In the mid-1970s in America, controversies over thorny questions surrounding the rights of dissenters, minorities and women, as well as free speech and abortion abounded, and legal positivism dominated jurisprudential thought. One of the most influential thinkers in American jurisprudence, Ronald Dworkin (1931–2013) entered this fray with a series of essays which put forth a radical theory of law that posed a powerful challenge to prevalent views. Dworkin explains why individual rights exist independent of legal recognition, and outlines how judges and lawyers should think about and argue for them. Dworkin’s sophisticated but accessible essays are necessary reading for lawyers, lawmakers and judges, but getAbstract also recommends them to lay readers who care about legal practice, political philosophy or the history of law.
- Legal positivism holds that the law is made up of rules about the use of public power.
- Contrary to this view, people possess legal rights that exist independent of legal rules.
- Judges identify and enforce rights – they don’t create them.
- A right exists when a person’s claim to do or have something overcomes any contrary collective goal.
- In civil cases, judges should confine their review to arguments of principle. They should not consider arguments of policy.
- John Rawls’ theory of justice finds its basis in a specific understanding of the right to equality.
- Citizens possess the right to “equal concern and respect” when it comes to the formation and administration of governing political institutions.
- A general right to liberty does not exist, since it would preclude any governmental constraints on what given individuals might do if they wish.
- Conventional rights stem from the right to equal concern and respect.
- When the law violates rights, people have a right to disobey it and receive lenient treatment.
The “Ruling Theory of Law”
Legal positivism – the dominant theory of law – asserts that the law is made up of rules about the use of public power. According to this theory, no law exists outside of these rules. In cases where the law does not stipulate a ruling, judges have discretion to decide as they see fit. By “reaching beyond the law,” judges arrive at decisions that create new laws or add to existing ones. The process by which legal rules gain validity distinguishes them from other kinds of rules. Some legal rules (secondary rules) define how other legal rules (primary rules) come into or pass out of existence. The prevalent positivist view holds that in each community, a “rule of recognition” provides the standard, ultimately, by which the legality of all other rules is determined. Too, according to positivism, no legal rights exist except for those provided by the legal rules.
“Individual rights are political trumps held by individuals.”
Positivism errs in its assertion that judges and lawyers only rely on legal rules when they argue and reason, however. In actual fact, they also base their justifications and decisions on principles. A principle’s power derives from its connection to morals. Indeed, morality, or a sense of justice, is a fundamental aspect of any principle. In legal practice, principles are binding and form part of the law. Hence, judges don’t enjoy discretion in any substantial sense. For this and other reasons, the central tenet of legal positivism regarding judicial discretion is mistaken. Moreover, since principles form part of the law rather than existing outside of it, the notion of a rule of recognition also fails. In short, legal positivism does not reflect the reality of legal practices.
A General Theory of Law
In a truly liberal theory of law, individuals possess legal rights which don’t always arise through legal decisions or practices. These natural rights are not premised on the notion that they possess some kind of special spiritual character – an understanding which sets the concept of individual rights discussed here apart from previous theories. A right exists, simply, when an individual’s claim to do or have something overcomes any contrary collective goal. The “rights thesis” states that adjudication enforces existing political rights. Contrary to legal positivism, a party to a legal case may have the right to prevail even when no legal rule exists to indicate this outcome. Judges don’t create rights, they identify and administer them.
“Our moral practices are not exercises in statutory interpretation.”
Rights fall into categories of absolute or nonabsolute, abstract or concrete, institutional or background. Absolute rights merit full enforcement in all circumstances; however, other categories of rights are sometimes subordinated. Abstract rights refer to broad goals or values, such as dignity. Concrete rights are more specific, and they often gain force from assertions of abstract rights. Institutional rights make claims upon a certain institution, while background rights make claims upon society in general. A background right might imply an institutional right. A right on the part of one party implies a duty on the part of others to respect that right. Any right that society or the majority holds does not compete with an individual right. By definition, individual rights override the interests of the collective.
A Theory of Adjudication
Judges create new laws when they rule on novel cases, but this does not mean they are acting as legislators. Indeed, they should not act as legislators. In civil cases, judges should confine their reviews to arguments of principle. An argument of policy puts forward a collective goal meant to provide a rationale for a decision. By contrast, an argument of principle asserts an individual or group right as the rationale for a decision. When judges decide on the basis of arguments of policy, they do two things: first, they make policy decisions which, in a representative democracy, belong to elected officials; second, they run the risk of unjustly ruling against a party who has a right to a different ruling. When judges confine their considerations to arguments of principle, however, they, in effect, remain neutral on policy questions. They also avoid creating new legal obligations, because principles pre-exist rulings. Legal decisions premised on arguments of principle, therefore, accord with democratic principles.
“Judges neither should be nor are deputy legislators.”
According to the “doctrine of political responsibility,” judges must make consistent decisions – consistent according to some political theory that underlies other decisions. The “doctrine of fairness” holds that people have a right to consistency: that like cases will be treated alike. Precedents possess power because fairness requires that judges consider prior rulings. Policy does not demand consistency, however. Policy goals might lead the judiciary to treat people or companies differently at different times. So, when judges measure the gravitational strength of a precedent – its ability to affect a later case that does not fall directly within its orbit – they cannot consider arguments of policy that entered into the earlier decision. They must weigh only the underlying arguments of principle.
The Right to Concern and Respect
John Rawls’ “original position” (described in A Theory of Justice) – wherein people select principles that will determine the structures of their society from behind a “veil of ignorance” which renders such decision-making impartial – is not, in itself, convincing. Too, the social contract Rawls describes has no binding force. Rawls’ argument does reveal two principles of fairness, however. The contract Rawls describes is itself the result of a more foundational political theory that argues in favor of “the two principles through rather than from the contract.” A goal is a state of affairs that either counts in favor of, or counts against a political decision. A duty exists within a political theory when that theory requires an act – even absent a goal that the act would promote. A right exists when a person can, justifiably, demand a particular political act, even if that act would contradict some goal within the theory. Political theories may find their basis in goals, duties or rights. Rawls’ deep theory has its basis in rights.
“Political rights are creatures of both history and morality.”
Rawls distinguishes between distributional equality and entitlement to equal respect. The latter concept – which Rawls calls fundamental – asserts each individual’s right to “equal concern and respect” when it comes to the formation and administration of governing political institutions. It’s a natural right: people possess it simply because they are human. Furthermore, this essential and axiomatic right underlies claims to fairness and justice. Rights may trump collective goals, but the right to equal concern and respect has such a foundational character that it serves, uniquely, as the origin of the general mandate of collective goals, while also restricting that authority for the sake of specific rights.
Liberty and Equality
Arguments about social issues often suggest a contest between the demands of liberty and equality. If liberty is defined as a lack of governmental constraints upon what a given individual might do if he wishes to, then all laws conflict with liberty. Moreover, if it is wrong for the government to deny an individual’s right to something, even when that denial serves the common good, no general right to liberty can truly exist. And if the right to liberty does not exist, it cannot serve as a basis for other rights, such as freedom of speech.
“Principles are propositions that describe rights; policies are propositions that describe goals.”
In actuality, the right to equal concern and respect is what underlies and protects conventional rights. The right to equal concern and respect can be understood in two possible ways. It could imply the “right to treatment as an equal” – that is, the right to be treated with the same consideration as any other person; or, it could indicate a “right to equal treatment” – an equality-of-distribution right, like each citizens’ right to an equal vote in a democratic system. Of these two concepts, the former is fundamental, the later only applies in circumstances where the distributional right springs from the right to treatment as an equal. If individual rights derive their power from the right to treatment as an equal, those individual rights do not conflict with a liberal understanding of equality: that the government ought not give more to citizens it deems more worthy, or constrain liberty on the basis that one person’s conception of how society should function is better than another’s.
“If the Government does not take rights seriously, then it does not take law seriously either.”
Utilitarian arguments of policy might appear in perfect accord with the right of equal concern and respect. Utilitarianism’s supposed egalitarianism is largely illusory, however. Utilitarianism has two main forms: Psychological utilitarianism selects policies by maximizing the collective pleasure a policy would bring about, after subtracting the collective pain it would cause; preference utilitarianism, on the other hand, bases its calculation on collective preferences and their intensity. Although, within a utilitarian system, every person’s preferences count equally, when external components exist within individuals’ preferences, they corrupt the utilitarian program. External components introduce considerations such as respect and consent into utilitarian calculations, which ought to depend solely on personal preferences. These external components include, for example, altruism: when people endorse a good or a policy on behalf of another person or group – such as non-swimmers who support swimmers having a pool. This causes double counting (the swimmers’ own preferences, plus the preferences of the non-swimmers).
Racism and Reverse Discrimination
Racism is another example of an external component. Racist views undermine utilitarianism because they hold blacks as less worthy of respect and concern than whites. Racist preferences reduce the egalitarianism of the system. Personal and external preferences often intertwine in such a way that teasing them apart becomes impossible. You can’t, for instance, separate utilitarian arguments for segregation from segregationists’ prejudice; thus, segregation will always violate blacks’ right to be treated as equals. All arguments for discrimination against blacks rely on external preferences. By contrast, arguments for “reverse discrimination” rely, primarily, on personal preferences and “ideal” arguments: non-utilitarian arguments that a decision will move a society closer to an ideal.
“We cannot assume…that the Constitution is always what the Supreme Court says it is.”
In Sweatt v. Painter – a case from the 1940s – the University of Texas denied admission to a black man on the basis of state law. In the 1974 case DeFunis v. Overgaard, the University of Washington’s law school refused admission to a Jewish man who would have won admission if he had belonged to a minority group that qualified for a separate admissions process. Many lawyers erroneously consider these two cases parallel, differing only in the specific minority group involved. However, the cases differ in terms of the role of external preferences in the schools’ decisions.
“So long as the law appears to make acts of dissent criminal, a man of conscience will face danger.”
The University of Washington’s admissions criteria did not violate DeFunis’s right to treatment as an equal. Schools must make admissions decisions on some basis, and the decisions’ fairness depends on whether they treat all candidates as equals, without external preferences entering into the decisions. Minority membership can serve as an admission criterion as well as intellectual ability. DeFunis had a right to equal treatment, not the right to demand that the university doesn’t use race as a criterion for admission. The Equal Protection Clause created a constitutional right to equality as a concept, but it did not outlaw racial classifications. It did not define a conception of equality, which would have embodied a specific view of what equality means. Constitutional clauses are not vague. Their authors did not intend to offer a precise definition of equality but, rather, to appeal to moral concepts.
A Theory of Compliance
Most people agree that the right to follow one’s conscience exists, even when doing so means violating the law. Yet such a right implies that a person should not suffer punishment for exercising it – and most people don’t agree with that. They feel the law should prosecute even in these cases. The confusion arises when people conflate two senses of the word “right”: “the ‘right’ to do something,” and something being “the ‘right’ thing to do.” Within the understanding of rights stated here, a person has a moral right to disobey the law whenever it improperly encroaches on his rights against the government.
“We must take care not to use the Equal Protection Clause to cheat ourselves of equality.”
Some legislative rights of individuals exist “prior to their legal rights.” These include rights against the government. These rights serve two purposes: They recognize human dignity, and they preserve political equality. The case of draft dissenters raises the question of citizens’ obligations with regard to uncertain or unclear laws. Legal practice permits “the development and testing of the law through experimentation by citizens and through the adversary process.” Moreover, individuals possess some rights whose truth isn’t demonstrable. Citizens whose actions stem from a reasonable belief that a law is invalid deserve lenient treatment. Thus, the government may properly choose not to prosecute conscientious objectors, and Congress can modify policies to allow dissent. Due process doctrines prohibit convictions under vague laws and those of dubious validity.
“The idea of a right to liberty is a misconceived concept that does a disservice to political thought.”
About the Author
Ronald Dworkin (1931–2013) was Professor of Philosophy and Frank Henry Sommer Professor of Law at New York University. One of the most highly regarded and influential legal philosophers of the post-war era, his numerous publications include Freedom’s Law and A Matter of Principle.
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