ethical independence’ – the right that prevents a government from interfering in the lives of its citizens because it thinks it knows what’s good for them, but allows it to modify such personal behaviour as may affect the community. In other words, if you want to believe that racial mixing is corrosive of the good life you are perfectly within your rights to do so. But you cannot claim religious immunity for, say, racist hiring practices. Nor can you absent yourself from the responsibility of paying income tax, since to do so would be to engage in behaviour that was deleterious to society at large. For racists and worshipers of Mammon, in other words, life in Dworkin’s brave new world will be pretty much business as usual.
So what is the point of all these contortions? Well, it turns out that the idea of religion as based on ‘ethical independence’ is highly conducive to the very values Dworkin has always advocated, as well as being hostile to the values against which he has set his face. Indeed, it turns out that in Dworkin’s new scheme anything that shrivels the progressive nostril or quivers the jellies of liberal opinion can be safely consigned to the naughty step. Here, for example, is the venerable hedgehog on the issue of sexual and reproductive morality:
When the Supreme Court decided that a state lacks power to criminalise homosexual acts, or early abortions, it located its opinions doctrinally in the equal protection and due process clauses of the US Constitution rather than the First Amendment’s guarantees on religious freedom. It had no choice. Opponents of homosexuality and abortion very often cite a god’s will as warrant, but not invariably, and, as I said, few men or women who want choice in these matters conceive their desire as grounded in religion. But if, quite apart from the state of American constitutional law, we treat religious freedom as part of ethical independence, then the liberal position becomes mandatory. So does gender equality in marriage.
Not only does Dworkin’s definition of religion not afford any special protection to those who espouse a belief in God; it also deems them irrelevant on some fundamental points of difference!
Aside from the fact that there are many theists (and, for that matter, atheists) who think abortion entails a conflict of rights and is not a question of women’s rights only – that the issue of abortion is a little more complicated than the mantra of ‘personal choice’ would suggest – such casuistry makes a mockery of the underlying (or overriding) philosophical claim of Religion without God, which is that disagreement between ‘religious atheists’ and traditional theists is an ‘esoteric … scientific disagreement with no moral or political connotations’. I’m no fan of organised religion, but I’d expect its adherents to have enough self-respect to regard Dworkin’s call for ‘improved communication’ between them and their non-theistic counterparts as a sop to an indigestible thesis – one that effectively institutionalises their political marginality. Nor should atheists be comfortable with Dworkin’s attempt to argue the disagreements between the godly and the godless out of existence. I agree with him that the state has no business banning religious garments such as the burka. But I’m also aware that not all of the women who wear it are doing so out of personal conviction. It’s a lot harder to separate the private sphere from the public one than Dworkin makes out.
Clearly, these problems are traceable, and possibly even reducible, to Dworkin’s unusual definition of religion, which as well as being unpersuasive from a strictly philosophical standpoint is fenced around with some shonky logic and rather feeble argumentation. The evolutionary biologist and professional infidel Professor Richard Dawkins has criticised Einstein for what he calls his ‘destructively misleading’ language about religion; clarity, as far as Dawkins is concerned, demands a distinction between the idea of a universe governed by fundamental physical laws and a universe governed by a supernatural entity. And while Dworkin may be right to characterise Einstein’s comments as more carefully calibrated than his near namesake is willing to concede, the suspicion that he is trying a bit too hard to win the physicist over to his side of the argument – that he is, in fact, making an argument from authority – is hard to suppress in the circumstances. Moreover, when Dworkin writes of the way ‘religion’ is used in informal speech – to describe, say, some Americans’ relationship with the Constitution or with Major League Baseball – and suggests that such metaphorical usages are ‘parasitic not on beliefs about God but rather on deep commitments more generally’ he is drawing far too long a bow. No doubt there are many Americans who as well as describing baseball as a religion would describe Joe DiMaggio or Willy Mays as ‘a god’. So either baseball is a theistic religion or (more likely) we’re just taking hyperbole and the play of language a shade too seriously.
Indeed, if we’re going to talk definitions – and about what certain words mean to most people – then surely it will be readily conceded that the statement ‘I’m a religious person’ implies a belief in a god or gods, while the statement ‘I believe there’s something’ denotes either vague spirituality or the rather hazy intellectual ambience of the ‘lower’ end of the Church of England. More importantly, a great many religious people are grounded realists whose expressed moral outlook has nothing in common with Dworkin’s liberalism. Do the Catholic nuns who robbed unmarried women of their newborn babies in the 1960s derive their morality from the same place as I do? Where does the Taliban get its ideas about chastity and homosexuality if not from the pages of holy books? The religious do not have a monopoly on intolerance, but those who claim not only to know that God exists but to know His mind are always predisposed to it. Much better, I think, to take them at their ‘Word’ and to regard the real intellectual battle as being between organised theistic religion and those who want nothing to do with it.
That the number of people in the latter constituency is growing in certain Western countries is thanks in no small part to the efforts of Dawkins and his fellow ‘new’ atheists. Dworkin is rather rude about this trend, describing ‘militant atheism’ as ‘politically inert’ and a ‘great commercial success’, by which he means, presumably, that it is both ineffective and disingenuous. Devoting their careers to refuting positions once considered too silly to refute, these writers are, in Dworkin’s view, guilty of preaching to the atheist choir. (Though he never uses the term ‘Enlightenment fundamentalists’, it hangs in the air like smoke from a cigar.) But the fact is these writers have provided a language and a set of intellectual tools for those who deplore not only the rise of Christian fundamentalism in the US but also the rise of extremist Islam. While smooth politicians saw fit to describe the 9/11 attacks and other atrocities as ‘perversions’ of a great religion, and pseudo-leftists explained them away by reference to Western imperialism, a few intelligent writers stepped forward to remind us that as far as theistic religion goes the worm is always in the bud. This, again, is the real point at issue and the one that Dworkin is obliged to downplay in his prescription for a liberal-progressive utopia; but despite his best efforts its flappy ears and wrinkly trunk are all too conspicuous.
There is a species of commentator who likes to profess that ‘atheism is a new religion’; too lazy or slow-witted to engage in the debate, he settles instead on a clever-sounding equivalence (actually a plonking category mistake) and dresses it up as an attempt to expose a double standard or false antithesis. Religion without God is not as silly as that. Nor, indeed, is it as impudent as Alain de Botton’s Religion for Atheists, which argues that the nonreligious should adopt the trappings of organised religion in pursuit of greater social cohesion and a new and much needed sense of awe. But it is, I feel, a part of this trend to deny or downplay the fundamental disagreement that non-believers have with people of faith. This disagreement isn’t always a problem; I can rub along quite happily with most religious folk most of the time. But when an Arab is evicted from his house in the West Bank or a girl’s school is suicide-bombed in Baghdad or a ten-year-old boy is abducted in Uganda – all in the name of theistic religion – well, then, I think it’s reasonable to ask whether theistic religion might be part of the problem. This is not a misunderstanding that can be solved through ‘improved communication’. It is a profound and profoundly important question on which people differ – profoundly.
Dworkin’s insistence on a ‘fundamental divorce’ between fact and value is thus the prelude to a shotgun wedding that cannot last. The real debate is not between theistic and atheistic religion on the one hand and nonreligious atheism on the other but between those who believe that the universe was made with humanity in mind and those who do not. To that extent, the relevant facts come not from science or theology but from history. Certainly Einstein’s fellow physicist and Nobel laureate Steven Weinberg implied as much in an article published in 1999. I’ll rest (but not base) my case on the following:
Frederick Douglass told in his Narrative how his condition as a slave became worse when his master underwent a religious conversion that allowed him to justify slavery as the punishment of the children of Ham. Mark Twain described his mother as a genuinely good person, whose soft heart pitied even Satan, but who had no doubt about the legitimacy of slavery, because in years of living in antebellum Missouri she had never heard any sermon opposing slavery, but only countless sermons preaching that slavery was God’s will. With or without religion, good people can behave well and bad people can do evil; but for good people to do evil – that takes religion.
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Ronald Dworkin, Religion without God
HUP; U$17.95; 180pp
First published at the Sydney Review of Books.