Dworkin (b 1931), an American jurist, holds chairs in Law and
Philosophy at New York University, and Jurisprudence at University College,
London.
His writings in jurisprudence are concerned
with the fundamental nature of rights and their significance in law and
society. He is concerned, in particular, with the interface of jurisprudence
and political ideas and has written extensively on current problems relating to
abortion, euthanasia, civil rights and equality. His most recent major
publication deals specifically with equality – ‘the endangered species of
political ideals’. The required answer should be based on a short account of his
views relating to rights and his belief that equality and liberty are vital,
substantial ideals, and are aspects of a single concept of the quality of
social life. The following skeleton plan is suggested:
Introduction – Dworkin’s rejection of theories of
positivism
and natural rights – standards, principles, and
significance
of dignity of citizens of a community –
entitlement to rights
– problem of equality – possible conflict of
liberty and
equality – conclusion, affirmation of principle of
integrity
as basis of entitlement to rights.
Dworkin’s jurisprudential writings
seek to explore the essence of rights and to place them within a wider setting
of social and political ideology. His work ranges beyond that generally associated
with current American legal theory, in that he rejects the view of
jurisprudence as a ‘pure academic discipline’ which should have little to say
of immediate significance for political realities. For Dworkin, law and
political ideology have close links: both co-exist as aspects of social
aspirations and activities, and neither can be understood fully without
reference to the other. Law in practice is for him ‘an unfolding narrative’
which can be interpreted only by comprehending its social setting. An analysis of
rights, in particular, demands examination of their place within the wide
culture, and very purpose, of social and political awareness.
In an examination of rights, Dworkin
declares, little is to be gained from theories which suppose that rights have
some special metaphysical character: the old theories of natural law that rely
on this supposition are of no value. The doctrines of natural law, suggesting
that lawyers tend to follow criteria that are not entirely factual when they
ask whether propositions are ‘true’, or that law and justice are identical, in
the sense that makes it impossible to consider an unjust proposition of law to
be ‘true’, tell us nothing about the fundamentals of rights. The a priori
reasoning associated with the natural law is unacceptable; if we wish to make
an effective investigation of a legal structure and its validity, then empirical
study is required.
Positivism offers no real alternative
to natural law as the basis of an investigation of rights. Dworkin views it as
reflecting a mere system of rules, applicable in an ‘all-or-nothing’ fashion.
Further, the separation of law and morality, which characteristics modern legal
positivism seems to ignore the practice of the courts, in which questions of
right are all-important, and, finally, the positivist claim that law is, in
large and growing measure, judge made, is at variance with the facts. These
objections to the positivist assertion that the rationale of a system of rights
is to be found within its doctrines are set out by Dworkin in the following terms.
If we examine rights in the setting of
positivist theory, we are met with the assertion that law is rules, and that
this is reflected in concepts of rights. Legal rules are applied automatically
once appropriate conditions are met. ‘Event A will bring in its train penalty
B’ Thus, s 16 of the Terrorism Act 2000 states clearly that a person commits an offense if he uses money or other property for the purposes of terrorism; the
appropriate penalties are set out in s 22. The ‘rules’ of the statute dictate
particular results, and, other things being equal, the statutory penalty will
be inflicted on persons found guilty, under s 16. In a more specific sense of
the term ‘rules’, the Civil Procedure Rules 1998 state that a person who makes
a false statement of truth, or who causes such a statement to be made, without
an honest belief in its truth, is guilty of contempt of court (r 32.14(1)).
Given the requisite conditions, application of the rules then follows. But
Dworkin rejects totally the claim that law consists in its entirety of rules of
this nature. In making his generalized criticism of positivism, which fails to
explain rights, he declares, that in making a basic attack on that doctrine, he
will seek to show that the notion of a single fundamental test for law (‘law as
rules’) misses the important role of those standards that are not rules
The legal system, and the place of
rights within it, requires an explanation involving not only the discrete rules
and statutes enacted by its officials, but also consideration of the general principles
of justice and fairness that these rules and statutes, taken together,
presuppose by way of implicit justification. Thus, ‘policy’ is of great
importance as an element of law: a policy is ‘a kind of standard that sets out
a goal to be reached, generally an improvement in some economic, political or
social feature of the community’. Thus, the Pollution Prevention and Control
Act 1998 has a clear social goal of ‘preserving the coherence of our industrial
pollution control systems’. To ignore communal aspirations and policies within
the terms of a statute is to ignore the real meaning of law.
‘Principle’ is of great significance
for Dworkin: from an understanding of its role stems a comprehension of the
essence of law and the relationship of rights and justice. A principle is a standard
that is to be observed, not because it will advance or secure an economic or
political situation deemed desirable, but because it is ‘a requirement of
justice or fairness or some other dimension of morality’. Principles are
fundamental to law; they have a dimension of weights so that it is for the
courts to assess their weights in relation to a particular dispute, and to
balance them. Thus, it may be necessary to balance the principle that a person
may use his land as he wishes against the principle that no one may use his
property in a way which inflicts injury on another. Rights may emerge from
considerations of the weight of principles.
Existence of a firm dividing line
between law and morality, which features in many statements of positivism, is
rejected by Dworkin. A judge engaged in the task of adjudication may have to make
moral judgments. The very process of balancing principles and policies may
involve him in a consideration of the community’s general attitudes to
questions of right and wrong, which express commonly-held views on morality.
Judgments ought not to vitiate social standards, and this involves, according to
Dworkin, the important matter of ‘law as integrity’ and rights as expressing a
‘community of principles’. The concept of ‘law as integrity’ asks the judge to
assume, so far as this is possible, ‘that the law is structured by a coherent
set of principles about justice and fairness and procedural due process’, and it
asks him to enforce these in the fresh cases that come before him. For each statute
that the judge is asked to enforce, he should construct some justification that
‘fits and flows through that statute’, and is consistent with other legislation
in force.
The positivist contention that judges
make law, and, therefore, have a duty to fashion rights, is not accepted by
Dworkin. The judge has no occasion, he maintains, to utilise legal reasoning to
produce new law (which is a task for the community’s elected legislature). His
task is to balance policies and principles so as to discover the correct
solution to the problems emerging in a hearing. His task is to apply principles
which may not be altered at his whim.
The law is to be interpreted as the
embodiment of rights and responsibilities. Rights do not emanate from sources
outside mankind. An individual’s entitlement to rights in civil society depends
on the practice and the justice of its institutions, political and legal.
Existing political rights are enforced (but not created) by judicial decisions.
Jurisprudence guides the community in its attempt to discover which rights a
particular political theory assumes that citizens possess. It is within this
context that questions of rights in relation to, say, freedom of speech, racial
equality, have to be examined. The right of freedom of speech has emerged over
the centuries as respect for human dignity has intensified. The framework of
rights bolstering racial equality represents, in similar fashion, respect for
fairness. Abstract rights stem from abstract principles; concrete rights are an
expression of the weight of facts in relation to general principles. The courts
do not fashion new rights; they tend to discover them within the existing law
through an examination of an individual’s entitlements under particular
circumstances.
Dworkin’s view of rights is predicated
on his belief in the need for society to protect, through political and legal
action, the dignity of its members. Some rights, which affect a person’s individuality,
should rarely be violated, even when it may appear that the welfare of society
is in question. If rights make sense at all, then an invasion of a relatively
important right is very serious indeed: an invasion of this nature necessitates
treating a man as less than a man or as less worthy of concern than other men.
‘The institution of “men’s rights” rests on the conviction that this is a grave
injustice ... and that it is worth paying the incremental cost in social policy
or efficiency that is necessary so as to prevent it.’ It is this aspect of
Dworkin’s rights thesis which underpins his treatment of the problem of
equality in society.
In his recently-published examination
of equality (Sovereign Virtue: the Theory and Practice of Equality (2000)),
Dworkin argues that we must not turn our backs on equality, no matter what the cost.
Our jurisprudence must propagate the argument that no government is legitimate
‘that does not show equal concern for the fate of all those citizens over whom
it claims dominion and from whom it claims allegiance’. Without equal concern
for citizens, a government is little short of a tyranny. Equal concern for all
is essential if we are to act so as to redeem our political virtue. This has
little to do with ensuring that all persons have the same wealth, for Dworkin
does not see equality in those terms. It has everything to do with ‘equality of
resources’, of making available to all the resources of society, including the
framework of rights which will ensure the triumph of ‘ethical individualism’. Human
lives must be successful, rather than wasted, and ‘one person has a special and
final responsibility for that success – the person whose life it is’. The
principle of equality does not attach to a person’s property and his property
rights, but to the hope that his life shall come to something rather than being
rendered ineffectual.
A government has the duty, according
to Dworkin, of adopting laws and policies that will ensure that the fates of
its citizens are, so far as this is capable of achievement, insensitive to who
they otherwise are – in terms of gender, race, economic backgrounds. Further,
governments must act through the courts and legislative institutions to ensure
that the fates of citizens are sensitive to the choices they have made. Dworkin
emphasises that he is interested in liberty in its ‘negative sense’, that is,
in its relation to freedom of constraint; his general belief is that people’s
liberty over matters of fundamental personal concern ought not to be infringed.
Nevertheless, he argues against the view that liberty is a fundamental value
that must never be sacrificed to equality. In general, there should be no
conflict between liberty and equality: equality is unlikely to exist in a
society from which liberty is absent. But in a genuine contest between liberty
and equality, liberty may have to lose out.
What are the circumstances in which
rights to liberty might conflict with rights to equality? Dworkin suggests that
this might arise where two conditions co-exist: first, that, ‘on balance’, the position
of some group within the community could be improved by eliminating some
existing liberty, and, secondly, that the principle of equal concern for the
rights of that group requires that this step ought to be taken. Essentially,
this will be a matter of balancing political and legal rights. As an
illustration, Dworkin gives the example of a society in which private and state
medical provision exists together. If the poorer citizens within that society would
enjoy better medical care were private medicine to be abolished, then the
principle of equal concern demands that this step be taken. To refuse to carry
out this step implies, according to Dworkin, acceptance of the view that the
lives of the poor are less important than the lives of others. The principle of
liberty has little value except for the contribution it makes to the life of
society; in a conflict of this nature, the principle of egalitarianism, which reflects
concern for the rights of all, must prevail.
Notes:
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Dworkin’s views on rights are set out in Taking Rights Seriously and Law’s Empire. His examination of equality is contained in Sovereign Virtue: the Theory and Practice of Equality. Davies and Hold croft, Chapter 10, sets out Dworkin’s basic rights thesis; Harris, Chapter 4, summarises the reasoning behind the thesis. See, also, Ronald Dworkin, by Guest, and ‘Professor Dworkin’s theory of rights’, by Raz in (1978) 26 Political Studies 123.
Dworkin’s views on rights are set out in Taking Rights Seriously and Law’s Empire. His examination of equality is contained in Sovereign Virtue: the Theory and Practice of Equality. Davies and Hold croft, Chapter 10, sets out Dworkin’s basic rights thesis; Harris, Chapter 4, summarises the reasoning behind the thesis. See, also, Ronald Dworkin, by Guest, and ‘Professor Dworkin’s theory of rights’, by Raz in (1978) 26 Political Studies 123.
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