In response to:
A Special Supplement: Taking Rights Seriously from the December 17, 1970 issue
To the Editors:
We would like to comment on an article that appeared in your December 17 issue. The article was written by Ronald Dworkin and entitled, “Taking Rights Seriously.”
Professor Dworkin is right in his contention that holding a right to be basic is incompatible with allowing it to be violated for the least utilitarian consideration. Those who believe in basic rights like freedom of speech, a right to a fair trial, to assembly, against self-incrimination, etc., must believe that the mere fact that the community would be a little happier were one of its members quieted or locked up does not justify its doing so. Dworkin goes on, however, to confuse basic rights with what might be called absolute rights—those rights, that is, which no matters of utility, no matter how weighty, can ever justify a limit to. Few of us hold such rights. We limit speech for clear and cogent reasons. The justifications for the Fifth Amendment are utilitarian and if they are undermined so also would be our belief in the right not to tell the truth when it might hurt us. The most likely candidate would be right to life. Hobbes believed in that but it is not clear that we do. Does a condemned (and guilty) man have a right to escape Death Row?
Repudiating matters of utility in the few cases he looks at—anti-riot legislation, infringement of free speech, etc.—allows Dworkin to come down on the side of the angels (some would say Hell’s Angels) in defense of civil disobedience. Since he gives no hint of a criterion for “basic right,” however, a multitude of other sorts of cases arise. Many in America would consider right of property and freedom of association as basic. Indeed they are basic in that we think fairly weighty considerations of utility are required to limit them—but they are not absolute. Since Dworkin cannot distinguish between the two he has no answer to the rich bigot who says matters of utility are “irrelevant” to his cherished institutions….
Paul J. Dietl
James E. McClellan
Ronald Dworkin replies:
Conceptual clarity alone will not give us a coherent philosophy of political rights, but it is a start, as the professors’ letter must remind us. They accept one distinction I made but they ignore two others.
They fail to distinguish the question of whether someone has a right to something (for example, whether their “rich bigot” has a right to the economic institutions that favor him) from the different question of whether, if he has, the community is justified in overriding it. So they charge me with the tired old dilemma that if I want to protect freedom of speech from invasion on the ground of general benefit, then I must protect economic privilege from invasion on that ground as well. But surely it makes sense to say that human dignity requires freedom of expression but not freedom to acquire wealth; if so, then there is no contradiction in saying that it is wrong to abridge speech, but permissible to redistribute property, for the general benefit.
They also fail to distinguish between two putative grounds for overriding a right once recognized, both of which can be described as “weighty.” The first, which I called “utilitarian,” contemplates a benefit which may be relatively small for each individual benefited, but which is weighty because of the vast numbers who share in the benefit. The second, which I called a “competing right,” is weighty because of the individual interest of each individual benefited, and does not depend upon the numbers involved.
The professors, though they talk of utility, give examples of competing rights which they say justify limiting political rights. I argued that the anti-riot legislation, for example, limits rights on utilitarian grounds, which, for the reasons I gave, is unacceptable.
I insist on these distinctions not because they give “neat” solutions, but because they expose considerations of moral importance that are hidden beneath the conventional and muddled account that designates every interest a right and presents the problem of government as a problem simply of balancing these interests.