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THEORY OF RIGHTS
PAUL YOWELL*
Ronald Dworkin has argued that rights are best understood as "trumps"
against utilitarian and other collective justifications for laws. In this article
I show that in his early work Dworkin proposed two distinct theories of rights
as trumps. The first, which I call the shielded-interest theory, holds that rights
protect fundamental human values from collective political justifications. The
second, which I call the filtered-preference theory, holds that rights trump
laws based on "external" utilitarian preferences (such as racist or "moralistic"
prejudice), whereas laws based on "personal" utilitarian preferences are
legitimate. After explaining the two theories, I will argue that they are
inconsistent and that Dworkin later abandoned the filtered-preference theory
and adopted a revised theory in its place.
At least two basic philosophical questions underlie Dworkin's work on
rights. One is whether utilitarianism can be reconciled with the idea that
individuals have extra-legal rights against the state. This was a pressing issue
in the 1970s when Dworkin was writing the essays later published in Taking
Rights Seriously (1977) [hereinafter TRS]1, and he initially proposes a
symbiotic relationship betweenrightsand utilitarianism. Dworkin provisionally
grants the legitimacy of enacting legislation on utilitarian grounds and defines
the essence of rights as trumping utilitarian justifications in certain ways (by
shielding important human values or by filtering out external preferences). In
virtue of this opposition from rights, which courts enforce against the
legislature, utilitarianism is refined and made legitimate. Although Dworkin
eventually discards this symbiotic approach, he maintains the concept of rights
as trumps.
A second basic question Dworkin addresses is the relationship between
extra-legal rights and liberalism. He doubts that the traditional idea of natural
* I am grateful to John Finnis and Richard Ekins for helpful comments on earlier drafts,
as well as to participants in a meeting of the Oxford Jurisprudence Discussion Group.
1. Because this article cites the following books extensively, I will employ abbreviations
as indicated here in square brackets: Taking Rights Seriously, 2d ed. (London: Duckworth,
1977) [TRS]; A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) [AMP];
Law's Empire (Cambridge, MA: Harvard University Press, 1986) [LE]\ Sovereign Virtue: The
Theory and Practice of Equality (Harvard University Press: Cambridge 2000) [SV]; Is
Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton
University Press, 2006) [IDPH]. Occasionally the abbreviation will be followed by the title of
the chapter cited.
93
94 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 '
Individuals have rights when, for some reason, a collective goal is not a
sufficient justification for denying them what they wish, as individuals, to have
or to do, or not a sufficient justification for imposing some loss or injury on
them.6
2. TRS, xi.
3. TRS, xi.
4. TRS, 274. See also^Aff, "Liberalism," 191.
5. TRS, xi.
6. TRS, xi
2007 PAUL YOWELL 95
Dworkin describes the definition as "formal" in that it "does not indicate what
rights people have or guarantee, indeed, that they have any."7 A right exists
in virtue of its opposition to some collective goal, according to the definition;
but if the justification for that goal is sufficient, no right exists. The definition
can thus be reformulated as follows: "Rights trump a collective goal that lacks
sufficient justification." Though Dworkin on occasion states that rights
function as trumps against any type of collective goal,8 the arguments in TRS
discuss collective justifications for laws almost entirely in terms of
utilitarianism.9 The idea of rights defended in the essays is, Dworkin says,
"parasitic on the dominant idea of utilitarianism, which is the idea of a
collective goal of the community as a whole."*0
In several places Dworkin describes the claim to a right in this form: A has
a right to X (where X is some opportunity, resource, or liberty) even //"denying
X to A would further the general interest.11 I refer to this formulation as the
shielded-interest theory because it conceives of rights as forming a protective
barrier around certain individual interests. The defining term, however, is not
the interest itself (X) but the general welfare against which it is shielded. The
proper claim is not "A has a right to X," full stop. The "even i f in the
formulation is crucial: the hypothetical conflict with society's general welfare
is what gives intelligibility to the claim of a right.12 The importance of the
interest protected, however, determines the shield's strength, as we will see
below.
Dworkin originally propounded the shielded-interest theory in the essay
"Taking Rights Seriously," first published in 1970 in the New York Review of
Books and later as the title chapter of TRS. The essay does not argue for the
7. TRS, xi.
8. TRS, 365, 169.
9. Cf. TRS, 365 ("I give special place to the claims of right as claims of a trump over a
general utilitarian justification, because I am discussing political decisions in which the general
collective justification is utilitarian.").
10. TRS, xi (italics added).
11. E.g.,TRS,9\, 169,192,364. "[A] claim ofpolitical right is a claim to a trump over the
general welfare for the account of a particular individual. When someone claims a right of free
speech, for example, he claims that it would be wrong for the state to prohibit him from
speaking on some matter even //the general welfare would be improved by preventing him from
speaking." TRS, 364 (italics added).
12. "The hypothetical nature of the claim is important. We emphasize the special injustice
of torture, for example, when we speak of a right against torture, because we claim that torture
would be wrong even if it were in the general interest." TRS, 364 (italics added).
96 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52
existence of any particular rights; it assumes but does not defend the thesis
that people have "fundamental" moral rights against the state, and explores the
consequences of conceding that such rights exist.13 A right is fundamental if
it is necessary to protect a person's "dignity, or his standing as equally entitled
to concern and respect, or some other personal value of like consequence."14
The values protected by fundamental rights apparently have an objective
character connected to the principle of equality, but Dworkin does not
precisely define their normative basis.
Dworkin claims to reject the balancing model of rights, i.e., the model that
"recommends striking a balance between the rights of the individual and the
demands of society at large."15 Though the model is widely accepted and
"established in our political and judicial rhetoric," Dworkin says it is "false"
and that "the heart of its error" is the balancing metaphor.16 But in fact
Dworkin's approach to rights under the shielded-interest theory is similar to
balancing tests employed by the U.S. Supreme Court. According to Dworkin
the government can legitimately curtail the exercise of a fundamental right in
order to prevent substantial harm to others or to society.17 The Supreme
Court, similarly, holds that limitations on fundamental rights can be justified
by a compelling state interest.18 At times Dworkin seems to set a higher
threshold than the Court for limiting a right. He says, for example, that the
state can prevent exercise of the right to free speech "when there is a clear and
substantial risk that [the] speech will do great damage to the person or
property of others, and no other means of preventing this are at hand, as in the
case of the man shouting 'Fire!' in a crowded theatre."19 But Dworkin allows
for reasonable restrictions on the time, place, and manner of the exercise of
free speech.20 Moreover, he approves a test for free speech cases proposed by
Judge Learned Hand, which states (in Dworkin's paraphrase) that "[w]e must
. . . discount the gravity of evil by the likelihood of reaching that evil."21 This
is part of an inquiry that weighs the potential evil of speech against the
benefits of the regulation at issue; the Hand test was adopted by the Supreme
Court in a landmark case and has been widely used to balance individual and
state interests.22
What the shielded-interest theory rejects is sheer balancing, i.e., the
proposition that a right is overcome whenever the considerations that support
a proposed law or policy tip the balance toward the general welfare.23 In his
review of TRS Joseph Raz said that Dworkin's arguments amount to two
truisms: that rights matter and that they may defeat other considerations.24
Responding to Raz in the Reply to Critics of TRS, Dworkin rejects this claim
at one level. It would be "pointless," according to Dworkin, to say that A has
a right because he has a stronger interest in X than B has (e.g., when A has
strong preference for pistachio and B has a mild preference for vanilla).25
That would "inflate the number of rights grotesquely, and so make the appeal
to a right banal."26 A right must outweigh "some collective justification that
normally provides a full justification for the decision."27 But at this collective
level Dworkin appears to assent to Raz's characterization of the logic of his
theory, stating: "No alleged right is a right (on my account) unless it overrides
at least a marginal case of collective justification."28 Dworkin does not
specify the weight that a right has against collective justifications and
acknowledges that "some rights are more important than others."29
When expounding the shielded-interest theory in TRS Dworkin supposes
that the arguments for the general welfare are utilitarian arguments, and at
times he says rights take priority over all utilitarian justifications. When
considering provocative political speech, for example, he states: "It may be
that abridging the right to speak is the least expensive course, or the least
damaging to police morale, or the most popular politically. But these are
utilitarian arguments in favor of starting one place or another, and such
arguments are ruled out by the concept of rights."30 In another context:
"[TJhese utilitarian reasons are irrelevant, because they cannot serve as
22. See Dennis v. United States, 341 U.S. 494,510 (1951) ("In each case [courts] must ask
whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger.") (quoting from and affirming the majority opinion
by Hand, J., in the case below, 183 F.2d 201, 212 (2d Cir. 1950)).
23. See TRS, 92,169-70.
24. Joseph Raz, "Professor Dworkin's Theory of Rights," Political Studies 26 (1978) 123,
126.
25. TRS, 365.
26. TRS, 365.
27. TRS, 365 (italics added).
28. TRS, 366 (italics added).
29. TRS, 366.
30. TRS, 203.
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grounds for limiting a right."31 But such claims must be taken as exaggerated
when considered in light of Dworkin's response to Raz and his more careful
formulations. The shielded-interest theory holds only that utilitarian
justifications must have sufficient weight to overcome rights, and it is
consistent with balancing tests. In a sense, the theory is a balancing test.
This conclusion could be challenged by an alternative formulation Dworkin
uses for the shielded-interest theory: "If someone has a right to something,
then it is wrong for the government to deny it to him even though it would be
in the general interest to do so."32 This seems to assert that rights should be
shielded against all justifications made for the general welfare and that they
have an absolute trumping power rather than an unspecified strength. But in
fact this is the description of the consequence of the "successful claim of
right."33 On first glance this description seems like the usual formulation of
the shielded-interest theory identified at the beginning of this section: "A has
a right to X even //denying X to A would further the general welfare."
Dworkins' description of the successful claim has this form: "Because A has
a right to X, it is wrong to deny X to A, even j/the general welfare would be
be furthered thereby." The former is the proper form of the claim of a right
that is asserted before any necessary weighing; the latter is the conclusion
after the general interest has been weighed and found insufficient. A reader
might be led to impute the absoluteness of the successful claim to the
definition of a right, a conclusion that would receive apparent reinforcement
from Dworkin's claim to reject balancing tests. As Raz notes, "almost always
Dworkin sounds as if he meant to say something much more far-reaching;"
however, "[njowhere does he say clearly and unambiguously anything more
than that rights have some weight however little and may override some
considerations which aren't themselves rights."34
Although Dworkin refers to the shielded-interest theory as an "anti-
utilitarian concept of a right,"35 it has an utilitarian premise. The various
"even i f formulations presume that the general welfare can be furthered by
denying an individual's interest, thereby invoking a conception of the
society's general interest as an overall aggregration of preferences, desires,
interests, etc. This is one of the ways in which the relationship between rights
and utilitarianism is symbiotic: the very intelligibility of a claim to a right
depends on the hypothetical conflict with the general welfare conceived in
utilitarian terms. Moreover, this approach assumes that utilitarianism yields
results that not only can be, but "need to be... trumped by considerations of
individual rights."36 The shiejded-interest theory adds only the assurance that
some of these results might be defeated.
36. John Finnis, "A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence,"
Proceedings of the British Academy 71 (1985) 303, 316-17 (italics added).
37. "What Rights Do We Have?" (first published in TRS); "Reverse Discrimination" (first
published in 1976 in the New York Review of Books and later in TRS); "Social Sciences and
Constitutional Rightsthe Consequences of Uncertainty," Journal of Law and Education 6
(1977) 1; "Bakke's Case: Are Quotas Unfair?" (first published in 1977 in the New York Review
of Books and later in AMP). The filtered-preference theory is also relied on in "Liberalism"
(first published in Public and Private Morality, ed. Stuart Hampshire (Cambridge: Cambridge
University Press, 1978) and later in AMP).
38. TRS, 274. See also 232.
39. TRS, 274.
40. TRS, 274.
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"prohibits a government from relying on the claim that certain forms of life
are inherently more valuable than others."41
On a first impression, Dworkin observes, utilitarian policy arguments
appear secure from liberal objections because they treat the wishes of every
member of the community equally; no one is given a bonus or discount
because he is more or less worthy than another or his views more or less
deserving of respect.42 But this appearance of egalitarianism can be illusory
because utilitarianism counts both personal and external preferences in its
calculations of the general welfare.43 Personal preferences are for the
assignment of goods and opportunities to oneself.44 External preferences are
for how goods and opportunities are to be assigned to others.45 If someone
morally disapproves of certain conduct and seeks on that basis to constrain
another person's liberty to engage in it, this is counted as a preference in the
general utilitarian calculation.46 Though the liberal conception of equality
barred moral judgments at the front door, utilitarianism might let them in
through the back door, in the form of a "moralistic" preference for how others
should live. And if racists in a community wish to deny opportunities to
members of minority groups, then utilitarianism will count these preferences
as well. Dworkin concludes that utilitarian calculations must be based only
on personal preferences if they are to figure in arguments that legitimately
constrain liberty; justifications based on racist, moralistic, or other external
preferences are inconsistent with equality.47 Conceived in this way,
utilitarianism does not threaten the liberal thesis that "government has no right
to enforce popular morality by law;" indeed, if "utilitarianism is suitably
reconstituted so as to count only personal preferences, then the liberal thesis
is a consequence, not an enemy, of that theory."48
Although Dworkin implies that moralistic or racist prejudice would be
illegitimate in any political setting, the trumping force of rights in the filtered-
preference theory is not directed toward the content of external preferences.
Instead, Dworkin argues that to count any external preference makes
utilitarianism self-defeating. He cites Bentham for the proposition that under
utilitarianism everyone is to count for one and not more than one.49 The racist
counts as more than one because he has preferences for both the distribution
of goods to himself and the denial of goods to others. This results in double
counting, and the resulting distribution is not "utilitarian at all"at least in
the sense of each person counting as one.50 This argument excludes racist and
moralistic preferences not because of their content but because they are
external, i.e., because they are the preferences of one person about another's
opportunities or choices. It commits Dworkin to the proposition that
utilitarian justifications are corrupted even by altruistic preferences," or
personal, self-denying preferences "for less of a certain good... on the proviso
that others will have more."52 Such preferences "may no more be counted in
a defensible utilitarian argument than less attractive preferences rooted in
prejudice rather than altruism."53
Dworkin refers to personal preferences as those that "rightly make up the
general welfare";54 they can thus legitimately be relied upon to constrain
liberty and ground law-making. He states: "The vast bulk of the laws which
diminish my liberty are justified on utilitarian grounds, as being in the general
interest or for the general welfare; if as Bentham supposes, each of these laws
diminishes my liberty, they nevertheless do not take away from me any thing
that I have a right to have."55
Dworkin's egalitarian interpretation of utilitarianism is coupled with a
theory about the institutions of political democracy. The institutions best
suited to identify and achieve utilitarian policies are democratic ones.56 But
democratically elected legislatures are incapable of separating external from
personal preferences.57 The legislature is like a computer that automatically
registers all voter preferences and translates them into law.58 Bringing
together the different strands in the argument, Dworkin proposes a "general
theory of rights":
about double counting as the summary of a longer version in "Reverse Discrimination" (chapter
9 of 7KS), 231-38.
50. TRS, 235.
51. TRS, 235, 238.
52. TRS, 277. The self-denying preference described here is technically not an external
preference but a personal preference that is parasitic on an external preference. On this
distinction see infra, note 69.
53. TRS, 277.
54. "Social Sciences and Constitutional Rights," supra, note 37,10.
55. TRS, 269.
56. TRS, 276.
57. TRS, 276.
58. "Social Sciences and Constitutional Rights", supra, note 37, 10; AMP, 366.
102 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52
[A]ny political judgment about what makes the community better as a whole
must count the impact on each particular person as having the same importance.
As Bentham said, "Each man [and woman] to count for one and none for more
than one".
The political process in a democracy is meant to translate that requirement
into legislation through the institutions of representative democracy. The
welfare economists have worked out a theory to how that is achieved. Each
individual, through his votes and other political activity, registers or reveals a
preference. The political process is a machine which is calculated, though
imperfectly, to reach decisions such that, though some individuals suffer and
others gain, the overall preferences of all the people, considered neutrally with
the same consideration for the preferences of each, is improved.
In a community which has a settled prejudice of one sort or another, however,
whether it be prejudice against blacks, against homosexuals, or against particular
political views, the machine will inevitably break down because there is no way
of excluding these preferences based on prejudice from affecting the process.
If prejudicial preferences are counted, then the personal preferences of those
against whom the prejudice acts are not counted equally in the balance; they are
59. TRS, 277 (italics added). In the place of the ellipsis in the quote is this: "in the strong
anti-utilitarian sense I distinguished earlier." This refers to "Taking Rights Seriously" and
Dworkin's description of the consequence of a successful claim of a right under the shielded-
interest theory. See TRS, 269; supra, notes 32-33 and accompanying text. Despite the link
made here between the filtered-preference and the shielded-interest theory, they oppose
utilitarianism in basically different ways. See infra, section I.D.
60. See AMP, 70 ("Judicial review insures that the most fundamental issues of political
morality will finally be set out and debated as issues of principle and not political power alone,
a transformation that cannot succeed, in any case not fully, within the legislature itself")
2007 PAUL YOWELL 103
"the alleged right does not exist."71 Dworkin later retracted this conclusion,
as we will see in the next subsection.
71. TRS,21%.
72. Raz uses a similar example in "Professor Dworkin's Theory of Rights," supra, note 24,7.
73. Cf. AMP, 354-56.
74. See TRS, xiv, 272, 356. Dworkin also notes that the essays in TRS were "written
separately and therefore contain, as a group, overlappings and differences in emphasis and
detail." TRS, xiii-xiv. In "Hard Cases" (chapter 4 of TRS), Dworkin develops a complex
taxonomy of rights at pages 90-93, and in the Introduction to TRS he relies on this classification
to draw distinctions between "Taking Rights Seriously" and "What Rights Do We Have?" See
TRS, xii-xv. The distinctions are highly technical and will not be analyzed here; in myjudgment
they do not resolve the inconsistency noted above in the text.
75. TRS,27$.
106 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52
76. Ronald Dworkin and Contemporary Jurisprudence, ed. Marshall Cohen (London:
Duckworth, 1984), 282.
77. See TRS, 231-39; AMP, 301.
78. See TRS, 231-39, 275-77.
79. TRS, vii-viii.
80. TRS, xiii.
81. TRS, vii-viii.
82.
2007 PAULYOWELL 107
general theory of law, and it plays a key role in the component that he calls
legislative justice. The dominant theory of legislative justice since Bentham
has been utilitarianism, according to Dworkin, and he does not propose to
discard it.83 Instead he attempts to reconcile it with the notion that
"individuals can have rights against the state that are prior to the rights created
by explicit legislation."84 Bentham, of course, rejected this goal; he thought
that rights derive from positive law alone and denounced the idea of extra-
legal rights as pernicious, anarchical nonsense.85 As Dworkin observes, under
utilitarianism the only ground on which an individual can object to a
legislative decision is that it does not in fact promote the general welfare.86
Dworkin's crucial move was to accommodate utilitarianism at an inter-
mediate stage in working out a theory of legislative justice, instead of
adopting it, as Bentham had done, as a foundational political and ethical
theory: In a letter to Voltaire, Bentham said that his object was to trace out a
new model for laws with a central moral idea: "I have built solely on the
foundation of utility."87 Dworkin could say instead: "I have built solely on the
foundation of equality." For Dworkin the principle that government must treat
each person with equal concern and respect is "fundamental and axiomatic."88
Equality is "the source both of the general authority of collective goals and of
the special limitations on their authority that justify more particular rights."89
The particular collective goal considered in TRS is preference-satisfaction
utilitarianism, which seems "to embody the fundamental right of concern and
respect" because it treats everyone's preferences equally.90 This "appearance
of egalitarianism," Dworkin claims, has been the source of its great appeal as
a political philosophy over many years.91 And utilitarianism remains
egalitarian when it is based on personal preferences, which Dworkin refers to
as "the kind of preferences that rightly make up the general welfare.'"92 It is
external preferences that corrupt utilitarianism and make its egalitarian
appearance illusory.93 The operation of the filtered-preference theory of rights
104. Z,,viii.
105. "What is Equality? Part 1: Equality of Welfare," Philosophy and Public Affairs 10
(1981) 185-246; "What is equality? Part II: Equality of Resources," Philosophy and Public
Affairs 10 (1981) 283-345; "What is Equality? Part III: The Place of Liberty," Iowa Law Review
73 (1987) 1 -54; "What is Equality? Part IV: Political Equality," San Francisco Law Review 22
(1988) 1-30.
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[Hart's] objections ... suppose that whatever rights people have are at least in
large part timeless rights necessary to protect enduring and important interests
fixed by human nature and fundamental to human development, like interests in
the choice of sexual partners and acts and choice of religious conviction. That
is a familiar theory of what rights are and what they are for, and I said that I
would not give my reasons, in this essay, for thinking that it is in the end an
inadequate theory of rights.145 . .
Dworkin insists that a theory of rights must be "relative to the other elements
of a political theory"; and that rights come in "complex packages of political
theory" which include the background justification and some description of
the way rights trump that theory's conception of the collective welfare.146 A
strikingly different approach underlies the UDHR. Indeed the italicized
phrase above is a reasonably accurate way to describe the approach to human
rights in the UDHR and similar international treaties, as I argue in section V.
There is, morever, a tension between this "package" view and the shielded-
interest theory, which assumes that people have a set of basic political rights
that protect important egalitarian values.147 In the essay "Taking Rights
Seriously" those values seem to be "important interests" that are "fundamental
to human development" (to borrow words from the above quote). Moreover,
the rights recognized in the shielded-interest theory, such as freedom of
speech and religion, are not relative to the background political theory as in
the filtered-preference theory; their substantive content is not shaped by
society's external utilitarian preferences and does not depend on the tenets of
a background justification. Perhaps sensing this tension, Dworkin asserts that
it does not follow from the claim that rights are relative to the background
theory that there are "no rights that any defensible package must containno
rights that are not in this sense natural rights."148 But, he says, "the argument
that there are such rights, and the explanation of what these are, must
obviously proceed in a rather different manner" from the argument for the
series, is very complex and can only be crudely summarized here, but a grasp
of its basic elements is needed in order to follow developments in Dworkin's
general theory of law and theory of rights.
Dworkin's argument begins by posing a choice between two general
theories of distributional equality, one which aims for equality ofwelfare and
one which aims for an equal distribution of resources}" (Dworkin assumes
that these are the two most eligible alternatives for a government committed
to the principle of equality; the argument is not directed against other
"possible theories of equality."154) The first essay155 treats utilitarianism as a
type of equality of welfare and rejects it and various other welfare models
using arguments I will not recount here. In the second essay,156 as a model for
considering fairness in the distribution of material goods, Dworkin posits a
community of newly arrived immigrants on a desert island. Any initial
distribution must pass the "envy test," such that no person will envy the
resources distributed to anyone else.157 The island's raw materials are sold in
an auction in which everyone has an equal share of clamshell currency.158
Subsequent transfers of resources occur by trading under free market
conditions; this, in principle, allows people to obtain resources and enjoy
goods in proportion to the value they place upon them.'59 But the auction and
market do not ultimately achieve the goal of treating people equally. A main
reason is that people have talents of varying type and degree that allow some
people to amass much more resource wealth than others. Disparities in talent
and earning power arise from different factors, but many are the result of luck
or nature (e.g. injury or disability) rather than any responsible or irresponsible
choice. The solution is to apply the envy test to possession of talent, so that
no one receives greater resources because of his innate talent or fewer
resources because of a handicap.160 A system of redistributive taxation is
employed to direct excess wealth produced through innate talent toward those
with handicaps or other similar disadvantages.161 The rates for taxation and
redistribution are selected according to a hypothetical insurance market for
unemployment and underemployment.162 Sources of unfairness other than
unequal talent are remedied in a similar way. The desert island model is
meant to display the principles of fairness that should apply to our world, even
though the existing distribution of resources has not resulted and never will
result from any initial auction.163 Although the model is an unobtainable
"ideal ideal world," we can move from our "real real world" to an "ideal real
world" in which equality of resources is achieved so far as possible.164 The
principles by which the transition is to be achieved add another layer of
complexity that need not detain us here.165
Dworkin addresses the implications of resource egalitarianism for the
concepts of liberty and rights in the third "What is Liberty?" essay,
republished as the chapter "The Place of Liberty" in Sovereign Virtue. The
argument (which runs over 60 pages) is, in Dworkin's words, "complex" and
"dense";166 my summary will focus only on main themes and omit many
details. The formally stated aim of the argument is to defend the theory of
equality of resources against the claim that it infringes liberty.167 But the
central thesis is very broad; it is that "liberty and equality cannot conflict...
because equality cannot even be defined except by assuming liberty in the first
place."168 And there is this familiar disclaimer: "I make no effort here to
discover how far my argument qualifies or expands my discussion of liberty
in my book Taking Rights Seriously."169
The argument assumes an initial auction of resources and proceeds
(roughly) as follows. In order for people to know how to value items for
purchase in the auction they need to able to predict whether and how they will
be permitted to use them.170 If, for example, someone wants clay to make a
politically satirical sculpture, its value will be less if the government might
later ban political satire.171 Thus, the auction should proceed under certain
assumptions about what liberties and constraints the community will have, and
those conditions should endure through time.172 Dworkin argues that "an ideal
distribution is possible only when people are legally free to act as they wish
except sofar as constraints on their freedom are necessary to protect security
of person and property, or to correct certain imperfections in markets (or other
past materials counts in its favor; the goal is a decision that, ideally,
contributes to the overall coherence of the past decisions.190 When this
interpretative process is carried out, we have law as integrity.191
This summary would be inadequate for engaging Dworkin's arguments
about the nature of law, but it raises an important issue related to the theory
of rights. Judges, Dworkin says, are to seek the best interpretation of past
decisions and to make law the "best it can be." But what are the ends by
which this process of interpretation is guided? Does law serve any particular
goals or purposes of a society such that a particular interpretation can be
selected as the best instantiation of those goals or purposes? In chapter 8,
"The Common Law," Dworkin argues that resource egalitarianism is the best
justification for the law of negligence and nuisance and suggests generally
how this view could lead in new directions for the law of accidents.192
Although Dworkin presents only a truncated version of resource
egalitarianism in Law's Empire, he cites to the fuller presentation of the
"What is Equality?" essays;193 and at one point, he suggests that the theory has
footholds in other departments of law and could ideally serve as a general
political morality:
We can cite, for example, the sporadic, sometimes retreating, but overall forward
progress of redistribution toward handicapped people and those who are unlucky
in other respects, and we can argue that this overall development is better
explained by equality of resources than by other conceptions of what it means
to treat people as equals. We favor this conception ourselves; now we claim that
it is the goal oflaw purified, the community's star in its search for integrity seen
from the standpoint ofjustice alone.194
Resource egalitarianism is, however, absent from many areas of law, so judges
must often seek other justifications that meet the criteria of fit with past
decisions.195 To the extent that resource egalitarianism is a guiding principle
of interpretation within law as integrity, it seems to threaten the distinction
between principle and policy, each with its own proper forum, which is one
of the ideas that had underwritten the theory of rights as trumps. I return to
this issue in section FV.D below.
Dworkin concludes that the racially segregated school system in Brown was
unconstitutional because it was motivated by a view that one race is inferior
to another.204 The affirmative action program in Bakke survives scrutiny under
the banned sources theory because it is not motivated by such prejudice.205
Dworkin considers an alternative interpretation of the Equal Protection
Clause, the "banned categories" theory, which would disallow any racial
classification in the law.206 Following the method of law as integrity, Dworkin
notes that educational institutions in the United States are generally allowed
to have selective admissions programs designed to promote geographical
balance, athletics, and other considerations. There is, therefore, no general
principle in American law that people "must never be treated differently in
virtue of properties beyond their control"; only such a principle could
legitimately ground the "banned categories" theory.207
In several works after Law's Empire Dworkin applies its methods of
interpretation to various issues in U.S. constitutional law, together with some
form of the excluded-grounds theory of rights. Addressing later developments
in affirmative action, Dworkin argues the ideal interpretation of the Equal
Protection Clause would ask whether challenged legislation is "the product of
a for bidden, prejudiced attitude toward [a minority] group or of more benign
motives."208 An essay in Freedom's Law considers arguments that porno-
graphy harms women by causing society to see them as sexual objects, and
that certain types of pornography may lead to violent sexual crime.209
Dworkin concludes that these (and related) arguments are not only incorrect
(in their conclusions regarding empirical evidence and other particulars) but
a disguise. The "real but hidden" reason behind support for legislation against
pornography is that people find it disgusting and shameful: "Because those
who want to forbid pornography know that offensiveness alone does not
justify censorship, however, they disguise their repulsion as concern that
pornography will cause rape, or silence women, or harm the women who make
it."210
Similarly, inLife 's Dominion Dworkin contends that although many people
claim that a fetus is a person "with rights and interests equal in importance to
those of any other member of the moral community," in fact "veryfew people
... actually believe that, whatever they say."211 Dworkin analyzes opinion
polls of citizens; statements by anti-abortion politicians; the history of
Catholic doctrine on the personhood of the unborn; the positions on abortion
of Protestant churches and other religions; and various sociological
information.212 His scrutiny reveals internal inconsistencies in arguments for
the personhood of the fetus; those arguments, he concludes, are not what truly
motivates opponents of abortion and are not the key to understanding political
debates on this issue, which must "reconstructed as an argument of a very
different character."213 Dworkin does not directly answer the philosophical
question about personhood214 but argues that a fetus cannot have interests of
its own at least until it can feel pain, which is near the sixth month of
pregnancy and the point of viability outside the womb.215 Dworkin contends,
nonetheless, that even early in pregnancy there is human life that has intrinsic
(though not absolute) value;216 and, moreover, that this is in fact accepted,
though covertly, by both opponents and supporters of legalized abortion, as
revealed by careful examination of their arguments.217 Hence the real political
debate is over how to value unborn human life and weigh it against other
values such as a pregnant woman's extreme hardship.218 With the debate
reconstructed in this way, Dworkin argues that laws that prohibit abortion or
substantially impede the choice for an abortion (at least before the point of
sentience or viability), are based on a belief in "the sanctity of life, which is
a highly controversial, contestable value," and, in violation of the principle of
equal respect, force everyone to conform to one official interpretation of the
value of human life.219
These and a number of Dworkin's other arguments about rights pivot at key
points on his conclusions about the inward motives of citizens. In the
concluding section I will evaluate this approach to understanding and
interpreting rights.
211. Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom
(New York: Knopf, 1993), 13.
212. Ibid., 13-14,20, 32, 35-38, 39-50.
213. Ibid., 62.
214. See ibid., 23.
215. Ibid, 16-17, 169-70.
216. Ibid, 82-89.
217. Ibid, 28, 34-35, 78, 84, 91-93.
218. Ibid, 91-94.
219. Ibid, 151 (italics in original). See also ibid, 26, 31,117,159,163.
2007 PAUL YO WELL 125
of a political right, the only difference being the degree of contempt shown for
human dignity. Moreover, the claim that a human rights violation is an
especially grave violation of human dignity departs substantially from
common usage: in many nations the legal and theoretical discourse about
human rights is largely continuous with political and constitutional rights.
Various provisions of the European Convention of Human Rights are
routinely applied in legal decisions, not only in the European Court of Human
Rights in Strasbourg but also in the courts of member states as part of a
country's domestic jurisprudence of constitutional rights.
Dworkin may have meant his definition of human rights to be applied at a
specifically international level. He suggests that a nation's violation of
human rights may justify invasion of that nation or other serious responses
such as trade sanctions.253 Conversely, he suggests that certain acts might not
constitute human rights violations if they do not justify intervention.254 There
are a number of problems with this position. When human rights abuses are
wholly internal to a state, the legality of military intervention under the U.N.
Charter is questionable.255 But assuming that humanitarian intervention is
253. See IDPH, 33-34 ("Violations of even important political rights do not ordinarilyjustify
other nations' invading the offending nation or deliberately damaging its economy. Writers are
now in jail in Germany, for example, for charging that the Jews largely invented the Holocaust.
Americans might criticize Germany for infringing in that way what we take to be a very
important political right of free speech, but no one would think that this gives the United States
grounds for invading Germany or for imposing trade sanctions against it. When other
governments violate what we take to be not only political but human rights, howeverwhen
they jail and torture their critics or systematically hunt out and kill members of a minority
religion or racewe at least contemplate the possiblity of grave sanctions to try to stop these
crimes.").
254. It is "at best inconclusive" whether capital punishment in the United States is a
violation of human rights, according to Dworkin, because there are good faith (though flawed)
arguments to support it; he adds that "it would be preposterous for other nations to invade Texas
or Florida to stop the practice, even if they were powerful enough to succeed." IDPH, 40.
255. The UN Charter generally prohibits member states from using military force except for
self-defense. See art. 2(4) ("Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state...."); art.
51 ("Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security").
Under chapter VII of the Charter, the Security Council can authorize member states to take
military action "to maintain orrestore international peace and security" (Art. 39) (italics added).
Although it has become widely accepted since 1990 that the Security Council has the power to
intervene in humanitarian emergencies, see Nico Krisch, "Legality, Morality and the Dilemma
of Humanitarian Intervention after Kosovo," European Journal of International Law 13 (2002)
323, 331, some theorists question whether chapter VII applies to situations in which human
rights abuses are internal to a state. See, e.g., Simon Chesterman, Just War or Just Peace?
130 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52
Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001)
127-62. A seprarate issue is whether a stateor group of statesnot acting under the auspices
ofthe Security Council can intervene in a humanitarian emergency consistently with the Charter
and international law. This question was widely discussed after NATO's intervention in Kosovo;
and many commentators argue that unilteral intervention is not permitted in international law
and that the legality of collective intervention is questionable. See, e.g., Krisch, op. cit. 325-26;
Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press,
2000), especially pages 31-42.
256. For an argument that humanitarian intervention is in some cases morally obligatory see
Fernando Tes6n, Humanitarian Intervention: An Inquiry into Law and Morality, 3d ed. (New
York: Transnational Publishers, 2005).
257. The "baseline" human rights violations he identifies include denying "in principle" the
right to freedom of speech or press. IDPH, 38.
258. H.L.A. Hart, "Bentham on Legal Rights," in Oxford Essays in Jurisprudence, Second
Series, ed. A.W.B. Simson (Oxford: Oxford University Press, 1973), 201.
259. Ibid., 197. At the level of rights in the "ordinary" law, Hart endorsed the "choice"
theory of rights. Ibid.
260. AMP, 369.
261. SV,48\n. 9.
2007 PAUL YO WELL 131
preferences, which were defined originally as preferences for how goods and
opportunities should be distributed to others (including "altruistic"
preferences).262 Later, noting that some may have supposed that policies are
wrong when people's reasons for supporting them lie beyond their own
interests, Dworkin said that an external preference is one that includes an
appeal to its own popularity ?a That was a last stand, and since 1985
Dworkin ceased to look to the externality of preferences and instead has
directed his arguments against the respect-denying content of certain
motivations for laws, which Hart argued had been his real concern all along.
A remnant of the process-oriented approach survives in some of Dworkin's
arguments about prejudicial motivations, however, a point I return to below
in examining what I have called the excluded-grounds theory of rights.
For years Dworkin did not discuss human rights, having conceded Hart's
argument that the theory of rights trumps in TRS cannot be deployed to assert
rights against tyrants whose ends do not include society's general welfare.
Recently, however, Dworkin has argued that there are rightswhich he
describes as "timeless"that "all human beings have just because they are
human."264 His argument for human rights is applicable to tyrannies; and
these rights, it seems are not subject to the methodological principle that rights
can be identified only against particular background justifications. But even
human rights are conceived in terms of the motives they oppose, namely,
contempt toward human dignity and the lack of "good faith."265 Rights against
genocide, torture, and so on are not defined by the individual's need for life
or other goods but by the state of mind of the perpetrators. These "baseline"
human rights forbid "acts that could not be justified by any intelligible
interpretation" of human dignity; and they are "the concrete rights that human
rights covenants and treaties try to identify."266
There is a fundamental difference, however, between treaties such as the
UDHR and Dworkin's approach. Many of the UDHR's provisions concern
human needs and basic goods, such as the right to life, the right to receive an
education, the right to work and receive a fair remuneration, the right to rest
periods, the right to marry and found a family, the right to participate in
cultural life, and other benefits.267 On Dworkin's theory the denial or non-
provision of these benefits could possibly be explained as a human rights
violation if it results from contempt or indifference to human dignity, for
example if the state provides a benefit to some but denies it to others deemed
less worthy. But strictly speaking, any such list of benefits is redundant;
Dworkin's theory of human rights does not aim to instantiate human goods
just as such. Under the theory of rights as trumps more generally, the benefits
named in the UDHR can be expressed as rights if configured as part of a
conflict between the individual and society's general welfare, whereby the
community as a whole would benefit by denying an opportunity or good to a
given individual.268
The UDHR, however, envisions individual rights as a constitutive, integral
part of the common good or general welfare.269 It assumes a conception of
rights that corresponds to Raz's definition: a person has a right when an aspect
of his "well-being (his interest) is a sufficient reason for holding some other
person(s) to be under a duty."270 As John Finnis writes, the UDHR (and like
instruments) sketches the outlines of the common good, reflecting the view
"that each and everyone's well-being, in each of its basic aspects, must be
considered and favoured at all times by those responsible for co-ordinating the
common life."271 The UDHR implicitly rejects a conception of the general
welfare that can be furthered by sacrificing individual rights, as well as the
notion that the proper or presumptive role of the legislature is to promote
some collective goal such as calculating overall preference satisfaction, while
rights are the special responsibility of courts. The preamble calls on "every
organ of society" to promote rights, and several of them need positive
legislative action. The right to marry and found a family, for example,
requires laws to define the marital relationship and the rights and duties of
spouses to each other and to children. A child's right to education may
require (at least in some contexts) public funding for schools and compulsory
attendance laws, since some parents will neglect the education of their
children and many will lack the needed resources. Of course Dworkin would
count such goals as criteria for success of a political society; but his preferred
approach for matters of material benefits is resource egalitarianism, whose
aims are not stated in terms of rights to particular goods or even the welfare
268. See TRS, 367 ("The claim that someone has a right to a minimum level of welfare, for
example, can easily be understood as the claim that it is wrong for government to maintain an
economic system under which certain individuals or families or groups fall below minimum
welfare even if that economic system produces higher average utility (greater overall collective
welfare) than any other system.").
269. See Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights (New York: Random House, 2001), 174-91.
270. The Morality of Freedom (Oxford: Clarendon Press, 1986), 166.
271. Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 214.
2007 PAULYOWELL 133
protect the ability of people to "to identify and create value in their own
lives", and human rights, which are based on the same values of human
dignity, are described as "timeless."278 All of this gives grounds for thinking
that Dworkin might no longer simply reject as inadequate the conception of
rights he attributed to Hart in 1981: "timeless rights ... necessary to protect
enduring and important interests fixed by human nature andfundamental to
human development."219 All the concepts and most of the terms in this
description are explicitly endorsed by Dworkin in the passages cited above,
with the exception of "fixed by human nature." The shielded-interest theory,
however, has the limitations observed in section I: since it does not specify the
strength of rights, it amounts to the claim that rights trump only collective
justifications that are not sufficient.
The excluded-grounds theory of rights (which replaces the filtered-
preference theory of his early work) likewise has a limited reach. The theory
is directly concerned with the motivations for a law rather than its effects or
even its propositional contentthough the latter may be evidence of the
motivations that brought the law into being. In cases involving the
interpretation of the First Amendment, the Equal Protection Clause, and other
provisions in the U.S. Constitution, Dworkin typically inquires into (i)
whether citizens have "forbidden"280 motivations and (ii) whether these
motivations are the causal explanation for a given law. Forbidden motivations
include racial prejudice, contempt, and other aspects of the sub-rational
psyche. One limitation in this approach is that a law might be based on a
combination of forbidden and legitimate motivations, as Dworkin
acknowledges.281 Sometimes the answer is clear, as in Brown when the
segregated school system was clearly motivated by racial prejudice. But that
was over fifty years ago, and so far as I am aware, Dworkin has not argued
that any existing laws in the United States are motivated by contempt for a
group's racial, ethnic, or national characteristics. This is not to say that there
are no such laws. Anti-terrorism legislation enacted after September 11,2001,
for example, might have been motivated by some combination of the public's
legitimate concern for safety and prejudice against certain national, ethnic, or
religious groups. But I am not sure how a reliable determination could be
made as to which motivations prevailed in the enactment process. One tool
that Dworkin would not want courts to use is sociological or psychological
research, assuming he still holds to the argument in his analysis of Brown that
courts have limited capacities for statistical analysis and that the interpretation
of constitutional rights should not depend on numbers.282
Most of Dworkin's arguments under the excluded-grounds theory concern
not racist motivations but moral disapproval, which Dworkin sometimes
describes in terms such as "repulsion" or "disgust."283 But searching the
democratic background for motivations of this type also has its limitations.
Consider, for example, why citizens might support various types of laws
regulating or forbidding the use, trade, or possession of drugs: because they
think any use of a mind-altering drug is shameful, or wrong, or harmful to the
user; because legal trade in drugs would increase the number of people whose
lives are.consumed by chemical addiction, a condition judged to be unworthy
of a human being or less worthy than other ways of life; because the
availability of drugs increases crime or causes more people to go on welfare
or reduces the efficiency of the economy; or because drug use dispropor-
tionately harms the less well-off, who cannot afford expensive treatment for
recovery from addictions. These are stylized descriptionssome of them
legitimate and some of them not in Dworkin's descriptions of the excluded-
grounds theoryof a few of hundreds of possible motivations that in the
actual minds of many citizens will be more nuanced and combined in various
complex ways. A judge could attempt to sort the legitimate from "forbidden"
motivations and trace the causal relationship between motivation and
enactment. But such an inquiry, even if it promised reliable results, would not
be trained upon the issues that should be of concern to citizens, judges and
legislators. There are important questions about how far the state can
legitimately go in requiring virtue or promoting activities and lifestyles judged
to be healthy or valuable as opposed to worthless or degrading. But as Finnis
has observed, "to judge another man mistaken, and to act on that judgment"
should not be equated with "despising that man, or preferring oneself."284
Paternalistic laws that fail to give proper scope to personal authenticity, self-
direction, or privacy "should be criticized for thata failure in commutative
justiceand not for the quite different vice of discrimination, group bias,
denial of concern and respect, [or] a failure in distributive justice."285 As Hart
argued, when laws judge certain views to be sinful or mistaken, "those reasons
(however objectionable on other grounds) [seem] quite compatible with
282. See "Social Science and Constitutional Rights," supra, note 61,8.
283. E.g., Freedom's Law, supra, note 209, 233, 238.
284. Finnis, supra, note 271, 223. See also Finnis, "Legal Enforcement of 'Duties to
Oneself: Kant v. Neo-Kantians," Columbia Law Review 87 (1987) 433,437-8.
285. Finnis, supra, note 271, 223.
136 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52
recognising the equal worth of holders of such views and might even be
inspired by concern for them."286
Dworkin's overall argument in favor of liberalism and against paternalism
in the chapter "Equality and the Good Life' in Sovereign Virtue (a condensed
version of his 1989 Tanner lectures) does not reject all paternalistic
motivations for laws as intrinsically flawed. He maintains that people should
not use the law "to forbid anyone to lead the life he wants, or punish him for
doing so, just on the ground that his ethical convictions are, as they believe,
profoundly wrong."287 But one of Dworkin's key contentions in this chapter
is that a person's life can be truly improved only when he is living in
accordance with his genuine convictions.288 This argument seeks to show that
certain types of paternalism are self-defeating Dworkin allows, however,
that "short-term educational paternalism" can be legitimate if it is reasonably
calculated to lead a person to endorse the values underlying a law.290 And he
approves of even coercive paternalism if it is based on convictions that people
already accept: laws requiring the wearing of seat belts, for example, keep
people "from harm ... that they already think bad enough to justify such
constraints, even if they would not actually fasten their seat belts if not forced
to do so."291 These arguments leave scope for inquiry into whether citizens
endorse the values on which a law is based or might reasonably be expected
to do so in the near term; and Dworkin's conclusions in this chapter invite
counter-argument about his premises.
On occasion, however, Dworkin seems to foreclose such debate by
reverting to a form of the argument (made in his 1981 reply to Hart) that the
purpose of rights is to guard against an illegitimate legislative process in
which the popularity of a proposal is itself counted as part of the reason for
enacting it. Dworkin sometimes rejects legislation on the ground that it is
based upon "official or maj ority disapproval"292 or is directed against behavior
or opinions that offend "shared or conventional morality."293 In his arguments
for judicial enforcement of rights, Dworkin refers to a "majoritarian" or
"statistical" conception of democracy "in which anything a majority or
plurality wants is legitimatefor that reason,"29* treating this view as if it were
286. Hart, "Between Utility and Rights," supra, note 108, 844.
287. SV, 283.
288. SV, 267-74.
289. SV, 21 A.
290. SV, 269, 283-84.
291. 5F,268
292. Freedom's Law, supra, note 209, 218.
293. SV, 158.
294. Freedom's Law, supra, note 209, 364 (italics added). See also ibid., 16.
2007 PAULYOWELL 137
a widely held theory of democracy. Claims such as these tend to treat the
legislatureand its individual membersas if they were incapable of making
the transparent judgment "X is worthless or harmful" and instead capable only
of using as a premise such thoughts as "the majority thinks X is worthless or
harmful" or "the majority finds X repulsive."295 Dworkin's portrayal of the
legislature as enacting "conventional morality" doubtless has a certain
resonance against the argument, famously made by Lord Devlin, that
legislators might sometimes be justified in relying on a society's shared moral
views, even if those views are mistaken.296 But the internal logic of
representative democracy does not necessarily track Devlin's reasoning.
Having a political system in which collective decisions are made by an elected
legislature does not entail any particular substantive theory of political
justification, much less the reductive view that "anything a majority wants"
is legitimate. Our investigations of democracy's dealings with questions of
human value should treat legislatures as capable of acting in the light of
genuine and reasoned moral judgment, not merely appeals to facts about
opinion or to unreasoned preference. For to confront arguments in this
context as argumentsand not the product of contempt or some illegitimate
processmust be part of what it means to take rights seriously.
295. See John Finnis, "A Bill of Rights for Britain? The Moral of Contemporary
Jurisprudence," Proceedings of the British Academy 71 (1985) 303, 310-11.
296. See Lord Patrick Devlin, The Enforcement of Morals (London: Oxford University
Press, 1965).