Taking Rights Seriously (Bloomsbury Revelations) | Ronald Dworkin

Summary of: Taking Rights Seriously (Bloomsbury Revelations)
By: Ronald Dworkin


In ‘Taking Rights Seriously,’ Ronald Dworkin dissects legal positivism – the dominant theory of law that relies on defined rules and judicial discretion. Through this analysis, Dworkin introduces the concept of principles, which are guided by morality, and creates the foundation for his ‘rights thesis’ which asserts that individual rights exist even beyond specific legal rules. This eye-opening exploration dives into different categories of rights and the balance between individual and collective goals, challenging the traditional view of legal decision-making and highlighting the importance of understanding rights through the lens of equal concern and respect.

Legal Positivism and its Limitations

Legal positivism theory asserts that all laws are based on public power rules, and judges have discretion in cases where the law is not explicit. However, legal rules gain validity through a particular process that distinguishes them from other laws. Secondary rules define how primary rules come into and out of existence. The predominant view is that in each community, a “rule of recognition” provides the standard for determining the legality of other rules. This view suggests that no legal rights exist without legal rules. However, this theory overlooks the fact that lawyers and judges base their arguments and decisions on principles that derive their power from connections to morals. Principles are binding and form part of the law, so judges don’t enjoy discretion in any substantial way. As a result, the idea of a rule of recognition also fails, and legal positivism does not reflect the realities of legal practice.

Natural Rights and Adjudication

The existence of individual rights in contrast to legal positivism is the main idea presented in this summary. According to the “rights thesis,” adjudication enforces existing political rights. Judges don’t create them, but rather identify and administer them. Rights are categorized into absolute or nonabsolute, abstract or concrete, institutional or background. Individual rights take precedence over those of the collective, and when an individual’s claim overcomes any contrary collective goal, a right exists. This concept sets the idea of individual rights discussed here apart from previous theories, as they are not premised on any special spiritual character. The summary concludes by stating that any right that society or the majority holds does not compete with an individual right, as the latter overrides collective interests.

Judges: Keep Principle Over Policy

The role of judges is not to create new laws, but to base their decisions on arguments of principle. When judges make policy decisions, they not only overstep their bounds but risk ruling unjustly against a party with a different right. The doctrine of fairness demands consistency: like cases must be treated alike. Judges, therefore, must consider prior rulings to measure the gravitational strength of a precedent. However, they cannot consider arguments of policy that entered into the earlier decisions. By focusing on arguments of principle, judges remain neutral on policy questions, avoid creating new legal obligations, and comply with democratic principles.

Rawls’ Theory of Justice

Rawls’ Theory of Justice, described in “A Theory of Justice,” is based on the original position, a concept that posits people select principles to structure society from behind a “veil of ignorance.” While it may not be convincing, Rawls’ argument reveals two principles of fairness. Rawls distinguishes between distributional equality and entitlement to equal respect, with the latter being fundamental. Equal respect is the right of every human being and underlies claims for justice and fairness. It serves as the origin of the general mandate of collective goals, whilst also restricting that authority for the sake of specific rights. Overall, Rawls’ deep theory has its basis in rights, and political theories may find their basis in goals, duties, and rights.

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