A Study Of Dworkin's Theory Of Associative Obligations

In this paper, I made a preliminary study of Dworkin's theory of associative obligations. By considering the theoretical differences between Dworkin and Legal Positivism in the political obligations, I want to make a study of the different understandings of them to the problem. At the same time, Dworkin's associative obligations also result from his dissatisfying with the previous prevailing theory of political obligation which is insufficient. Through such a perspective, the author tries to make an in-depth study of Dworkin's theory to the core, to grasp the inner logic of this theory and the development and history of it. Of course, the introduction of the relational perspective is to serve a better understanding of the theory. According to the two perspectives, this paper is divided into six parts:In the foreword and the first chapter, I focus on the research strategy and approach of my study in which I finish my research through the two perspectives mentioned above. Current domestic research about Dworkin's thought stays at two basic levels: First, they focus on Dworkin's legal philosophy, and second, they make a review of Dworkin's theory of resource distribution. But there are few people who have any concentration on Dworkin's theory of political obligation, let alone they make a study of this theory from the perspective of Dworkin's legal theory.In the second chapter of this article, from the first perspective, I try to systematically examine the different views about the political obligations between Dworkin and Hart-Raz who are on behalf of the legal positivism. My main argument is that differences between them in the political obligation can be understood through the methodology of them. Dworkin's methodology is an evaluative, the first-order theory, while Hart holds a kind of methodology that is a descriptive second-order theory and does not involve moral evaluation. The controversy can be understood through the understanding of the normative nature of social rules. Hart's earlier theory, while recognizing the inherent rules-oriented, which is confined to his methodological limitations, could not give a further description on people's acceptance of social rules for the specific reasons (in this case my main concern is whether the acceptance of social rules is based on the moral reason). Dworkin's distinction between the conventional morality and concurrent morality in the social rule is a heavy blow to the legal positivism. This has led to Hart's compromise later that his theory position belongs to the inclusive positivism, and he also acknowledges that the social rule is a convention. This convention is necessarily a cooperative convention, which involves both factual factors and normative factors. It is believed that the normative social rules can supply a pattern of mutually beneficial cooperation, making everyone possible to get rid of blindness. This has led to Hart's insistence for a fair play game theory. On the other hand, exclusive positivists (such as Raz) only recognize the forms of constitutive convention, whose nature is only factual factors. The normativity of constitutive convention needs to be guaranteed by other means. Raz's legal authority proposition makes him to be a philosophical anarchist who denies the existence of political obligations. Since the reason provided by law is a kind of second-order reason which is not related to the content itself, therefore, the moral obligation to obey the law as a first-order reason is not exist, otherwise it will undermine the boundary between law and morality, thus making the law unable to function as the act indicator. In such a background discussion, the differences about the viewpoint of political obligations among Dworkin, Hart and Raz are visible. Dworkin's view that law and morality are closely related to each other is bound to defend his associative obligations by resorting to the approaches of equality of a community's political practice. However, we need to point out that Dworkin's induction that legal positivism just matches fair play theory is incorrect, because the legal positivism he defined is exclusive positivism which Hart does not belong to, while Raz opposes to the existence of political obligation rather than insists on fair game theory.In the third chapter, I mainly study Dworkin's associative obligation theory from Dworkin's community conception, his criticism to the major theories of political obligation. The content theory's Characteristics of non-free will, the natural duty theory's too extensive feature and the fair play game theory's non-equality nature give rise to the associative obligation theory. This theory also implies a very different conception of community that it is the associative obligation that only when a community's political practice has been interpreted as a kind of friendship and equality. The previous political obligation theory at most implies a very simple rulebook model community conception, which can not justify a political obligation. From this standpoint, we can make a further understanding of Dworkin's theory of civil disobedience.In the fourth chapter, I make a comprehensive assessment of Dworkin's associative obligation theory. Generally speaking, I think that this theory can not justify a universal political obligation. First of all, this theory relies on the virtue of equality strongly, which leads to an outcome that many unjust political practices have been filtered by the interpreter, and thus is unable to meet the universality of the demand in the political obligation justification. As a result, this theory has very limited probative force in the Anglo-American society, let alone in the non-Anglo-American society. Secondly, I think the membership set by Dworkin is superfluous, for the key role in justifying the associative obligation is the attitude of interpreter. Dworkin does not make any compromise to Communitarians, and, Dworkin's version of associative obligation theory is still a liberal theory of political obligation. Again, I think that Dworkin's path to justify the legitimacy of a state is essentially an approach of"justification". According to Simmons's argument, this approach is a path through which we can justify the legitimacy of a state by its virtues and merits. However, the rationality of this approach has always been very controversial, and most scholars deny its force to justify the political obligation. I support this view, I think that Dworkin's reliance on the"justification"approach to justify the political obligation is unsuccessful. Finally, Dworkin's version of associative obligation theory also needs to face a difficult problem that how to ensure that the interpretations among the different interpreters can be the same and not be relativism. Dworkin's highly dependence on the"monologue"subject's"reflective equilibrium"does not guarantee the existence of truth between the"intersubjectivity". This plight exists not only in his political obligation theory but also in his overall doctrine.In conclusion, I stressed the positive side of Dworkin's associative obligation theory that his theory is useful to the transformation of contemporary China and he attaches great importance to the personal reflection ability. I think especially the second side is more worthy of our attention, because this stress is closely compatible with the contemporary China's social development.