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Simons on Dworkin on Interpersonal Moral Duties

By Lawrence Solum

Kenneth W. Simons (Boston University - School of Law) has posted Dworkin's Two Principles of Dignity: An Unsatisfactory Nonconsequentialist Account of Interpersonal Moral Duties (Boston University Law Review, Vol. 90, 2010) on SSRN. Here is the abstract:

In his ambitious and wide-ranging new book, Justice for Hedgehogs, Ronald Dworkin offers an alternative to consequentialist theories of law, political morality, moral duties, and personal ethics. Respect for human dignity, he says, entails two requirements: self-respect, i.e., taking the objective importance of your own life seriously; and authenticity, i.e., accepting a personal responsibility for identifying what counts as success in your own life. For Dworkin, these two principles of dignity do triple duty. First, as a matter of personal ethics, they provide guidance about what we should do in order to live well. Second, they elucidate the rights that individuals have against their political community. And third, they account for the moral duties we owe to others.

The principles of dignity that Dworkin identifies might play a valuable role in these first two domains. But I question the value of his ?dignity framework? in the third domain, in explaining and grounding interpersonal moral duties. The framework sometimes fails to justify the nonconsequentialist positions that Dworkin wishes to endorse. Moreover, even when the framework does plausibly entail moral duties of a particular scope, that scope is often significantly weaker, or in some cases significantly stronger, than what we would expect from a nonconsequentialist theory.

I focus on three illustrations of these difficulties:

(1) The duty to rescue: Dworkin?s analysis justifies an unduly weak duty to rescue. Although Dworkin would enlarge that duty when the victim is identifiable or proximate, his argument for that enlargement is itself insufficient.

(2) The duty not to create an unreasonable risk of harm: Dworkin?s analysis of this duty encounters similar problems. By emphasizing the subjective importance of the actor?s personal projects, he does not adequately constrain the actor?s risky conduct, and he implausibly frames the question of permissible risk-imposition as a question of what liability rule will ?maximize the control? of actors and victims.

(3) The doctrine of double effect: In his analysis of this deontological doctrine, Dworkin invokes an anti-usurpation principle that protects autonomous decision-making. But this principle fails to explain and justify the distinction between intending harm as a means or an end, and knowingly causing harm as a side effect of what one intends.



To be sure, many of Dworkin?s arguments are plausible components of a nonconsequentialist account?for example, his emphasis on whether a liberty (or harm) implicates the personal plans or projects of the actor (or victim), and his attention to autonomy and subordination. However, some of the most difficult issues, especially the question of how to justify attention to consequences within a largely deontological or nonconsequentialist perspective, are more convincingly analyzed by other moral and legal philosophers.

Highly recommended.

Full post as published by Legal Theory Blog on May 10, 2010 (boomark / email).