JON MAHONEY

OBJECTIVITY, INTERPRETATION, AND RIGHTS: A CRITIQUE OF DWORKIN

(Accepted 10 October 2003)

This paper addresses two signicant features of Ronald Dworkins conception of law and justice. The rst is Dworkins theory of constructive interpretation as rst developed in his essay Hard Cases1 and more recently in his book Laws Empire.2 The second is Dworkins long standing defense of a deontological conception of rights. This defense was rst famously presented in Taking Rights Seriously3 and Dworkin continues to defend this conception of rights in his more recent effort to elaborate a theory of justice based on equality.4 Dworkins theory of constructive interpretation purports to both explain and justify legal practice. Dworkins theory of rights purports to show that individual rights impose deontological constraints on citizens, legislators, and judges. Much has been written on Dworkins 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 specied 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 communitys treatment of its members rather than in an implicit agreement about principles of justice. In order to discern
1 2 3 4 5 6

Dworkin (1977a). Dworkin (1986). Dworkin (1977b). Dworkin (2000). For a good overview of Dworkins work, see Guest (1991). Dworkin (1986, pp. 195216). Law and Philosophy 23: 187222, 2004. 2004 Kluwer Academic Publishers. Printed in the Netherlands.

188

JON MAHONEY

a citizens legal and political obligations to the state and to other citizens, Dworkin claims we need to examine her communitys treatment of her. In addition, we must also examine the political communitys understanding of basic legal and political principles as this understanding provides the basis for interpretive claims about justice. Secondly, Dworkin claims that normative concepts, including rights, are interpretive concepts. Normative concepts are justied if they can survive a reective exercise in constructive interpretation. Dworkins interpretive theory of normative concepts purports to show that norms are justied when the arguments for them t and justify a social (e.g., law) practice. The appropriate characterization for the practical rationality that provides the reasons for or against a normative claim on this view is closer to the contextualist model familiar from the hermeneutical tradition than the Kantian conception favored by most defenders of deontological rights.7 At the same time, Dworkin claims to afrm a modest realism. There are truth-conditions for normative claims; claims to objectivity are not simply expressions of agents preferences; whether or not we are correct in asserting a claim about rights or justice is not up to us; and there are objectively right and wrong answers to normative questions. The purpose of this paper is to argue that Dworkins attempt to conjoin an interpretive theory of normative concepts with a deontological conception of rights is problematic. I will not argue against Dworkins views concerning the internal relationship between law and morality, a relationship that Dworkin has convincingly argued for in much of his work. Rather, I will argue that Dworkin has not shown that an interpretive theory of normative concepts can provide the right kind of justication for an important class of deontological rights. For example, universal moral rights that impose prohibitions on torture or that enjoin agents to tolerate others religious practices are better supported by a conception of practical reason and moral argument that does not construe moral claims as interpretive claims in the sense characterized by the method of constructive interpretation. Part I provides a general overview of constructive interpretation. Part II examines Dworkins critique of skepticism. Though
7

For an overview, see Warnke (1993).

OBJECTIVITY AND INTERPRETATION

189

Dworkin offers compelling reasons for rejecting common varieties of skepticism about law and morality, his alternative to skepticism is problematic. I argue that the moral justication for a deontological right is better understood to be a matter of reason and principle than a matter of interpretation. Since Dworkin claims that constructive interpretation is a matter of reason and principle, the aim of Part III is to show that Dworkins position fails to provide an adequate conception of moral justication. Finally, Part IV anticipates and responds to three objections that Dworkin might offer against my argument. One of my aims in this paper is to show that Dworkins conception of justication is ambiguous.8 There are features of Dworkins view that pull in different directions. For example, there are good reasons for characterizing the method of constructive interpretation as one that sometimes supports judgments with global rather than merely local reach.9 If this is true, then objective standards of interpretation entitle judgments independently of the local practice or tradition from which they are made. One might argue that this aspect of Dworkins position establishes that his conception of justication is compatible with moral universalism. However, Dworkins method of constructive interpretation is presented as a model for how agents can justify interpretive claims about their own practices. This is why I believe Dworkins conception of justication is ambiguous. This conception is supposed to establish, on the one hand, that there are objective standards that determine the truth or falsity of interpretive claims. These standards include considerations of justice that are appealed to in order to evaluate claims that purport to have universal scope or global reach. At the same time, Dworkins characterization of what makes a claim an interpretive claim is that it be an interpretation of a practice and thus a claim within a practice by someone evaluating the practice. In what sense, then, are claims about justice or deontological rights with universal scope interpretive claims? If, as I will argue, claims with universal scope should be treated as justied on grounds that any reasonable person should accept, there is no
I thank a reviewer for this journal for helpful suggestions on how to develop this idea. 9 See, for instance, Dworkins remarks on the peculiar sense in which justice is an interpretive concept in Dworkin (1986, pp. 424425).
8

190

JON MAHONEY

reason to treat such claims as interpretive claims. This argument is developed further in Parts III and IV. I begin with an exposition of the idea of constructive interpretation and show how it is supposed apply to a type of reasoning that is common to many forms of social, moral, legal, and aesthetic criticism.
I. CONSTRUCTIVE INTERPRETATION

Dworkins theory of constructive interpretation is an attempt to establish that normative concepts are interpretive concepts that are justied by what he calls the interpretive attitude.10 Though primarily concerned with legal theory, Dworkin is explicit in claiming that his interpretive theory of normative concepts is a general theory for concepts central to the practices of art and literary criticism, and morality, as well as law.11 Moral concepts, like their legal counterparts, are interpretive concepts that are justied when they are supported by a particular interpretation of a social practice. A social practice (e.g., literary criticism, morality, and law) is a collective activity in which groups of people share norms and standards for criticism. Social practices are also identied by a mutual understanding regarding the aims and purposes of the practice in question. An agent adopts the interpretive attitude when she deliberates about a norm from a point of view that considers both the purpose of the practice that contains the norm and the manner in which the norm contributes to a justication of the practice. Though Dworkin himself does not describe his position as such, when applied to morality, I take the interpretive attitude to be one way to model what has traditionally been called the moral point of view. The moral point of view has been characterized in a number of ways, of course, but anyone who defends a moral point of view is undertaking a defense of principles or procedures that people should use as a way to discern moral truth. In this sense, the interpretive attitude, like the moral point of view, provides grounds for justifying moral claims. In other words, agents are to adjudicate moral disputes about concepts such as equality and rights by providing
10 11

Dworkin (1986, pp. 4648). Ibid. See also Dworkin (1996).

OBJECTIVITY AND INTERPRETATION

191

an interpretation of such concepts. There is, however, one crucial difference between the interpretive attitude and traditional versions of the moral point of view. The method of constructive interpretation is offered as an alternative to those versions of moral realism that require a metaphysics of moral properties or other similarly controversial commitments. According to Dworkin, the objectivity of morality can be established without entering these controversies.12 This is one reason why he claims, I am defending an interpretation of our own political culture, not an abstract and timeless political morality . . ..13 When we reason about normative concepts, constructive interpretation and the interpretive attitude it supports provide guidelines for agents who want to reach an agreement about norms. This is why I claim the interpretive attitude is similar to the idea of a moral point of view. The interpretive attitude has four central features and each contributes to how agents argue for normative claims. These features are: purpose, t, justication, and integrity. In Dworkins words, . . . constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.14 Suppose, for instance, that we want to understand courtesy.15 We begin by considering the aim or purpose of the social practice that inspires acts of courtesy. This is the appropriate context for considering the kinds of judgments and the reasons for them that people offer when they think reectively about the nature of courtesy. Among other things, we need to consider the purpose that courtesy serves and for this we need to know the purpose of the social practice in which people use the concept. For Dworkin, we cannot fully understand courtesy without grasping how it serves the aim or purpose of a social practice. In every social practice it is likely that courtesy contributes to the purpose of that practice in multiple ways. This might include the following: preserving ascribed social roles, maintaining a social order, protecting a conception of respect, or keeping subordinates in
12 13 14 15

Dworkin (1996). Dworkin (1986, p. 216). Ibid., p. 52. Ibid., pp. 4649.

192

JON MAHONEY

their place. Moreover, there might very well be a dispute about how courtesy contributes to the purpose of a practice, or even a dispute about the purpose of the practice itself. What matters for Dworkin is that when we adopt the interpretive attitude we commit ourselves to an interpretation of a normative concept that presupposes a claim about the purpose of a practice. Every interpretive claim must also satisfy the criterion of t. Fit requires that an interpreter strive to make her practice internally coherent. In a dispute about courtesy, we ask, for instance, does courtesy, expressed by such actions as men dofng their hats when entering church, t other features of our social practice, or does this interpretation of the concept fail to t the practice as a whole? Answers to interpretive questions about courtesy might support claims that deny that courtesy calls for dofng hats in church or even the claim that courtesy fails to t our social practice altogether in which case, courtesy must be rejected as a normative concept. Likewise, someone who claims that segregated education is constitutional has to show that segregated education does not violate other principles in our legal practice. Evaluating such claims requires an interpretive analysis that considers whether segregated education ts the idea of equality expressed in the 14th Amendment or other relevant features of our legal tradition. Fit constrains the range of permissible judgments about what kinds of principles a social practice can support; it does so by demanding that we bring our judgments about one principle or concept into harmony with other principles or concepts that are already embedded in the social practice. The criterion of t does not stand alone, however, and no interpretive claim is justied simply because it ts the practice in question. For Dworkin, questions of justication dont reduce to questions of t, though they are answerable to t as one standard of interpretive judgments. Questions of justication always refer to a deeper issue concerning the justication of the practice as a whole. Questions of justication ask, in other words, whether one interpretation of a concept provides a better justication of our social practice than an alternative interpretation. If we want to understand how legal argument is constrained by the principle equality, for instance, we ask whether a particular interpretation, such as the one

OBJECTIVITY AND INTERPRETATION

193

offered in Brown provides a better justication for our legal practice as a whole than the interpretation offered in Plessy. This question, in turn, is answered in relation to a larger commitment, which is that the law as such should provide a justication for the use of political power; we support our interpretation of equality by showing that it provides a good justication for when and how the state can enforce individual rights. In Hard Cases, which offers an early statement of the view that emerges more systematically in Laws Empire, Dworkin summarizes the criterion of justication by claiming that one . . . must construct a scheme of abstract and concrete principles that provides a coherent justication for all common law precedents and, so far as these are to be justied on principle, constitutional and statutory provisions as well.16 The criterion of justication serves the role of a regulative ideal and thus is a very demanding criterion for judgments about normative concepts. Dworkins well-known judge Hercules17 is supposed to capture the point of view of an ideal judge who is both committed to and capable of honoring the criterion of justication. Justication is therefore a counterfactual and regulative constraint on normative judgments. Moreover, this highly idealized conception of justication is one reason why Dworkin claims and is entitled to claim that constructive interpretation is a method of reasoning about norms that aspires to truth and objectivity. According to Dworkin, we justify our interpretive claims about norms in general by claiming that our interpretation yields a better justication of a social practice than can be provided by competing claims. One of the ways that Dworkin tries to preserve the objectivity of interpretive judgments is by demonstrating that there are right and wrong answers to interpretive questions. Disputants might be wrong about the claim that courtesy serves the interests of those who wish to maintain ascribed social roles, that courtesy norms conict with the principle of equal respect, or that courtesy does not require returning email messages, etc. It is also possible that every member of a social practice fails to grasp courtesy. That we can be wrong about our own practices is an important claim because
16 17

Dworkin (1977a, pp. 116117). Ibid. See also Dworkin (1985, 1986).

194

JON MAHONEY

it helps explain how some features of a social practice persist even when they are incompatible with the central principles that underlie the practice. For instance, one way to explain the persistence of arguments in favor of segregated schools after the adoption of the 14th Amendment is by demonstrating that members of the American legal and political community lacked an adequate understanding of their own practice. It is always possible that members of a community fail to adequately understand the interpretive concepts that shape their own practices. The method of constructive interpretation has explanatory value in part because it offers a perspicuous view of moral progress within a tradition. Failures in exercises of constructive interpretation can explain failures on the part of an entire community (or some subset of the community) to see inconsistencies in its treatment of some of its members. Likewise, successful exercises in constructive interpretation help explain moral progress when it does occur. To illustrate this point, Dworkin offers a useful analogy from art and literary criticism. When a critic provides an interpretation of a work of literature, the criterion of justication requires that . . . an interpretation of a piece of literature attempts to show which way of reading (or speaking or directing or acting) the text reveals it as the best work of art.18 For example, someone who claims Eliots The Waste Land is a critical commentary on the demise of spirituality in modern culture is justied if his reading makes the poem better than alternative readings. In law as in literary and art criticism, a successful exercise in constructive interpretation will show the tradition or work in its best light. In this sense, constructive interpretation tries to interpret a concept or practice with a larger aim in mind. Someone who engages in such an exercise with respect to courtesy must, in addition to providing examples of courtesy and explaining practitioners understanding of the concept, attempt to show how her interpretation justies courtesy norms. An exercise in constructive interpretation may therefore result in our discovering that dofng hats is a form of homage to antiquated values that embody the vestiges of anti-egalitarian roles that are incompatible with our practices current conception of equality. The prevailing interpretation
18

Dworkin (1985a, p. 149).

OBJECTIVITY AND INTERPRETATION

195

of courtesy might support forms of behavior that we now regard as insulting or disrespectful. Dworkin argues that something analogous to this can account for how two incompatible judgments about equality can appear to have support from within the same practice. The judgments that underlie Plessy and Brown for instance, were made within the same legal tradition by persons who believed, though in one case mistakenly, that their judgments were justied by an interpretation of common law practices as chartered by the U.S Constitution. The criterion of justication helps to show that Brown rather than Plessy better represents the concept of equality within the American legal tradition; Brown afrms, whereas Plessy conicts with the political morality expressed by the American legal tradition. The fourth feature of constructive interpretation, integrity, establishes the overall coherence and plausibility of Dworkins interpretive theory of normative concepts. Dworkin regards integrity as the master component to constructive interpretation. Integrity brings together the other three features of constructive interpretation and shows that constructive interpretation provides a general method for providing a justication for interpretations of social practices. The following is a summary of Dworkins position:
. . . convictions about t contest with and constrain judgments of substance, and how convictions about fairness and justice and procedural due process contest with one another. The interpretive judgment must notice and take account of these several dimensions; if it does not, it is incompetent or in bad faith, ordinary politics in disguise. But it must also meld these dimensions into an overall opinion: about which interpretation, all things considered, makes the communitys legal record the best it can be from the point of view of political morality.19

Integrity is a distinct virtue that explains why we are opposed to things like checkerboard statutes, that is, laws that apply to community members in arbitrary ways by selecting features of some members as the basis for special privileges or the denial of such privileges.20 In the present context, the most important feature of Dworkins concept of integrity concerns the role it plays in shaping a communitys moral identity.
19 20

Dworkin (1986, pp. 410411). Ibid., p. 176.

196

JON MAHONEY

Dworkin argues that the interpretive point of view acknowledges integrity as a virtue when the interpreter understands his community as a community of principle. In his words,
Members of a society of principle accept that their political rights and duties are not exhausted by the particular decisions their political institutions have reached, but depend more generally, on the scheme of principles those decisions presuppose and endorse. So each member accepts that others have rights and that he has duties owing from that scheme, even though these have never been formally identied or declared.21

In adopting the interpretive point of view, interpreters are committed to defending claims that promote the moral integrity of their community. For example, when an agent appeals to a right in order to defend or defeat a claim she addresses her interlocutors from the standpoint of someone who hopes to demonstrate that her interpretation of a concept or principle preserves yet improves an established sense of moral community. This is what it means to understand oneself as a member of a community of principle. As a matter of principle, one must conform judgments about rights to judgments about the moral integrity of the community. In this respect, integrity brings together t and justication. When applied to law, t imposes a normative demand to preserve laws consistency, whereas justication imposes a normative demand to preserve laws authority. Laws integrity requires both and thus enables the full expression of laws morality. i. Constructive Interpretation and Moral Concepts As Ive presented it thus far, the implication of constructive interpretation for moral concepts is signicant. For example, an agent who argues that her rights, or the rights of others, are not properly acknowledged is making a claim about obligations that her community should acknowledge. It is signicant that, on Dworkins model, the addressees of an argument about rights are members of ones own community, rather than persons as such. This is one aspect of the interpretive attitude that differs from the moral point of view as it has been traditionally understood. Though there is a counterfactual component to normative claims about rights, such
21

Ibid., p. 211.

OBJECTIVITY AND INTERPRETATION

197

claims must always refer to an interpretation of some real, existing community. The interpretive point of view will not support claims that appeal for their justication to an imagined community, such as a Kingdom of Ends. Constructive interpretation is therefore incompatible with moral realism as it is defended in the Kantian tradition. Since Kantians believe that a moral claim is true if it can be afrmed by all persons in a manner that upholds the fundamental moral concepts of equality and autonomy, moral truth for them is understood as a matter of what can be afrmed by the standpoint of practical reason.22 Not just any standpoint will sufce, of course. Rather, the truth of a moral claim is determined from the standpoint of practical reason that expresses what all rational agents can impartially afrm as true, where true means compatible with reasons for action that no reasonable person can reject.23 An exercise in constructive interpretation can at most establish that obligations ow from a set of commitments to norms that already bind the community in question. Dworkin calls such obligations associative obligations because they derive from a communal association of individuals.24 The reach of constructive interpretation can at most appeal to a better version of ones existing practice by making critical judgments about such a practice from the point of view of the better version. Dworkin is satised with this feature of his position, because he believes his model of constructive interpretation can support objective normative claims. A normative claim is objective if it claries the purpose of a practice, ts the practice better than competing claims, justies the practice and preserves the integrity of the community dened by the practice. In the case of legal claims, disputants are accountable to interpretations of law. In the case of morality, disputants are accountable to interpretations of morality. The same goes for art, etiquette, or any other norm-governed social
Korsgaard (1996). In this paper I stress a contractualist interpretation of Kantian ethics, one that stresses the idea of reasonableness as this concept is understood and defended by Rawls (1971, 1996) and Scanlon (1998). On this view, a reasonable person is someone willing to seek fair terms for cooperation. In order for a principle to qualify as reasonable it must be one that can be afrmed by all in a manner that respects the dignity and autonomy of each. 24 Dworkin (1986, pp. 195216).
23 22

198

JON MAHONEY

activity; the best argument is one that supports the best interpretation within the domain-specic parameters of the genre or practice in question.25

II. OBJECTIVITY AND TRUTH

All varieties of moral realism require some account of how our judgments are answerable to truth. Moral realists are obliged, in other words, to tell us how somethings being the case rather than our moral belief is what justies a moral claim.26 This is a very general way of construing the relation between truth and moral judgment in that it covers many different accounts of how truth is a constraint on the moral claims we make. For instance, a realist about moral properties argues that the moral claims we make are answerable to some property that in some sense is there independently of our perception.27 Aristotelians and virtue ethicists argue that agents with the right kind of character are able to recognize reasons based on facts about the proper function of human beings.28 Kantians, by contrast, claim that moral truth is determined by a moral point of view rooted in practical rationality and thus that truth in morality depends neither on a metaphysics of moral properties nor on a theory of human nature.29 Each of these views qualies as a version of moral realism. In this section I consider the question, can Dworkins theory of constructive interpretation supply an adequate account of how truth is a constraint on the moral claims we make? Dworkin claims to be a moral realist,30 though not in any of the aforementioned senses. Dworkins recent essay Objectivity and Truth: Youd Better Believe It provides the clearest statement of his views on moral realism and thus I will be drawing mainly from this essay in what follows. After setting out Dworkins position, I argue that the modest realism advanced by Dworkin is in fact too modest to provide a foundation for moral rights.
25 26 27 28 29 30

Dworkin (1996). Railton (1986, p. 172). Dancy (1993). Foot (2001, pp. 2223). Korsgaard (1996). Dworkin (1996, pp. 127128).

OBJECTIVITY AND INTERPRETATION

199

i. Objectivity and Moral Skepticism In his discussion of moral realism, Dworkin considers two kinds of moral skepticism.31 The rst, external or archimedean skepticism, denies that there is any subject matter that is properly speaking moral and thus denies that when people make moral claims they are referring to moral facts or moral properties. External skeptics about morality reject the very idea that there is a domain of inquiry and argument that moral philosophers call the moral domain. They also deny that there are special standards for objectivity and truth that uniquely apply to morality. Internal skeptics, by contrast, claim to hold a moral position and thus regard their claims as moral claims. Unlike external skeptics, internal skeptics are willing to defend claims which they regard as moral claims and not just as claims about morality. However, although internal skeptics accept that there is a moral domain they offer reasons for rejecting the objectivity of moral claims. Dworkin insightfully argues that the real threat to those who want to defend the thesis that there is objectivity in moral argument comes from a version of internal skepticism he calls global internal skepticism.32 The global internal skeptic takes up the challenge of meeting the moral realist on her own terms by granting that moral claims seem to be susceptible to truth and falsity. Dworkins moral realism is best understood as an attempt to show the irrelevancy of external skepticism and as a response to global internal skepticism. According to Dworkin, traditional varieties of moral realism, such as realism about properties, unwittingly yield to external skepticism. Consider, briey, the difference between beliefs about physical facts and moral beliefs. On some views both physical and moral properties are said to be that to which our judgments are answerable. And it surely does make sense to ask of ordinary beliefs about physical facts, what causes them? For moral beliefs, by contrast, appeals to properties to explain what causes us to have them and what justies judgments about them seem fraught with difculty. Dworkin argues that the external skepticism of people
Earlier statements of Dworkins views on skepticism can be found in Dworkin (1985b, 1986). 32 Dworkin (1996, p. 91).
31

200

JON MAHONEY

like John Mackie33 gets its appeal by assuming the epistemology of beliefs about morality has to be the same as the epistemology of beliefs about physical properties or events. However, no one has provided an adequate account of how people acquire and justify moral beliefs about properties in a manner analogous to the acquisition and justication of beliefs about physical properties. Moral skepticism therefore emerges as an appealing alternative to the quirky and unpalatable position required by moral realists who posit the existence of mind-independent moral properties. Mackies wellknown argument from queerness is the most famous contemporary version of this argument.34 I believe that Dworkin concedes too much to Mackie and that he is mistaken in claiming there are no plausible versions of moral realism that rest on a theory of moral properties.35 But I will not argue this point here. On the other hand, Dworkin is right to claim that external skepticism about morality is motivated by a recoil from what is regarded as an unpalatable theory of moral properties. Dworkin is also right to argue that external skepticism founders on an unjustied and uncharitable interpretation of the moral realists commitments. Furthermore, since external skepticism claims to be a neutral position, and thus one that stands outside of morality, it really isnt a moral position at all. This
. . . helps explain why archimedians [external skeptics] always describe the windmills they make war on in bad metaphors they never cash, why they say that they do not believe that morality is part of the fabric of the universe or that it is out there, a phrase that appears hundreds of times in their texts, always in scare-quotes used like tongs holding something very disagreeable.36

External skepticism, according to Dworkin, can be refuted by embracing a view about moral justication that does not appeal to moral properties. Rather, the moral realist requires only that there be moral claims that are open to refutation by other moral claims and that our convictions about the claims we make be treated as carrying a face-value commitment to truth. External skepticisms defeat lies
Mackie (1977). Ibid., pp. 3842. 35 Dworkin fails to consider, for example, the well-argued positions of Jonathan Dancy (1993) and John McDowell (1985). 36 Dworkin (1996, p. 108).
34 33

OBJECTIVITY AND INTERPRETATION

201

in its unwillingness to acknowledge that the only kind of skeptical claims about morality that count as skeptical claims against morality are themselves moral claims. Dworkin argues that internal skepticism is the real threat to objectivity in morality by appealing to the plausible idea that different domains of inquiry and argumentation have their own standards for adjudicating claims. For example, the only possible refutation of The Waste Land is a critique of modern culture is a competing literary interpretation of Eliots poem. Likewise, the only possible refutation of Persons are liable for emotional harm caused by their negligent actions is a competing interpretation of law. The same goes for morality. The only possible refutation of Slavery is unjust is a competing moral claim. Each of these claims can be justied by an exercise in constructive interpretation that appeals to the relevant standards for literary, legal, and moral judgment. Internal skepticism is troubling, if not in literary criticism then certainly in law and morality, because its defenders raise the possibility that our strongest convictions are false.37 A global internal skeptic about literature argues that there are no objective canons of interpretation that constrain the judgments people make about novels, poems and other literary works. A global internal skeptic about law denies there are objective answers to legal questions. A global internal skeptic about morality denies that assertions such as Slavery is unjust amount to anything more than subjective opinions or at best, strongly held convictions. ii. Dworkins Modest Moral Realism Dworkins response to global internal skepticism is presented as a modest proposal for moral realism. Rather than claiming that our moral convictions latch on to timeless moral truths that are in some mysterious sense out there in the ether to be perceived by a special faculty of moral perception, our moral convictions should be understood as resting on convictions and arguments about substantive principles of morality.38 In morality as in law, conviction should be treated as belief supported by arguments that purport to establish objective claims. There is no more to moral objectivity than
37 38

Ibid., pp. 128129. For an earlier statements of this position, see Dworkin (1986, pp. 8081).

202

JON MAHONEY

our convictions about what counts as the best argument. So the sense in which Slavery is unjust is true is best expressed by a consideration of how substantive moral principles, such as equality and human dignity, bear on the issue of how a community should treat its members. Substantive principles dene the parameters for moral argument, provide standards for practical reasoning, and thus support claims to objectivity. This form of moral realism is modest because it rests its case for objectivity on peoples ability to argue for their convictions rather than on their ability to grasp mindindependent moral truth. Here is a clear statement of Dworkins position:
Of course I do not mean that our convictions are right just because we nd them irresistible, or that our inability to think anything else is a reason or ground or argument supporting our judgment. On the contrary, these suggestions are forms of the skepticism I am opposing. I mean that any reason we think we have for abandoning a conviction is itself just another conviction, and that we can do no better for any claim, including the most sophisticated skeptical argument or thesis, than to see whether, after the best thought we nd appropriate, we think it so. If you cant help believing something, steadily and wholeheartedly, youd better believe it. Not, as I just said, because the fact of your belief argues for its own truth, but because you cannot think any argument a decisive refutation of a belief it does not even dent. In the beginning, and in the end, is conviction.39

Our convictions about moral claims carry the force that they have because of the arguments that justify them. This position qualies as a version of moral realism. It satises the requirements for a realist position stated at the beginning of this section. Our judgments are not merely opinions. Nor are they merely our convictions. Or at least they should not be so far as we claim to be offering reective, reason-supported claims. Rather, as Dworkin argues in Objectivity and Truth we are entitled to afrm our convictions our good ones in any case because they support claims that we are justied in believing are true. There is much that is appealing in Dworkins account of objectivity and truth. His arguments against both external and global internal skepticism are compelling. Dworkins positive view about objectivity and truth, however, leaves open important questions. For instance, in claiming that the only refutation of a moral argu39

Dworkin (1996, p. 118).

OBJECTIVITY AND INTERPRETATION

203

ment is another moral argument Dworkin correctly suggests that the only authority we can appeal to for our moral convictions is the authority of morality itself. But where does this authority come from?40 Since Dworkin rejects traditional forms of realism, the answer cannot be judgments that discern moral properties, virtues that enable moral character, or reasons that establish principles that no reasonable person can reject. On Dworkins view, the authority of the moral domain, rather, is a presupposition for moral argument, a presupposition that makes possible the social practice of presenting moral arguments for and against moral positions. There is thus no reason to suppose that the account of objectivity defended in Objectivity and Truth is presented as an alternative to the account of objectivity defended in Laws Empire. In fact, in his recent efforts to defend moral realism Dworkin develops further a line of thought he has been defending for several decades.41

III. THE MORAL GROUNDS FOR DEONTOLOGICAL RIGHTS

To construe a right as a deontological right is to treat that right as immune to cost-benet analysis, calculations of social utility, or any other consequentialist consideration that could be used to argue in favor of a trade-off between collective goals and individual entitlements. Dworkins concept of a strong sense right nicely captures the idea of a deontological right.42 Prohibitions against torture, religious persecution, and imprisoning the innocent all qualify as examples of a deontological right. When considering the case of false imprisonment Dworkin argues for a deontological conception of rights or rights in the strong sense by claiming,
I understand this to be a question about moral justication. Understood this way, the trap of external skepticism is avoided. Ones moral position might yield to external skepticism if one construes questions about moral justication as questions that solicit an explanation for why morality has a claim on us that requires non-moral considerations in favor of morality. 41 Dworkin (1985d) discusses the sense in which propositions such as Slavery is unjust are true in a manner very similar to his recent account in Dworkin (1996). 42 Dworkin (1977b).
40

204

JON MAHONEY

. . . it makes no sense for our society to establish the right not to be convicted when known to be innocent as absolute, unless that society recognizes moral harm as a distinct kind of harm against which people must be specially protected. But the utilitarian calculus that the cost-efcient society uses to x criminal procedures is a calculus that can make no place for moral harm . . . . For moral harm is an objective notion, and if someone is morally harmed . . . when he is punished though innocent, then this moral harm occurs even when no one knows or suspects it, and even when perhaps especially when very few people very much care.43

I favor this characterization of a deontological right for several reasons. First, it shows how those in favor of deontological rights believe that a right is a non-negotiable entitlement of an individual to be treated by others in a certain manner. Secondly, it illustrates that one important basis for such a right lies in a concept of moral injury or harm that is understood to be objectively wrong. The moral foundation for this conception of harm is the idea of the person as a moral equal. And thirdly, this characterization presents in a clear manner the sense in which someone in favor of a deontological conception of rights rejects consequentialism. I also favor a forth consideration that is commonly associated with a deontological understand of rights, a consideration conspicuous by its absence in Dworkins account. For some deontological rights, the claims we make about them purport to have universal scope. Universality of scope is not a necessary feature of deontological rights as such, but it is a necessary feature of at least some deontological rights, for instance, the right to not be tortured or any other human right. Universality of scope is central to many of the rights that defenders of deontological rights support. This is in fact so central a feature, that to eliminate it from ones conception of rights would be to retract the very reasons we have for our commitment to human rights.44 For instance, anyone who argues for a deontological conception of rights that includes basic moral entitlements to have ones person respected (e.g., freedom of religion, freedom from torture, freedom from politically motivated imprisonment, etc.), is arguing for a conception of rights that treats the scope of such rights as inclusive of all persons. And one cannot have a justied reason for accepting this conception of rights unless the reason can satisfy a universalizability require43 44

Dworkin (1985c, p. 81). For a good overview, see Habermas (2001).

OBJECTIVITY AND INTERPRETATION

205

ment, that is, a requirement that shows the reason to be one that no one can reasonably reject. Moreover, some moral reasons that satisfy this criterion command universal assent. For instance, if a right not to be tortured cannot be reasonably rejected, it follows that all reasonable persons should afrm such a right. On my view, a norm commands universal assent when the normative requirements of morality cannot be satised by withholding ones assent. Dworkin defends what is clearly recognizable as a Kantian conception of rights.45 Yet he offers a non-Kantian justication for such rights. There may be no in-principle objection to this strategy. However, since Dworkin does opt for what he regards as a modest realism about morality, one that rests on a theory of constructive interpretation, his claim to be able to show that deontological rights are objective merits close inspection. On my view, Dworkins modest moral realism fails to provide an adequate justication for the class of deontological rights that have universal scope. These rights are best understood, not as interpretive concepts whose authority comes from a social practice of interpretation, but rather, as a kind of practical reason whose authority comes from a moral point of view that is constrained by principles that no reasonable person can reject. i. Interpretation all the way down?46 Suppose that all normative claims, including claims about universal rights, are interpretive claims. Suppose also that a normative claim qualies as an interpretive claim if it is advanced as a justication for a practice from within a practice. How might one advance a deontological theory of rights from this perspective? In Ronald Dworkin, Stephen Guest offers the following characterization of how Dworkin attempts to integrate an interpretive theory of normative concepts with a deontological conception of rights:
[Rights] . . . are justied, rst, by reference to communities which actually do have practices of making political decisions by reference to community goals. In that Dworkin himself notes the connection between his and Kants view in Dworkin (1977b, p. 198). 46 The title for this his sub-heading is inspired by Dworkins claim, Interpretive claims are interpretive . . . and so depend on aesthetic or political theory all the way down (Dworkin 1985b, p. 168).
45

206

JON MAHONEY

sense, they are contingent and historical. Second, they are justied in trumping such goals, not because they embody a fundamental right to be treated with equal concern and respect, but because history has proved that if communities are constrained in a fundamental way from pursuing certain kinds of goals, the right to equal concern and respect is more likely to be respected. Fundamental here refers to the nature of the constraint rather than the intrinsic quality of the right itself.47

If we consider this conception of justication as one that extends to universal rights, this is a puzzling view for two related reasons. One is that this characterization of the justication for deontological rights is open to the charge of ethnocentrism. The current debates on universal rights include those who deny that Western moral ideals apply to their traditions or social practices. Some traditions and practices cannot be interpreted in a way that will support universal rights. Another is that this conception of justication seems unable to support claims to universality that purport to be binding on all persons. I consider each of these points in turn. Most who defend universal rights nd appeals to culture, tradition or community identity a weak response to the claim that rights apply to all persons.48 Consider, for example, someone who appeals to the interpretive attitude to support claims against universal human rights on the grounds that each of the criteria of constructive interpretation show that his tradition or social practice does not support such claims. There are, in fact, familiar arguments against moral universalism which appeal to considerations such as cultural identity, tradition, language, and religion in order to support practices that are in clear violation of universal deontological rights. In general, such arguments are intended to show that what is claimed to be a universal human right in fact fails to be sensitive to local
Guest (1991, p. 235). Guests passage does not consider Dworkins claim that a communitys exercise in constructive interpretation is constrained by justice and that justice is an interpretive concept that carries special weight. In this respect, I think Dworkin would rightly reject this as a complete characterization of his view. Since I believe both that Dworkins conception of justication is ambiguous and that Guests characterization emphasizes one feature of this ambiguity (i.e., the problem of treating all interpretive claims as claims made within a practice) Guests interpretation merits consideration. In Part IV, I consider an alternative interpretation of Dworkins position, one that might be advanced as a response to the problems I raise here. 48 Barry (2001).
47

OBJECTIVITY AND INTERPRETATION

207

or group-specic conceptions of value. On some communitarian versions of this argument, claims are treated as justied if they can be defended from the point of view of a social practice.49 It is clear that Dworkins liberalism will not support a communitarian objection to moral universalism. However, the method of constructive interpretation seems unable to provide the moral foundation for universal rights claims that defenders of such rights require in order to refute communitarian and other skeptical arguments. Secondly, an exercise in constructive interpretation does not seem capable of supporting the claim that some rights bind all persons. The convictions that are ratied by such an exercise are convictions that are too closely tied to a specic political and legal tradition to yield a universalist understanding of rights. It is undoubtedly the case that the best interpretation of some moral traditions supports the idea of universal rights. This by itself, however, cannot provide a reason for agents to accept moral universalism about rights. If ones traditions and practices cannot be interpreted in a way that yields support for such rights, then there can be no interpretive grounds for accepting a universal rights claim. To establish that agents are bound to norms in this way requires a reason or principle that can be justied independently of an exercise in constructive interpretation. The best argument for this position, in my view, is a familiar Kantian one; norms bind universally when they express principles that converge with what the free and rational assent of all agents can accept as legitimate.50 In contrast to constructive interpretation, this justication for rights connects both the idea that a strong sense right is deontological with the claim that this conception of rights is based on a view about practical reason and the idea of persons as free and equal. Moreover, unlike the account of moral conviction that Dworkin offers in Objectivity and Truth Kantian realism provides an account of how our convictions are sensitive to reasons all can share. In this respect, I believe that Dworkins rejection of a Kantian foundation for rights is a mistake; his method of constructive interFor a defense of this strategy, see Walzer (1987). For an incisive criticism, see Barry (2001). 50 Scanlons (1998) contractualist model of justication represents a positive step towards developing a deontological conception of norms that does not have a problem connecting universal scope with universal obligation.
49

208

JON MAHONEY

pretation and the conception of objectivity it supports do not offer the kind of justication for rights that shows how universal rights, deontologically understood, inform our moral convictions. Consider, for instance, the claims to universality we make on behalf of such rights each time we see them violated. Torture, slavery, religious persecution and other unjust practices solicit from us judgments of moral condemnation. These are all easy cases, of course, but the adequacy of a moral theory can be tested by looking at the explanation it provides for why and on what basis we make such judgments. One such account is offered by Joshua Cohen in his paper The Arc of the Moral Universe.51 Cohen offers an illuminating discussion of moral realism, moral explanation, and moral ideals such as human dignity, ideals that command universal assent. He connects these themes from metaethics to a moral and historical analysis of slavery. Cohens account of how moral judgments bear on social practices differs signicantly from Dworkins in that the truth of a moral claim is taken to be independent of any interpretive exercise. Though Cohen is less modest in his realism than is Dworkin, his characterization of human dignity provides a more suitable foundation for deontological rights with universal scope. On Cohens view,
. . . the central feature of dignity . . . is its social aspect that it involves a desire for public recognition of ones worth. Though a person can sustain a sense of selfworth in the face of repeated insults, still, public recognition is related to dignity in two ways: rst, persons with a sense of their own worth regard such recognition as an appropriate acknowledgement of that worth; and, second, recognition provides psychological support for that sense, making it easier to sustain. In particular, having a sense of dignity, we want others to recognize that we have aspirations and to acknowledge the worth of those aims and aspirations, by inter alia, providing conditions (opportunities and resources) that enable us to pursue them.52

There are features of Dworkins defense of deontological rights that align with this account.53 However, on Cohens account, moral claims that are incompatible with human dignity are false because compatibility with dignity is a truth condition for moral claims.
Cohen (1998). Ibid., p.115. 53 The moral signicance of human dignity is central to Dworkins argument for strong sense rights in Dworkin (1977b).
52 51

OBJECTIVITY AND INTERPRETATION

209

Dworkins interpretive theory and overly modest realism, however, preclude this kind of defense of the moral foundations for fundamental universal rights. On Dworkins account, rights that appeal to human dignity are justied through an exercise in constructive interpretation, and justication is a matter of interpretation all the way down. On my view, rights are a matter of afrming what all reasonable people must accept, namely, terms for social interaction that afrm the equality and dignity of all persons. This is not simply a more direct way of afrming a universalist understanding of rights. It is a better way. The last sentence of the passage from Guest (quoted on pp. 19 20) offers additional support this objection. The sentence reads Fundamental here refers to the nature of the constraint rather than the intrinsic quality of the right. This shows that if construed as an interpretive claim, a right is fundamental because of the role it plays in a political or legal practice. The phrase intrinsic quality of the right is unclear, but Guests interpretation of Dworkins position does show how one might treat moral rights claims as interpretive claims. Presented in this light, its hard to see how one could generalize an interpretive claim and justify its universal scope as an interpretive claim. If a moral claim has to be construed as an interpretive claim as a condition for its being judged, then it would seem impossible to justify universal claims. There is straightforward way to avoid the problems that come with treating all moral claims as interpretive claims. The following conception of moral justication is sufcient: if a right with universal scope is justied then its grounds must be such that a reasonable person could afrm the right. This conception of moral justication rightly treats questions about what makes a moral reason a good one as questions about what a reasonable person can afrm rather than what can be afrmed from the point of view of a particular moral tradition. There is more than one way to construe what is meant by claiming that a norm is justied independently of a practice. This might mean the norm is taken to be independent of practical reason altogether and thus something like a Platonic form. By contrast, a norm may be said to be justied independently of a social practice in the sense that it is supported by a moral point of view or a standpoint of practical reason that confers validity on

210

JON MAHONEY

norms that bind all rational agents. This is the position that I prefer; a right is justied by the moral reason one can provide for it; moral reasons are justied by principles that all reasonable persons can accept. Dworkin denies that rights can be justied in either of these two ways, because he denies that rights are norms that can be justied without reference to a tradition or practice. This is implicit in what he calls the rights thesis, a thesis about the nature of legal and political rights. Political rights are creatures of both history and morality: what an individual is entitled to have, in civil society, depends on both the practice and the justice of its political institutions.54 This of course is a statement about legal or political rights and thus it would be unfair to treat it as a statement of Dworkins view about moral rights. However, since the connection between constructive interpretation and morality has already been noted, this passage is relevant to the current discussion. It shows how normative concepts are on Dworkins view justied by a practice of interpretation, a practice that makes the truth of interpretive claims, rather than truth, the basis for a moral judgment. On a Kantian view, strong sense rights are justied not as interpretive claims, but rather, as moral claims that appeal to reasons whose justication lies in a conception of practical reason and the moral point of view such reasons support. My position is that in order to support claims about deontological rights that have universal scope one must accept that the justication for such rights rests on a moral point of view that expresses a standpoint of practical reason that includes the idea of persons as free and equal. This is not to say that someone who defends a deontological yet non-universal conception of rights holds an incoherent position. Rather, I am arguing that if we claim that some rights are universal, then we cannot provide adequate support for such claims from the interpretive point of view. Interpretive claims can justify treating legal rights as deontological, yet an interpretive model of justication is not compatible with a conception of moral argument that tries to show that our judgments about universal rights establish both that such rights are deontological and that such rights are universal. It would be a
54

Dworkin (1977a, p. 87).

OBJECTIVITY AND INTERPRETATION

211

mistake to claim that when an agent defends such a right, the only sense in which she ought to take the right to be fundamental is that it expresses her political communitys conception of its own moral integrity. Some legal rights do, of course, t this conception, but it would be an odd claim indeed to say that an agent who asserts, people should not be tortured is offering an interpretive claim about her legal or moral tradition. If a social critic claims that a political community is unjust because it violates peoples rights, is this a claim about how members of that community fail to respect their own traditions? The fact that it might be hardly establishes that it must be. The method of constructive interpretation, however, suggests that claims about rights are only claims about how one type norm imposes constraints on people and institutions from the standpoint of a tradition. This seems clearly wrong in the case of those norms we call moral rights, for such norms are reasons for action which bind agents independently of their social practices.

IV. OBJECTIONS AND REPLIES

There are a number of possible objections to my criticisms of Dworkin. I consider and respond to three. The rst is that Dworkins conception of moral justication is more nuanced than Ive made it out to be and that there are features of his theory of justice that illustrate how for Dworkin questions of justication do not reduce to questions of interpretation. The second is that Kantian realism is vulnerable to skepticism. Thirdly, one could argue that the global authority of justice can be established by an interpretation of a particular legal and political practice and thus that the method of constructive interpretation is compatible with the idea of deontological rights with universal scope.55 i. Dworkins Alternative Perhaps some norms are expressive of fundamental and universal conditions for human ourishing. An equality of resources56
I thank a reviewer of this journal for helpful suggestions on how to characterize this point. 56 Dworkin (2000a, pp. 65119).
55

212

JON MAHONEY

argument might develop this idea as follows. First, the distribution of social resources has a signicant impact on persons life chances. Secondly, the distribution of economic and social resources is patterned by public policy choices rather than the market alone. Thirdly, a liberal democracy is founded upon an ideal of equality. Therefore, any pattern of distribution that results in someones disadvantage through no fault of her own is unjust. This is an example of an argument from Dworkins egalitarian liberalism that could be defended independently of the method of constructive interpretation. The general framework for distributive justice established by the moral ideal of equality is not necessarily dependent on an exercise in constructive interpretation. By analogy, one might defend a system of fundamental moral rights on the grounds that such rights are required by the conception of equality that is the foundation for liberal justice. Such a view could advance a number of deontological rights with universal scope and all such rights could be justied on egalitarian liberal grounds. Dworkin offers some relevant commentary on this point when he claims that some normative concepts, justice, for instance, differ from those such as courtesy or negligence in that they are more complex and thus, . . . less useful as an analogy to law.57 This idea is spelled out in some detail in a lengthy footnote in Laws Empire.
The most important difference between justice and courtesy, in this context, lies in the latent global reach of the former. People in my imaginary community use courtesy to report their interpretations of a practice they understand as local to them. They know that the best interpretation of their own practice would not necessarily be the best of the comparable practice of any other community. But if we take justice to be an interpretive concept, we must treat different peoples conceptions of justice, while inevitably developed as interpretations of practices in which they themselves participate, as claiming a more global or transcendental authority, that they can serve as the basis for criticizing other peoples practices of justice even, or especially, when these are radically different. The leeways of interpretation are accordingly much more relaxed: a theory of justice is not required to provide a good t with the political or social practices of any particular community, but only with the most abstract and elemental convictions of each interpreter.58

Isnt this a clear refutation of my argument that Dworkins understanding of the moral justication for deontological rights cannot
57 58

Dworkin (1986, p. 424). Ibid., pp. 424425.

OBJECTIVITY AND INTERPRETATION

213

support norms with universal scope? On the surface, it would seem so. My objection claimed that Dworkins method of constructive interpretation and his modest moral realism fails to offer an adequate moral justication for universal rights. However, if justice is a special case among interpretive concepts because it can support claims with universal scope, then in principle, Dworkin should be able to derive universal rights from justice. Dworkin does claim that justice is an interpretive concept59 yet adds an important qualication, namely, that some interpretive concepts purport to have global reach. Perhaps when people make claims about universal rights, their claims ought to be treated as having this characteristic. Since claims about justice can be understood to have a global reach, the claims people make on behalf of such concepts can be understood to be applicable across social practices and traditions. What justies the global reach of such concepts? Consider two possible characterizations of interpretive moral claims that purport to establish a universal right. One is that an agent is entitled to afrm a right with global reach because this is the best interpretation of her practice. Another is that she is entitled to afrm a right with global reach because this is the best interpretation of justice. If Dworkin opts for the rst option, then he can consistently treat claims about justice as interpretive claims because such claims are about an identiable practice. This option, however, entails that a local practice can provide a justication for norms that are binding beyond the practice. I explore some problems with this position shortly. The second option would place enormous stress on the coherence of calling both legal and universal moral claims interpretive claims. For example, if the restrictions of t do not preclude afrming a principle as just, the sense in which claims about justice are interpretive is rather unclear. This option does, however, have the virtue of showing how Dworkin might develop a conception of moral justication that can provide straightforward support for universal rights. Justice might be taken to be a special normative concept that by itself can justify claims with universal scope. Considered in conjunction with Dworkins view that judgments qualify as true only if our reective convictions support them and the suggestion that we can relax the leeways of interpretations when it comes
59

Dworkin (1986, p. 424).

214

JON MAHONEY

to justice, this proposal would warrant a special priority for justication in disputes about norms with universal scope. One could develop the thought that claims about justice appeal for their justication to the most abstract and elemental convictions of each interpreter by claiming every interpretive exercise that concerns justice is subordinated to demands of practical reason that enjoin agents to accept reasons all can share. However, for this strategy to succeed, Dworkin would have to characterize the constraints on our reective convictions in terms of reasons that potentially bind all reasonable persons. And if he accepts this, then the moral rather than interpretive point of view will be advanced as the source of justication for moral norms with universal scope in which case his conception of moral justication would be similar to the one preferred by Kantian realists. Since I have argued that constructive interpretation cannot provide the proper foundation for universal rights, my objection could be met by a conception of justication for deontological rights with universal scope that advances a moral point of view. To accept this, however, is to jettison the idea that treating a moral claim as an interpretive claim tells us anything about the conditions for its justication. Later in the passage just cited, Dworkin does claim that justice is a constraint on interpretive claims. This implies that there is a peculiar sense in which the concept of justice is not an interpretive concept; perhaps interpretations of justice are answerable to moral truisms about human nature. Although it seems in tension with central features of his work on legal and political philosophy, and contrary to his modest moral realism, Dworkin does claim that:
Interpretations of justice cannot themselves appeal to justice, and this helps explain the philosophical complexity and ambition of many theories of justice. For once justice is ruled out as a point of fundamental and pervasive political practice, it is natural to turn for a justication to initially non-political ideas, like human nature or the theory of the self, rather than to other political ideas that seem no more important or fundamental than justice itself.60

Dworkin puts this idea to use in a comment about how justice is a constraint on associative obligations.61 He also claims that inter60 61

Ibid., p. 425. Ibid., p. 202.

OBJECTIVITY AND INTERPRETATION

215

pretation is in part a matter of justice62 thereby suggesting there are moral constraints on constructive interpretation that are not simply competing interpretive claims. I am very sympathetic to this aspect of Dworkins position. It is compatible with a conception of moral justication that treats reasons whose moral authority does not depend on a local practice as the grounds for judgments about moral claims with universal scope. But how, exactly, are we to understand the concept of justice if it is treated both as an interpretive concept defended by exercises in constructive interpretation and also as a concept whose content is answerable to facts about the self or human nature? Granted that I have not misconstrued Dworkins position, it is not clear how to characterize the conception of justication that his comments about the status of fundamental moral concepts like justice suggest. These considerations do, however, suggest that Dworkins position on the issue of whether some claims about normative concepts can be defeated by other claims that are not properly speaking interpretive claims (e.g., claims about human nature) should be characterized with some caution. I have been arguing for a Kantian foundation for deontological rights. Dworkin would apparently prefer to rely on a theory of human nature, an approach better suited for his noncontractarian view of justice. Each approach could be advanced as providing the moral foundations for universal rights. I concede that some features of Dworkins position could be developed in favor of a more robust form of moral realism than the modest realism that I have attributed to him.63 It is unclear whether an approach to justice and rights that relies on a theory of human nature can be reconciled with the account of objectivity Dworkin defends in Objectivity and Truth without raising the specter of external skepticism, but this hardly counts as an objection. At the same time, Dworkins own comments on the relationship between justice and interpretation are ambiguous and thus its implications will vary depending on where the emphasis is placed. One point
Ibid., p. 203. Dworkin (2000b, pp. 221222) considers in passing a conception of moral objectivity that could be used as the basis for a theory of moral rights that are grounded in more substantive commitments than those that are argued for in most of Dworkins work. This position, however, though alluded to is not systematically developed.
63 62

216

JON MAHONEY

that merits special emphasis is that as long as Dworkins position is construed as an interpretive model of justication, one that treats the grounds or justication for moral claims as invariably a kind of interpretive claim, there will be good reasons to worry about its ability to provide a justication for universal human rights. ii. Kantian Realism and Skepticism Dworkins modest realism is in part motivated by the claim that traditional forms of realism fail. Though he does not discuss Kantian realism in Objectivity and Truth his objections to traditional forms of moral realism could have been aimed at Kantian realism. Ive already noted that I believe Dworkin overstates the case against traditional moral realism. Here I offer a brief argument for why the Kantian justication for deontological rights defended in this paper yields to neither of the versions of skepticism considered by Dworkin. Kantians, as Korsgaard puts it, defend the view that . . . a reason derives its normative force for an agent from a perspective provided her by her identication with a principle of choice.64 Some reasons, call them deontological reasons, carry with them a special, overriding normative force and are such that their authority commands the assent of all reasonable persons. Korsgaard calls this procedural moral realism in contrast to substantive moral realism.65 Procedural moral realism claims that moral claims are true or false and that we can determine whether they are by applying a procedural test. This is the only kind of realism that a Kantian has to embrace. Kantian realism afrms the view that a moral claim is true if it can be justied by a reason that can be shared by all reasonable persons. Though there are a number of similarly formulated versions of this test, the Categorical Imperative, Rawlss method of reective equilibrium, and the point of view adopted by persons willing to
Korsgaard (1996, p. 246). Kosrgaards reasons for rejecting substantive moral realism are similar to Dworkins reasons for rejecting traditional moral realism (see Korsgaard (1996, pp. 3440)). In contrast to Dworkin, she defends the Kantian idea that reasons and moral principle are sufcient to establish the truth of a moral claim. No exercise in constructive interpretation is required to test a moral claim. 65 Ibid., p. 35.
64

OBJECTIVITY AND INTERPRETATION

217

afrm as moral only those reasons that all reasonable persons can accept, one basic idea is common to each version of procedural moral realism: procedural moral realists afrm the idea that a justied moral reason is one that can be jointly afrmed by all in a manner respectful of the autonomy and dignity of each. Substantive moral realism, by contrast, afrms the existence of intrinsically normative entities such as Platonic forms or moral properties. Though procedural moral realism is defended as a lesscontroversial alternative to substantive moral realism, and thus, like Dworkins modest realism is motivated in part by the aim of responding to skepticism, procedural moral realism is still a more robust kind of realism than the version Dworkin prefers. Compared to procedural moral realism, Dworkins method of constructive interpretation and the modest realism defended in Objectivity and Truth is even more modest; too modest, in fact. This Kantian view of universal rights claims that someone who argues for a right is providing a reason, a reason that enjoins, forbids, or permits an action depending on the right. These features enjoining, forbidding, permitting of arguments about universal rights suggests that sometimes the demands of reason exceed what an interpretation of a tradition can support. In other words, claims about universal rights presuppose a moral point of view that is answerable to a conception of truth that amounts to more than reective convictions informed by an exercise in constructive interpretation. Moral claims with universal scope are justied because of the reasons which support them; and these reasons are justied, if they are, independently of interpretive questions. Therefore, in order to establish that appeals to such rights are legitimate when we argue about traditions or practices, rights should be understood as norms that can be afrmed from the standpoint of practical reason rather than the interpretive point of view. Moreover, Kantian realism is immune to moral skepticism. It avoids external skepticism by advancing a conception of moral argument and justication that treats moral claims as claims within morality. Like Dworkins view, it stresses the idea that only a moral argument defeats a moral argument. It avoids internal skepticism by afrming a theory of practical reason that treats reasons for action as considerations for action open to public and rational examination

218

JON MAHONEY

by agents who want to nd moral principles compatible with moral equality and human dignity. However, Kantian realism offers a more explicit conception of moral justication, a conception that emphasizes moral reasons, the principles that support them, and the capacity for practical reason that gives reasons priority over convictions. This conception of moral justication can, whereas Dworkins cannot, show how a norm with universal scope is justied when the reasons for it are reasons that command universal assent. iii. Justication and Universalism I have been arguing that the attempt to reconcile the global authority of claims about justice with constructive interpretation reveals an unresolved tension in Dworkins philosophy. A third possible objection to my argument tries to resolve this tension in a way that I have not yet considered. It argues that an exercise in constructive interpretation, though an interpretation of a local practice, might nevertheless provide a justication for moral norms with universal scope. On this view, one would try to argue that an interpretation of one social practice could yield a justication for norms whose application is global. This strategy has at least two related problems, one practical, the other conceptual. On my view, moral universalism requires a conception of justication that appeals to reasons that transcend social practices. Universal rights, for instance, presuppose for their justication, reasons that all reasonable persons can share. Consider one practical implication of a position that denies this. Someone who denies that some moral reasons can be shared by all reasonable persons, while at the same time afrming norms with global scope, holds a position that licenses the use of political and legal power without rational justication. On such a view, the enforcement of a universal right, for example, can be regarded as justied even though there is inprinciple no rational justication for the use of power by those legal and political institutions that enforce the right. There is no reason to deny that a normative concept with universal scope can originate in a local practice. However, there is good reason to reject the inference from the fact that a norm with universal scope can be afrmed on the basis of an interpretation of a local practice to the claim that the norm is justied

OBJECTIVITY AND INTERPRETATION

219

because it is afrmed by an interpretation of such a practice. This is a conceptual point about the nature of justication. The criteria that an agent appeals to in order to justify a norm with universal scope cannot be criteria of justication because they are standards accepted within her social practices. There are of course local standards for justifying norms that lack universal scope, standards for evaluating claims about etiquette for instance, but agents who appeal to these standards do not purport to establish norms with universal scope.66 One might try to argue from an interpretive point of view that some rights have universal scope because such rights are justied by the best interpretation of a specic political tradition. However, persons who do not participate in such a tradition can reasonably reject a justication whose professed basis is the practice in question. So if the grounds or justication for a norm is one that reasonable persons can reject, the scope of such a norm cannot be universal. All of this assumes, of course, the difference between a de facto or assumed justication and a justication that satises the normative requirements for moral justication. The denial of this distinction, however, comes at a serious cost. Without it, one is no longer entitled to profess a moral position. Ones entitlement to claim of a normative concept that it has global reach cannot be based on an interpretation of a particular social practice. Rather, one is entitled to afrm a norm with global reach only if the reason for it is one that all reasonable people can accept.

V. CONCLUSION

The following is intended to be a straightforward, though admittedly compressed, argument for the position defended in this paper. First,
I am convinced that Dworkin does not make this conceptual mistake. His comments about justice in the passage cited above (p. 26) show that he believes claims about justice . . . can serve as the basis for criticizing other peoples practices of justice . . . (Dworkin 1986, pp. 424425). This position only makes sense if we treat the standards that agents appeal to when making claims with universal scope as standards whose authority exists independently of the practices they are used in. I remain unconvinced, however, that Dworkin has offered a clear and unambiguous account of exactly how and why norms with universal scope are justied.
66

220

JON MAHONEY

reasons have priority over convictions. This claim is consistent with Dworkins position. Secondly, moral reasons for action are justied when they satisfy a principle no reasonable person can reject. This claim is not compatible with Dworkins position yet it is required to link the justication of universal norms with reasons all can share. Thirdly, a moral principle such as treat people with equal concern and respect is one that no reasonable person can reject. This principle supports reasons that command universal assent. If a human right, for instance, is warranted by such a principle, then all reasonable persons have a reason to afrm the right. Therefore, the idea of a reason that commands universal assent is required to render coherent a deontological conception of universal rights. There are many ways to defend objectivity in normative theory and Dworkins proposal is an important one. However, some important features of universal norms are ignored in his account. In this respect, procedural moral realism, the realism preferred by Kantians, offers a more plausible foundation for universal rights than does Dworkins interpretive theory of normative concepts. If we construe arguments about rights as arguments that appeal to reasons that can be shared by agents willing to adopt the moral point of view, we are able to capture a feature of moral argument that Dworkins interpretive theory does not. This understanding of rights shows how the authority such rights have over us is established by a process of reasoning about norms, a kind of reasoning that the interpretive attitude does not fully capture. Dworkin has it exactly right when he claims that the only thing that defeats a moral argument is another moral argument. Less plausible, however, is the claim that all such arguments are settled by the best interpretation. For many who advocate deontological rights this quite plainly is not enough to ground our convictions that some rights are universal. One might deny that there are universal rights and I have done little in this paper to answer those who are skeptical about them. However, by arguing that if claims in favor of universal rights are justied these claims cannot be supported by Dworkins interpretive theory, an important implication of Dworkins understanding of deontological rights has been brought to light.

OBJECTIVITY AND INTERPRETATION

221

REFERENCES Barry, Brian, Culture and Equality (Cambridge, MA: Harvard University Press, 2002). Cohen, Joshua, The Arc of the Moral Universe, Philosophy and Public Affairs 26(2) (1998): 91134. Dancy, Jonathan, Moral Reasons (Cambridge, MA: Blackwell, 1993). Dworkin, Ronald, Equality of Resources, Sovereign Virtue (2000a): 65119. Dworkin, Ronald, Hard Cases, Taking Rights Seriously (1977a): 81130. Dworkin, Ronald, How Law is Like Literature, A Matter of Principle (1985a): 146166. Dworkin, Ronald, Is There Really No Right Answer in Hard Cases? A Matter of Principle (1985b): 119145. Dworkin, Ronald, Laws Empire (Cambridge, MA: Harvard University Press, 1986). Dworkin, Ronald, Liberal Community, Sovereign Virtue (2000b): 211236. Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). Dworkin, Ronald, Objectivity and Truth: Youd Better Believe It, Philosophy and Public Affairs no. 2 (Spring, 1996): 87139. Dworkin, Ronald, On Interpretation and Objectivity, A Matter of Principle (1985c): 167177. Dworkin, Ronald, Principle, Policy, Procedure, A Matter of Principle (1985d): 73103. Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000). Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977). Dworkin, Ronald, Taking Rights Seriously, Taking Rights Seriously (1977b): 184205. Foot, Philipa, Natural Goodness (Oxford: Oxford University Press, 2001). Guest, Stephen, Ronald Dworkin (Stanford, CA: Stanford University Press, 1991). Habermas, Jurgen, Remarks on Legitimation Through Human Rights, in Max Pensky (ed.), The Postnational Constellation (Cambridge, MA: MIT Press, 2001). Korsgaard, Christine, Sources of Normativity (New York: Cambridge University Press, 1996). Mackie, John, Ethics: Inventing Right and Wrong (New York: Penguin Books, 1977). McDowell, John, Values and Secondary Qualities, in T. Honderich (ed.), Morality and Objectivity (London: Routledge and Kegan Paul, 1985), pp. 110 129. Railton, Peter, Moral Realism, Philosophical Review XCV(2) (April 1986): 163207.

222

JON MAHONEY

Rawls, John, Political Liberalism (New York: Columbia University Press, 1996). Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). Scanlon, Thomas, What We Owe Each Other (Cambridge, MA: Harvard University Press, 1998). Warnke, Georgia, Justice and Interpretation (Cambridge, MA: MIT Press, 1993). Walzer, Michael, Interpretation and Social Criticism (Cambridge, MA: Harvard University Press, 1987). Department of Philosophy Auburn University 6080 Haley Center Auburn, AL 36849 USA