2.2. Why Values Matter
Values form the underlying denominator of interpretative concepts. Consequently, if we want to interpret concepts correctly, we have to deal with the analysis of the underlying values we attach to these concepts (Dworkin 2011, pp. 48, 49
). For this purpose, let us consider the terms “morality” and “ethics”. A moral judgement is about asking how one’s life should be lived, while an ethical judgement asks how others should be treated. An action, however, presupposes both ethical and moral standpoints, since actions should be guided not only by one’s own standards but also in relation to the consequences for others. A good conduct of life does not only take into account one’s own life, but always also the just treatment towards other fellow human beings. What is considered a good way of life therefore depends on value judgements that can explain why one way of life is considered good and another is not (Dworkin 2011, pp. 18, 19
). According to Dworkin, there is therefore always a moral background truth that demands this value truth, and which corresponds to the so-called “ordinary view” of moral judgements, which sets up the premise that there are morally right and morally wrong judgements (Dworkin 2011, pp. 26, 27
). Here, he ties in with Hume’s principle that scientific facts must be tied to value judgements (Dworkin 2011, p. 44
). Dworkin describes the concept as follows: “This holds that no series of propositions about how the world is, as a matter of scientific or metaphysical fact, can provide a successful case on its own—without some value judgement hidden in the interstices—for any conclusion about what ought to be the case” (Dworkin 2011, p. 44
). Whether a judgement is morally right or wrong depends on a morally justified argument, and two different scepticisms are encountered—an external and an internal one (Dworkin 2011, pp. 26, 30
Internal scepticism, in Dworkin’s view, is a moral position that cites a rationale based on morality, but nevertheless rejects morality on the basis of a false rationale. For example, internal sceptics claim that everything moral comes from God; however, if there were no God, the moral position would not be accessible to humans either. Dworkin calls this form “global internal scepticism”. In particular, it binds moral value judgements to presuppositions in the sense of an if–then argument. It differs from external scepticism in that the latter argues from an “Archimedean” standpoint and does not rely on morality to any extent, but seeks the truth independently of moral assumptions (Dworkin 2011, pp. 30–32
). Internal skepticism does not threaten the objectivity of value because it stems from value itself; for this reason, it is internal to value and, to that extent, expresses a coherent hypothetical moral view. It merely rejects certain moral beliefs (Dworkin 2011, pp. 33–35
). Whereas external skepticism, on the other hand, fundamentally doubts the truthfulness of normative statements. Thus, while internal scepticism seeks truth about moral judgements even about a morality, external scepticism resorts to scientific or metaphysical justifications (Dworkin 2011, pp. 30–32
Dworkin rejects scientific or metaphysical reasoning in the context of moral truths, which is why his main criticism is on the external skepticism. According to him, a moral judgement must link to morality itself. In other words, a moral argument must hold even if no one else would agree that it is true. Moral value judgements are thus to be sought in morality itself. Objective value judgements are those that can constitute an objective truth independent of our personal experience, opinion or assumption of a reality (Dworkin 2011, pp. 37–39
). This independence is correlated to truth itself and “[…] plays an important role in the more general thesis of this book [Justice for Hedgehogs
]: that the various concepts and departments of value are interconnected and mutually supportive” (Dworkin 2011, p. 10
Objectivity can be stated as follows: “Nothing could impeach our judgment that cruelty is wrong except a good moral argument that cruelty is not after all wrong” (Dworkin 2013a, p. 12
). Whether an argument could be used that would justify acts of violence, Dworkin does not elaborate at this point. However, it is difficult to imagine that he would use one, since the prohibition of torture is one of the few mandatory provisions of international law, i.e. a prohibition that no state may disregard under any circumstances and acts of violence therefore would speak fundamentally against his theory of equal respect and dignity.
There is only one truth condition when a judgement can be called true, and only one form that allows a value judgement to be understood as true or untrue (Dworkin 2011, pp. 38, 39
). This is a form of interpretation based on critical and moral responsibility. Consequently, the objectivity of an argument depends first on its general rational conclusiveness and on the most convincing moral justification (Dworkin 2011, p. 28
2.3. The Underlying Method: Interpretation
Dworkin argues for an objective truth, a truth that, however, has to be worked out through interpretation and thus argumentation of values.
That there is an objective truth seems strange at first, because it is precisely this that causes much disagreement. Following Dworkin’s argumentation, however, it would be more absurd if a judge, after imposing a prison sentence on someone, were to add that this was only her opinion and that there were nevertheless other opinions that were also correct. Such an attitude corresponds to the so-called “no-right answer”, a view which is itself an interpretation and therefore cannot be independent of moral truth. The right interpretation must claim truth for its own interpretation (Dworkin 2011, pp. 90–92, 94, 95
At the same time, Dworkin argues that his proposed interpretive approach does not yet constitute an absolute guarantee of truth: “But when we find our arguments adequate, after that kind of comprehensive reflection, we have earned the right to live by them. What stops us, then, from claiming that we are certain they are true? Only our sense, confirmed by wide experience, that better interpretive arguments may be found” (Dworkin 2011, p. 39
Dworkin thus describes a process of thinking and understanding that is to be developed through intensive and committed argumentation as the task of philosophy. Truth must be constantly worked out and guaranteed by its representatives. Accordingly, truth cannot be fixed or prescribed. Rather, the search for truth is and remains a constant process, which includes questioning, understanding as well as making mistakes. We can only attribute a truth value to propositions when they have been worked out in a responsible way. However, as a consequence of the foregoing, they must continue to be argued for consciously.
How can such a demanded responsibility be achieved? According to Dworkin, the underlying method is his interpretative model. In forming a moral judgement, one has to ask which arguments speak for and which against a certain view in the sense of a two-step principle. Dworkin describes this principle as follows and addresses the reader personally:
“You need an internally sceptical argument in two parts: positive claims about what would have to be true for our lives to have meaning, and then a negative case explaining why these conditions are not or cannot be met” (Dworkin 2011, p. 209
With this procedure, according to Dworkin, we are urged to justify all considerations morally and thus to decide only for the one “right” judgement, as the judge mentioned before also has to do, because in the end it is not “her” judgement, but that of the legal system, which she had to put in relation to the concrete case to be judged. If this were not the case, we would be making a false and, in that sense, immoral judgement, which could be traced back to an error of external or internal scepticism and which, in that sense, would constitute a self-deception, insofar as recourse would be had to the judgements of others and thus no independent and consistent moral justification would be given (Dworkin 2011, pp. 100–102
However, a moral judgement can only be recognised as correct if the result is also “convincing” (Dworkin 2011, pp. 100–2, 120, 121
) after an intensive and responsible approach. In this way, Dworkin connects the factor of emotionality with the assessment of a correct judgement. This pre-understanding is based on Dworkin’s preoccupation with the concept of belief. Faith, according to Dworkin, is the underlying denominator between theology, natural science and mathematics, but also that of values, even if faith can always be understood differently in terms of content. In the case of theology, there is belief in a supernatural power in the form of a god. Natural scientists and mathematicians, on the other hand, believe in the “irrefutability” of a final mathematical or scientific observation. In the case of values, belief refers to a judgement being “felt” as “good” or “bad” and this feeling is in turn based on some form of emotionality. All of these areas refer to a rationale as to why this is so, according to their own “sui generis” method (Dworkin 2013a, pp. 12–14
The essential difference between these disciplines, according to Dworkin, is once again that in the fields of natural science and mathematics there is a fundamental agreement on the criteria according to which physical laws or mathematical formulae can be calculated, whereas this kind of agreement precisely does not exist in the fields of ethics, morality and theology. Rather, it can only be observed that there is disagreement about what, for example, is to be considered just or unjust (Dworkin 2013a, p. 13
According to Dworkin, however, this disagreement is irrelevant because it is precisely not the unanimity of values that matters. First, there is an objective truth regarding morally right and wrong values, but it needs to be worked out. Secondly, such disagreement has existed for as long as humans have been communicating with each other and, as a result, cannot pose an existential threat to human coexistence (Dworkin 2013a, pp. 13, 14
). Dworkin thus positions himself against consensus theory, according to which the view is that an adequate criterion of truth is consensus (Hartmann 2020, p. 129
Rather, Dworkin can be assigned to the so-called construction theory, according to which true judgements can be founded step by step, like a construct (Scyrwinska 2015, p. 166
). The constructive model is based on the opposite assumption, according to which moral principles do not exist independently of human beings, but must first be created by human beings, like a sculptor who only creates a construct through his own work. The constructive model is not built on an objective truth, in the sense of an externalist moral reasoning considered possible, but is subject to the assumption that human beings, because they are human beings, are assigned “responsibility” for their communal and their own lives, and that they also form a correct judgement in a concrete case (Dworkin 2013b, pp. 195, 196
). Therefore, Dworkin is not concerned with creating a truth independent of human capacity—because this is not possible at all—but with being able to generate truth universally and rationally independently of the individual capacities of subjects (Scyrwinska 2015, p. 166
). The partially accessible subjective knowledge must be taken into account, but also checked, in order to objectify truth step by step. The situation is different with the so-called “natural model”, according to which truth is merely recognised by people. This means that similar to the laws of physics, which are already given independently of humans, an objective reality exists (Dworkin 2013b, p. 196
The essential difference between the natural and the constructive model is, thus, the attribution of responsibility, which shows why Dworkin argues for the constructive model. Adherents of the natural model follow an intuition that they “trust”, according to which there is always a system behind everything that brings the entire set of principles into harmony, without, however, being able to understand this management more precisely. In the natural model, intuition represents the driving force and attributes a fact-like value to it, similar to an astronomer who has some key data about the origin of our solar system based on observations but who cannot yet explain the solar system itself. He trusts, however, that there must be an explanation, provided his observations are correctly recorded, even if he himself does not yet know the solution. The constructive model, on the other hand, is based on principles and not on intuitions. Principles represent beliefs which, according to Dworkin, are “sincerely” held. In contrast to the natural model, these convictions are not to be evaluated in a fact-like manner, but are only revealed through committed argumentation (Dworkin 2013b, pp. 197–99
These processes can also be found in law. The judge who has to review a claim for damages which, for example, is based on the “right to privacy” but has not yet been recognised by any judge, is confronted with the challenge of how to decide in such a situation. According to Dworkin, the judge would first study precedents and work out what principles underlie the precedents. These precedents represent a form of intuition. Through the study of these cases, the underlying principles are to be ascertained, so that there is no mere reliance on making a correct judgement. Rather, the task consists precisely in examining one’s “own” intuition factually and argumentatively in order to create an objective standard. The principles derived represent a kind of guideline for this, in order to be able to form a better judgement in difficult cases. This involves the search for principles of a “more respectable kind”, which apply independently of traditional moral sentiments and which can correspond to general as well as case-related justice. These are principles of justice, fairness or equal respect (Dworkin 2013b, pp. 197, 198
). Something similar can also be found in Rawls. Rawls calls this procedure the “reflective equilibrium”, according to which the formation of judgement implies a constant recourse to original feelings and their examination; it is weighed back and forth until an equilibrium is reached, that is, until we can be satisfied with our judgement (Dworkin 2013b, pp. 190–92
Dworkin goes on to say that in principle, both models, i.e. the natural and the constructive model, can be used to form judgements. However, the natural model, in which intuitions play the main role, is not suitable for community theories, but is better suited for private points of view, because it has the problem of having to include all subjective feelings or to exclude those that are not shared by many. This creates a lack of understanding among different individuals, which makes the natural model rather self-hindering. The constructive model, on the other hand, is about setting a public standard by grounding intuition in normative principles (Dworkin 2013b, p. 199
). Dworkin consequently calls his process of judgemental reasoning “objective”, but it is clear that this objective truth must first be constructed by a subject.
Objectivity in Dworkin’s sense means that one cannot argue from a static procedure that only allows for general points of view, but that also takes into account subjective and controversial opinions that must first be weighed up and then clarified with general points of view. Only then, in a critical procedure, is it guaranteed to what extent the underlying intuitions can appear permissible. It requires an interplay of both and their constant questioning in order to come closer to the truth in the sense of gaining knowledge, as Senn also states. Senn accurately describes this supposed dilemma as “two worlds” colliding and emphasises the danger of one-sided objectification, according to which everyone sees only “their own world” as the only correct one. Senn argues that there is a need for correlation and that feelings and mind cannot function in isolation from each other and are always interrelated. It is precisely this correlation that determines the understanding of things and their relationships to each other (Senn 2017, p. 144
This is precisely because the responsibility of forming a correct judgement cannot be relinquished. What is required is a system of values that is structured in such a way that the substantive justifications of each individual concept can interlock and do not compete with each other. In this sense, the assumptions within the value system harmonise. Dworkin therefore calls his system “holistic” (Dworkin 2011, p. 193
What he describes can also be found in the interpretation of law, in which the aim is to produce the best understanding of the law itself, namely that which generally corresponds to the sense of justice. Dworkin states that the correct understanding of law has always been coupled with the “moral” view:
“We must therefore do our best, within the constraints of interpretation, to make our country’s fundamental law what our sense of justice would approve, not because we must sometimes compromise law with morality, but because that is exactly what the law, properly understood, itself requires” (Dworkin 2011, p. 415
Thus, constitutions are not only to be interpreted historically, it is much more relevant to interpret them in such a way as to produce the most just form of government. Moral principles form an integral part of law, according to Dworkin (Dworkin 2011, pp. 413–15
). Principles, such as the requirement of justice, fairness, respect for the person or some other moral dimension, are to be understood as basic normative principles of positivised law. In a legal system, there are not only codified rules, but also precisely these general (unwritten) principles. Although principles can also lead to either–or decisions similar to legal rules, they, unlike legal rules, must be weighed and weighted in their application on a case-by-case basis in the sense of both/and. Consequently, it is the duty of the practitioner of the law to have recourse to these principles, especially in those cases in which it is imperative to do so because the relevant legal norms are obviously contrary to the general sense of justice (Dworkin 2011, pp. 414, 415
Dworkin assigns law to political morality, according to which both legal norms and principles are always legally binding. What is essential in the assignment of law to politics is that law is no longer understood as something abstract and formal, but that the proximity of law to political and thus social affairs is thereby emphasised. He calls his understanding an “integrated theory of law” and describes this integration concisely: “Law is effectively integrated with morality: lawyers and judges are working political philosophers of a democratic state” (Dworkin 2011, p. 415
Law in the sense of “integrated legal theory” does not initially mean a complete disappearance of the opposing views of positivism and “interpretivism”. According to Dworkin, however, this fundamentally changes the mode of argumentation. Traditional jurisprudence always argued from the wrong perspective. Instead of determining the content of law from popular discourses, the opposite approach was taken. It was not the controversies of the people that were considered as a guide, but the essence or concept of law as an abstract concept (Dworkin 2011, pp. 406, 407
). With his proposed view of law as a component of political morality, however, the problem was no longer a “conceptual” one, but a “political” one. The practitioners of the law who proceed according to the two-system view, i.e., who understand law and morality as two independent systems, are always confronted with a balancing of interests, namely between the enforceability of the legislator’s views and the guarantee of correct or just solutions. Law in the sense of political morality, on the other hand, solves this alleged conflict of goals. By applying moral principles, the practitioner of law does not decide according to his own political convictions, but in the sense of the law itself (Dworkin 2011, pp. 409, 410
2.4. Responsibility on Interpretation
From what has been said before, the aim of Dworkin’s theory becomes apparent. It is to develop a value system of mutual support that justifies a certain attitude or interpretation that stands up to the judgement of justice. This justification is based on one’s sense of responsibility.
Responsibility in Dworkin’s sense means, first of all, to concern oneself intensively and conscientiously with a matter (Dworkin 2011, pp. 100–102
). This understanding of the term is a generalisation of Kant’s imperative, according to which we must make use of our own intellect; only then can we act rationally. The starting point is the striving for a successful, self-responsible way of life. It is about developing one’s own sense of self and acting accordingly (Dworkin 2011, p. 210
). According to Dworkin, every person has to make authentic decisions; only then do the true opportunity costs in a market become apparent. Dworkin understands authenticity as a way of life, “a way of being that you find suited to your situation, not one drawn mindlessly from convention or the expectations or demands of others” (Dworkin 2011, p. 210
Taking responsibility for one’s own actions means taking one’s own life seriously. Dworkin thus includes self-respect in his concept of human dignity. Self-respect requires that we have respect for ourselves, as well as respect for the lives of others. For it is only through self-respect and respect for others that life is accorded a relationship to person(ality) and, in general, that human beings are accorded dignity. Self-respect, however, means in particular having confidence in one’s own judgement and convictions, which should be independent of prejudices and attachments, so as not to experience any limitations in the process of forming judgements. Self-esteem and authenticity are thus correlated. Taken together, they form his conception of human dignity (Dworkin 2011, pp. 202–5
). Self-respect and authenticity thus form elements of a general legal claim, which would be to respect the life of every individual. After all, this is what a society is about; accepting people as equals and perceiving the moral obligation that follows from this to guarantee good living conditions for all.
At this point, the differentiation between the argumentation of external and internal scepticism becomes clear once again. While their positions are based either on metaphysical arguments, or at best only on the opinions and ideas of others, or, as in the case of external scepticism, on scientific methods of reasoning, Dworkin’s is about the moral method behind it. The holistic system given by Dworkin and the conceptions of internal and external scepticism presented differ, in my view, precisely in the attribution of responsibility. It can be argued that if it is assumed that value judgements are to be explained metaphysically, then there is a rejection of the attributed responsibility because it is obviously not within one’s capacity to intervene. If, however, it is reasoned that all judgements made by humans are based on value judgements already made by others, and these ultimately on the moral position we take, we remain responsible for this reasoning ourselves, and subsequently also for how we judge and think. This, after all, is what moral judgement is all about. The critique of morality thus always follows from morality itself.
Each person has the responsibility to independently comprehend and justify his or her personal value system, always taking into account respect for other forms of life. However, personal responsibility must not be used to anchor responsibilities for a dignified life solely in the individual. Value concepts are not individual and responsibility is not a subjective perception of the task of making morally correct judgements, because value concepts are collectively anchored on the one hand and because society must give every person the same opportunity to also be able to exercise their responsibility on the other. The moral justification of a judgement lives from discussion, from the exchange of opinions and the assumption that opposing opinions must be considered in order to find and represent the best position. However, the individual can only enter into discourse with others when the latter are also empowered to do so. This means that every person, because they have to live with dignity, must be guaranteed equal initial opportunities by the state, otherwise they will be cheated by society. This is precisely because no one can think and act on their own responsibility if they are not given a barrier-free choice for their decisions.
Responsibility is thus not an individual issue for Dworkin. Self-esteem and authenticity are not to be understood in such a way that I negotiate good living conditions only for myself; what is important is rather to create good living conditions for all in order to progress collectively. The state has to ensure good living conditions and is not only responsible for the functioning of the market, but always measures itself by the quality of the life of all. Dworkin thus aptly describes the necessary relationship between the self-responsible formation of opinion and the framework conditions needed for it (Cicero 2012
Dworkin’s demand is clear: a democratic understanding of the state does require a culture of argumentation (Dworkin 2006, pp. 4, 5
). Dworkin argues in the Aristotelian sense that such a culture must be instilled. However, this presupposes fair framework conditions. It is no coincidence that he sees restructuring in the education sector and in political elections as absolutely necessary in order to create and maintain such a culture in the long term (Dworkin 2006, pp. 147–54
). In the field of education, Dworkin considers it urgently necessary to introduce compulsory political subjects at the lower school level so that pupils can discuss socio–political processes in an argumentative manner (Dworkin 2006, pp. 147–49
). With regard to the American electoral system, Dworkin argues for a stricter handling of political advertising in order to reduce the prevailing imbalance between financially strong and financially weak parties and individuals. Dworkin also proposes a maximum term limit of 15 years for the Supreme Court to protect citizens from possible arbitrariness through the political instrumentalisation of judges (Dworkin 2006, pp. 150–44
; Ibric 2022, pp. 117–24