Dworkin’s Reply to the Sceptic Considered

How then does Dworkin attempt to meet the challenge of scepticism and subjectivism? It does not help him to note, as he does,³⁶ that people generally believe that the evaluations they make are ‘right’ and ‘true’ and not mere reports of feelings or of socially established standards or mere expressions or for that matter any of the other possible meanings of moral language that I considered in chapter three above.

However Dworkin has two further responses to scepticism and the assertion that even from within a well-established system of settled rules moral evaluation has an ineluctably subjective element. One is to borrow W.B. Gallie’s insight about “essentially contested concepts”³⁷ and attempt to use that insight to ward off the sceptic. The other is to draw an allegedly crucial distinction between ‘internal scepticism’ on the one hand and ‘external scepticism’ on the other.³⁸ I will consider the merits of the latter defence before assessing Dworkin’s reliance on Gallie.

According to Dworkin internal scepticism occurs “within the enterprise of interpretation”;³⁹ it involves “address[ing] the substance of the claims [being] challengefd].”⁴⁰ More precisely, Dworkin’s internal sceptic is the sceptic about content, the person who thinks (within a given set of standards, rules or written text) that no interpretation is better than any other because none is “about anything at all.”⁴¹ Dworkin is correct that “global”⁴² internal scepticism entails taking a position within the particular settled parameters and that the position taken is that there is no evidence or grounds for preferring one view over any other.

It is easier, perhaps, to think of Dworkin’s ‘global internal sceptic’ as a first-order sceptic about content. That is, as a nihilist. He puts forward the view that nothing has any value. But this lack of values is a contingent matter. There might have been preferable views or better values but from within this particular enterprise he says there are not (perhaps because he sees no evidence for it).

Dworkin does not condemn global internal scepticism. Quite the contrary, he readily concedes the coherence of this form of scepticism⁴⁴ although, at least as regards judicial interpretation in a well-developed legal system or moral evaluation generally, he does argue that it is implausible.⁴⁵ In fact, he goes so far as to say, to my mind incorrectly if not disingenuously, that “We do better for [the external sceptic], therefore, by seeing how far we can recast his arguments as arguments of internal scepticism.”⁴⁶ Yet that is a very strange remark when the viable threat to Dworkin’s interpretive theory comes from external scepticism.⁴⁷ Internal scepticism, the variety Dworkin does not eschew, certainly lacks any plausibility or persuasiveness as a global view. Virtually no one could disagree with Dworkin on that.⁴⁸

Therefore let us consider Dworkin’s case against external scepticism — “scepticism outside and about [the] enterprise [itself]”,⁴⁹ “a metaphysical,... second-level theory about the philosophical standing or classification of [aesthetic and moral] claims.”⁵⁰ In short, let us consider Dworkin’s case against the moral theory I have advanced in Part A of this book.

Dworkin begins by pointedly remarking that he does not intend to consider the merits of external scepticism as a moral theory save as it bears on belief in his ‘one right answer’ thesis.⁵¹ Unfortunately that remark immediately introduces two problems: one ambiguity and one false suggestion.

As for the second problem, the suggestion which I hope to establish as false is that external scepticism’s effect on the ‘one right answer’ thesis can somehow be judged -without passing judgement on the merits of external scepticism itself.

I deal with the first problem and resolve the ambiguity by, as explained above, ignoring the issue of people’s belief in objectivity. Indeed I grant that widespread belief but repeat that Dworkin simply cannot rest his argument on it.⁵' There is no necessary connection between what most people believe to be the case and what is the case. Instead the question at issue is whether scepticism about the status of values affects the Dworkinian theory of interpretation. If I am right, and it does, it will also be true that Dworkin must then enter the debate between moral objectivism and moral scepticism. He cannot purport to remain neutral. He must enter the debate because, if I am right, moral scepticism wholly destroys the foundation on which his theory has been reared, right to the point of incoherence. Only a reliance on moral realism or objectivism can salvage his theory. And thus, despite Dworkin’s failure to take a position, the critic would be justified in attributing moral objectivism to him as the only way to salvage his theory, -whatever Dworkin himself may say.

Continuing then with Dworkin’s defence, he argues⁵³ that external scepticism collapses into internal scepticism and therefore that it has no effect on the ‘one right answer’ proposition. His argument is based on the relation between two evaluations: (A) ‘X thinks Y is wrong’ and (B) ‘Y is “objectively” wrong, whatever X thinks’.⁵⁴ Dworkin concedes that the further qualification in (B) does not, or should not be taken to, imply the possibility of empirical testing of moral claims.⁵⁵ In a seeming disavowal of moral objectivism, of “bizarre metaphysical basefs]”⁵⁶ for moral claims, Dworkin argues⁵⁷ that the adverb in (B) either i) emphasises that the content is moral and not one of taste or ii) indicates an impersonal, universal scope of coverage or both. And it is only in this clarifying way, says Dworkin,⁵⁸ that (B) differs from (A). In effect, to deny (B), according to Dworkin, necessarily entails a statement about content and so external scepticism collapses into internal scepticism.⁵⁹ “I cannot intelligibly hold the first opinion as a moral opinion without also holding the second.”⁶⁰ Or put another way, Dworkin’s view is that the external sceptic has to be a first-order nihilist who is neutral on all questions of content.

The only difficulty for Dworkin is that this argument is deeply flawed. Taking a position on the status of values (or aesthetics) is independent of taking a position on the best content of values provided one rejects moral objectivism. Unless evaluation involves discovery, and not creation, one is completely free to recognise:

(A) ‘X thinks Y is wrong’

and (B]) ‘Y is not “objectively” wrong’

but also (A,) ‘X does not think Y, or anything else, is “objectively” wrong’

And this is so even if the evaluator is himself X. X can hold (A) but also hold (AO. He can do this and remain consistent because he believes moral evaluation to involve the projection of feelings, preferences, passions and sentiments.

Though the whole [evaluative] enterprise... and its pretence of discovering [moral] facts... is mistaken, yet there are [moral] sentiments, and I myself have some... So there is a sense in which I agree with [a particular moral objectivist B] about first order [moral evaluations] though I disagree with him about their status. Also, it happens that there are other external sceptics... [who] agree with [a different moral objectivist A whose views are contrary to B’s] and others again with [the global internal sceptic C] in their first order judgements. But of course their view of what they are doing in making these first order judgements is different from the view of these that A, B and C... all share with one another.⁶²

If and only if second-order moral scepticism is itself rejected can Dworkin deny the logical independence of internal and external scepticism. In the absence of such a rejection it is just not true to say as Dworkin does of (A) and (B) that “we would not discriminate among them by supposing that only the latter [was a] mistake.”⁶³

My opinion, therefore, is that Dworkin’s reduction is not persuasive. The apparent persuasiveness derives from a reliance on the normal meaning of moral language and on constructing the argument in the first person so that the external vantage is, in effect, rejected in advance. The failure of this endeavour by Dworkin to elide external and internal scepticism has the consequence I earlier predicted: He must embrace moral objectivism in order to salvage his ‘one right answer’ thesis. He must do this despite his own pejorative references to “atmospheric moral quaverings”,⁶⁴ “noumenal metaphysical fact[s]”⁶⁵ and “bizarre metaphysical base[s]”.⁶⁶ He must do more than use the language of ‘discovery’;⁶⁷ he needs to go back to his foundations and argue why moral evaluation is itself some sort of discovering process.

Having made that point I can deal with Dworkin’s reliance on Gallie⁶⁸ summarily for the “essentially contested concept” idea will not help him.

Dworkin’s version or adaptation of Gallie’s analysis of the nature of certain types of disputes runs something as follows: As regards at least some apparently endless disputes, where universal or near universal agreement is lacking, the “controversy is not about the concept itself (here, the law or the specific legal conundrum in question) but, rather, about different conceptions of that concept."''¹ The fact of disagreement only indicates that there are a variety of competing conceptions of a concept, not that there are a variety of equally valid concepts nor again that one conception cannot be the best. So the variety of conceptions does not preclude the possibility that one of them is right and the others are wrong. Likewise, the fact that judges disagree cannot be taken to prove that there is not ‘one right answer’ to questions of judicial interpretation.

Without doubt Dworkin is correct to the extent he argues, albeit more elaborately and more turgidly, that the mere fact, without more, of a variety of competing views of right does not prove that there is not all the same just one single correct standard of right. That argument is nothing other than a claim that the ‘argument from relativity’,⁷⁰ on its own, cannot disprove objectivism. Dworkin’s claim to that extent is indubitably correct. It is quite obviously possible, logically and empirically, for a number of human beings to believe that X is the case, others that Y is the case, others again that Z is the case but that only one of the three possibilities really is the case. This happens, for example, when a group is watching a ball being hidden underneath three shells. The argument from relativity, from the existence of competing opinions, cannot disprove the possibility of single ‘true’ or ‘right’ choices. It is an inconclusive argument. That is why the moral sceptic cannot stop there but must make further arguments, must assert that moral disputes about value are not analogous to empirical disputes about fact, and even must acknowledge the normal meaning of moral language.⁷¹ But Dworkin seeks to turn the argument from relativity on its head — to argue from the premiss (i) that this argument from relativity is not conclusive, to the determination (ii) that the conclusion to which it points is necessarily false. This is ridiculous. In empirical questions the argument from relativity may well point to false conclusions while in questions of moral and aesthetic evaluation those conclusions may well be true⁷² (although to be persuasive further arguments will be needed). An inconclusive argument is just that, inconclusive. Its conclusions are certainly not ‘necessarily false’. They may be false in some instances and true in others. Hence some disputes may have a right answer (in which case, to continue with this terminology, there is a right conception) while others may not (in which case no view amounts to a right conception). So as I have argued above, Dworkin is again forced into entering the debate between moral sceptics and moral objectivists to explain why, when morally evaluating, the established moral standards (and more obviously those in flux) have been discovered and not created or evolved. He needs, to repeat myself yet again, to rebut the case for moral scepticism.

Therefore Gallie’s philosophical insight, even as formulated by Dworkin, only salvages the ‘one right answer’ thesis when supported by some form of moral objectivism or moral realism. Without that support there is no right answer to find by ‘improper’ or ‘proper’ means. (The notion that ‘right’ answers can be reached via ‘wrong’ reasons again pre-supposes that value disputes are analogous to empirical disputes.) One could also argue, although I do not intend to do so here more than perfunctorily, that the Galliean ‘essentially contested concept’ insight has been misunderstood or inappropriately adopted by Dworkin. My reading of Gallie is that ‘essentially contested concepts’ are those about which there will always be argument and no conclusive answer.⁷³ Moreover, with reservations, Gallie seems to me to accept “that fundamental differences of attitude, of a kind for which no logical justification can be given, must also lie back of [essentially contested disputes].”⁷⁴ And so an essential feature of some activities and concepts is that there will always be disagreement and no way to resolve that disagreement. Indeed recognition of this is of great value, according to Gallie, though it equally well destroys the hope that opponents can always ultimately be persuaded by argument.⁷⁵ In fact 1 read Gallie as contending that even morality is an essentially contested concept.⁷⁶

I do not see how Dworkin could accept Gallie’s position as I have just sketched it. But then Dworkin has made a different use of Gallie from the use I would make. No matter. What does matter is that even as Dworkin himself uses the ‘essentially contested concept’ it still requires the additional support of some form of moral objectivism.

I am now in a position to complete my comments on the coherence of Dworkin’s theory of interpretation with its ‘one right answer’ doctrine and its concomitant assertion of an absence of strong judicial discretion. None of Dworkin’s responses to or attempts to evade the sceptic is, in my view, successful. With a theory that places much reliance on moral evaluation, an outright reliance on some form of objectivism about ‘right’ and ‘wrong’ answers is required.

This remains the case even from within some system of ‘settled’ rules such as exist in a well-developed legal system. The sceptic need not deny that the settled positive enactments and judicial precedents can produce ‘right answers’ in certain circumstances (e.g. to the question of whether driving through a red light to get home in time for dinner is against the law).⁷⁷ Some answers are ‘revealed’ in the accepted standards because existing preferences or sentiments happen to be unanimous, or at least preponderant. However, Dworkin, who says there is always one best, right answer to questions of judicial interpretation, needs to go farther than this and to place reliance on an objectivist, realist moral philosophy for two reasons. Firstly, because his theory relies on moral principles and values⁷⁸ he needs to assert that they offer answers as certainly as settled laws. These moral answers have to be ‘right’, not simply the answers of the majority. However, as I have argued in Part A, this certainty is destroyed by moral scepticism. ‘Right’ moral answers presuppose moral objectivism.

Secondly, because moral standards and principles, as Dworkin himself admits, are not settled the way some rules are, a theory that includes morality within law also opens to dispute what is and is not part of the law. That dispute, whether certain principles are or are not to be included, can only have a right answer if moral objectivism be correct. I, for one, see no right answer to the question of what should be included. To paraphrase Mackie, Dworkin’s theory “positively invites partial scepticism”.⁷⁹

Dworkin’s failed efforts to evade, discount and dismiss the challenge posed by moral scepticism pertain to the very coherence of his theory, not merely its practicality.⁸⁰ The ‘one right answer’ thesis, and its related claim that judges lack strong discretion, is only coherent when complemented by some form of moral objectivism or moral realism. That additional support is needed to protect the “integrity”⁸¹ of moral evaluation. And so I say, given my own sceptical views, that Dworkin’s theory of interpretation is implausible and unacceptable and as such ought not to be recommended to judges.⁸²

c)