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February 18, 2013

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Matt

(I'm not sure if Shiffrin's post is actually meant to be re-posted here, or just linked, but since there were not comments enabled where I saw it, I'll comment here.)

1) I'd not really want to say that Dworkin was working "in the Kantian tradition" unless that was understood _very_ broadly. To lump everything that isn't utilitarian into a "Kantian" tradition seems more likely to obscure than enlighten to me, and while there are arguably similarities between Kant's views and Dworkin's, at least on some views of Kant, there are enough differences that I'd think this isn't an extremely helpful comparison. (On some important interpretations of Kant, such as Allen Wood's, which reject the "constructivist" reading of Kant, I think there are even fewer similarities.)

2) Shiffrin says, "the defensive reaction I received even from ordinarily gentle folk who fiercely resisted my psychological speculation showed me I was on to something." I can't say anything about the particular case, but in general I think this is not a good inference- it's at least as likely, perhaps more likely than not, I'd think, to not be truth-apt. That you really annoyed some people is, in general, no evidence at all of the plausibility of one's views, and thinking that it is, is more likely to lead to error than truth, I'd guess.

Patrick S. O'Donnell

Matt, The comments are enabled for Steve's post but do close after a couple of weeks as our way to avoid dealing with spam.

As to your comments here, I gather Steve was indeed speaking “very broadly,” hence the reference to Dworkin’s commitment to recognizing the “the importance of equality, dignity, and autonomy,” as well as the corresponding lifelong academic and public “champion[ing] [of] all three in eloquent and thoughtful ways.” Steve wasn’t concerned to highlight the obvious differences with utilitarianism but merely to note the manner in which this Kantian influence appears to help account for the penchant for a deductivist-oriented “grand theory” versus the class of other possible alternatives: I’m not sure where you found reason to infer that meant a narrowing of that class to utilitarianism, and a lumping of the available alternatives to that, in turn, into a Kantian tradition (Steve’s religious background clearly permits him a knowledge and inclination toward virtue ethics, but especially religiously grounded virtue ethics). Broadly speaking, is there another moral or ethical tradition you think Dworkin is better identified with? In other words, it was merely noting the apparent enormous influence of Kant’s ideas (or specific cluster thereof) or a “Kantian tradition” on Dworkin, not attempting to articulate the possible philosophical nuances or niceties of Kant, either on the latter’s own terms or in the hermeneutic workshops of others. In fact, Steve appears to have an (a temperamental) aversion to (ambitious) systematic moral philosophy of any kind as carried out in most quarters of contemporary professional philosophy (of course there are a few who go against the grain in this regard without succumbing to strong forms of moral scepticism), hence the reference to what he sees as “grand theory’s” failure to accommodate or adequately “appreciate[] the romance and mystery of moral life” (which I suppose sounds a bit ‘Nietzschean’ or, not surprisingly, loosely spiritual).

The second comment is a bit disingenuous: after proclaiming “you cannot say anything about this particular case,” you proceed to generalize about the inference. Why? If your generalization can’t speak to Steve’s case, what’s the point? And if it’s a generalization, it admits of exceptions, so Steve’s case is possibly an exception to your generalization.

I’ve taken the trouble to reply for Steve because it strikes me that your comments are far from the intimate and reflective spirit in which Steve was attempting to remember and honor Dworkin’s life and work and rather seem (I’m happy to be wrong on this score) more along the lines of demonstrating your superior philosophical chops (vis-à-vis Steve at least), which is not surprising given your formal training in philosophy, which Steve, like yours truly, lacks (although I dare say Steve is well read and conversant in certain areas of contemporary philosophy). But by all means please post your comment at RLL so Steve himself can speak for himself. Best wishes, Patrick

Patrick S. O'Donnell

Sorry for the "himself" redundancy in the last sentence (please excise the first occurrence).

Steven Shiffrin

Thanks to Patrick for his thoughtful and kind comments. I would only add that the essay by Dworkin that drew me to political theory referred to his brand of liberalism as being in the Kantian tradition.
The post appears on religiousleftlaw.com and on mirror of justice in a slightly fuller version. The comments are open on rll, but not on Mirror of Justice. In the latter case, I just forgot to check the comments box and then typepad would not let me edit to open them (or to edit on RLL which I also wanted to do. I will see if the edit function is working this morning.
Steve

Matt

Patrick,
I'd seen the post on Mirror of Justice, where comments were not open. I'd disagree that my second comment "is a bit disingenuous". What I'd meant was that I don't know anything about the particular audience in that case- maybe their response was an indication that Shiffrin was "on to something". It's not impossible. But, I think that in general this is a bad inference, and should be avoided. It is, I think, unlikely to be truth-preserving one one where people are very likely to go astray. That's consistent with noting that it might well have been right in this case, so I don't see how it's plausibly "disingenuous."

As for the question of Kant, I find it unhelpful to make such broad generalizations. Lots of views that are not Kantian at all recognize "the importance of equality, dignity, and autonomy", after all, and Dworkin only very rarely cites Kant. His view is a quite odd and distinctive one in many ways, and I don't think that much light is thrown on it by calling it "Kantian". (In some of his very few references to Kant in _Taking Rights Seriously_ he tends to contrast his view to Kants, presenting his own view as "rights based" with Kant's as "Duty based". I think that's largely right. What's distinctive about Dworkin's view is that he later developed a constructive account of rights, while most rights-based views (including, perhaps, Dworkin's early views) are intuitionistic. To people work in these areas, these are important differences.)

Patrick S. O'Donnell

Matt, I shouldn't belabor the point, and I won't get into a substantive or extended discussion of Kant and Dworkin, nor one about how or why or to what extent "[l]ots of views that are not Kantian at all recognize 'the importance of equality, dignity, and autonomy'" (except to note that while such views may not, strictly speaking, want to be identified as 'Kantian,' it's hard to imagine any philosophically significant reflections along these lines not deeply beholden to much of what Kant had to say about such things), so suffice to say that I think the generalizations Steve chose to make were perfectly appropriate in the context of the kind of memorial blog post he was writing (and keep in mind that his imaginary reader is not necessarily a philosopher, or philosopher of law for that matter). Again, and to close from my end, what ethical tradition would you place Dworkin in or near? Is he so original as to stand utterly apart from any one of the current ethical traditions (Kantian, consequentialist, virtue ethics, care ethics, etc.)?

Matt

"Again, and to close from my end, what ethical tradition would you place Dworkin in or near? Is he so original as to stand utterly apart from any one of the current ethical traditions (Kantian, consequentialist, virtue ethics, care ethics, etc.)?"

No- his view isn't "utterly apart" from other traditions (though it is an unusual mix)- it's in the "rights" tradition, which has a lot of different versions (Francis Kamm and Judith Jarvis Thomson are good examples of current proponents), but is often tied to "rational intuitionism". From Kant's view, this is a form a heteronomy, and a view he rejects. What makes Dworkin unusual, as I've noted, is his mixture of a rights view w/ a constructive account of rights. That is an odd mix, and an interesting one. But it's not a Kantian view, unless you've taken such a wide reading of "Kantian" so that essentially all non-consequentialist views count. I don't think that's helpful.

Steven Shiffrin

Matt
I get that for you the differences between Kant and Dworkin are important enough to take Dworkin out of the Kantian circle. Nonetheless, many find similarities between Kant, Dworkin, Rawls, and for that matter Habermas (despite their important differences)and focusing on those similarities is important for our purposes even if it is "unhelpful" for your purposes. I agree it would be interesting to know in which tradition you place Dworkin and whether your taxonomy of traditions is conventional. If it is unconventional, it might suggest that your criticism of placing Dworkin in the Kantian tradition (as he himself did) is idiosyncratic.

Matt

Steven,

I'd discusses the question of which "tradition" I'd put Dworkin in above- the "rights" tradition, which might be seen as including Pufendorf, Grotious, Locke, Nozick, Francis Kamm, Judith Jarvis Thomson, and others. Importantly, Dworkin himself places his views in this group, and rejects the Kantian approach. (He, wrongly, wanted to Put Rawls in this group, too, though Rawls himself points out why its wrong in a long foot-note in "Justice as Fairness: Political, not Metaphysical". The differences between Rawls and Dworkin get stronger the closer Rawls comes to political liberalism, but extend to the start.) This group of people all have importantly different views on rights, but all of them take rights as "fundamental" in some sense. But this is incompatible with Kantian views- taking rights as fundamental in this way is, as I'd noted, a form of heteronomy in Kant's view, and that really goes to the heart of what's distinctive about a Kantian view. If you reject that, there there's no particular point in calling a view "Kantian". It might as well be "Lockean" or "Grotian". But this is rejected by Dworkin, so his view can't be Kantian in anything but a shallow sense. Now, Dworkin's view is obviously liberal, and part of a family of liberal views. In this sense it has lots of over-lap with liberal Kantian views. But so do liberal utilitarian views and others, so this can't make Dworkin's view a Kantian one, either. In the end, this is probably not so important, at least for lawyers. But, my feeling is, if one's going to make use of this stuff, one might as well get it right, and I think that, for the reasons I give here (again, reasons Dworkin himself notes) it's not right to call him a Kantian.

Patrick S. O'Donnell

Hmmm, I could not keep myself from replying to the claim that Dworkin’s “view can’t be Kantian in anything but a shallow sense.” I’m sorry Matt, but that is simply and patently wrong. In what was his last book (leaving aside anything posthumously published), Justice for Hedgehogs (2011), Dworkin relies on what he terms “Kant’s principle,” namely, that “[a] person can achieve the dignity and self-respect that are indispensable to a successful life if he shows respect for humanity itself in all its forms.” This explicitly Kantian “template for a unification of ethics and morality” forms “the anthem” of two of five “parts” (pp. 191-324)—in other words, a substantive section—of Dworkin’s book. One cannot read with care Dworkin’s book, particularly the two aforementioned parts, without concluding that, in a very profound way, Dworkin was at heart a “Kantian” of sorts, however much he be placed, say, in the natural law tradition that Grotius gave new life and direction (insofar as it shorn of theological premises). And it is this Kantian dignity that, for Dworkin, grounds fundamental human rights: “How could we identify, in demarcating human rights, a more fundamental level of support than what people’s dignity requires?” (p. 335).

Matt

Patrick,
My reply would be that Dworkin himself doesn't understand Kant all that well, and that he was closer to right when, in his earlier work, he saw his view as in contrast to Kant's. Furthermore, the more you look at Dworkin's work as a whole, the more obvious this is- even if his last work moves closer to Kant (though I still think it's largely superficial) the vast body of it, including his most important works, are far from it.

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