Academic journal article Boston University Law Review

"A Troublesome Right": The "Law" in Dworkin's Treatment of Law and Religion

Academic journal article Boston University Law Review

"A Troublesome Right": The "Law" in Dworkin's Treatment of Law and Religion

Article excerpt


Ronald Dworkin's final book, Religion Without God, is a gloriously compact treatment of a massive subject. Perhaps the massive subject. Its first sentence is, "The theme of this book is that religion is deeper than God."1 The last chapter is titled "Death and Immortality."2 This is, in short, a book about eternity and the human condition. These are not small subjects, and Dworkin deals with them grandly. It is an extraordinary last testament.

I have discussed Dworkin's treatment of these larger issues elsewhere.3 Other contributors here deal with them as well. My focus here is much more mundane. In one brief chapter, Dworkin descends from the empyrean, more or less, to examine the law of religious freedom.4 My goal here is to assess critically the accuracy and persuasiveness of that chapter.

Without rehashing an old debate or sharing too many cherished lines from that debate, one can acknowledge that Dworkin received many sharp criticisms for his jurisprudential approach in general and his treatment of individual cases and doctrines in particular. His modus operandi, wrote one of his more vocal critics, was to "argue[] baldly that constitutional law is and should be a department of applied moral philosophy."5 That approach was "too abstract for a case-based legal system" like ours.6 Beyond the philosophizing, there was "little texture to Dworkin's analysis of legal issues."7 His writings showed "little interest in the words of the Constitution, or in its structure . . . , or in any extended body of case law, let alone in the details of particular cases. His implicit legal universe consist[ed] of a handful of general principles embodied in a handful of exemplary, often rather bodiless, cases."8

All quite right, in my view. This is not to deny that he was one of the most eminent and important legal philosophers of his time. So he was, a point on which even his critics agree.9 I dare say that outside certain nonlegal circles, his views on constitutional legal issues grew less relevant to current debates.10 That is eventually true for all of us, if we are very lucky. But, as Religion Without God shows, to the end (and after), Dworkin continued to write in a clear and illuminating fashion on broad issues involving current concerns, not to mention eternal ones. On the details of the law and even the broad outcomes of cases, however, he was a less reliable or convincing guide. Or so I will argue here.

Let me first give Dworkin his due, however.11 The problem the chapter centers on - whether there is a principled "justification for offering religion a right to special protection that is exclusive to theistic religions,"12 and if not, what the scope and nature of "freedom of religion" should look like - has consumed a great deal of attention recently. It figures heavily in contemporary freedom-of-religion scholarship.13 And it has played a significant role, sometimes explicitly but more often implicitly, in recent statutory and constitutional church-state cases as well.14 Dworkin's treatment of this problem, which is driven by his argument in the first part of the book that a "belief in a god is only one possible manifestation or consequence of [a] deeper worldview" that we could call "religious,"15 is interesting and provocative.

Dworkin's legal conclusions are admittedly hard to disentangle from the broader tapestry of argument he offers in Religion Without God. Some may find this a virtue and a necessary consequence of the insistence in his last books on the "unity of value,"16 under which, as one critic describes it, "all of our evaluative commitments have to finally cohere . . . not just morality, but also politics, law, aesthetics, prudence, . . . you name it."17 Others may consider it a shortcoming, one that impairs its usefulness for law and legal doctrine.

Again, one must be fair. In his "Religious Freedom" chapter, Dworkin examines how his view that we should "adopt[] a conception of religion that is deeper than theism" plays out "as a matter of political morality as well as philosophical depth,"18 not as a humdrum, if difficult, question for non- Herculean lawyers and judges. …

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