Taking Rights Seriously by Ronald Dworkin

First published: 1977

Type of Philosophy: Ethics, political philosophy, philosophy of law

Context

Taking Rights Seriously is a collection of thirteen essays written by Ronald Dworkin, two that were new and eleven originally published between 1966 and 1976. At the time the essays were written, legal positivism and utilitarianism were considered to be the two dominant schools of Anglo-American jurisprudence, but Dworkin attracted a great deal of attention by proposing a liberal alternative based on natural law and individual rights. In most ways, his ideas agreed with those found in John Rawls’s famous book A Theory of Justice (1971). This was a period of great political and legal controversy, with many of the controversial issues involving general principles of equality and liberty. The U.S. Supreme Court, for instance, was ruling on important matters such as the legality of abortions, affirmative action for disadvantaged groups, and the use of busing for school desegregation. The Court’s majority was usually upholding liberal positions, but it was also stimulating a strong conservative reaction. As both a lawyer and a philosopher, Dworkin was passionately committed to a liberal, left-of-center point of view. His goal was to develop systematic theories of jurisprudence and ethics relevant to the analysis of specific issues, and his intended audience included philosophers, lawyers, and the general reading public.

Because Taking Rights Seriously is a collection of essays, each chapter can be approached as an independent unit and the chapters need not be read in the order in which they appear. Some of the essays were written primarily for academic philosophers, and others were written for a broader public in The New York Review of Books. Several of the essays deal with abstract principles of jurisprudence, and others apply these principles in analyzing particular issues of policy, such as the moral justification of giving preferences to racial minorities and women.

Refuted Legal Positivism and Utilitarianism

In the introduction, Dworkin explains that his major purpose is to define and defend “a liberal theory of law” that is based on individual rights, and he rejects two alternative models, legal positivism and utilitarianism. According to his analysis, legal positivism holds that law is a “duty-based” system of rules, and it recognizes only those personal rights established by authoritative political institutions. He considers Herbert Hart’s Concept of Law as the best example of this perspective. Dworkin understands utilitarianism as primarily a “goal-based” system in which individual rights are considered subordinate to maximizing the aggregate happiness of the majority.

In his refutation of legal positivism, Dworkin argues that a legal system consists of both specific rules and general principles. This distinction between rules and principles is especially relevant to the Anglo-American tradition of common law, in which judges interpret laws according to judicial precedents. In illustrating the distinction, Dworkin endorses the reasoning used in the New York case of Riggs v. Palmer (1889), where the named heir in a will had murdered his grandfather in order to obtain his inheritance. Although the applicable statute (a rule) had provided that a valid testament would determine the terms of the inheritance, the court decided to overrule the statute with the common law principle that a person should not be permitted to profit from his own crime. Dworkin argues that such general principles of equity are grounded in the state’s interest in seeking justice and protecting individual rights. Such principles, moreover, should serve as “trumps” whenever they conflict with other legal considerations.

In complex legal systems, such as those in the United States and Great Britain, Dworkin insists that “no ultimate distinction can be made between legal and moral standards.” Lawyers and judges should not only look to the black-letter rules that appear in statutes but also have some discretion to take into account moral principles. He does not suggest that judges should create new principles without preexisting materials, but he does believe that they can discover relevant principles within existing laws and prior cases. Although judges should not act as Platonic philosopher-kings with unlimited discretion to invent new laws, they should be encouraged to interpret and reorganize legal precedents in order to make the laws more just.

The Right to Equal Concern and Respect

Because established rights sometimes come in conflict with one another, certain rights must have priority over others. “Our intuitions about justice,” Dworkin writes, “presuppose not only that people have rights but that one among these is fundamental and even axiomatic. This most fundamental of rights is a distinct conception of the right to equality, which I shall call the right to equal concern and respect.” As an unambiguous example of invidious discrimination, Dworkin points to Jim Crow segregation, which stigmatized African Americans as unworthy of equal rights. The principle of equality, however, does not always require equal treatment for each person. He argues, for instance, that the goal of providing “equal concern and respect” is not inconsistent with affirmative action policies that give preferences to members of racial minorities who suffer the harmful effects of past discrimination. Although such policies might mean that nonminorities will enjoy fewer opportunities in education or employment, Dworkin argues that the policies are not invidious because they do not insult nonminorities or imply that they are inferior.

In order to promote his expansive view of equality, he is willing to place considerable restraints on the individual’s liberty to do as he wishes, especially in the economic realm. “Laws,” he writes, “are needed to protect equality, and laws are inevitably compromises of liberty.” Although he asserts in chapter 12 that it is “absurd” to suppose that people possess any “general right to liberty,” he strongly defends those specific liberties that are consistent with the more fundamental right of equality. Examples of such protected liberties include the right to practice one’s religion, the right to purchase pornography, and the right of women to obtain safe abortions. Critics observe that Dworkin’s choice of protected freedoms is based on his own hierarchy of values.

Although Dworkin asserts that his philosophy is within the natural rights tradition, he explicitly rejects any reliance on metaphysical or religious foundations, and he does not explicitly defend his rights theory by reference to a universal human nature. His epistemology emphasizes coherence rather than correspondence with reality. Although he endorses John Rawls’s concept of “justice as fairness,” he clearly recognizes that the hypothetical experiment of an “original observer” cannot logically obligate actual people to agree with the choices of such an observer. In determining which rights are to be protected, he is primarily interested in those rights that have developed within the Anglo-American tradition, whether located in constitutions, legislative statutes, or judicial opinions. Also, he sometimes justifies particular rights by referring to intuition or to a societal consensus.

Judge Hercules

Dworkin does recognize that legislatures and ordinary citizens have a legitimate part in the making of law, but his emphasis is always on how judges should make their decisions. He posits an ideal judge, named Hercules, in order to illustrate his proposed method of adjudication. Hercules, like any judge, would decide when a legal dispute is clearly covered by established law. If faced with a “hard case,” however, Hercules would consider all relevant constitutional provisions, statutes, and judicial precedents, and his judicial opinion would emphasize those sources that are consistent with the most satisfactory concepts of moral philosophy. Hercules, in other words, would discover principles from the legal heritage in which he worked, and he would strive to make the best possible analysis of the material at his disposal. Because he respects the work of democratic legislatures, Hercules would accept the authority of a statute that he regrets as mistaken, but he would try to limit its “gravitational force” whenever possible.

Judge Hercules would especially have the opportunity to employ his constructive hermeneutics whenever called upon to render decisions in hard cases of constitutional law. He would, of course, begin with the normal meaning of the text, but he would not speculate about the specific intent of the people who wrote and ratified the document. Closely related to the priority of general principles over specific rules, Hercules would also recognize a distinction between narrow “conceptions” and broad “concepts.” Such a distinction would have great implications in constitutional texts that use abstract terms such as “due process of law” or “establishment of religion,” because Hercules would interpret these terms according to the abstract political concepts that they currently evoke. For instance, the Eighth Amendment of the U.S. Constitution, which prohibits “cruel and unusual punishments,” is a concept that is open to moral interpretation, and Hercules would decide its contemporary meaning rather than look at the narrow conceptions of “cruel and unusual” when the amendment was written in the eighteenth century. He would not inquire, therefore, about whether or not the framers of the Constitution endorsed capital punishment, but he would inquire about whether capital punishment is consistent with current principles of justice.

Dworkin takes his constructive hermeneutics to its logical conclusion, and he assumes that judicial discretion generally promotes the expansion of rights. For example, he strongly defends the Supreme Court’s interpretation of the due process clauses of the Fifth and Fourteenth Amendment so that they protect broad substantive rights such as the “right to privacy.” Going farther, the two clauses would logically protect one’s freedom of speech even if there were no First Amendment. In effect, Dworkin does not recognize any real distinction between interpreting and amending the Constitution and certainly not a distinction between enumerated and unenumerated rights. Some critics warn that such a degree of discretion can produce judicial abuses such as the decisions in the Scott v. Sandford (1857) and Lochner v. New York (1905) cases.

Dworkin postulates that a competent judge such as Hercules can determine the one correct decision in value-laden “hard cases.” Such a decision makes use of the most satisfactory moral arguments and is based on a “good fit” between the case and established legal materials. Although often criticized for this position, Dworkin appears to consider that the correct decision is only a theoretical possibility, for he never formulates any objective standards for knowing whether the correct decision has been rendered. In the litigation of legal disputes in the real world, he expects that competent judges should and will disagree with one another, and that deductions from either liberal or conservative values will be legitimate components of a judge’s decisions.

A Provoking Theory

Legal philosophers were already familiar with most of Dworkin’s ideas when Taking Rights Seriously was published, but the appearance of the book created something of a sensation. Reviewers praised the book for its rigor, its clarity, and its stimulating ideas. In contrast to many serious philosophical works, it was written in a style that was accessible to nonphilosophers within the educated public, and it dealt with issues of public policy that were being debated at the time. The book established Dworkin’s reputation as one of the major jurisprudential thinkers of the time. Legal and philosophical journals were soon full of articles debating all aspects of the book, and Dworkin enjoyed responding to his many critics. Whether or not one agrees with his point of view, it is impossible to deny that Taking Rights Seriously provoked a great deal of fascinating and good writing in the field of legal philosophy and in the analysis of current legal issues.

Although most readers probably did not accept all the theories defended in Taking Rights Seriously, Dworkin did make a persuasive case for a reconsideration of the assumptions within legal positivism and utilitarianism. Even many of his critics were willing to acknowledge the validity of his arguments for using general principles and abstract concepts when analyzing the law. Although the book had only a marginal impact on the legal culture, it did help to determine the framework of discourse among philosophers of law, and it also provided considerable ammunition for those already committed to broad constructionism, judicial activism, and liberal policies on issues such as affirmative action.

In his later works, Dworkin continued to defend and to refine most of the ideas found in Taking Rights Seriously. He made two major revisions: He moderated his claims about the likelihood of there existing only one right decision in hard cases, and he explicitly recognized that a generic right to liberty is not incompatible with the principle of equality. His later works, moreover, have attempted to formulate a much more systematic theory of legal interpretation.

Principal Ideas Advanced

•Legal systems contain both rules and principles, the latter of which are especially important in “hard cases.”

•Legal systems should recognize human rights as “trumps” in relation to other considerations.

•The most fundamental of rights is the right of equality, which means “the right to equal concern and respect.”

•Legal positivism and utilitarianism are flawed insofar as they do not give priority to individual rights.

•Individuals have no valid claim to a generic right to negative liberty but only rights to specific positive liberties.

•There can and should be no absolute separation between law and ethical philosophy.

•Legal rights have no metaphysical foundations, but they are constructed on the reasoned analysis of existing laws and judicial precedents.

•In any legal dispute, there is only one right decision.

Bibliography

Burke, John A. The Political Foundation of Law and the Need for Theory with Practical Value: The Theories of Ronald Dworkin and Roberto Unger. San Francisco: Austin and Winfiel, 1993. Argues that Dworkin’s theory does not have much practical value and that his antipositivism makes it difficult to identify the law. Interesting, but it overlooks Dworkin’s flexibility and agreement with numerous judicial decisions.

Cohen, Marshall, ed. Ronald Dworkin and Contemporary Jurisprudence. Totowa, N.J.: Rowman and Allanheld, 1983. This collection includes especially good essays on utilitarianism by Rolf Sartorius and Herbert Hart, followed by Dworkin’s reply to his critics. Many of the essays are abstract and for advanced students.

Covell, Charles. The Defense of Natural Law. New York: St. Martin’s Press, 1992. The fourth chapter gives an excellent analysis of Dworkin’s ideas, emphasizing that he rejected the classical tradition of natural law, which assumed the existence of universally valid truths based on human nature.

DeRosa, Marshall. The Ninth Amendment and the Politics of Creative Jurisprudence. New Brunswick, N.J.: Transaction, 1996. A stimulating but polemical work that argues that Dworkin’s natural rights perspective, combined with his judicial activism, results in a nondemocratic ideology.

Gaffney, Paul. Ronald Dworkin on Law as Integrity: Rights as Principles of Adjudication. Lewiston, N.Y.: Mellen University Press, 1996. An excellent critique that argues that Dworkin does not have an adequate foundationist theory to support his claims in behalf of natural rights. Gaffney finds that Dworkin’s defense of affirmative action contradicts his theory concerning the priority of individual rights.

Guest, Stephen. Ronald Dworkin. Stanford, Calif.: Stanford University Press, 1991. Although dated, this is the best general introduction to Dworkin’s political philosophy and his theories of legal interpretation. The work is sympathetic but considers valid criticisms by other philosophers.

Honeyball, Simon, and James Walter. Integrity, Community, and Interpretation: A Critical Analysis of Ronald Dworkin’s Theory of Law. Brookfield, Vt.: Ashgate/Dartmouth, 1998. The authors describe Dworkin as “the leading legal philosopher of our time.” They argue that Dworkin’s later works moved from an analytic to an interpretative theory of law. They provide excellent comparisons among Dworkin and other contemporary philosophers, with a useful bibliography.

Hunt, Alan, ed. Reading Dworkin Critically. New York: Berg, 1992. Left-wing critiques written primarily for British and Canadian readers. Hunt’s interesting introduction argues that there is no real linkage between Dworkin’s theory of adjudication and his political philosophy. Some of the essays take rather extreme positions.

Murphy, Cornelius. Descent into Subjectivity: Studies of Rawls, Dworkin, and Unger in the Context of Modern Thought. Wakefield, N.H.: Longwood Academic, 1990. Argues that the extreme subjectivity in Dworkin’s theory of interpretation allows judges a dangerous degree of discretion. Murphy suggests that Dworkin, by encouraging judges to seek desired results, virtually accepts pragmatism as a philosophical outlook.