Taking Rights Seriously, by Ronald Dworkin, Cambridge: Harvard University Press, 1977, 295 pp., $12.
As some of us thought, the Supreme Court's decision about Bakke walked the tightrope between considerations of justice and widely accepted social goals—that is, what outspoken members of the public consider desirable. Essentially, the court held that individuals have the right to due process but that this may be violated when it is demonstrated that so doing will further some widely desired goals.
The legal theorist who has recently provided the rationale for this line of reasoning is Prof. Ronald Dworkin, who moved from Harvard to the chair of jurisprudence at Oxford University. He set forth his views back when the DeFunis case concerning the University of Washington School of Law came into the limelight. Dworkin argued that when benign social goals are sought, it is perfectly all right to engage in racial discrimination, but otherwise governments must be gentle with individuals. In his recent book this view is driven home over and over again, and if we are to speculate about such things, it appears that the Supreme Court has been influenced by Professor Dworkin's thought.
Thirteen separate but related papers comprise this book, some from law journals, many from the New York Review of Books, and some previously unpublished. At the outset Dworkin explains:
Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not 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 upon them.
Right away, we see that Dworkin is not espousing a conception of traditional (Lockean) natural individual rights. The latter idea serves to identify the collective goals we may (via governmental action) pursue—namely, the general welfare, which is secured when protection is given to each individual's right to life, liberty, and property (or pursuit of happiness).
Dworkin's book is not a philosophical argument for individual rights, even as he conceives of them. It is mainly an analysis of the nature of judicial proceedings. It is also an extensive criticism of legal positivism a la H.L.A. Hart. Of course, elements of a theory (one that stresses the role of political morality in law—that is, certain [Dworkinian] rights and various social goals) are introduced at several stages of the discussion. For instance, so as to achieve his task of criticism, Dworkin defends numerous crucial legal distinctions, such as between rules and principles of law.
Although the writing is lucid enough, numerous strands of the argument are inadequately developed. So we do not get a convincing case from Dworkin. For example, many legal scholars and theories are discussed and criticized with hardly a quotation from original sources. The reader must go elsewhere to check the interpretation Dworkin supplies and the subsequent criticism advanced.
Likewise, Dworkin makes various allegations about the procedures of legal education, but he introduces no concrete instance as evidence for the resulting analyses. Names such as Roscoe Pound, Lon L. Fuller, and Learned Hand are invoked and the views of their bearers are considered, but again the reader is prevented from entering the inquiry by Dworkin's failure to quote original source materials.
In the first 10 chapters of the work, one can certainly learn a good deal about Dworkin's ideas on jurisprudence, especially his assessment of the role of judges in those interesting cases that come to the attention of various high courts. On the other hand, there is hardly any interesting discussion of the less-prominent but often extremely influential processes of law that involve judges mainly as legal supervisors and leave decisions to juries.
The title of Dworkin's book, however, promises a serious concern with rights. Unfortunately, the work will prove somewhat disappointing to anyone who believes in the principle of truth in labeling. Rights, in short, are merely presupposed in many of the essays of this book. The main theme Dworkin advances is that political morality—certain principles of social and political life—must be regarded as a proper backdrop of the dynamics of law; and to those principles, judges not only should but must refer in their most important decisions.
But all of this awaits the promise of taking rights seriously—unless one means by this merely the point that, strategically, political processes should invoke rights considerations. But that advice, barring Machiavellianism, must rest on the existence of the individual rights Dworkin comes to discuss only at the very end of his work, and rather cursorily. It is to these final discussions that I will devote the rest of my review.
Chapter 12 of Dworkin's book is the text of a contribution to a conference on F.A. Hayek held at the University of San Francisco in January 1976 (but not so indicated where other acknowledgments are made in the book). It argues that the allegedly basic right of classical liberalism—the right to liberty—"is untenable and incoherent; there is no such thing as any general right to liberty." His argument is extraordinary. Since, according to Dworkin, "I have no political right to drive up Lexington Avenue [which is one way southbound]," and since "if the government chooses to make Lexington Avenue one-way down town, it is a sufficient justification that this would be in the general interest, and it would be ridiculous for me to argue that for some reason it would nevertheless be wrong," then "it seems plain that there exists no general right to liberty."
This is an astounding line of reasoning for someone who set out to take rights seriously and who believes that there are moral principles that (logically) precede any positive law—indeed, may be used to justify its violation. For it is precisely in circumstances in which governments choose to take this or that action on grounds of some nebulous goal (referred to variously as the general or common or public interest) that taking rights seriously would very likely lead to a just opposition to governmental action.
All the classical liberal needs in order to prove Dworkin wrong is to show that the government has no right to run Lexington Avenue traffic. Indeed, it is doubtful whether government, plain and simple, does run traffic, since there are extremely varied "jurisdictional" arrangements involved here—some that rely on constitutional authority, others that are derived mainly from incorporation, and, of course, the hundreds and thousands throughout human history that have relied on the simple approach of conquering by brute force.
For someone who is so firmly opposed to even the most subtle form of legal positivism, this total faith in the appropriateness of government-managed city, state, and interstate traffic is amazing. The classical liberal need merely point out that, ideally, government would have no justification for owning and managing property not required for its proper function. Such property—broadcast frequencies, lakes, parks, roads, etc.—would be regarded as ideally or properly private, state-possessed only via the preemption of people's right to the liberty of acquiring and controlling goods and services. Dworkin at no point in his book gives even the most cursory attention to this line of argument, which can be gleaned from such (classical) liberals or libertarians as Herbert Spencer, Ludwig von Mises, F.A. Hayek, Murray N. Rothbard, Ayn Rand, and Robert Nozick! The disappointment could not be greater, given the promise of this book to take rights seriously.
Finally, Dworkin tries to defend his assumption that even in hard cases, which involve reference to his sort of rights, judges can arrive at correct answers. He contends that those who object to this are confused: neither on practical nor on theoretical grounds can the assumption be shown to be wrong. But the onus of proof is on Dworkin, so it won't do to show that skeptics are confused. He simply has not provided an adequate philosophical case in support of his underlying premise: that there exist individual rights and that the central such right is "the right to treatment as an equal."
In the end we get the following picture: Dworkin assumes the supremacy of the State and its goals, quite arbitrarily, and then argues, to mitigate the State's absolute power, that we can assume that the State owes each of us fairness as it pursues its goals. This may be a defense of administrative justice—a version of the principle of equality under the law—but not of individual rights. Dworkin, unlike theorists such as Alan Gewirth, Hillel Steiner, Eric Mack, myself, and some others, has done very little for the philosophical case in support of individual rights.
Tibor Machan is the author of Human Rights and Human Liberties.
This article originally appeared in print under the headline "Taking Rights Seriously".