JURISPRUDENCE I PROJECT

PROFESSOR RONALD DWORKINS RIGHTS THESIS

SUBMITTED TO:
Mr. Manoranjan Jha
(FACULTY OF JURISPRUDENCE, CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA)

SUBMITTED BY:
Name: Shaleen Mishra
Semester: Vth
Roll No: 608

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Acknowledgement
I would like to acknowledge all those who helped and supported me during the duration and
conclusion of this research and writing of this Project. At this juncture, I would like to
express my deepest thanks and heartfelt gratitude to Mr. Manoranjan Jha sir for his
unwavering support and invaluable guidance during the entire course of the research and
drafting. He has not merely been instrumental but also a motivating force behind the hard
work carried out for the conclusion of this project.
I express my gratitude towards the Vice-Chancellor of my college, CHANAKYA
NATIONAL LAW UNIVERSITY, PATNA for extending his support and providing me with
the facilities and infrastructure for comfortable continuance of this research. I would also like
to express my deep sense of gratitude towards the Librarian for his immense support and
guidance. I would also thank my Institution and my faculty members without whom this
project would have been a distant reality. I also extend my heartfelt thanks to my family and
well wishers for their blessing and support.
Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.

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TABLE OF CONTENTS
Introduction..04
a. Objectives04
b. Sources of Data ...04
c. Research Methodology....05
1. The Rights Thesis....06
2. Ronald Dworkins Rights Thesis and Article 1410
3. Criticism.......13
4. Conclusion...........................................................................15
Bibliography....16

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INTRODUCTION
Professor Ronald Dworkin has introduced, developed and spiritedly defended a fresh way to
look at law by a rights-based theory of law in his work Taking Rights Seriously. The
criticism of Dworkin's theory has been particularly valuable in unravelling some of its
complexities and in adding useful insights and variations. There has been a discernible trend
in American political and legal thinking during the last two decades toward theory-building
in terms of individual rights. Dworkin contributes to and plays a recognized leading role in
this growing trend. He is challenging prevailing theories of law, such as positivism and
realism, with a new and comprehensive rights theory. His theory has the potential of being
assimilated into both the legal order and society at large.
The nature of Dworkins theory is first indicated by an attack on the ruling theory of law
which he characterizes as positivistic when asked what the law is, and utilitarian required to
decide what the law should be. Dworkins liberal political morality is founded on rights to
equal respect and concern. The elaboration of what these rights mean is sustained throughout
Dworkins work Taking Rights Seriously. He maintains that his liberal rights-thesis is the
theoretical articulation of the constitutional rights to equality. Professor Dworkin has
proposed that hard cases, those where no settled rule dictates a clear decision, should be
decided by an analysis of the rights to be accorded to each of the parties. Judges, in these
situations, are not making new law or policy decisions but are determining the rights of the
parties according to existing principles of law.

OBJECTIVES
1. To analyse the rights thesis in detail.
2. To discuss the relation between Dworkins Conception Of Rights And The Rule Of
Law.

SOURCES OF DATA
For the purpose of project the student has relied on secondary sources to hunt for information
relating to the topic. Secondary sources include textbooks, encyclopaedias, dictionaries, law
reviews, etc.

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RESEARCH METHODOLOGY
The research methodology for the project work is doctrinal i.e., library based research. The
researcher has employed this methodology as doctrinal research deals with what the law is on
a particular issue. It is concerned with analysis of the legal doctrine and how it has been
developed and applied. In case of doctrinal research the sources of data are legal and
appellate court decisions.

THE RIGHTS THESIS

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Professor Dworkin has offered the view that judges should decide and do decide hard cases
i.e., those where no settled rule disposes the issue through a process of discovering what the
rights of the parties are.1 This is done primarily on the basis of existing principles within
the legal system which must be identified, evaluated and competitively weighed to determine
who will be the successful party.2 Central to the position advanced by Professor Dworkin is a
classically liberal preoccupation with individuals whose rights are to be protected by the
application of these legal principles. Accordingly, therefore, arguments of policy which
characteristically justify a political decision by showing that the decision advances or
protects some collective goal of the community as a whole do not and should not govern the
judicial resolution of civil cases.3
The heart of the rights thesis, which forms the framework of Dworkin's conceptual model of
a legal system, focuses on rights which "trump" collective goals. Since it is a rights-based
theory, only competing rights can limit rights. In this way, arguments of principle are selfcontained, or deontological. In other words, the validity of an argument of principle rests on
its own strength without regard to any considerations of a collective goal of society. The
Dworkin model focuses primarily on the process of adjudication of these rights. In that
process, courts characteristically are, and should be, limited to considerations of principle.
Furthermore, the model is based on a recoherence theory in which Dworkin's ideal judge,
"Hercules," pursues arguments that are the most consistent with principles or legal precedents
justified by principle: "Hercules must discover principles that fit, not only the particular
precedent to which some litigant directs his attention, but all other judicial decisions within
his general jurisdiction and, indeed, statutes as well, so far as these must be seen to be
generated by principle rather than policy. The emphasis is on consistency in an overall
coherent pattern.
In the institutional setting of the legal system, a judge must recognize the gravitational
force of legal precedent because the idea of fairness requires the consistent enforcement of
1 H. Scott Fairley, The Asymmetry of Ronald Dworkins Rights thesis in Criminal Cases: A
Troublesome Exception, Pepperdine Law Review, Volume 7, Issue 2 at p 374.
2 Ronald Dworkin, Taking Rights Seriously, [New Delhi: Universal Law Publishing Pvt. Ltd., 2008]
at p. 81.
3 Ibid at p. 84.
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rights. Thus, according to Dworkin, this comprehensive legal universe or seamless web,
which includes constitutional principles and even background rights, is held together and
governed by the force of coherent argument. In this way, Dworkin's rights thesis proceeds on
two levels at once. He asserts that judges have a duty to engage in this sort of critical
induction when faced with a hard case. And he argues, or at least seems to argue, in favor of a
particular constellation of principles that underlie our own legal system.

PRINCIPLES AND POLICIES

The distinction between principles and policies plays a key role in his rights thesis. Dworkin
relies on the distinction between principles and policies for both his descriptive and
normative account of the operation of a legal system. According to this distinction, a court
does in fact and quite properly should prefer arguments of principle to arguments of policy
when considering and giving reasons for a decision. This distinction and its uses are likely to
become the subject of disagreement among lawyers and judges. One reason for this
controversy is that others simply will not agree with Dworkin's description of what judges in
fact do or have characteristically done.' Another reason is Dworkin's normative claim that
judges ought not to take account of policy considerations.
The rights thesis provides that judges are political officials who enforce existing political
rights. Dworkin's doctrine of political responsibility reflects his insistence that judicial
decisions are political decisions. He rejects the prevailing positivistic view that if a judge
reaches a novel case in an area covered by legislation, then the judge should and does act as a
deputy legislature, taking into account policy considerations. The doctrine of political
responsibility demands articulate consistency. This consistency is not easily satisfied by
arguments of policy, but is satisfied by arguments of principle which provided distributional
consistency from one case to the next. While efforts to distinguish between the roles of the
legislature and judiciary are not new, Dworkin's sharp cleavage-excluding considerations of
policy from judicial consideration-implies a strict limitation on the role of the judiciary in
democratic political theory.
It follows from the definition of a right that it cannot be outweighed by all social goals. We
might, for simplicity, stipulate not to call any political aim a right unless it has a certain
threshold weight against collective goals in general; unless, for example, it cannot be
defeated by appeal to any of the ordinary routine goals of political administration, but only by
a goal of special urgency.

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Consideration of "a goal of special urgency" is the only room allowed a judge for
considerations of policy. In addition to focusing on the deontological-teleological difference,
Dworkin outlined another key feature of the principles policies distinction: A political right is
an individuated political aim. An individual has a right to some opportunity or resource or
liberty if it counts in favor of a political decision that the decision is likely to advance or
protect the state of affairs in which he enjoys the right, even when no other political aim is
served and some political aim is disserved thereby. A goal is a non individuated political aim,
that is, a state of affairs whose specification does not in this way call for any particular
opportunity or resource or liberty for particular individuals.
This individual-collective dichotomy suggests that the central focus of the judiciary is and
should be the individual. Thus, the essence of Dworkin's principles-policies distinction is
found in two dichotomous features: deontological-teleological and individual-collective.
That Dworkin considers both of these features fundamental to the principles-policies
distinction becomes clear in his third explanation of the distinction. Dworkin has given the
distinction between the arguments of principle and arguments of policy. Arguments of
principle attempt to justify a political decision that benefits some person or group by showing
that the person or group has a right to the benefit. Arguments of policy attempt to justify a
decision by showing that, in spite of the fact that those who are benefited do not have a right
to the benefit, providing the benefit will advance a collective goal of the political community.
Dworkin goes on to argue that the consideration of claimed rights can indeed take account of
consequences, including consequences to non-parties to the dispute in question, and not lose
their deontological character.
Dworkin says that the difference between an argument of principle and an argument of policy
is a difference between two kinds of questions that a political institution might put to itself,
not a difference in the kinds of facts that can figure in an answer. If an argument is intended
to answer the question whether or not some party has a right to a political act or decision,
then the argument is an argument of principle, even though the argument is thoroughly
consequentialist in its detail.
Here, Dworkin is assuming that the nature of the argument in response to a question respects
the nature of the question raised. That the nature of an argument determines its character is
clear from Dworkin's earlier assertion that an argument is an argument of principle if it
respects the distributional requirements of such arguments. Judges in Dworkins view,

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interpret principles to discover the law applicable to the case at hand.4 He believes that judges
become lawless when they allow rights based on principles to be overcome by
policies, where policy is defined by Dworkin as a collective goal. 5 some cases raise issues
so novel that they cannot be decided even by stretching or reinterpreting existing rules. So
judges must sometimes make new law, either covertly or explicitly. But when they do, they
should act as deputy to the appropriate legislature, enacting the law that they suppose the
legislature would enact if seized of the problem.6

PRINCIPLES AND DEMOCRACY

Adjudication must be subordinated to legislation is supported by two oobjections to judicial
originality. The first argues that a community should be governed by men and women who
are elected by and responsible to the majority. Since judges are, for the most part, not elected,
and since they are not, in practice, responsible to the electorate in the way legislators are, it
seems to compromise that proposition when judges make law. The second argues that if a
judge makes new law and applies it retroactively in the case before him, then the losing party
will be punished, not because he violated some duty he had, but rather a new duty created
after the event. These two arguments combine to support the traditional ideal that
adjudication should be as unoriginal as possible.

4 Richard A. Posner, The Problems of Jurisprudence, [New Delhi: Universal Law Publishing Co. Pvt.
Ltd, 2010] at p. 22.
5 Ibid at p. 239
6Ronald Dworkin, Taking Rights Seriously,Fourth Indian Reprint, [New Delhi: Universal Law
Publishing Co. Pvt, Ltd., 2008] at p. 82.
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RONALD DWORKINS RIGHTS

THESIS AND ARTICLE 14
Professor Dworkin has developed the thesis that everyone has the right to equal respect and
concern but does not have any claim to equality of treatment. 7 One of the aims of Ronald
Dworkin's, Taking Rights Seriously, is to provide a theory of natural rights. His theory is
novel and interesting in two respects. First, Dworkin argues that the commonly held belief
that liberty and equality are fundamentally opposed to one another is false. Rights to various
liberties are themselves derived from a form of a right to equality - what Dworkin calls the
right to equal concern and respect. Second, Dworkin thinks that the notion of a general right
to liberty, which can be opposed to egalitarian claims, is incoherent.
The Constitution fuses legal and moral issues by making the validity of a law depend on the
answer to complex moral problems, like the problem of whether a particular statute respects
the inherent equality of all men.
Dworkin begins by imagining a disappointed white law-school applicant who charges that the
school violated his individual right of equality for the sake of a policy of greater equality
overall and thereby raises the question what rights to equality do citizens have as
individuals which might defeat programs aimed at important economic and social policies,
including the social policy of improving equality overall?8 he assumes that the social policy
of improving equality overallhas and should have reference to equality of results across
races rather than to other concepts of equality , such as equality of opportunity, which was
kants sense of equality9, or deistribution according to merit which was Aristotles sense of
equality. Dworkin distinguishs two rights to equality that the disappointed white applicant
might assert in opposition to the social policy of improving equality overall. One is the
7 U.R. Rai, Fundamental Rights and their Enforcement, [New Delhi: PHI Learning Private Limited,
2011] at p. 451.
8 Ronald Dworkin, Taking Rights Seriously, Fourth Indian Reprint, [New Delhi: Universal Law
Publishing Co. Pvt, Ltd., 2008] at pp. 226,227.
9 Supra 1.
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right to equal treatment. But there is no right to equal treatment in the assignment of law
school places. Legal education is not so vital that everyone has an equal right to it. 10
Dworkin believes there are equal rights only to really important things, such as voting, and
not to professional or employment opportunities as well. The second right to equality that the
white aapplicant might invoke is the right to treatment as an equal: If I have two children,
and one is dying from a disease that is making the other uncomfortable, I do not show equal
concern if I flip a coin to decide which should have the remaining dose of a drug. 11 So the
right to treatment as an equal is just a right not to be treated callously or arbitrarily, and again
the white applicant loses.
By defining rights to equality narrowly, Dworkin has knocked out the white applicant but at
the same time has gravely weakened the argument against discriminating in favour of whites.
Although he says that any form of segregation that disadvantages blacks is, in the United
States, an automatic insult to them, and offends their right to be treated as equals 12, this
confident assertion is belied by his example of what treatment as an equal require. If the
dying child could not be saved by the remaining dose while the less seriously ill child could
be, then giving the drug to the latter would not violate the formers right to treatment as an
equal. If all the right to equal treatment means is that individuals should not be subjected to
heartless and capricious impositions, the right of a black person to treatment as an equal
depends on whether proponents of segregation are able to give plausible reasons for the
practice, a question Dworkin does not examine. His concept of equality is equivocal,
undeveloped, and surprisingly narrow.13
The Constitution of India under Article 14 provides for the Right to Equality which states
that:The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.

10 Supra 2 at p. 227.
11 Ibid.
12 Ibid at p. 238.
13 Jules L. Coleman, Book review of Taking Rights Seriously, California Law Review, 1978 at p. 915.
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Dworkins assertion that everyone has the right to equal repect and concern but does not not
have any claim to equality of treatment is a truism. But, one may fail to get equal treatment
for some lacunae in himself or for reasons beyond his control. Rights contained in the
Constitution are merely rules of law and they do not give guarantee against existing societal
inequalities. The guarantee under Article 14 is limited in two respects:1. The right is available only against the State and it does not extend to those aspects of
our life where our existence is demonstratively dependent on how fairly or unfairly
our fellow citizens treat us.
2. The guarantee is clearly limited only to the protection of the laws; but many legally
guaranteed equalities look hollow in real life because of uneven societal backgrounds
from which people hail.
Despite these restrictions Article 14 of the Constitution provides for equality of treatment.
The two phrases employed in Article 14 i.e, (a) equality before the law and (b) equal
protection of the law do not mean the same thing. The former is negative in content
implying absence of special privilege in favor of any section of the people or any
individual. Equal protection of the law is positive in content. It implies equality of
treatment in equal circumstances.
Again equality before the law implies that all are equal in the eyes of law and from
the highest to the humblest, all will be tried by the same law and will be given the same
punishment for same crime.
Equal protection of the Laws under Article 14 has been interpreted to mean subjection to
equal law, applying to all in the same circumstances. It only means that all persons have
right to equal treatment in similar circumstances, both in the privileges conferred and in
liabilities imposed by the laws. Equal laws should be applied to all in the same situation,
and there should be no discrimination between one person and another. As regards the
subject-matter of the legislation their position is the same. Thus the rule is that the like
should be treated alike and not that unlike should be treated alike.
The equal protection of laws guarranteed by Ariticle 14 does not mean tha all laws must
be general in character. The varying needs of different classes of persons often require
separate treatment. In fact, identical treatment in unequal circumstances would amount to
inequality.
Therefore, everyone has the right to equal treatment as per Article 14, hence, negating
Dworkins assertion.

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CRITICISM
Dworkin's theory of rights is so radically defective that he really has no theory of rights at
all.14 The problem is not that Dworkin has failed to ground his theory; while one would like a
grounded theory of rights, lack of completeness is no philosophical sin per se. The problems
with Dworkin's theory turn out to be much deeper than mere incompleteness. First, Dworkin's
fundamental or basic right which is supposed to ground particular individual rights - the right
to equal concern and respect - could not be a fundamental right and indeed may not be a
natural right at all. Second, Dworkin's argument that the right to liberty is incoherent is a poor
one which can be easily refuted. These two points, if valid, show that Dworkin's attempt to
over-come the opposition between liberty and equality fails. Third, any theory of natural
rights entails a right to liberty so any theory which has no room for a right to liberty is
seriously flawed.
MacCommick assert that the proposition that judge have a weak discretion and that they are
to find the right answer from the principles is unsustainable.15
Critics such as Greenawalt have argued that the denial of discretion is wrong and is
inconsistent with our ordinary understanding of judicial responsibilities for opinions. 16 To
suggest that judges have discretion is not to imply that they have license to do what they will.
The institution of judging offers the judge choice only within the constraints of judgment.

14 Danny Shapiro, Does Ronald Dworkin Take Rights seriously, Canadian Journal of Philosophy
Vol. 12, No. 3 (Sep., 1982) at p. 421.
15http://drsivalaw.wordpress.com/2010/page/2/ (Accessed on 21/10/2013).
16http://theoryofjurisprudence.blogspot.in/2007/12/ronald-dworkins-right-thesis.html (Accessed on
21/10/2013).
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Greenawalt argues that there are also examples which contradict the right theories. For
example, in a case of nuisance, the judge may consider the effect of his discretion on the
community before accepting the right of the claimant. Such cases indicate that judges do
decide on policies while determining the rights of the individual. Dworkin replies that this is
not a case of policy but a case where the judge compromises competing rights.
Other critics also criticize Dworkin on the ground that the right thesis cannot be demonstrated
that there is only one right answer to a question. Supposing two judges are to decide whether
Elmer is entitled to inherit his grandfathers property, they may answer this question
differently from each other and yet claim that each answer is the right answer. How do we
demonstrate that there is only one right answer to a problem.
Dworkins answer is that it is insufficient to say that there can be no right answer just because
they cannot be proved or demonstrated.
Hart criticizes Dworkins right answer thesis as flawed and vulnerable to criticisms. Hart
described Dworkin as a Noble Dreamer.
Dworkin himself has provided a beginning of an answer to these questions. Rights based
theories, he writes, place the individual at the center, and take his deci-sion or conduct as of
fundamental importance... [They are] concerned [primarily?] with the independence rather
than the conformity of in-dividual action. They presuppose and protect the value of
individual thought and choice.17 We can flesh out Dworkin's account by paying close
attention to the crucial features of natural rights we have already noted: first, they are always
individual rights, and second, the concepts of coercion and consent play a central explanatory
role. Coer-cion is central because if an individual has a natural right to do something, it is
wrong to interfere coercively with his exercise of it, and consent is vital because one can only
influence or direct his activities and goals within the scope of the right by the individual's
consent or cooperation. This means that an individual right sets up a certain sphere wherein
an individual's choices, decisions, and actions are free from coercive interference. Within that
sphere he can do what he want with his own life so long as he doesn't violate any other
individual's rights. Natural rights, then, at their source, contain what, for lack of a better term,
one might call individualistic values: each individual has his own moral boundary which
17Ronald Dworkin, Taking Rights Seriously, Fourth Indian Reprint, [New Delhi: Universal Law
Publishing Co. Pvt, Ltd., 2008] at p. 72.
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cannot be crossed by others except under unusual circumstances. In particular, these moral
boundaries cannot be coercively broken down and gathered into the undifferentiated mass of
a collective goal. Dworkin's basic right to equal respect and concern does not presup-pose
and protect the value of individuals' leading their own lives; rather it revolves around the
government treating fairly the community or ma-jority its decisions affect.
The reason why modifying the basic right so that it contains within it the conflict between a
right to liberty and a right to equality is a problem for Dworkin is that he believes that there is
no such thing as a general or basic right to liberty. This is another sign that Dworkin does not
have a theory of rights, for any theory of natural rights must contain a right to liberty as one
of its fundamental (or 'abstract) rights.18

18Danny Shapiro, Does Ronald Dworkin Take Rights seriously, Canadian Journal of Philosophy Vol. 12, No. 3
(Sep., 1982) at p. 423.

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CONCLUSION
Ronald Dworkins rights thesis has a descriptive and a normative aspect. In its descriptive
aspect, it is the thesis that there are in hard cases pre-existing legal rights which judges
characteristically enforce. In its normative aspect, it is the thesis that there are in hard cases
pre-existing legal rights which judges have a duty to enforce. In defending the rights thesis,
Dworkin means to be denying the discretion thesis. It is the thesis that judges do not have a
duty in hard cases to enforce pre-existing legal rights, but the discretion to decide either way.
The reason they have no such duty according to the discretion thesis is that there are in hard
cases no pre-existing legal rights for judges to enforce.
There has been a discernible trend in American political and legal thinking during the last
two decades toward theory-building in terms of individual rights. Dworkin contributes to and
plays a recognized leading role in this growing trend. He has challenging prevailing theories
of law, such as positivism and realism, with a new and comprehensive rights theory. His
theory has the potential of being assimilated into both the legal order and society at large.
Dworkin has based his theory on a number of independent legal concepts. In this project
work the researcher has focussed on the concept that plays a key role in his rights thesis i.e.,
the sharp distinction between principles and policies.
For Dworkin, judges are always constrained by the law: there is no law beyond the law.
Dworkins conception of the dominion of law is of a gapless legal universe, where in every
adjudication, even in the so-called hard cases, there are controlling standards which judges
are obligated to follow.19 The law is a seamless web, in which there is always a right answer.
Judicial decisions are characteristically generated by principle and enforce existing
19 M.D.A. Freeman, Lloyds Introduction to Jurisprudence, Eighth Edition, [London: Sweet &
Maxwell, 2008] at p. 719.
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political rights: litigants are therefore entitled to the judges best judgement about what
their rights are. Dworkin admits that different judges can come to different conclusions
because a constitutional theory requires judgements about political and moral philosophy.
But, despite this, he maintains that judges may not rely on their own political views, but only
on their beliefs in the soundness of those convictions.

BIBLIOGRAPHY
BOOKS
1. Dworkin, Ronald Taking Rights Seriously, New De.lhi: Universal Law Publishing
Pvt. Ltd., 2008.
2. Friedman W., Law in a Changing Society, New Delhi: Universal Law Publishing Pvt.
Ltd., 2008
3. Posner A. Richard, The Problems of Jurisprudence, New Delhi: Universal Law
Publishing Co. Pvt. Ltd, 2010.
4. Freeman, M.D.A., Lloyds Introduction to Jurisprudence, Eighth Edition, London:
Sweet & Maxwell, 2008.
5. Rai, U.R., Fundamental Rights and Their Enforcement, New Delhi: PHI Learning
Private Limited, 2011.
ARTICLES
6. Coleman, Jules L., Book review of Taking Rights Seriously, California Law Review,
1978 at p. 915.
7. Fairley, H. Scott, The Asymmetry of Ronald Dworkins Rights thesis in Criminal
Cases: A Troublesome Exception, Pepperdine Law Review, Volume 7, Issue 2.
8. Shapiro, Danny, Does Ronald Dworkin Take Rights seriously, Canadian Journal of
Philosophy Vol. 12, No. 3 (Sep., 1982).

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