He’d Rather Have Rights

Taking Rights Seriously

by Ronald Dworkin
Harvard University Press, 293 pp., $12.00

Ronald Dworkin’s Taking Rights Seriously is the most important work in jurisprudence since H.L.A. Hart’s The Concept of Law and, from a philosophical point of view at least, the most sophisticated contribution to that subject yet made by an American writer. In this collection of essays, Dworkin argues that any adequate political theory must take rights seriously in a way that prevailing conceptions fail to do. He therefore rejects both legal positivism and utilitarianism. Legal positivism, the theory of law that derives from John Austin and Jeremy Bentham, has been directly or indirectly influential on such prominent American jurists as Oliver Wendell Holmes, Felix Frankfurter, and Learned Hand. Dworkin rejects it because it denies that individuals possess any legal rights that have not been created by explicit political decisions or social practices. In fact, Dworkin argues, we possess many legal rights that were not created in either of these ways.

Utilitarianism is, by contrast, a theory of what law ought to be, holding that legal institutions should serve the general welfare and nothing else. This is the view implicitly held by a great many politicians, officials, and economists in the United States and the United Kingdom; we find it reflected daily in decisions on education, social welfare, and many other matters. Dworkin rejects this view because it implies that the majority may disregard individual moral rights, rights of the sort that the Constitution protects in the Bill of Rights and in the Due Process and Equal Protection clauses. For Dworkin utilitarianism thus provides an inadequate theory of moral rights, even as legal positivism provides an inadequate theory of legal rights.

It is one of Dworkin’s great merits that he is able to relate his views on these fundamental theoretical topics to issues of the greatest practical importance. I doubt whether any writer has made more penetrating analyses of such issues as the Warren Court’s “activism,” DeFunis’s claim that the University of Washington violated his constitutional rights, or the claims of those who practice civil disobedience that they are not obliged to obey laws that violate their moral principles. Certainly no comparable powers of analysis can be found in the limp opinions produced by the Supreme Court in recent years. Oxford University, seeking the most incisive legal thinker it could find, appointed Dworkin, an American lawyer, to replace H.L.A. Hart as Professor of Jurisprudence. Is it too much to hope that a president who takes rights seriously will be equally discerning when the time comes to reconstitute the Court?

As Dworkin understands it, positivism maintains that the law of a community is to be identified with a specific set of rules. These rules of law determine which behavior will be punished and coerced by public power; they must be distinguished from other social rules, especially from moral rules, which are not enforced by public power. Positivists such as H.L.A. Hart assume that these legal rules can in fact be identified …

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Letters

Lawyers and Morals November 10, 1977