Dworkin, “Three Questions”


[1] We have studied Dworkin’s legal theory, which criticizes Postivisim and argues that the law is wider than the statues and past decisions of judges.  Law also includes principles, which are moral in character.


Dworkin’s strategy for convincing us that judges can use principles to reach decisions fairly and rationally is to draw us into cases where he can convince us of the validity of the principles he draws upon.  In Taking Rights Seriously (1977), he relies on two court cases Riggs and Henningsen.


To understand Dworkin’s theory of principles, we are looking at an essay he wrote in the popular magazine The New York Review of Books.  This is a widely read, non-academic magazine.  In addition to presenting reviews of new works of fiction and non-fiction, the NYRB has many regular contributors who write on issues of public concern.


[2] Dworkin’s legal theory is also a moral theory.  It says that there are moral princples that are inherent in the social practices of everyday life, and that while these principles may have no single textual source (ex. Bible, Constitution, Kant’s Grounding of Metaphysics of Morals), they exist, and they can be given a single best interpretation. 


Philosophers would call Dworkin’s theory a hermeneutical theory.  Hermeneutics is the study of interpretation.  Dworkin’s theory is that moral principles must be interpreted, and that the “text” (or text analogue) consists in “community practices and understanding.” (Schauer, 83)  He notes that “We argue for a particular principle by grappling with a whole set of shifting, developing and interacting standards (themselves principles rather than rules) about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards.” (Schauer, 85)


For a method like Dworkin’s, the proof is in the pudding.  We have to see him tackle a “difficult case” (as he loves to say), and be convinced of his method of interpreting principles.  Thus we look at an essay of applied moral reasoning, “Three Questions for America.”


[3] Dworkin takes on three questions that are controversial in American public life:

-- Should intelligent design be taught in high school science classes?

-- Should the pledge of allegiance be eliminated from public schools?

-- Should gay marriage be legal?


[4] Should intelligent design be taught in high school science classes?

[Dworkin begins by establishing some common ground among the disputants (liberals, moderates and religious conservatives)]

--The elected school boards, or a majority of parents in a district have the right to determine what is or is not taught in schools. (Implicit premise: that public schools are subject to democratic control)

--Almost all religious conservatives accept the general validity of the Sciences.  “Almost all religious conservatives accept that the methods of empirical science are in general well designed for the discovery of truth and that their children must be taught the reliability of those methods if they are to be prepared for their lives.”

--Religious conservatives tend to believe that in the (very few) areas where faith challenges science, they must side with faith; the case in point being “intelligent design theory”.

--Conservatives have every right to their own beliefs (ID), but they do not have toe right to “impose that faith on others, including children, most of whom attend public schools.”

--Recently [in 2006] a small number of religious scientists have claimed that there are scientific grounds for rejecting the main tenets of Darwinism, in favor of the hypothesis that an “intelligent designer” is responsible for creating life and human beings.  ID theory gained widespread attention.

--Conservatives across the country (including President Bush) began claiming that “both sides should be taught” in high school science classes.  [“teach the controversy”]

--If there were any scientific evidence against evolution, then it should be taught; but there isn’t.  ID theory has never been articulated in any peer-reviewed scientific journals.

--Let’s distinguish three claims:

                (a) Scientists have not yet shown how every feature of life is explained by Dawinian evolution.

                (b) There is good scientific evidence that some features of life cannot be explained by Darwinism.

                (c) This evidence suggest that an intelligent designer created life.

--(a) is correct and unsurprising

--(b) is flatly false.  “It does not follow from the fact that evolutionary scientists have not yet found or agreed on a solution to some puzzle that their methods have been shown to be defective, any more than it follows from historical controversies or unproved mathematical conjectures that the methods of historians or mathematicians must be abandoned.”

--(c) would be false, even if (b) is true.

--When ID theorists try to jump from (b) to (c) it shows the fundamentally do not understand science.  “If the failure to find a natural physical or biological explanation of some physical or biological phenomenon were taken to be evidence of intervention by a god who intended to bring about that phenomenon, science would disappear.”  And also “Science depends on the possibility of verification or falsification through positive evidence. There might conceivably be evidence that a superhuman power exists and has caused an otherwise inexplicable event. But the mere absence of a more conventional scientific explanation is in itself no such evidence.”

--The state has a  responsibility to present an account of science that is true.  [look at the paragraph “I am not denying…”]

--The only truth of the claim that “the controversy should be taught” is that  there should be a course in Contemporary Politics.  Such a course would take on the most controversial of public issues without being (a) banal and “anodyne” or (b) “indoctrinating”.

“I do not mean civics lessons in which students are taught the structure of our government or history courses in which America's story is recounted. I mean courses that take up issues that are among the most contentious political controversies of the day, including, for example, the case for and against abortion; affirmative action in public education; the role of money in politics; the fairness of the tax system; and the role of civil liberties in shaping and limiting antiterrorist activities. The dominant pedagogical aim must be to instill some sense of the complexity of these issues, some understanding of positions different from those the students are likely to find at home or among friends, and some idea of what a conscientious and respectful argument over these issues might be like. The dominant pedagogical strategy should be an attempt to locate these controversies in different interpretations of principles the students might be expected themselves to accept: for example, the principles of human dignity that I believe are embodied in the Constitution and are now common ground in America.”

--Dworkin warns that though these courses (texts, how to teach them, etc) are bound to be controversial, they need to be taught, and teaching them with a bunch of truisms is as dangerous as indoctrination.


[5] Should public schools retain the practice of having students say the pledge of allegiance?

--The supreme court ruled that students cannot be forced to say the pledge.

--The phrase “one nation under God” was added in 1954, in part b/c of the lobbying efforts of the Knights of Columbus [a Catholic Fraternal organization].  [Recall that this was a time when the US was trying to distance itself from communism.]

--The pledge is a violation of liberty.  Staying silent while everyone else says the pledge makes the person feel like an outsider.  “No requirement of justice demands an official pledge that makes some full citizens feel like outsiders.”

--However, the violation of liberty is very small.  It is comparable to an atheist using a quarter that says “in god we trust.”

--Dworkin drawls a parallel to the debate over public religious symbols.  “there is precious little endorsement of religion in these public displays and nonbelievers can comfortably enjoy their secular significance with no more sense of inauthenticity than they feel when they spend a quarter”


[6] Should gay marriage be legal?

--There are many material benefits conferred through the institution of marriage including favorable tax rates, insurance, inheritance status, workman’s comp, medical decisions, etc.

--The prohibition of same-sex marriage “is a cause of substantial economic and other deprivation.”

--Some who reject same-sex marriage believe in a civil union alternative (ex. Vermont, California, Connecticut).  This step “reduces the discrimination but falls short of eliminating it.”

-- The institution of marriage is unique; “it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning.” Also “The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed”

--We know that same-sex couples love each other with the same intensity and commitment as heterosexuals.

--The only real argument against same-sex marriage is the idea that the institution is rich and historical, and it has always been defined as a union b/w man and woman.

--The main issue is who should control the cultural institutions?  (analogy: aesthetic and moral culture)

--We can simplify two different sources of culture: (a) bottom-up, through the decisions of individuals (b) top down through the state.  ----Opponents of gay marriage endorse (b), arguing that “a majority of citizens has the right, acting through the normal political process, to shape the religious and spiritual character of our shared culture by law”

--Proponents endorse (a)

--Which best matches the shared ideal of “human dignity”?

--“ Those principles assign each of us a responsibility to assess and choose ethical values for himself rather than to yield to the coercive choices of others. Our culture of course influences our choice of values; our personalities are in that way all partly constructed out of the millions of choices that others have made for themselves. Their choices determine in large part the books we read, the images we see, and the expectations that shape what we instinctively do. Dignity does not forbid this inevitable influence.”

--“ Dignity therefore forbids me to accept any manipulation of my culture that is both collective and deliberate—that deploys the collective power and treasure of the community as a whole and that aims to affect the personal choices and values of its members. That is subordination. I must reject manipulation even if the values it is designed to protect or instill are my own values. My dignity is as much outraged by coercion intended to freeze my values as to change them.”

--Test: replace “religion” for “marriage” in the argument and we see that the best argument is for allowing the citizens to make free choices and to shape the institutional meaning of the practice through choice.  [The caveat being, of course, that the free choice cannot be coercive, and the choice to marry a same-sex partner has no claim to being coercive.]