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A CRITICAL EXAMINATION OF DWORKIN'S

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.

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rights against the state has a place in a "respectably empirical metaphysics."2


"Liberals," writes Dworkin in the Introduction to TRS, "are suspicious of
ontological luxury"; they distrust "ghostly entities like collective wills or
national spirits, and they are therefore hostile to any theory of natural rights
that seems to rely on equally suspicious entities."3 Dworkin grounds the
theory of rights as trumps in the principle of equal concern and respect. He
argues that rights trump utilitarian and other political justifications that, in
various ways, conflict with equality. And the liberal theory of equality,
according to Dworkin, requires the government to be neutral regarding
questions of what gives value to life.4 By defining rights in terms of the
exclusion of political arguments opposed to equality, Dworkin both avoids the
metaphysics of natural rights and bars reliance on controversial moral claims
in the political process.
A principal concern of this article is to show the relationship between these
basic philosophical questions and the often complex details of Dworkin's
work on rights; another concern is to trace changes in Dworkin's theory over
the years and to show which elements have remained constant. Much of the
article, therefore, is in the form of textual exposition. I take issue with some
of his arguments along the way and end with brief general criticism.

I. RIGHTS IN DWORKIN'S EARLY WORK

A. Rights as Trumps: The General Definition

In the Introduction to TRS Dworkin calls individual rights "political trumps


held by individuals."5 The theory of rights as trumps is not about ordinary
legal rightsthe rights under existing statutory and common lawbut
political rights against the government, which may (or may not) be fully
recognized in constitutional law. This is the general definition of political
rights:

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
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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

B. The Shielded-Interest Theory

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).
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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

13. m , 184-85. See also xii-xiii.


14. TRS, 199.
15. TRS, 197-98.
16. TRS, 198-99.
17. TRS, 200-04.
18. E.g., McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
19. TRS, 204 (italics added).
20. See Freedom's Law: The Moral Reading of the American Constitution (Cambridge,
MA: Harvard University Press, 1996), 217-18.
21. TRS, 195.
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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

31. TRS, 201.


32. TRS, 269 (italics added).
33. TRS, 269 (italics added).
34. "Professor Dworkin's Theory of Rights," supra, note 24, 126.
35. TRS,269.
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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.

C. The Filtered-Preference Theory

Dworkin originally developed his second theory ofrights as trumpswhich


I call the filtered-preference theoryin a series of essays in 1976 and 1977.37
Unlike the shielded-interest theory the filtered-preference theory does not
assume the existence of any particular rights such as freedom of speech. It is
a method of deriving rights from a basic theory of political justification and
identifying their content. Rights are conceived as the result of refining
utilitarian justifications by excluding certain types of preferences. This can
be pictured as a filtering process; hence the label I have given the theory. The
essay that outlines this theory in its most general form is "What Rights Do We
Have?" in TRS, which concerns the relationship between liberty and equality.
Dworkin begins by arguing that liberty can legitimately be constrained only
on the basis of certain limited types of argument, and he gives the following
"crude typology" of political justifications.38 Arguments of principle
constrain liberty in order to prevent distinct injury to an individual.
Arguments of policy seek to realize a state of affairs in which the community
as a whole, not just certain individuals, will be better off as the result of a
constraint on liberty.39 There are two basic types of arguments of policy.
Utilitarian policy arguments hold that the community is better off when
citizens as a whole have more of what they want (even if some have less).
Ideal policy arguments, in contrast, are those that seek to bring the community
closer to some objectively true ideal, whether or not citizens desire the
improvement.40 These ideal arguments, according to Dworkin, conflict with
the liberal conception of equality whenever the ideal in question is
"controversial within the community": for a basic canon of liberalism

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

41. TRS, 274.


42. TRS,275. See also 234.
43. TRS, 275.
44. TRS, 275.
45. TRS, 275.
46. TRS, 275-76.
47. TRS, 276.
48. TRS, 236 (italics added).
49. See TRS, 234,275. In "What Rights Do We Have?" Dworkin describes the argument
2007 PAULYOWELL 101

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.
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The concept of an individual political right... is a response to the philosophical


defects of a utilitarianism that counts external preferences and the practical
impossibility of a utilitarianism that does not. It allows us to enjoy the
institutions of political democracy, which enforce overall or unrefined
utilitarianism, and yet protect the fundamental right of citizens to equal concern
and respect by prohibiting decisions that seem, antecedently, likely to have been
reached by virtue of the external components of the preferences democracy
reveals.59

The reference in this passage to "prohibiting decisions" refers to judicial


review of legislation to enforce constitutional rights. Independent courts,
Dworkin argues, should have the power to overturn decisions based on
corrupted utilitarian justifications, because judges are insulated from society's
external preferences expressed through electoral politics. 60 The meaning of
"antecedently" in this general theory of rights is explained in a passage
discussing the institutional aspects of the theory in an often overlooked essay
published the same year as TRS:

[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

discounted by the effect of the prejudice. Therefore constitutional rights are


needed.
There is a high antecedent probability that the political judgment reached
about a particular matter will not fairly reflect the kind of preferences that rightly
make up the general welfare, but will give influential expression to preferences
based on prejudice. One reason constitutional rights of one sort or another are
created is to guard against the influence of prejudice.61

Therefore, Dworkin concludes, "[t]he key point of this explanation of con-


stitutional rights is that rights are based on antecedent probabilities."62 This
refers to the antecedent likelihood that background racial prejudice or other
external preferences in society will corrupt utilitarian justifications for laws.63
Because the filtered-preference theory is based on antecedent probabilities,
it can yield both positive conclusions that a law violates rights as well as
negative conclusions that a law does not violate rights. A few examples
demonstrate this crucial point. Dworkin employs the filtered-preference
theory to justify both (i) striking down laws that impose racially segregated
education and (ii) upholding affirmative action programs that provide
preferences to racial minorities.
In Brown v. Board of Education,64 which held that racial segregation in
schools violated the right to equal protection of laws, the U.S. Supreme Court
was confronted with the "separate but equal" test for public facilities that it
had adopted in 1896.65 Instead of overruling the test explicitly, the Court,
relying on psychological studies showing that segregated schooling caused
feelings of inferiority in black children, concluded that segregation leads to
poorer educational performance and held that separate educational facilities
are inherently unequal.66 Dworkin criticizes this rationale and proposes an
alternative based on the filtered-preference theory. He doubts that courts
generally have the capacity to analyze causal hypotheses based on statistical
correlations such as those cited in Brown, and he thinks that, in any event, "it
is wrong to use numbers to adjudicate rights."67 Instead of relying on
statistics, the Court should have made an "interpretive" judgment recognizing
the background racial prejudice in communities with segregated schools, and

61. "Social Sciences and Constitutional Rightsthe Consequences of Uncertainty,"


Journal of Law and Education 6 (1971) 1,10 (italics in original).
62. Ibid.
63. Ibid.
64. 347 U.S. 483 (1954).
65. See Plessy v. Ferguson, 163 U.S. 537 (1896).
66. Brown, supra, note 64, at 491-94 and n. 11.
67. "Social Sciences and Constitutional Rights," supra, note 61, 8.
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overruled the laws requiring segregation as the product of external


preferences.68
Dworkin also relies on the filtered-preference theory to argue that it is
constitutionally permissible for a person's minority status to count as a
positive factor in educational admissions processes. In response to claims by
white applicants that affirmative action programs violate their right to equal
treatment, Dworkin argues that there is no antecedent likelihood that such
programs are based on prejudice against the majority race.69 Dworkin applies
the same analysis to Lochner v. New York,10 which struck down a law that
limited the hours per week that could be worked in bakeries, after it was
challenged on the ground that it violated the right to freedom of contract. If
(as Dworkin suspects) there is no sound argument that there was an antecedent
likelihood of enacting such a law on the basis of external preferences, then

68. See ibid., 11-12.


69. See TRS, "Reverse Discrimination," 237-39; AMP, 301. Although the conclusion can
be stated in the straightforward manner in the text above, Dworkin's argument takes some
complex turns. Some personal preferences are parasitic on external preferences, such as a white
student's preference for the company of other white students that stems from holding blacks in
low esteem or contempt. TRS, 236. These parasitic personal preferences, as I will call them,
have the same corrupting effect on utilitarian justifications as external preferences. TRS, 236.
But parasitic personal preferences are to be distinguished from a preference for a law because
of its consequence: a white person might have a preference for segregation, or a black person
for reverse discrimination, simply for the sake of increased job opportunities, not because of
racial contempt. These consequential personal preferences, as I will call them, can legitimately
be counted. TRS, 234-35. This is confusing when read in light of "What Rights Do We Have?"
because there Dworkin states that parasitic personal preferences can be self-denying and rooted
in altruistic motives, and that these are excluded from legitimate utilitarian justifications just as
"less attractive preferences rooted in prejudice." TRS, 277; see note 52 and accompanying text.
But in "Reverse Discrimination," the harbouring of prejudicial attitudes in personal parasitic
preferences was what seemed to distinguish them from consequential preferences. See TRS,
236. When taken together, Dworkin's distinctions have the remarkable consequence that
altruistic, self-denying preferences (whether external or personal) cannot be counted in a
"defensible utilitarian calculation" (TRS, 238,277), while a consequential personal preference
for segregation can be counted (TRS, 236)
Despite the complexity of Dworkin's argument, the test of antecedent likelihood yields
straightforward conclusions in the contexts in which Dworkin applies it. In a community where
prejudice against a particular minority is strong, then "no utilitarian argument purporting to
justify a disadvantage to that minority can be fair." TRS, 237. This is the context of Brown.
Conversely, any law that disadvantages a majority group is extremely unlikely to be based on
an antecedent prejudice against the majority. See TRS, 239. This is the context of the
affirmative action cases.
70. 198 U.S. 45 (1905).
2007 PAUL YO WELL 105

"the alleged right does not exist."71 Dworkin later retracted this conclusion,
as we will see in the next subsection.

D. Inconsistency Between the Shielded-Interest and Filtered-Preference


Theories

The shielded-interest theory and filtered-preference theory can yield


contrary results when applied to the same set of facts. Suppose the legislature
prohibits the publication of newspapers on the ground that the demand for
newsprint is driving up the price of paper goods.72 Because the justification
for the law rests on personal preferences (regarding how much people want
to spend for a class of items), the ban does not violate rights, according to the
filtered-preference theory. The shielded-interest theory, however, requires
inquiry into whether reducing the price of paper is a weighty enough
justification for the burden that the law imposes on the right to free speech.73
Let us suppose that reducing the price of paper is not such a weighty
justification. In this scenario, the shielded-interest theory holds that the
newspaper ban violates the right to free speech, while the filtered-preference
theory holds that the ban does not violate rights.
Dworkin recognized this tension between his rights arguments and made
various attempts to resolve it. He stated that the filtered-preference theory is
only one method of arguing for rights and not meant to be exclusive of
others.74 But if the filtered-preference theory is not a comprehensive approach
to rights, then Dworkin would not have been entitled to reach his conclusion
about Lochner. that if the minimum-hours legislation was not based on
antecedent prejudices, "then the alleged right did not exist."75 And in fact,
although Dworkin seemed to present the theory as comprehensive in "What
Rights Do We Have?" (calling it "a general theory of rights"), he said in reply
to a critic in 1984 that his conclusion regarding Lochner was incorrect, and
that utilitarian justifications are not necessarily legitimate if they are untainted

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

by .external preferences.76 But this retraction is itself difficult to reconcile


with Dworkin's argument that affirmative action programs do not violate the
right to equality (at least as it is embodied in the Equal Protection Clause),
which was made at greater length and not (specifically, at any rate) retracted.77
That argument claimed that utilitarian justifications are corrupted by external
preferences but not by personal preferences.n
Even if there is no logical contradiction between Dworkin's two theories,
their stance toward utilitarianism differs fundamentally. The filtered-
preference theory distinguishes in kind between personal and external
preferences, holding that the latter must be specially guarded against in order
to protect rights. The shielded-interest theory, however, recognizes no
distinction between personal and other preferences. According to the
shielded-interest theory rights are potentially in conflict with any utilitarian
justification for law, including one based solely on personal preferences, as
shown by the example of the newspaper ban.

II. RIGHTS AS TRUMPS AND DWORKIN'S GENERAL THEORY OF LAW

A consideration of Dworkin's theory of rights in relation to his general


theory of law sheds light on both. In the Introduction to 77?.$ Dworkin sets out
an ambition to offer a theory of law that is both normative (in that it provides
a moral justification for law) and conceptual (in that it defines what law is).79
Claiming that Bentham was the last Anglo-American philosopher to offer such
a general theory, Dworkin says that the essays in TRS provide "the main
structure for a distinct theory of law."80 The normative part of a general
theory of law, according to Dworkin, must include a theory of (i) legislation,
(ii) adjudication, and (iii) compliance, i.e., whether and when citizens are
obligated to obey the law.81 A theory of legislation includes both (a)
arguments that justify the authority of the person or group that creates
statutory law and (b) a theory of legislative justice, which "describes the law
they are entitled or obliged to make."82
Dworkin's theory of rights as trumps (particularly the filtered-preference
version) is primarily an aspect of what he calls the normative part of the

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

83. See TRS, ix-xi.


84. TRS,xi.
85. See Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Jeremy
Waldron, ed. (London: Methuen, 1987) 53, 73.
86. TRS, xi.
87. Quoted in Gerald Postema, Bentham and the Common Law Tradition (Oxford: Oxford
University Press, 1986), 304.
88. TRS, xv.
89. TRS, xv.
90. TRS, 275.
91. TRS, 275.
92. "Social Sciences and Constitutional Rights," supra, note 61,10 (italics added).
93. TOS, 275.
108 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

results in "refined" or "restricted" utilitarianism and "allows us to enjoy the


institutions of political democracy," which otherwise enforce unrestricted
utilitarianism.94 Rights, as it were, make utilitarianism safe for democracy.
The theory of rights as trumps is also connected to the conceptual part of
Dworkin's theory of law, which in his early work was concerned with a
critique of positivism as represented by H.L.A. Hart. In The Concept of Law,
Hart pictures a legal system as consisting in rules expressed in statutes and
precedent and validated by a "rule of recognition" that identifies authoritative
legal institutions and rules.95 But legal language is inherently open-textured,
leaving certain cases (call them "hard cases") that cannot be resolved by the
straightforward application of a rule; Hart described the judge in such cases
as an interstitial legislator with discretion to form a new rule or extend an old
one.96 Dworkin attacked Hart's view of judicial discretion and of law as a
system of rules. He distinguished rules, which (he said) have an "all-or-
nothing" character, from principles, which reflect moral judgment and have
a dimension of weight.97 Principles point toward "right answers" in hard
cases, and the judge's role is to enforce the parties' pre-existing rights rather
than to exercise discretion and create new rules.98 Dworkin further
distinguished principles from policy. Policies are "propositions that describe
goals" and concern the general welfare of society.99 Principles are "proposi-
tions that describe rights"and a right is an "individuated political aim."100
The shielded-interest theory draws on this definition of rights in opposing
rights to collective justifications. Dworkin calls courts "the forum of
principle" (thus they are also the forum of rights);101 legislatures are by
implication the forum of policy. Several arguments in TRS prescribe a
division of labor between the two forums.102 For example, in hard cases
j udges are able to reach right answers because their responsibility is to enforce
individual rights, not to make policy decisions about the general welfare.103

94. TRS, 277.


95. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994), 100-110, 124.
96. Ibid., 126-132.
97. See TRS, "The Model of Rules I," ch. 2.
98. TRS, "Hard Cases," ch. 4. See also AMP, "Is There Really No Right Answer in Hard
Cases?," ch. 5.
99. TRS, 90.
100. TRS, 90-91.
101. AMP,1Q.
102. See TRS, ix (The "overall goal" of the highest average welfare "might be advanced more
securely by assigning different types of questions to different institutions according to some
theory of institutional competence, rather than by supposing that all institutions are equally able
to calculate the impact on overall welfare of any particular political decision.").
103. TRS, 115.
2007 PAULYOWELL 109

In the filtered-preference theory the division of labor between the forum of


policy and forum of principle is crucial: legislatures are presumed to translate
all of voters' preferences into law, and the role of courts is to filter out
external preferences by striking down the laws motivated by them.
After the publication of TRS a number of developments in Dworkin's
thought altered the theory of rights as trumps. In responding to critics he
clarified and modified certain views. (The difference between clarification
and modification in Dworkin's work is not always clear. In the preface to
Law's Empire he writes, "I have made no effort to discover how far this book
alters or replaces positions I defended in earlier work."104) More importantly,
Dworkin substantially changed his approach to utilitarianism. In TRS, as we
have seen, he had reconciled the two traditionally warring ideas of
utilitarianism and rights in a way that gave both ideas a central place in the
theory of legislative justice. Shortly after the publication of TRS that truce
was broken: Dworkin began to advocate a system that, if adopted, would
displace utilitarianism's role in the theory of legislative justice.
That system is called "resource egalitarianism," and he developed it in four
articles bearing the title "What is Equality?"105 Parts I and II of the series, first
published in 1981, propound resource egalitarianism as a theory of economic
justice. Parts III and IV, published in 1987 and 1988 respectively, explore the
consequences of resource egalitarianism for general political theory, including
the theory of rights and questions about the proper function of institutions in
a democracy. The four articles were published in book form in Sovereign
Virtue: The Theory and Practice of Equality (2000), and they form the
theoretical core of that work. Another development was Dworkin's theory of
law as interpretation in Law's Empire (1986), which superseded much of the
vocabulary and conceptual apparatus of his early work that had informed the
theory of rights as trumps. In section IV, I will discuss rights in Sovereign
Virtue, Law's Empire and other later work. In the next section I will consider
Dworkin's restatement of the filtered-preference theory in an essay that
responds to criticisms by Hart.

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.
110 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

III. DWORKIN'S RESTATEMENT OF THE FILTERED-PREFERENCE THEORY

Dworkin restated the filtered-preference theory of rights in the second half


of "Is There a Right to Pornography?," an essay first published in 1981,106
republished in A Matter of Principle (1985), and excerpted under the title
"Rights as Trumps" in an edited collection in 1984.107 Much of the
restatement is a response to criticisms made by Hart in his 1979 article
"Between Utility and Rights."108
Dworkin's argument for rights as trumps "seems to endorse utilitarian
arguments purified of external preferences."109 This is how Hart described the
arguments in TRS, and other critics understood Dworkin's arguments in a
similar way. In response Dworkin claimed he had not argued in favor of
refined utilitarianism but against unrefined utilitarianism.'' But this is not an
accurate portrayal of the essays discussed in section I.C, which presented
utilitarianism as an appropriate derivation from the principle of equality at an
intermediate stage in a theory of political justification. Personal utilitarian
preferences were treated as legitimate grounds for law-making"the kind of
preferences that rightly make up the general welfare."1" Dworkin stated:
"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.""2 It is clear that Dworkin endorsed refined utilitarianismi.e.,
preference-satisfaction purged of external preferencesas a legitimate theory
of political justification in TRS.in (See sections I.C, I.D, and II.) It was after
the publication of TRS that Dworkin adopted a less conciliatory approach to
utilitarianism, which becomes apparent in his development of resource
egalitarianism (see section IV). Hart made a trenchant critique of refined
utilitarianism, arguing that the counting of external preferences (as Dworkin
defines them) does not corrupt utilitarianism and is in fact required by
utilitarian premises: ignoring external preferences would result in
undercounting.114 Dworkin's real objection was not to the externality of

106. Oxford Journal of Legal Studies 1 (1981) 177.


107. Theories of Rights, ed. Jeremy Waldron (Oxford: Oxford University Press, 1984).
108. H.L.A. Hart, "Between Utility and Rights," Columbia Law Review 29 (1979) 828.
109. Ibid, 845, n. 43.
110. See AMP, 310; TRS, 357.
111. "Social Sciences and Constitutional Rights," supra, note 61, 10.
112. TRS, 269.
113. Dworkin claimed Hart had said that he viewed refined utilitarianism as the "best"
system of political justification. AMP, 370. But Hart said only that Dworkin "endorsed" refined
utilitarianism. See "Between Utility and Rights," supra, note 108, 845, n. 43.
114. "Between Utility and Rights," supra, note 108, 841-42.
2007 PAULYOWELL 111

preferences, Hart argued, but to their liberty-denying or respect-denying


content."5
Dworkin's response begins by reiterating the basic structure of the filtered-
preferences theory and elaborating upon his egalitarian interpretation of
utilitarianism and theory of democratic institutions. If (Dworkin supposes)
there is a community that includes Sarah who has certain preferences and a
group of Sarah-lovers who want Sarah's preferences to be satisfied, then all
of these preferences are reported to the legislature.116 A preference, Dworkin
says, is not like a vote, which a citizen could choose to cast either for Sarah's
benefit or for his own." 7 All preferences are accumulated in the legislature's
"giant calculation," and a citizen who reports external preferences increases
the role of his preferences overall without diminishing (except trivially) the
impact his personal preferences.118 If utilitarian calculations include the
preferences of Sarah-lovers, or of Nazis who want to deny goods and
opportunities to Jews, or of moralists who disapprove of homosexual conduct,
then they would be inconsistent with the "egalitarian cast" to which
utilitarianism owes any legitimate appeal it has.119 Therefore, Dworkin
argues, societies that accept utilitarianism as a general background justifica-
tion should adopt a "right of political independence," which protects people
fromracist and similar prejudices, and a "right of moral independence," which
excludes moralistic preferences.'20 Both rights function as trumps against the
unrestricted utilitarian justifications that would otherwise count these
preferences.121 Dworkin adds, in a curious tone, that his claims about double
counting were meant to "summarize the argument, not to make it, and I will
not press that particular characterization."122 In fact Dworkin does not rely on
the concept of double counting in later work (though the 1981 essay was
republished in 1984 and 1985 as noted above).
Dworkin's next move in the 1981 essay is to re-define the concept of
external preferences. (In this essay Dworkin refers to "political" preferences
rather than "external" preferences, but does not explain the change in usage.)
In TRS external preferences were defined as preferences for how goods and
opportunities should be distributed to others. This definition entailed that
altruistic preferences were classed with moralistic and racist preferences, all

115. Ibid., 843.


116. AMP,36\.
117. AMP, 366.
118. AMP, 366.
119. AMP, 360, 361-65.
120. AMP, 364.
121. AMP, 364.
122. AMP, 366.
112 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

of which were to be excluded.123 Dworkin argued then that self-denying


preferences for less of a certain good in order that others may have more "may
no more be counted in a defensible utilitarian argument than less attractive
preferences rooted in prejudice rather than altruism."124 This may have led
some to suppose, Dworkin says in the 1981 essay, "that what I condemn is any
political process that would allow any decision to be taken if people's reasons
for supporting one decision or another are likely to lie beyond their own
personal interests."125 He denies that this is his position and treats it as
obviously wrong, noting that it would not allow a democracy to support social
welfare programs or foreign aid, or to vote with "a disinterested sense of
fairness."126 Dworkin states that what he condemns is "a political process that
assumes that the fact that people have such reasons [of fairness] is itself part
of the case in political morality for what they favor."127
Sometimes Dworkin finds this flaw in the viewpoint of individuals. He
distinguishes between people who express "their own political preferences in
their votes and arguments," and those who "appeal to the popularity of these
preferences as providing an argument in itself."128 Thus, an individual's
preference is illegitimate only if he attaches to it an appeal to the fact of the
preference being held as a further reason for it to be enacted. Things get more
complicated, however, because sometimes Dworkin locates the pertinent error
not in any appeals of that kind which individuals might make, but in the
overall political process, from the viewpoint of the legislature. A political
decision, says Dworkin, is illegitimate if the majority finds certain ways of
living to be inherently wrong or degrading and the legislature then counts "the
fact that the majority thinks them so as itself part of the justification" for a
decision to limit the freedom of others.129 Therefore, even a preference that
is legitimate according to Dworkin's new definitioni.e., one that does not
include an appeal to its own popularitycould become part of an illegitimate
political process because the legislature could rely on the popularity of the
preference.
This argument against external preferences is, in a representative
democracy, liable to be selectively deployed; and I think Dworkin is guilty of
that in the passage under consideration. He sometimes describes individuals
with moralistic preferences as appealing to the popularity of the preferences;

123. TRS, 238, 277.


124. TRS, 277. See supra, notes 51-52 and accompanying text.
125. AMP,36S.
126. AMP, 368.
127. AMP, 368.
128. AMP, 368 (italics in original).
129. AMP, 368.
2007 PAULYOWELL 113

at other times he depicts a political process that relies on "the majority's


moralistic preferences" as reasons in themselves to adopt a law.130 Either
scenario produces illegitimate laws. But when discussing the movement to
repeal laws prohibiting homosexual conduct in Britain in the 1960s, Dworkin
says that liberals who favored reform made their argument by appealing "to
justice not the fact that many people want justice."131 Here, as elsewhere,
Dworkin allows liberal and other preferred arguments to escape the utilitarian
background and be considered as arguments directly about justice, but he
consistently treats "moralistic" opinion as unreasoned "preference" that is
assimilated into a utilitarian justification.132 Dworkin also considers a
scenario in which liberals' desire for reform is treated as a preference: "Even
if the benign liberal preferences had been counted as data rather than
argument, as I think they should not, no one would be in a position to claim
the right to moral or political independence [was violated]."133 But wouldn't
such a justification still constitute an illegitimate appeal to the fact that the
(liberal) preferences are held? One page prior, Dworkin said that the case for
utilitarianism would be undermined if "political preferences of either the
liberals or their opponents are counted and balanced to determine what justice
requires."134 But his final position is this: a legislature that counts "benign
liberal" preferences as data in a utilitarian justification does not violate
anyone's rights; but the legislature that counts moralistic preferences as data
in a utilitarian justification violates the right to moral independence.135 The
structure of those two political justifications does not vary; the pertinent
difference is in the substantive content of the preferences. This, I think,
effectively concedes Hart's argument that Dworkin's real concern is not with

130. AMP, 367-68.


131. AMP, 369 (italics added).
132. In the Reply to Critics in TRS Dworkin argued that there is nothing wrong with external
preferences persethere are both "good" and "bad" onesand it is proper for citizens to act
and vote on the basis of their external preferences. TRS, 358. An example of voting on the
basis of an external preference is voting for a legislator who shares one's own view of legislative
justice. TRS, 358. Dworkin considers two societies that each have a group of destitute cripples;
in the first the majority is indifferent to the cripples' fate but in the second the majority holds
"external altruistic preferences that the cripples' misery be relieved." TRS, 358. In the next
sentence he says that "the principle of justice in which the second majority believes" is a good
reason for a political decision, but "the fact of its popularity" is not. TRS, 358 (italics added).
So although altruistic external preferences cannot be counted'in a utilitarian justification (as the
main essays in TRS made clear; see section I.C), they can be understood as an argument about
justice that transcends the utilitarian background.
133. AMP, 368 (italics added).
134. AMP, 367.
135. AMP,36&.
114 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

the externality or formal properties of preferences, but their content. In


Dworkin's later work, as we will see in section IV, he abandons the attempt
to identify rights-violating political j ustifications by their externality or formal
properties, and argues directly against motivations for laws based on racism,
paternalism, contempt, etc.
Hart made other notable objections to Dworkin's theory of rights. He
pointed out that in a society with no background moralistic, racist, or similar
prejduices for rights to trump, rights would cease to exist: as society's
prejudices recede, rights wither away, like the state in Marxist theory.136
Conversely, rights would not exist in a society ruled by a tyrant who does not
purport to promote the common good, because in such a society it would be
impossible to make a claim of right as something opposed to the general
welfare.137 Dworkin explicitly conceded the latter point.138 Taking Hart's
example of a ruler who bans all religious practice in a community of devout
believers, Dworkin says this would be "insane or wicked" and "wholly lacking
in the concern ... which is the most basic requirement that political morality
imposes on those who govern."139 But, he claims, the ban is not properly
described as a violation of rights. Rights are trumps against the general
welfare: "We need rights, as a distinct element in a political theory, only
when some decision that injures some people nevertheless finds prima facie
support in the claim that it will make the community as a whole better off on
some plausible account of where the community's general welfare lies."140
We do not need the idea of rights to condemn the wicked acts of a Nero or
Hitler, Dworkin argues, because such tyrants do not even purport to promote
the general welfare.141
The framers of the Universal Declaration of Human Rights (UDHR),
adopted in 1948 by the General Assembly of United Nations, took a different
view. In their language the "barbarous acts which have outraged the
conscience of mankind" of recent regimes were the result of disregarding
human rights.1*1 The UDHR was proclaimed as "a common standard for
achievement for all peoples and nations."143 In the Reply to Critics of TRS
Dworkin suggested that some rights could plausibly be called human rights

136. "Between Utility and Rights," supra, note 108, 840.


137. Ibid.
138. See AMP, 369-71.
139. AMP, 370-71.
140. ^Aff>,371.
141. AMP, 370.
142. UDHR, Preamble ("Whereas disregard and contempt for human rights have resulted in
barbarous acts which have outraged the conscience of mankind ...").
143. UDHR, Proclamation.
2007 PAULYOWELL 115

because arguments for them would be available against "any collective


justification in any circumstances reasonably likely to be found in political
society."144 But this applies not to tyrannies but only to collective
justifications for the general welfare, when read in light of later reply to Hart.
Dworkin continues in the 1981 essay:

[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

144. TRS, 365.


145. AMP, 369.
146. AMP, 370.
147. See TRS, 198.
148. AMP, 370.
116 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

right to moral independence.149 The shielded-interest theory itself, as we have


seen, is not an argument for such rights; it assumes their existence.

IV. RIGHTS IN DWORKIN'S LATER WORK

In Dworkin's later work the shielded-interest theory remains intact. The


filtered-preference theory, however, is evidently abandoned; though he does
not state this explicitly he ceases to speak of rights in the terms of the formal
structure of external preferences and double counting after 1985. In Law's
Empire, Sovereign Virtue and other work Dworkin's discussion of rights
shares the concern of the filtered-preference theory with excluding (i) racist
and similar prejudices, and (ii) paternalistic judgments. But rights directly
trump laws motivated by these grounds no matter what the background theory
and without relying on the process-oriented arguments of the filtered-
preference theory. This revised approach could be called the excluded-
grounds theory of rights. But it is not a unified, general theory of rights as the
filtered-preference theory was; rather, I use excluded-grounds theory to refer
to a set of related arguments Dworkin makes against various motivations for
laws on the ground that they conflict with the principle of equality.

A. Resource Egalitarianism and Rights

In TRS Dworkin searched for rights in "the shadow of utilitarianism," as


Hart put it.150 As we have seen, most of the book's discussion of the
normative theory of law assumed a utilitarian background. Although Dworkin
argued that the principle of equal concern and respect was the source of both
collective goals and rights that serve as limitations on those goals, he observed
in the Introduction to TRS that "the promise of unity in political theory" was
incomplete in that book and needed to be defended elsewhere.151 "In
particular," Dworkin wrote in a passage that reflects the growing influence of
Rawls's critique of utilitarianism in A Theory of Justice (1972), it must be
shown that "while equal concern justifies the trade-offs within needs of a
given level of urgency, it does not permit sacrifices in needs at a more urgent
level even for the sake of fuller satisfaction of more needs that are less
urgent."152 This remark foretoldin a general wayDworkin's development
of resource egalitarianism as a replacement for the theory of legislative justice
in TRS. That theory, propounded in parts I and II of the "What is Equality?"

149. AMP, 370.


150. "Between Utility and Rights," supra, note 108, 846.
151. TRS, xv.
152. TRS, xv.
2007 PAUL YO WELL 117

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

153. SV, 11-13.


154. SV, 13.
155. SV, ch. 1, "Equality of Welfare."
156. SV, ch. 2, "Equality of Resources."
157. SV, 67-68.
158. SV, 68.
159. SV, 68-70.
160. SV, 90.
161. SV,9l.
162. SV, 103-109.
118 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

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

163. SV, 163.


164. SV, 172-75.
165. See SV, 172-80.
166. SV, 121, 123.
167. SV, 120.
168. SV, 182 (italics added).
169. SV, 481 n. 9.
170. SV, 156.
171. SV, 152.
172. SV, 143-47, 149, 152.
2007 PAULYOWELL 119

auction-like distributive mechanisms)."173 Thus, there is a "constraint/liberty


baseline" that combines the values of freedom and the protection of person
and property. Dworkin assumes that "an adequate baseline system would have
legal constraints forbidding assault, theft, deliberate damage to property, and
trespass, of the sort that are common to the criminal and civil laws of all
developed legal systems."174
Dworkin's argument for the liberties that must be assumed for the ideal
distribution (and hence included in the constraint/liberty baseline) relies on
several principles that reflect the substantive concerns of his earlier theory of
rights. The principle of abstraction provides that no constraint on liberty can
be justified on grounds of "personal morality" or "moral virtue."175 The
principle of independence precludes constraints based on racial prejudice or
similar feelings of contempt. Like the filtered-preference theory, the principle
of independence allows race to be a positive factor in educational admissions
programs; indeed it encourages laws designed to eliminate the disadvantages
imposed on minority groups by systematic prejudice.176 The principle of
authenticity reproduces the key features of the shielded-interest theory: it
recognizes that there are certain "morally important"177 liberties related to the
authentic development of one's beliefs and personality, such as freedom of
expression, religion, and association.178 These liberties do not yield lightly to
the demands of security.179 The principle of authenticity "would in principle
allow no constraint, either before the auction or after it, on opportunities to
form, to reflect on, or to advocate convictions, attachments, or preferences";'80
but this can be overcome on "dramatic occasions of emergency."181 Free
speech, for example, must be protected "except in the case of undeniable and
overhanging danger."182 These remarks resemble earlier claims about the
weight of rights in the shielded-interest theory; but just as that theory turned
out to be consistent with balancing and to allow reasonable restrictions on the
time, place, and manner of speech, the principle of authenticity presumably
includes such limits.

173. SV, 148 (italics added).


174. SV, 149.
175. SV, 155
176. SV, 161-62
177. SV, 123.
178. SV, 158-61.
179. SV, 123, 127, 158-61, 181.
180. SV, 160
181. SV, 160.
182. SV, 160.
120 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.52

It should be noted that Dworkin does not propound the principles of


abstraction, independence, and authenticity as part of a general theory of
rights. The principles are consistent with the shielded-interest and excluded-
grounds theories and they are evidence of Dworkin's general thinking about
rights in his later work: "The Place of Liberty" was published in 1987 (one
year after Law's Empire) and republished in 2000. But despite the broad
implications of some of its claims, the argument is formally presented only as
a defense against the claim that resource egalitarianism is a threat to liberty.
Several disclaimers state that it does not counter all arguments for restricting
liberty;183 that it is not an exhaustive account of the rights we have;184 that for
the rights it supports there may be other, better arguments;185 and that it is not
even the only argument for rights based on equality of resources.186
Dworkin's essential aim is to rebut the contention that resource egalitarianism
conflicts with liberty by showing that certain assumptions about liberty are
necessary in order to avoid distorting prices in the initial auction of resources
and to preserve the integrity of the desert island scenario as a model for
redistribution. The argument provides philosophical grounds for a theory of
rights only for the theorist who accepts Dworkin's resource egalitarianism.

B. Rights in Law's Empire and other later work

In Law's Empire there is no sustained discussion of rights at an abstract


level, but Dworkin's analysis of constitutional interpretation as well as the
main conceptual development in the bookthe theory of law as an
interpretative practicehave implications for his theory of rights. Dworkin
argues that all legal cases (not just hard cases) involve a search for the best
interpretation of past legal decisions, which include judicial opinions, statutes,
constitutional provisions, and the political structure itself.187 These past
decisions are "preinterpretive" materials; law itself is an interpretation of
those materials along two dimensionsfit and justification. A proposed
interpretation must pass a threshold requirement of fit or consistency with past
decisions.188 From the set of eligible interpretations, a judge relies on his
convictions about political morality, justice and fairness in making the law
"the best it can be."189 The degree to which a proposed interpretation fits the

183. SV, 120.


184. SV, 148.
185. SV, 134, 182.
186. SV, 148.
187. LE, 91-91, 255-58, 265-66.
188. L,256.
189. LE, 256, 379.
2007 PAUL YO WELL 121

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.

190. LE, 256.


191. LE, 225-26.
192. LE, 301-09.
193. LE, 297-98 and n. 13. See also ibid. 312,407.
194. LE, 408 (italics added).
195. LE, 403-07.
122 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

A political theory is legitimate, Dworkin argues, to the extent that it is


based on the principle of equal concern and respect.196 Whereas TRS had
assumed utilitarianism as the dominant background justification,,in Law's
Empire Dworkin identifies three plausible "conceptions of equality": (i) a
libertarian conception based on protecting what individuals have acquired; (ii)
welfare-based conceptions, which include utilitarianism; and (iii) theories that
focus on outcomes defined not in terms of welfare but in terms of "goods,
opportunities, or other resources"including his own theory of resource
egalitarianism.197 Dworkin continues to call rights trumps against collective
justifications or strategies, including now the above three "conceptions of
equality."198 This discussion is a prelude to Dworkin's analysis of
constitutional interpretation, which centers on Brown v. Board of Education'99
and California v. Bakke200 and follows a line of argument similar to his
analysis of racial segregation and affirmative action in the filtered-preference
theory, but with a key difference.
After considering various theories interpreting the Equal Protection Clause,
Dworkin settles on what he calls the "banned sources" theory as the best
justification for the law. Dworkin writes, "Most conceptions of equality,
including utilitarianism and resource-egalitarianism, make the public interest,
and therefore proper policy, sensitive to people's tastes, preferences, and
choices."201 For "certain decisions of policy," such as whether to use public
funds on a sports stadium or opera house, the decisions should be based on
how preferences are distributed in the community.202 Some preferences,
however, are illegitimate. These are "preferences that are rooted in some form
of prejudice" against traditionally disadvantaged groups, including racial and
religious minorities and homosexuals; and they cannot be used to justify
policies that work to the disadvantage of those groups.203 Though the banned
sources theory shares the filtered-preference theory's concern with certain
types of prejudice, it does not exlude altruistic preferences or place any
reliance on formal, process-oriented arguments. In Law's Empire, racist and
similar preferences are excluded because of their content, not their externality.

196. LE, 296.


197. LE, 297.
198. LE, 381: "We distinguished between the overall, collective strategies the government
uses to achieve the general interest, as a matter of policy, and the individual rights it recognizes,
as a matter of principle, as trumps over these collective strategies."
199. 347 U.S. 483 (1954).
200. 438 U.S. 265 (1978).
201. LE, 384.
202. LE, 384.
203. LE, 384.
2007 PAUL YOWELL 123

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

204. LE, 388.


205. LE, 396.
206. LE, 383-84, 393-97.
207. LE, 394.
208. SV, 411. Noting that the Supreme Court has adopted a presumption against racial
classifications that can be rebutted only by showing a strong state interest in making the
classification, Dworkin offers an argument for relaxing the burden that the state must satisfy in
order to adopt affirmative action programs, which would move the doctrine in this area toward
his ideal interpretation. SV, 414-17, 416-26.
209. Freedom's Law: The Moral Reading of the American Constitution (Oxford: Oxford
University Press, 1996), 229-33.
210. Ibid., 233-34 (italics added).
124 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

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

C. The Principle-Policy Distinction after Resource Egalitarianism

In Law's Empire Dworkin presented resource egalitarianism as a general,


ideal theory of political justification: "it is the goal of law purified, the
community's star in its search for integrity."220 It is a guide for legislative
decision-making,221 with general implications for economic policy, taxation,
and other areas of law. In those areas of legislation and the common law
where it has a presence, judges can (and ideally, should) rely on resource
egalitarianism in the justificatory dimension of interpretation, i.e., in seeking
the best justification of past decisions and making the law the best it can be.222
What, then, becomes of the former distinction between principle and policy,
each with its proper forum? Many arguments about rights in Dworkin's early
work depend on that distinction, including the claim that "judicial decisions
must be taken to be justified by arguments of principle rather than arguments
of policy," thus enabling courts to reach right answers in hard cases.223 But
in Law's Empire, when Hercules relies on resource egalitarianism to interpret
the common law, he works toward the same overall goal as the legislature.
Dworkin still distinguishes the legislature's approach to questions of policy
and the courts' interpretative task in law as integrity, but the difference is
more nuanced than the distinction he used in analysing hard cases in TRS?U
The principle-policy distinction also lay behind the conception of rights as
trumps against collective justifications, particularly utilitarianism. Courts, as
the "forum of principle," were to apply these rights against the legislature in
constitutional cases. But in "The Place of Liberty" Dworkin explains that
resource egalitarianism is a "constitutive strategy" that "builds liberty into the
structure of its chosen conception of equality from the start."225 As we have
seen, the various principles of libertyabstraction, independence, and
authenticityreflect the same substantive concerns as the shielded-interest
and excluded-grounds theories of rights as trumps. In Law's Empire Dworkin

220. LE, 408.


221. SeeLE, 310,403-04, 408.
222. SeeLE, 301-09, 312, 408.
223. See TRS, "Hard Cases," 115.
224. Dworkin describes a policy as "a general collective goal that respects equality of
concern overall and statistically"; this allows the legislature to use "a variety of different
measures and techniques, each of which achieves a somewhat different measure of distribution
person by person." LE, 311. Insofar as a scheme of law is based upon a particular "conception
of equality" (utilitarianism, resource egalitarianism, etc.) courts should ascertain which
conception it is and "assume the extension of concrete rights that, of the choices available to
them in the circumstances, best serves that conception." LE, 312.
225. SV, 135. See also SV, 146,182.
126 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

calls rights trumps against various conceptions of equality.226. But this


trumping is now revealed to be at a surface level of political conflict in the
theory of resource egalitarianismat a deeper level equality and liberty are
unified and "cannot conflict," because the principles of liberty are necessary
assumptions of an ideal distribution of resources.227 In TRS Dworkin made
similar claims that equality was the source of both collective goals and the
rights that serve as limitations on those goals, but he acknowledged that "the
promise of unity in political theory is indistinct in these essays" and "must be
defended, if at all, elsewhere."228 The unity was apparently found in resource
egalitarianism.
In part IV of the "What is Equality?" series, which is the chapter "Political
Equality" in Sovereign Virtue, Dworkin defines two types of political issues
that (he says) correspond to the distinction between principle and policy used
in the past.229 Choice-sensitive issues are "those whose correct solution, as a
matter of justice, depends essentially on the character and distribution of
preferences within the political community," such as whether to use available
public funds to build a new sports center or a new road system.230 A choice-
insensitive issue is an issue of political morality whose correct resolution does
not depend on how many people desire a particular result, such as whether to
allow capital punishment or to ban racial discrimination.231 The legislature is
the appropriate body for deciding choice-sensitive issues since it best reflects
the preferences of society, and it can generally be trusted with choice-
insensitive issues as well.232 With regard to particular choice-insensitive
issues, however, we may be able to make an ex ante determination that an
alternative institutional arrangement would be more likely to reach correct (or
better) moral results; and this could justify giving courts rather than
legislatures power to decide such issues.233 This institutional theory reflects
the idea of antecedent likelihood in the filtered-preference theory (see section
I.C); but it does not depend on the formal notions of externality or double
counting. The new approach is concerned directly with the substantive moral
correctness of the anticipated result.

226. LE, 381.


227. SV, 182.
228. TRS, xv.
229. SV, 205.
230. SV, 204. This idea cuts across various conceptions of equality, including resource
egalitarianism, as seen above in the analysis of constitutional rights in Law's Empire. See LE,
297; supra, note 202 and accompanying text.
231. SF.204.
232. SV, 205, 207.
233. SV, 207-09.
2007 PAUL YO WELL 127

D. Political and Human Rights in Is Democracy Possible Here?

Dworkin's most extended discussion of rights at an abstract level since


1987234 is in Is Democracy Possible Here1? Principles for a New Political
Debate (2006). For the first time Dworkin embraces the language of human
rights and engages in an extended discussion of the topic. Two "axiomatic"
principles of human dignity are the basis of the argument. The "principle of
intrinsic value" holds that human lives may succeed or fail and that this is a
matter for objective, not subjective judgment; every life has "intrinsic
potential value" of great importance.235 The "principle of personal
responsibility" qualifies the first: it holds that each person "has a special
responsibility for realizing the success of his own life, a responsibility that
includes exercising his judgment about what kind of life would be successful
for him."236 A person may choose to defer to the judgment or authority of
others, but he must not allow others to impose values on him without his
endorsement.237
These principles of human dignity form the normative foundation for two
basic types of rights: political rights and human rights. Dworkin's argument
for political rights relies on the familiar structure of the shielded-interest
theory analyzed in section I, and also reflects the excluded-grounds theory.
Most legitimate state action aims to increase general welfare by laws and
policies that benefit some and burden others,238 but political rights protect
important interests and the responsibility people have "to identify and create
value in their own lives", functioning as trumps against "the kind of trade-off
argument that normally justifies political action."239 Government may not
abridge the right to free speech even if'that would improve the overall welfare
of the community.240 In addition, "people have a political right not to suffer
discrimination because their race has been despised."241
Human rights, according to Dworkin, are "special and very important kinds
of political rights";242 they are likewise based on the two principles of human

234. "The Place of Liberty" in SF was originally published in 1987.


235. IDPH, 9-10.
236. IDPH, 10. These principles are substantially the same as the two principles of "ethical
individualism" in SV, which Dworkin says "shape and support the account of equality in this
book." SV, 5-6. See also ibid. 240.
237. IDPH, 10.
238. IDPH, 31.
239. IDPH, 31-32.
240. IDPH, 30.
241. IDPH,32.
242. IDPH, 33.
128 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

dignity and characterized by their seriousness and weight.243 The fundamental


human rightfrom which other human rights deriveis the right to be treated
with "an attitude that expresses the understanding that each person is a human
being whose dignity matters."244 It is not the importance of the interest
protected'that distinguishes political from human rights; both protect the same
interests rooted in human dignity.245 Rather, the relevant distinction is (once
again) motivational: state action contrary to human dignity violates human
rights if it is not in "good faith."246 The violation of political rights results
when a state erroneouslybut in good faithpromotes the general welfare
over an individual dignity interest. Violations of human rights, in contrast,
arise from "acts that show only contempt for or indifference to human
dignity."247
"Good faith" has an essentially subjective character in this argument,
though Dworkin lends it an objective aspect in defining a category of
"baseline" human rights, which "forbid acts that could not be justified by any
intelligible interpretation of [the two principles of human dignity]."248 Any
act of genocide, for example, would violate human rights.249 Other acts that
violate baseline human rights include restricting religious exercise to one
official religion, punishing heresy and blasphemy, and "deny[ing] in principle
the right of free speech"; all these are wholesale denials of the principle of
personal responsibility.250 The concept of human rights also imposes a
requirement of consistency that "forbids any government to act toward anyone
in a way that contradicts its own understanding of [human dignity]the
understanding embedded in its own laws and practicesbecause that
contradiction would just as dramatically deny respect for the humanity of its
victims."251
This theory of human rights suggests that Dworkin now accepts what he
denied in his 1981 reply to Hart: that it is appropriate to assert rights against
tyrants who do not purport to act for the general welfare.252 But it is
questionable whether the good faith test meaningfully distinguishes human
from political rights; any violation of a human right would be also a violation

243. IDPH, 28.


244. IDPH, 35.
245. IDPH, 34-35.
246. IDPH, 35.
247. IDPH, 35.
248. IDPH, 36.
249. IDPH, 35.
250. IDPH, 38.
251. IDPH, 36 (italics in original).
252. Cf. AMP, 369-71. See supra, notes 137-140 and accompanying text.
2007 PAULYOWELL 129

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

legalor in any event morally required256Dworkin's good faith test for


human rights violations would not furnish sound criteria for deciding whether
to invade a country or impose trade sanctions,257 especially the consistency
component that requires a country to live up to its own ideals regarding human
dignity.

V. CONCLUSION: A CRITIQUE OF RIGHTS AS TRUMPS

The "core notion" of constitutional rights and extra-legal, moral rights,


according to Hart, is "basic or fundamental individual needs."258 Discourse
at this level of rights treats "certain freedoms as ... essential for the
maintenance of the life, the security, the development, and the dignity of the
individual."259 Dworkin may have had these statements in mind when he
attributed to Hart the ("familiar" but "inadequate") theory that rights are
"timeless" and "necessary to protect enduring and important interests fixed by
human nature and fundamental to human development."260 The persistent
strategy of Dworkin's work on rights has been to locate the essence of rights
not in individuals and their needs but in the exclusion of arguments or political
justifications opposed to equality. The basic methodological principle
observed in Taking Rights Seriously, A Matter of Principle, and Sovereign
Virtue is, Dworkin said, that "rights cannot be identified independently of the
overall political morality in which they are meant to figure."261
This strategy has required some adjustment. The filtered-preference theory
was directed against utilitarian justifications corrupted by external

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

262. TRS, 276-77.


263. AMP, 368.
264. IDPH, 28, 35.
265. IDPH, 35.
266. IDPH, 36 (italics added).
267. See UDHR articles 3, 16(1), 18, 19, 23, 24, 26, 27.
132 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

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

of citizens: the formal goal of that theory is an equal distribution of material


resources.272
The theory of rights as trumps entails that rights are the special
responsibility of courts and are vindicated mainly (or only) when enforced
against other branches of government, especially the legislature. The benefit
theory of rights in the UDHR that I have cursorily sketched above is, I think,
an attractive alternative. But a full defense of that theory and my
interpretation of the UDHR must be undertaken elsewhere.273 The point I
wish to emphasise here is the difference between Dworkin's approach to
rights, with its focus on identifying illegitimate motivations behind law, and
the direct link between rights and the good of human beings envisioned in the
UDHR (which is also a characteristic of several other human rights treaties
and instruments such as the European Union's Charter of Fundamental
Rights.) Hart seems to have the more accurate description of discourse about
rights at this level when he says they concern "certain freedoms and benefits
now regarded as essentials of human well-being."274 At any rate, many of the
rights in the UDHR are not well expressed in the grammar of rights as trumps,
which assumes inherent opposition between rights and the general welfare.
Part of the evidence that viewing rights as trumps is unsatisfactory is that
Dworkin's explanations of his theory oscillate between (i) excluding certain
preferences and grounds from justifications for law, and (ii) shielding
individual values from collective justifications, with the latter approach
resembling the benefit theory of rights. The shielded-interest theory of
Dworkin's early work concerns "fundamental" rights that are "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"275 The principle
of authenticity in resource egalitarianism (which reflects the shielded-interest
theory) picks out certain "morally important" liberties,276 such as freedom of
speech, religion, and association, that people need for "properly" developing
their "personalities."277 Political rights in Is Democracy Possible Here?

272. See section IV.A.


273. The benefit theory of rights is defended by Raz, supra, note 270, ch. 7; Finnis, supra,
note 271, ch. 8; and, specifically at the level of constitutional and extra-legal, moral rights, by
Hart, supra, note 258,197-201. On the relationship between rights and the common good see
Finnis, supra, note 271, ch. 6; and Raz, "Rights and Individual Well-being," ch. 3 in Ethics in
the Public Domain (Oxford: Clarendon Press, 1994) (endorsing, at p. 52, n. 6, Finnis's
explanation of the common good). On the UDHR's relationship to the common good see
Glendon, supra, note 269, especially pages 174-91 and 221-23.
274. Hart, supra, note 258,198.
275. TRS, 199.
276. SV, 123.
277. SV, 159.
134 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52

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

278. IDPH, 28, 32.


279. AMP, 369.
280. 5F,411.
281. AMP, 356-57.
2007 PAULYOWELL 135

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).

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