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Dworkin’s response appears to be an attempt to theorise what, in positivist legal
systems, is the unrecognised evaluative component of judicial interpretation. However,
while acknowledging that the theoretical perspective of actors is influential on their
interpretation of law, and recognising the relative nature of judicial discretion (1970, p.
45), Dworkin denies any subjective component (1994, p. 474). Instead, Dworkin argues
that whether legal interpretation is subjective or objective “depends on the underlying
claims about the purpose of the enterprise” (p. 474). For example, if we think there is a
possible right answer to questions of justice, then we will also think that there are right
answers to questions of law (p. 475).
Dworkin fervently defends his position on ethical objectivism (1986, p. 45–86; 1994, p.
475). In doing so, he follows in a long history of rationalist theoretical traditions which
support his objectivist position. He employs philosophical argument to discount the
sceptical view that there can be no moral absolutes. For example, Dworkin argues that
matters of right and wrong about slavery are linked to belief rather than opinion. He
argues that moral beliefs can be objective: that they are not simply matters of opinion
as, say, your favourite ice cream flavour. Dworkin demonstrates his position by
examining whether abortion can be described as right or wrong, or whether it is just a
matter of opinion.
It is certainly logically possible to take up a fully sceptical position
about abortion, or any other matter of political or social justice. But
then you have to give up your own opinion. And most people confronted
with that choice will give up bad philosophy rather than intensely held
convictions.
Dworkin, 1994, p. 475
Unfortunately, what Dworkin and others hold as good philosophy does not reflect
reality. Influential theoretical perspectives of law have an inescapable basis in ethics
(Knowles, 2001, p. 2). For example, according to Mill, the only purpose for which
power can be rightfully exercised over any member of a civilised community, against
his will, is to prevent harm to others (Mill, 1972, p. 78). As such, they are based in
values. This philosophical distinction is crucial to my thesis. If the theories which guide
and inform what Dworkin calls the “underlying legal enterprise” are viewed as
objective, the result is not value-free decision making process. Instead, values of
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