mahoney - objectivity, interpretation, and rights- a critique of dworkin

7/30/2019 Mahoney - Objectivity, Interpretation, And Rights- A Critique of Dworkin

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JON MAHONEY

OBJECTIVITY, INTERPRETATION, AND RIGHTS:A CRITIQUE OF DWORKIN

(Accepted 10 October 2003)

This paper addresses two significant features of Ronald Dworkins

conception of law and justice. The first is Dworkins theory of

constructive interpretation as first developed in his essay Hard

Cases1 and more recently in his bookLaws Empire.2 The second

is Dworkins long standing defense of a deontological conception

of rights. This defense was first famously presented in TakingRights 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 interpreta-

tion 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 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 communitys treatment of its members rather than in an

implicit agreement about principles of justice. In order to discern

1 Dworkin (1977a).2 Dworkin (1986).

3 Dworkin (1977b).4 Dworkin (2000).5 For a good overview of Dworkins work, see Guest (1991).6 Dworkin (1986, pp. 195216).

Law and Philosophy 23: 187222, 2004.

2004 Kluwer Academic Publishers. Printed in the Netherlands.


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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 principlesas this understanding provides the basis for interpretive claims

about justice. Secondly, Dworkin claims that normative concepts,

including rights, are interpretive concepts. Normative concepts are

justified if they can survive a reflective exercise in constructive

interpretation. Dworkins interpretive theory of normative concepts

purports to show that norms are justified when the arguments for

them fit 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 deontolo-gical rights.7 At the same time, Dworkin claims to affirm 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 deonto-

logical conception of rights is problematic. I will not argue against

Dworkins views concerning the internal relationship between lawand 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 justification 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 prac-

tices 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 interpreta-tion. Part II examines Dworkins critique of skepticism. Though

7 For an overview, see Warnke (1993).


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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 justification for a deontological

right is better understood to be a matter of reason and principle thana 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 justification. 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 concep-

tion of justification 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 thanmerely local reach.9 If this is true, then objective standards of inter-

pretation 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 justification

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 justification is ambiguous. This

conception is supposed to establish, on the one hand, that there are

objective standards that determine the truth or falsity of interpretiveclaims. 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 interpre-

tation 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 justi-

fied on grounds that any reasonable person should accept, there is no

8 I thank a reviewer for this journal for helpful suggestions on how to developthis idea.

9 See, for instance, Dworkins remarks on the peculiar sense in which justice

is an interpretive concept in Dworkin (1986, pp. 424425).


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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 justified 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 literarycriticism, and morality, as well as law.11 Moral concepts, like their

legal counterparts, are interpretive concepts that are justified when

they are supported by a particular interpretation of a social prac-

tice. 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 identified by a

mutual understanding regarding the aims and purposes of the prac-

tice 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 justification 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 justi-

fying moral claims. In other words, agents are to adjudicate moraldisputes about concepts such as equality and rights by providing

10 Dworkin (1986, pp. 4648).11 Ibid. See also Dworkin (1996).


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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 thatrequire a metaphysics of moral properties or other similarly contro-

versial 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 inter-

pretation 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 andeach contributes to how agents argue for normative claims. These

features are: purpose, fit, justification, 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 under-

stand 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 reflectively about the natureof 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 Dworkin (1996).13 Dworkin (1986, p. 216).14 Ibid., p. 52.15 Ibid., pp. 4649.


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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 ourselvesto 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 fit.

Fit requires that an interpreter strive to make her practice intern-

ally coherent. In a dispute about courtesy, we ask, for instance,

does courtesy, expressed by such actions as men doffing their hats

when entering church, fit other features of our social practice, or

does this interpretation of the concept fail to fit the practice as a

whole? Answers to interpretive questions about courtesy might

support claims that deny that courtesy calls for doffing hats in

church or even the claim that courtesy fails to fit our social practicealtogether 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 fits 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 withother principles or concepts that are already embedded in the social

practice.

The criterion of fit does not stand alone, however, and no inter-

pretive claim is justified simply because it fits the practice in

question. For Dworkin, questions of justification dont reduce to

questions of fit, though they are answerable to fit as one standard

of interpretive judgments. Questions of justification always refer to

a deeper issue concerning the justification of the practice as a whole.

Questions of justification ask, in other words, whether one inter-

pretation of a concept provides a better justification of our social

practice than an alternative interpretation. If we want to understandhow legal argument is constrained by the principle equality, for

instance, we ask whether a particular interpretation, such as the one


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offered in Brown provides a better justification 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 justification for the use of politicalpower; we support our interpretation of equality by showing that it

provides a good justification 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 summar-

izes the criterion of justification by claiming that one . . . must

construct a scheme of abstract and concrete principles that provides

a coherent justification for all common law precedents and, so far

as these are to be justified on principle, constitutional and stat-

utory provisions as well.16 The criterion of justification serves the

role of a regulative ideal and thus is a very demanding criterionfor 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 justification. Justification is therefore a counterfac-

tual and regulative constraint on normative judgments. Moreover,

this highly idealized conception of justification is one reason why

Dworkin claims and is entitled to claim that constructive interpre-

tation 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 interpretationyields a better justification 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

conflict 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 Dworkin (1977a, pp. 116117).17 Ibid. See also Dworkin (1985, 1986).


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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 the14th 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 interpre-

tation 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 interpreta-tion 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 justification requires that . . . an inter-

pretation 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 justified 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 inter-

pret 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 prac-

titioners understanding of the concept, attempt to show how her

interpretation justifies courtesy norms. An exercise in constructive

interpretation may therefore result in our discovering that doffing

hats is a form of homage to antiquated values that embody the

vestiges of anti-egalitarian roles that are incompatible with our prac-tices current conception of equality. The prevailing interpretation

18 Dworkin (1985a, p. 149).


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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 prac-tice. 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 justified

by an interpretation of common law practices as chartered by the

U.S Constitution. The criterion of justification helps to show that

Brown rather than Plessy better represents the concept of equality

within the American legal tradition; Brown affirms, whereas Plessy

conflicts with the political morality expressed by the American legal

tradition.

The fourth feature of constructive interpretation, integrity, estab-

lishes the overall coherence and plausibility of Dworkins inter-pretive 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 justification for interpretations of social practices. The

following is a summary of Dworkins position:

. . . convictions about fit 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, ordinarypolitics 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 com-

munity 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 Dworkin (1986, pp. 410411).20 Ibid., p. 176.


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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 presup-

pose and endorse. So each member accepts that others have rights and that he

has duties flowing from that scheme, even though these have never been formally

identified 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 interpreta-tion 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 fit and justification. When applied to law, fit imposes

a normative demand to preserve laws consistency, whereas justi-

fication 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 inter-

pretation for moral concepts is significant. For example, an agent

who argues that her rights, or the rights of others, are not prop-

erly acknowledged is making a claim about obligations that her

community should acknowledge. It is significant 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 acounterfactual component to normative claims about rights, such

21 Ibid., p. 211.


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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 justification to an imagined community, such as

a Kingdom of Ends. Constructive interpretation is therefore incom-patible with moral realism as it is defended in the Kantian tradition.

Since Kantians believe that a moral claim is true if it can be affirmed

by all persons in a manner that upholds the fundamental moral

concepts of equality and autonomy, moral truth for them is under-

stood as a matter of what can be affirmed by the standpoint of

practical reason.22 Not just any standpoint will suffice, of course.

Rather, the truth of a moral claim is determined from the stand-

point of practical reason that expresses what all rational agents can

impartially affirm 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 obligationsflow 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 crit-

ical judgments about such a practice from the point of view of the

better version.

Dworkin is satisfied 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 itclarifies the purpose of a practice, fits the practice better than

competing claims, justifies the practice and preserves the integrity of

the community defined 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

22 Korsgaard (1996).23 In this paper I stress a contractualist interpretation of Kantian ethics, one that

stresses the idea ofreasonableness 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 toqualify as reasonable it must be one that can be affirmed by all in a manner that

respects the dignity and autonomy of each.24 Dworkin (1986, pp. 195216).


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activity; the best argument is one that supports the best interpretation

within the domain-specific parameters of the genre or practice in

question.25

II. OBJECTIVITY AND TRUTH

All varieties of moral realism require some account of how our judg-

ments 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 justifies 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 prop-

erties argues that the moral claims we make are answerable to someproperty that in some sense is there independently of our percep-

tion.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 qualifies 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 Dworkin (1996).26 Railton (1986, p. 172).

27 Dancy (1993).28 Foot (2001, pp. 2223).29 Korsgaard (1996).30 Dworkin (1996, pp. 127128).


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i. Objectivity and Moral Skepticism

In his discussion of moral realism, Dworkin considers two kinds of

moral skepticism.31 The first, external or archimedean skepticism,

denies that there is any subject matter that is properly speakingmoral 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 acceptthat 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, briefly, 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 justifies judgments about them seem fraught with

difficulty. Dworkin argues that the external skepticism of people

31 Earlier statements of Dworkins views on skepticism can be found in

Dworkin (1985b, 1986).32 Dworkin (1996, p. 91).


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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 justifymoral beliefs about properties in a manner analogous to the acquis-

ition and justification 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 well-

known 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 ismotivated 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 unjustified 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 wind-

mills 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 itis 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 justification 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

33 Mackie (1977).

34 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).


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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 objec-tivity 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 justified by

an exercise in constructive interpretation that appeals to the relevant

standards for literary, legal, and moral judgment. Internal skepti-cism 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 interpreta-

tion 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 under-

stood 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 estab-

lish objective claims. There is no more to moral objectivity than

37 Ibid., pp. 128129.38 For an earlier statements of this position, see Dworkin (1986, pp. 8081).


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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 shouldtreat its members. Substantive principles define 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 mind-

independent moral truth. Here is a clear statement of Dworkins

position:

Of course I do not mean that our convictions are right just because we find 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 formsof 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 find 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 qualifies as a version of moral realism. It satisfiesthe 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 reflective, reason-supported claims. Rather, as

Dworkin argues in Objectivity and Truth we are entitled to affirm

our convictions our good ones in any case because they support

claims that we are justified 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 argu-

39 Dworkin (1996, p. 118).


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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 prin-

ciples 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 posi-

tions. 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 severaldecades.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-benefit 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 entitle-

ments. 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,

40 I understand this to be a question about moral justification. Understood this

way, the trap of external skepticism is avoided. Ones moral position might yield

to external skepticism if one construes questions about moral justification as ques-

tions 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 Slaveryis unjust are true in a manner very similar to his recent account in Dworkin

(1996).42 Dworkin (1977b).


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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-efficient society uses to fix 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 moralharm 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 amoral 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 associ-

ated with a deontological understand of rights, a consideration

conspicuous by its absence in Dworkins account. For some deont-

ological 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 centralto 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 motiv-

ated 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 justified reason for accepting this conceptionof rights unless the reason can satisfy a universalizability require-

43 Dworkin (1985c, p. 81).44 For a good overview, see Habermas (2001).


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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 thatall reasonable persons should affirm such a right. On my view, a

norm commands universal assent when the normative requirements

of morality cannot be satisfied by withholding ones assent.

Dworkin defends what is clearly recognizable as a Kantian

conception of rights.45 Yet he offers a non-Kantian justification

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 deont-

ological rights are objective merits close inspection. On my view,

Dworkins modest moral realism fails to provide an adequate justi-fication 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 claimqualifies as an interpretive claim if it is advanced as a justification for

a practice from within a practice. How might one advance a deont-

ological 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 justified, first, by reference to communities which actually do have

practices of making political decisions by reference to community goals. In that

45 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, Inter-

pretive claims are interpretive . . . and so depend on aesthetic or political theory

all the way down (Dworkin 1985b, p. 168).


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206 JON MAHONEY

sense, they are contingent and historical. Second, they are justified 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 justification as one that extends

to universal rights, this is a puzzling view for two related reasons.

One is that this characterization of the justification 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 justification seems unableto 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 find appeals to culture, tradi-

tion 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 inter-

pretation 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 iden-

tity, 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

47 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 justification 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 alternativeinterpretation of Dworkins position, one that might be advanced as a response to

the problems I raise here.48 Barry (2001).


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or group-specific conceptions of value. On some communitarian

versions of this argument, claims are treated as justified 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 objec-tion 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 ratified by such an exercise are convictions

that are too closely tied to a specific 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 areason 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 justified independently of an exercise in constructive interpreta-

tion. 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 justification 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 inter-

49 For a defense of this strategy, see Walzer (1987). For an incisive criticism,

see Barry (2001).50 Scanlons (1998) contractualist model of justification represents a positive

step towards developing a deontological conception of norms that does not have

a problem connecting universal scope with universal obligation.


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208 JON MAHONEY

pretation and the conception of objectivity it supports do not offer

the kind of justification for rights that shows how universal rights,

deontologically understood, inform our moral convictions.

Consider, for instance, the claims to universality we make onbehalf 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 illu-

minating 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 histor-

ical analysis of slavery. Cohens account of how moral judgmentsbear on social practices differs significantly from Dworkins in that

the truth of a moral claim is taken to be independent of any inter-

pretive 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 self-

worth in the face of repeated insults, still, public recognition is related to dignity in

two ways: first, persons with a sense of their own worth regard such recognition asan 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.

51 Cohen (1998).52 Ibid., p.115.53 The moral significance of human dignity is central to Dworkins argument

for strong sense rights in Dworkin (1977b).


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Dworkins interpretive theory and overly modest realism, however,

preclude this kind of defense of the moral foundations for funda-

mental universal rights. On Dworkins account, rights that appeal

to human dignity are justified through an exercise in constructiveinterpretation, and justification is a matter of interpretation all the

way down. On my view, rights are a matter of affirming what all

reasonable people must accept, namely, terms for social interaction

that affirm the equality and dignity of all persons. This is not simply

a more direct way of affirming 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 itplays 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 inter-

pretive 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 followingconception of moral justification is sufficient: if a right with

universal scope is justified then its grounds must be such that a

reasonable person could affirm the right. This conception of moral

justification rightly treats questions about what makes a moral

reason a good one as questions about what a reasonable person can

affirm rather than what can be affirmed 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 justified 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 justified independently ofa 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


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210 JON MAHONEY

norms that bind all rational agents. This is the position that I prefer;

a right is justified by the moral reason one can provide for it; moral

reasons are justified by principles that all reasonable persons can

accept.Dworkin denies that rights can be justified in either of these two

ways, because he denies that rights are norms that can be justified

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 institu-

tions.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, thispassage is relevant to the current discussion. It shows how normative

concepts are on Dworkins view justified by a practice of interpre-

tation, 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 justified not as interpretive claims, but rather, as

moral claims that appeal to reasons whose justification 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 justificationfor such rights rests on a moral point of view that expresses a stand-

point 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 deontolo-

gical, yet an interpretive model of justification is not compatible

with a conception of moral argument that tries to show that our

judgments about universal rights establish both that such rightsare deontological and that such rights are universal. It would be a

54 Dworkin (1977a, p. 87).


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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, fit this conception, butit 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 foraction 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 first is that Dworkins

conception of moral justification 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 justification do notreduce 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 interpre-

tation 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 flourishing. An equality of resources56

55 I thank a reviewer of this journal for helpful suggestions on how to char-

acterize this point.56 Dworkin (2000a, pp. 65119).


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212 JON MAHONEY

argument might develop this idea as follows. First, the distribu-

tion of social resources has a significant 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 estab-

lished 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 numberof deontological rights with universal scope and all such rights could

be justified 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 localto 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 fit 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 under-

standing of the moral justification for deontological rights cannot

57 Dworkin (1986, p. 424).58 Ibid., pp. 424425.


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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 justification for universal rights. However, if justice is aspecial 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 qualification, 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 under-

stood to have a global reach, the claims people make on behalf of

such concepts can be understood to be applicable across social prac-

tices and traditions. What justifies 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 affirm a right with global reach because this is the best

interpretation of her practice. Another is that she is entitled to affirm

a right with global reach because this is the best interpretation of

justice. If Dworkin opts for the first option, then he can consistently

treat claims about justice as interpretive claims because such claims

are about an identifiable practice. This option, however, entails that

a local practice can provide a justification for norms that are binding

beyond the practice. I explore some problems with this positionshortly.

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 fit do not preclude affirming a

principle as just, the sense in which claims about justice are inter-

pretive is rather unclear. This option does, however, have the virtue

of showing how Dworkin might develop a conception of moral

justification 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 trueonly if our reflective convictions support them and the suggestion

that we can relax the leeways of interpretations when it comes

59 Dworkin (1986, p. 424).


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214 JON MAHONEY

to justice, this proposal would warrant a special priority for justi-

fication in disputes about norms with universal scope. One could

develop the thought that claims about justice appeal for their justi-

fication to the most abstract and elemental convictions of eachinterpreter 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 reflective 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

justification for moral norms with universal scope in which case

his conception of moral justification would be similar to the one

preferred by Kantian realists.

Since I have argued that constructive interpretation cannotprovide the proper foundation for universal rights, my objection

could be met by a conception of justification 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

justification. 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 inter-

pretive concept; perhaps interpretations of justice are answerable to

moral truisms about human nature. Although it seems in tensionwith 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 justification 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 inter-

60 Ibid., p. 425.61 Ibid., p. 202.


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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. Itis compatible with a conception of moral justification 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 justification that his comments about

the status of fundamental moral concepts like justice suggest. These

considerations do, however, suggest that Dworkins position on theissue 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 non-

contractarian 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 themodest 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

62 Ibid., p. 203.63 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 thatare 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.


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216 JON MAHONEY

that merits special emphasis is that as long as Dworkins position

is construed as an interpretive model of justification, one that treats

the grounds or justification for moral claims as invariably a kind

of interpretive claim, there will be good reasons to worry about itsability to provide a justification 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 justification for deontological rights defended in thispaper 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 identification with a principle of choice.64 Some reasons,

call them deontological reasons, carry with them a special, over-

riding 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 Proced-

ural 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 affirms the view that a moral claim is true if it

can be justified 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 reflective

equilibrium, and the point of view adopted by persons willing to

64 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 sufficient to establish thetruth of a moral claim. No exercise in constructive interpretation is required to

test a moral claim.65 Ibid., p. 35.


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affirm 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 affirm the idea that a justi-

fied moral reason is one that can be jointly affirmed by all in amanner respectful of the autonomy and dignity of each.

Substantive moral realism, by contrast, affirms the existence of

intrinsically normative entities such as Platonic forms or moral

properties. Though procedural moral realism is defended as a less-

controversial 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

reflective convictions informed by an exercise in constructive inter-

pretation. Moral claims with universal scope are justified becauseof the reasons which support them; and these reasons are justified, 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 affirmed 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 justification 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 byaffirming a theory of practical reason that treats reasons for action

as considerations for action open to public and rational examination


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218 JON MAHONEY

by agents who want to find moral principles compatible with moral

equality and human dignity. However, Kantian realism offers a more

explicit conception of moral justification, a conception that emphas-

izes moral reasons, the principles that support them, and the capacityfor practical reason that gives reasons priority over convictions. This

conception of moral justification can, whereas Dworkins cannot,

show how a norm with universal scope is justified when the reasons

for it are reasons that command universal assent.

iii. Justification 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 objec-

tion to my argument tries to resolve this tension in a way that Ihave not yet considered. It argues that an exercise in constructive

interpretation, though an interpretation of a local practice, might

nevertheless provide a justification for moral norms with universal

scope. On this view, one would try to argue that an interpretation

of one social practice could yield a justification 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 justi-

fication that appeals to reasons that transcend social practices.

Universal rights, for instance, presuppose for their justification,

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 affirming norms with global scope, holds a position

that licenses the use of political and legal power without rational

justification. On such a view, the enforcement of a universal right,

for example, can be regarded as justified even though there is in-

principle no rational justification 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, thereis good reason to reject the inference from the fact that a norm

with universal scope can be affirmed on the basis of an interpre-

tation of a local practice to the claim that the norm is justified


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because it is affirmed by an interpretation of such a practice. This

is a conceptual point about the nature of justification. The criteria

that an agent appeals to in order to justify a norm with universal

scope cannot be criteria of justification because they are standardsaccepted within her social practices. There are of course local stand-

ards 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 justified

by the best interpretation of a specific political tradition. However,

persons who do not participate in such a tradition can reason-

ably reject a justification whose professed basis is the practice in

question. So if the grounds or justification for a norm is one thatreasonable 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 justification and a justification that satisfies

the normative requirements for moral justification. 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 affirm 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,

66 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 prac-

tices of justice . . . (Dwor

mahoney - objectivity, interpretation, and rights- a critique of dworkin

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