Religion Without God
by ronald dworkin
harvard, 192 pages, $17.95

When he died last February, Ronald Dworkin had been a towering figure in legal philosophy for more than forty years. His most important work was Law’s Empire, in which he argued that in interpreting the law we are necessarily inquiring into what the law ought to be, with the correct interpretation being the one that makes the law best from a moral point of view.

His understanding was thus diametrically opposed to the positivist view that it is one thing to say what the law is, quite another to say what it should be. I thought ­Dworkin was mistaken about this. In my view, interpreting legal texts, whether the Dodd-Frank Act of 2010 or the United States Constitution of 1787, is no more a moral inquiry than interpreting the works of Plato or, for that matter, those of Hitler. But ­Dworkin’s influence in the philo­sophy of law was immense, and his arguments were always challenging. On particular legal issues he often provided some of the most sophisticated arguments for the invariably liberal positions he defended.

Religion Without God is Dworkin’s last book, and the text is based on his Einstein Lectures at the University of Bern in 2011. Dworkin fell ill before revising the lectures for publication, however, and this may account for the book’s extreme brevity: This is a tiny volume of less than thirty thousand words.

The theme of the book is that “religion is deeper than God,” a phrase probably designed to nettle theists, but the basic concept is familiar enough. Drawing on Rudolf Otto, William James, Paul Tillich, and others, Dworkin elaborates an understanding of religion that does not presuppose the existence of anything like a personal God. Rather, “religion is a deep, distinct, and comprehensive worldview: it holds that inherent, objective value permeates everything, that the universe and its creatures are awe-inspiring, that human life has purpose and the universe order.” A belief in God is only one way to be religious in this sense.

But this is not a mere stipulative definition of religion. Rather, ­Dworkin insists that religion is an “interpretative concept,” meaning that “people who use the concept do not agree about precisely what it means: when they use it, they are taking a stand about what it should mean.” In such cases, Dworkin thinks, the philosophical question is which interpretation of the concept is best or most revealing. Insisting that key concepts are interpretative (or “essentially contested,” the term used by W. B. Gallie, from whom Dworkin borrowed the notion) has long been a fundamental move in Dworkin’s writings.

Few other analytic philosophers think interpretative concepts are useful in philosophy, however, and with good reason. For one thing, at least in the way Dworkin handles interpretative concepts, the implication is that all understandings of a concept except the one determined to be best are somehow superseded or ­inferior, but in fact they are merely different.

For another, in arguing that one understanding of the concept is best, Dworkin generally conceals what is most relevant: the normative criteria or standards to which he is ­appealing in saying that one understanding is better than another. These background assumptions do most of the philosophical work, and the reader often has to guess at them by deconstructing the arguments that Dworkin makes in reliance upon them.

All this smuggling in of assumptions happens very clearly in Religion Without God. Religion, Dworkin says, is defined by two key beliefs: First, that “human life has objective meaning or importance,” such that “each person has an innate and inescapable responsibility to try to make his life a successful one,” and, second, that “the universe as a whole and in all its parts . . . is itself sublime: something of intrinsic value and wonder.” This sounds innocent enough, but since we are treating religion as an interpretative concept, this understanding of religion renders irrelevant the theistic aspects of the great monotheistic religions.

Dworkin discusses the belief that the natural universe has intrinsic value almost exclusively in connection with the idea that theories in physics can be regarded as beautiful. Much of his discussion is derivative of other authors and has little to do with the other arguments in the book. All the real action concerns the belief that human life is objectively valuable and that human beings have a moral obligation to live good lives.

In Dworkin’s hands, this inno­cuous thesis, to which almost everyone would assent, takes on a very peculiar cast. He insists without argument that “logic” requires a perfectly sharp fact–value dichotomy, such that all moral judgments are entirely independent of all factual ones, including any factual judgments about the existence, nature, or will of God.

This puts Dworkin in a very small minority among contemporary philosophers, most of whom no longer accept a sharp dichotomy between facts and values—see, for example, Hilary Putnam’s book The Collapse of the Fact/Value Dichotomy and Other Essays. The few remaining adherents of that dichotomy tend to be subjectivists or relativists, but ­Dworkin insists that moral judgments are entirely objective, thus putting himself in a small minority of a small minority.

As to the basis for such objective values—whatever it is about the world that makes value judgments true or false independent of human beliefs or wishes—Dworkin never explains. On the contrary, he insists that such questions are ruled out by the fact–value dichotomy and that our belief in the truth of moral judgments is “finally a matter of faith.” He attempts to make this position more palatable by asserting that natural science is similarly based on faith, but here the argument breaks down completely, with Dworkin relying on a garbled version of the Duhem–Quine thesis, misunderstanding it as meaning that experience provides no external check on scientific claims at all.

These unusual meta-ethical positions are familiar from Dworkin’s earlier works, and, given their general philosophical implausibility, it is tempting to try to bracket them and to consider his arguments about religion apart from them. That turns out to be impossible, however, because, having treated religion as an ­interpretative concept, Dworkin builds his dubious philosophical assumptions directly into the meaning of religion: “The religious attitude . . . insists on the full independence of value: the world of value is self-contained and ­self-certifying.”

In other words, the very concept of religion (properly interpreted) presupposes an extreme version of the fact–value dichotomy. Hence, although the traditional monotheistic religions such as Judaism and Christianity make various factual claims about the existence of God, his role in creating the universe, and his ­various interventions in human history, all such claims are irrelevant: “Logic requires a separation between the ­scientific [i.e., factual] and value parts of orthodox godly religion,” and “the value part does not depend—cannot depend—on any god’s existence or history.” Once “we accept this,” political disagreements related to religion tend to dissolve, and there will “no longer be culture wars.”

Want to guess what the terms of the peace treaty will be? Once theists realize that their beliefs about God are irrelevant for normative purposes, we will all agree on what religious freedom really requires: There will be no displays of the Ten Commandments on public property and no material legal restrictions on abortion, but the government may prohibit religious believers from acting in accordance with their consciences (if the government can articulate a reason for doing so other than mere moral disapproval), and the government will, of course, sanction same-sex marriages. For Dworkin, it seems, people are social conservatives merely because they have failed to grasp an elementary point about the difference between facts and values.

One additional feature of Dworkin’s treatment of religious freedom deserves special mention. Dworkin thinks that there is a fundamental right to “ethical independence,” meaning that “government must never restrict freedom just because it assumes that one way for people to live their lives—one idea about what lives are most worth living just in themselves—is intrinsically better than another.”

Dworkin finds this right enshrined in what Justice Scalia calls the “sweet-mystery-of-life passage” in Planned Parenthood v. Casey, which is just about the most damning thing I can say about it. But regardless of its merits, Dworkin’s insistence on the right to ethical independence undermines, even on his own terms, the entire argument of the book.

Dworkin introduced the notion of religion without God in order to expand the scope of religious freedom from religious theists to, as he puts it, “religious atheists.” But surely Dworkin would extend this right to people who are nonreligious even in his sense of religion—that is, people who deny the objectivity of morals. Not only Einstein and Rawls but also emotivists like C. L. Stevenson and prescriptivists like R. M. Hare enjoy the right as well. Hence, the notion of religion without God turns out to be irrelevant for legal purposes. Just as the law must protect the religious atheist along with the religious theist, so too must it protect the nonreligious atheist as well.

All this combines to make a highly problematic book. On the basis of the barest assertion about what logic requires, ­Dworkin insists on an extreme version of the fact–value distinction that has been largely demolished in the analytic philosophy of the last fifty years. He then reads this extreme dichotomy into the very concept of religion, in one fell swoop ruling mistaken any normative claim based on any form of religious eudaimonism, as in the Catholic tradition, or on any form of divine-command theory, as in the Protestant tradition.

Dworkin, whose commitment to the right of ethical independence was obviously sincere, thus argues for a concept of religion for use in law and public policy that excludes the foundational claims of the major religious traditions of Western civilization. The only saving grace is that, when he turns to the practical question of how the law should protect religious belief and practice, he surreptitiously jettisons this concept of religion, which ends up doing no intellectual work in his account of religious liberty.

Dworkin says at one point that, in getting clear about religion and the law, “a little philosophy might help.” Indeed it might. A less dogmatic philosophy might have helped a good deal more.

Robert T. Miller is professor of law and the F. Arnold Daum Fellow in Corporate Law at the University of Iowa College of Law.

Articles by Robert T. Miller

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