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Sunday, April 14, 2013

How has Dworkin utilised his ‘rights thesis’ in his exploration of the concept of equality?

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.

It is jurisprudential argument of this nature which has led Dworkin to emerge as a prominent supporter of policies of ‘affirmative action’ in the USA. Policies of this

type (known also as ‘reverse discrimination’ or ‘positive discrimination’) have been defined by Katzner as ‘a call to offset the effect of past acts of bias by skewing opportunities in the opposite directions’; they involve giving preferential treatment to disadvantaged groups so as to compensate for past discrimination. Dworkin sees legal-political action of this type as giving expression to his belief that there are circumstances in which the right to equality in resources (for example, the right to higher education) requires a fundamental reappraisal of the purposes of the liberty to which the community is committed. The essence of Dworkin’s teaching in this area of jurisprudence suggests that: rights arise from the community’s respect for the principle of integrity. In his words: ‘Integrity insists that each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimensions of any explicit political decisions.’ When the good citizen is faced with the question of deciding how he ought to treat his fellow citizen when interests collide, he must act so as fulfill the common scheme of justice ‘to which they are committed just in virtue of citizenship’.

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.