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Law from the Inside Out

Anti-realism in moral theory is premised on a more general theory of truth we might call “scientism.” This holds that the methods of the physical sciences provide the gold standard for any investigation, that only when these methods are available is it proper to speak of truth. According to scientism, once we see that moral argument is not amenable to scientific methods, we must abandon the idea that there is truth in morality. We must find some other account of moral discourse—that it is only nonsense or only emotional goading, for example. I rejected scientism, but I therefore needed another more general account of the idea of truth that showed scientific methods to be appropriate for the pursuit of truth in science but other methods to be appropriate to that pursuit in other intellectual departments.

This required a very abstract theory of truth. I present one in Justice for Hedgehogs. Following a particular understanding of the philosophy of Charles Sanders Peirce, I suggest defining truth, in the abstract, as success in inquiry, leaving further definition of truth as a substantive matter within different intellectual departments and so producing more distinct and tailored accounts of truth there. This merger of theories of truth with substantive theories that are different in different areas makes the world of truth safe for value.

However, even if I am right in all this, it establishes only that there is truth in morality and politics and therefore in law. It remains to ask what truth there is. What is a life well-lived? What duties do we owe as individuals to other individuals? What duties do we collectively owe to others in politics? What is justice? Liberty? Equality? Democracy? Yes, it is crucial to establish that there are, in principle, better and worse answers to these questions, and therefore a best answer and therefore a true answer. But only if we go further and try to identify, so far as we can, what these right, true answers really are. I suggested that this could not be done piecemeal, taking one duty or one political virtue at a time. We had to try to answer the great moral and political questions all together, the way we solve a complex series of simultaneous equations in mathematics.

I therefore proposed two fundamental principles that I believe can provide the most coherent and attractive answers to all these questions. First, that it is objectively important—important from everyone’s point of view—that each human life succeeds rather than fails: that people live well. Second, that each person has a fundamental, inalienable responsibility to take charge of his or her own life: that it is finally up to that person to decide what living well would mean and to pursue that life.

These may strike you as elitist and in any case, for most people, unrealizable demands. But in Justice for Hedgehogs I argued, to the contrary, that people in radically different economic and cultural situations can recognize that their lives are important and can recognize what their own responsibility to live well, in their own circumstances, means. I argued, relying on Immanuel Kant’s thesis that no one respects his own humanity who does not respect humanity in other people, that we can define what we owe to other people as part of what we owe to ourselves. The key is the idea of dignity: it belongs to our own dignity to respect the dignity of other people.

I could not, however, defend this account of personal and moral responsibility without recognizing the persistent and deep challenge to any theory of responsibility: the argument that people cannot be responsible because, in a deterministic universe, people have no free will, cannot actually make choices, and so cannot be responsible for choice. The so-called “free will” problem has been a threat to human responsibility for many centuries. I argued that it has been misunderstood: that the claim that we lack responsibility because we lack free will must be understood as an ethical and not a physical or metaphysical thesis, and that once the challenge is understood that way, the better answer is that people are morally responsible after all.1

That brings us to politics, and to the great political virtues. The concepts of justice, liberty, equality, and democracy are, like the concept of law, interpretive concepts. We argue about the right way to understand these concepts by arguing about how they should be understood given the crucial role they play in political discourse. I propose, again, that we should understand them as reflecting the two principles of dignity that I have argued are fundamental in private morality: these two principles form the spine of public political morality as well. And again we need to define them together so that they offer mutual support, not conflict. We achieve true economic equality, for example, not when everyone has the same wealth, no matter what decisions he has made in the course of his life, but when what one has depends only on those decisions, and not on good or bad luck in health, accident, or inheritance.

That idea of equality ties together the moral ideal of personal responsibility and the political ideals of distributive justice. But how can equality so understood be achieved in a real political economy when good and bad luck are facts of life? I proposed what I believe to be an economically sophisticated theory of taxation by way of answer: a redistributive tax system should be modeled on a hypothetical insurance scheme. The fortunate should pay, by way of taxes, what that model suggests they would have paid, by way of premiums, in an actual insurance market; the unfortunate should receive, by way of social benefits, what they would have been entitled to receive in that insurance market.2

I recognize that this account of the philosophical basis of economic equality is much too condensed. I have explained it at much greater length elsewhere, particularly in my book Sovereign Virtue (2000). My point, yet again, is only to suggest the interconnectedness among concrete legal issues, questions of personal ethics and morality, broad political issues of social policy, and the most abstract, rarefied philosophical and metaphysical puzzles. They can’t be separated, and my own career has been driven by their deep integration.

  1. 1

    For the author’s discussion of free will, see Chapter 10 of Justice for Hedgehogs (Belknap Press/Harvard University Press, 2011). 

  2. 2

    The insurance scheme is discussed in Chapter 2 of Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2000). 

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