Objectivity, Interpretation, and Rights: A Critique of Dworkin

Abstract

This paper addresses two significant features of Ronald Dworkin's conception of law and justice. The first is Dworkin's theory of constructive interpretation as first developed in his essay "Hard Cases"' and more recently in his book Law's Empire.2 The second is Dworkin's long standing defense of a deontological conception of rights. This defense was first famously presented in "Taking Rights Seriously"3 and Dworkin continues to defend this conception of rights in his more recent effort to elaborate a theory of justice based on equality.4 Dworkin's theory of constructive interpretation purports to both explain and justify legal practice. Dworkin's theory of rights purports to show that individual rights impose deontological constraints on citizens, legislators, and judges. Much has been written on Dworkin's position on rights and on his interpretive theory of law. There is little commentary, however, on the connection between these two central features of his conception of law and justice.5 This connection is important for two reasons. First, Dworkin rejects contractarian and Kantian approaches to law and justice. Basic political duties, including the duty to accept the coercive authority of law, do not stem from terms that rational agents can freely endorse under specified conditions such as the original position or a moral point of view. Political duties emerge, rather, from "associative obligations".6 Associative obligations are rooted in a community's treatment of its members rather than in an implicit agreement about principles of justice. In order to discern