¹ This is not to say that he regards it as a complete theory. In several places he speaks of the “skeletal” character of portions of his argument. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978), e.g., p.274.Google Scholar

² Ibid., p. vii.

³ Grey, Thomas, The Legal Enforcement of Morals (New York: Alfred Knopf, 1983), p. 8.Google Scholar

⁴ See, e.g., Lyons, David, “Human Rights and the General Welfare,” Philosophy and Public Affairs, 6 (Fall 1977): 113–29Google Scholar; Mackie, John, “The Third Theory of Law,” Philosophy and Public Affairs, 7 (Fall 1977): 3–16Google Scholar; Perry, Thomas, “Contested Concepts and Hard Cases,” Ethics, 88 (10 1977): 20–35.CrossRefGoogle Scholar

⁵ Dworkin, , Taking Rights Seriously, pp. 17 and 346–48.Google Scholar

⁶ Ibid., pp. 17 and 346.

⁷ Ibid., p. 111.

⁸ Dworkin, Ronald, “No Right Answer,” in Essays in Honour of H.L.A. Hart, ed. Hacker, P. M. S. and Raz, J. (Oxford: Clarendon Press, 1977), pp. 55–84.Google Scholar

⁹ Mead, Walter B., “A Call for Conceptual Clarification in Value Theory,” Journal of Politics, 39 (11 1977): 905–906.CrossRefGoogle Scholar To understand Dworkin's response to the skeptics, it is useful to distinguish between two sorts of the skepticism that might lead one to say that there is no right answer. First, there is “ontological” skepticism, which doubts that a right answer “exists.” Second, there is “epistemological” skepticism, which might grant arguendo that a right answer exists, but doubts that one can ever know what that answer is. Although Dworkin does not use these terms, they clearly undergird his analysis.

¹⁰ Dworkin, , Taking Rights Seriously, p. 280.Google Scholar

¹¹ Ibid., p. 281.

¹² Less significant for the present analysis, Dworkin also attacks a more radical and purely ontological version of the theoretical argument, one that questions the rationality of the entire enterprise of the law. This argument holds that asking about the right answer in “hard cases” is equivalent to asking whether the current king of France is bald. Perhaps Dworkin does not give adequate attention to the possibility that the enterprises of life and law are in fact “absurd.” But he is persuasive in suggesting that if the participants in an enterprise have for generations regarded it as meaningful, then one should at least be cautious in rejecting their claim to rationality “No Right Answer,” p. 81.Google Scholar

¹³ Dworkin, , “No Right Answer,” p. 76.Google Scholar

¹⁴ This is my label for this order of facts. Unfortunately for ease of summary, Dworkin does not supply a name. I should also acknowledge that I am stretching the term facts beyond common usage to make it coterminous with “being”; in this, I am following Dworkin, , “No Right Answer,” p. 77.Google Scholar

¹⁵ Dworkin, , Taking Rights Seriously, pp. 105 and 284–90.Google Scholar

¹⁶ Dworkin, , “No Right Answer,” p. 78.Google Scholar

¹⁷ Dworkin, , Taking Rights Seriously, p. 102.Google Scholar

¹⁸ Ibid., p. 285.

¹⁹ For an example of each: in criminal cases our “beyond a reasonable doubt” requirement holds that it is better to conclude that a person did not commit a crime (even though he in fact did commit it) than to conclude that he did commit the crime (when in fact he did not). In the case of a patient facing imminent death, medical ethics consider it better to try a treatment thinking that it will work (when in fact it will not) than to avoid a treatment, thinking that it will not work (when in fact it will).

²⁰ Dworkin, , Taking Rights Seriously, p. 88.Google Scholar

²¹ Ibid., p. 106.

²² Ibid., p. 107.

²³ As Dworkin acknowledges, the method of Hercules resembles the method of another thinker whom he admires greatly, the “reflective equilibrium” of John Rawls (Dworkin, , Taking Rights Seriously, p. 160Google Scholar; cf. Rawls, John, A Theory of Justice [Cambridge, Mass.: Harvard University Press, 1971], p. 20).Google Scholar

²⁴ Dworkin, , Taking Rights Seriously, p. 119.Google Scholar

²⁵ Ibid., p. 84–85.

²⁶ Ibid., p. 91.

²⁷ Dworkin does supply a footnote qualification that deserves a footnote re sponse. He writes, “I count legal persons as individuals, so that corporations may have rights; a political theory that counts special groups, like racial groups, as having some corporate standing within the community may there fore speak of group rights,” (ibid., p. 91 n. 1). To the extent that his theory accommodates the fact that law does contain principles establishing rights of corporations, he undermines the connection between his theory and rights of concrete persons, for the rights of corporations can easily conflict with those of concrete individuals. To the extent that he masks this conflict between corporate and concrete persons under the subsumption, “legal persons,” he drains his theory of meaning, for it would be possible under his theory then to have a polity based on “individual rights” that recognized no rights of concrete persons except as they formed part of corporate “persons.”

²⁸ From a non-Herculean perspective, these arguments, limited here to “hard cases,” might not seem to have great force. As an ordinary citizen, one might have to admit that when the law was made, neither he nor his representatives had any idea how they might have wanted a particular hard case to be decided; thus it would be unlikely that his democratic sensibilities would be jarred if the court, within limited boundaries, in a case requiring a decision, made up its own mind of what to do. And as a subject of the state, where the law was so unclear that what was required of him could not be determined with confidence, he might feel just as unfairly treated if the court claimed to have discovered a right answer as if it made policy within a narrow sphere of the law; the reasoning behind both might appear to him to be equally arcane.

²⁹ Dworkin, , Taking Rights Seriously, p. 85.Google Scholar

³⁰ Ibid., p. vii.

³¹ Ibid., pp. 272–73.

³² Ibid., p. 267.

³³ Ibid., p. 269.

³⁴ Ibid., pp. 270–71.

³⁵ Ibid., p. 271.

³⁶ Ibid., p. 272.

³⁷ Mill, John Stuart, Utilitarianism in vol. 10 of Collected Works of John Stuart Mill, ed. Dryer, D. P. (Toronto: University of Toronto Press, 1969), 255Google Scholar; Hart, H. L. A., “Between Utility and Rights,” Columbia Law Review, 79 (06 1979), 838.CrossRefGoogle Scholar

³⁸ Dworkin, Taking Rights Seriously, p. 274.Google Scholar

³⁹ Ibid., p. 275.

⁴⁰ Ibid.

⁴¹ Ibid., p. 274. Despite this explicit statement on the illegitimacy of counting external preferences, even if based on ideal arguments, a statement reaffirmed later (ibid., p. 358; “Liberalism,” in Public and Private Morality, ed. Hampshire, Stuart [Cambridge: Cambridge University Press, 1978], p. 134CrossRefGoogle Scholar; “The Forum of Principle,” New York University Law Review, 56 [05–06 1981]: 469Google Scholar; “Is There a Right to Pornography?” Oxford Journal of Legal Studies 1 [1981]: 194–212)Google Scholar, Dworkin has left untouched in this work an earlier argument defending preferential treatment exactly because its justification is based on an ideal argument (Dworkin, , Taking Rights Seriously, p. 239).Google Scholar Ideal justifications, in Dworkin's argument, are acceptable if not controversial, but in the mountains of literature written on preferential treatment, I have yet to discover the contention that it is uncontroversial.

⁴² Dworkin, , “Is There a Right to Pornography?” p. 203.Google Scholar

⁴³ Dworkin, , Taking Rights Seriously, p. 358.Google Scholar

⁴⁴ Dworkin, , “Liberalism,” p. 127.Google Scholar

⁴⁵ Dworkin, , Taking Rights Seriously, p. 106.Google Scholar

⁴⁶ Ibid., p. 172.

⁴⁷ Kant, Immanuel, Foundations of the Metaphysics of Morals, trans. Beck, Lewis White (Indianapolis: Bobbs-Merrill, 1959), pp. 27, 39, 44, 53.Google Scholar

⁴⁸ Ibid., pp. 33–39.

⁴⁹ Dworkin, , Taking Rights Seriously, p. 263.Google Scholar

⁵⁰ Mill, John Stuart, On Liberty, ed. Shields, Currin (Indianapolis: Bobbs-Merrill, 1956), p. 14.Google Scholar

⁵¹ Ibid., p. 76.

⁵² Mill, , Utilitarianism, pp. 211–212.Google Scholar

⁵³ Galston, William, “Defending Liberalism,” American Political Science Review, 76 (09 1982): 622–24.CrossRefGoogle Scholar

⁵⁴ Ibid., pp. 624–25. See also, Schauer, Frederick, Free Speech (Cambridge: Cambridge University Press, 1982), p. 62.Google Scholar

⁵⁵ Dworkin, , “Is There a Right to Pornography?”Google Scholar

⁵⁶ Ibid., p. 195.

⁵⁷ Dworkin, , Taking Rights Seriously, p. 156.Google Scholar

⁵⁸ Dworkin, , “Is There a Right to Pornography?” pp. 195–96.Google Scholar

⁵⁹ Ibid., p. 357.

⁶⁰ In his essay “Liberalism,” Dworkin speaks to the objection that his the ory of equal concern and respect rests upon “scepticism about theories of the good.” This objection, he writes, “need not concern us for long, because [it is] based on philosophical mistakes which I can quickly name if not refute. Liberalism cannot be based on scepticism. Its constitutive morality provides that people must be treated as equals by their government, not because there is no right and wrong in political morality, but because that is what is right” (p. 142). Perhaps Dworkin should have concerned himself a bit more with this objection, for then he might have noticed that it does not claim that his theory has no idea of what is right, but that this idea is itself derived from skepticism about the good life.

⁶¹ Schauer, , Free Speech, p. 62.Google Scholar

⁶² Federalist, No. 71.

⁶³ Poe v. Ullman, 367 U.S. 497, 546 (1961) (dissenting opinion).Google Scholar

⁶⁴ Dworkin, , Taking Rights Seriously, p. 285.Google Scholar