T.M, SCANLON \\ho law of double-ifect have sometimes objected that itis strange 10 make the permissibility of an action depend on quite subtle features limitations on it often take the form actions or barring them but rather actions can be undertaken. Free of this kind, for example, ay fm of expression this is one factor violations responsible for the a mentioned above.® would be proposed would be a qualidys restriction, allowing considers fy selFinterested, advantages io be gine this distinction does not seem to The restriction proposed heyé may appedodd when compared to our apparent policy regard, Seems tobe the cae, | We are prepared to allow a ther when doing so would involve a moderate the same for the pesson’'s death? The y ‘mutual aid giving less, too demanding, it iy nay explain, Kowever, why these distinctions have some appeal fo" and yet remgln matters of considerable eontraversy. 1 For oview of freedom of ‘A Theory of Freedom of Expression’, Pidosophy and Puble Affairs, pp. 208-26 session embodying this Feature, se Scanlon, 1973 vil RIGHTS AS TRUMPS RONALD DWORKIN I. RIGHTS AND UTILITY RIGHTS are best understood as trumps over some background justiica tion for political decisions that states a goal for the community as a whole. I someone has aright to publish pomography, this means that its for some resson wrong for officals co act in violation of that sight, fren if they (conecty) believe that the community as a whole would be betier off If they die, OF cours, there are many diferent theories in the field about what makes « community better off on the whole; many different theories, that i, about shat the goal of political action should be, One prominent theory (or rather group of theories) is ull tacianism In its familiar forms, which suppose that the community i Utter off if ts members are on average happier oF have more of thoi preferences satisted, Thete are, of course, many other theories about the true goal of polities, To some extent, the argument in favour of a political right must depend on which of these theories about desirable foals has been accepted; it must depend, tht is, on what general back- fxound justification for political decisions th right in question proposes to rump. In the following dkcussion 1 shall assume thet the back ground justification with which we are concerned is some foo of util favianism which takes, asthe goal of politics, the fulfilment of as mary of people's goals for their own lives as possible. This remains, I think, the’ most influential background justifieation, at Jest in the informal ‘way in which it presently figures i politics in the Western democracies. ‘Suppose we accept then that, at least in general a political decision 4s justified if it promises to make citizens happier, or to fulfil more of their preferences, on average, than any other decision could. Suppose Aapted by the muthor from Ronald Dworkia ‘Ts There a Right to osuoataphy”, ‘Oxford Fournal of Legal Stules, 1 (1981), pp. 177-212. Copyright © Konald Dworkin 1981 See Ronald Dwor in Taking Rights Seriously (London, 1978)Is4 R, DWORKIN Wwe assume that the decision to prohibit pornography altogether does in fact, meet that fest, becauso the desires ind prefetences of publshers and consumers are outweighed by the desires and preferences cf the ‘majority, including their preferences about how others should lead their lives. How could any contrary decision, permitting even the priva (of pornography, then be justified? Two modes of argument might be thought capable of supplying such 2 justification. First, we might argue thal, though the wiilitarian goal states one important political ideal, itis not the only important idea, and pornography must be permitted in order to protect some other ideal that i, in the circumstances, more important. Second, we migh sue that further analysis of the grounds that we have for accepting utilitarianism a8 a background justification in the first place —further reflection of why we wish to pursve that goal—shows that utility must yield to some right of moral independence here. The fist form of argument is pluralistic: it argues for a trump over utility on the ground that though utility is always important, it is not the only thing that ‘matters, and other goals or ideals are sometimes mote important, The second supposes that proper understanding of what utilitarianism is, and why itis important, will itself justify the right in question, I do not believe that the fist, or pluralisic, mode of argument has uch prospect of success, at least as applied t0 the problem of pexno- graphy. But I shall not develop the arguments now that would be necessary to support that opinion, I want instead to offer an argument a1 the second mode, which is, in summary, this. Utilitarianism owes whatever appeal it has to what we might call its egulitarian cast, (0 if that is too strong, would lose whatever appeal it has but for that ast.) Suppose some version of utilitarianism provided that the prefer. ences of some people were to count for fess than those of others in the calculation how best to fulfil most preferences overall either because these people were in themselves less worthy or less attractive or les well-loved people, or because the preferences in question combined to form a contemptible way of life. This would strike us as flatly un ‘ceptable, and in any case much less appealing than standard forms of utilitarianism. Tn any of its standard versions, utilitarianism can claim to provide a conception of how government treats people at equals, oF, in any case, how government respects the fundamental Fequirement that it must tteat people as equals, Utilitarianism claims that people are treated as equals when the preferences of each, weighted only for intensity, are balanced in the same scales, with no distinctions forpersons ormerit, The corrupt version of utilitarianism just described, Which gives less weight to some persons than to others, or discounts RIGHTS AS TRUMPS 18s some preferences because these are ignoble, forfeits that claim, But if utilitarianism in practice is not checked by something like the tight of moral independence (and by other allied rights) it will disintegrate, for all practice! purposes, into exactly that version. Suppose & community of many people including Sarah. If the con: stitution sets out a version of ulilitarianism which provides in terms that Sarah's preferences are to count for twice as much a3 those of others, then this would be the unacceptable, non-egalitarian version of utilitarianism. But now suppose that the constitutional provision is the standard form of utilitarianism, that is, that itis neutral towards all people and preferences, but that 8 surprising number of people love Sarah very muuch, and therefore strongly prefer thet her preferences count for twice es much in the day-to-day political decisions made in the utilitarian calculus. When Sarah does not receive what she would have if her preferences counted for twice as much as those of others, then these people ate unhappy, because their special Sarah-loving preferences arc unfulfilled. If these spacial preferences are themselves allowed to count, therefore, Sarah will receive much more in the distribution of goods and opportunities than she otherwise would. Uargue that this defeats the gaitarian cast of the apparently neutral utlitaian constitution a8 much as if the neutral provision were replaced by the rejected version, Indeed, the apparently neutral provision 4s then selfundermining because it gives a critical weight, in deciding which distribution best promotes utility, tothe views af these who hol ‘he profoundly un-neutral (some would say anti-utilitaran) theory that the preferences of some should count for more than those of others. The reply that a wilitarian anxious to resist the right to moral independence would give to this argument is obvious: utilitarianism does not give weight to the truth of that theory, but just to the fact that many people (wrongly) hold that theory and so ate disappointed When the distribution ie government achieves is not the distribution they believe is right. It is the fact of their disappointment, not the truth of their views, that counts, and there is no inconsistency, logical or pragmatic, in that, But this reply is too quick. For there is in fact, 4 particulaily deep kind of contradiction here. Utilitarianism must claim (a8 T said earlier any political theory must elaim) truth for itself, and therefore must claim the falsity of any theory that contradicts it Tt must itself occupy, that is, all the logical space that its content requires. But neutral utilitarianism claims (or in any ease presupposes) that no one is, in principle, any more entitled to have any of his prefer ences fufilled than anyone else is. It argues that the only reason for denying the fulfilment of one person's desires, whatever these aie, is156 R, WORKIN that more or more intense desire must be satisfied instead, Tt insits that justice and political morality ean supply no other reason, This is, swe right say, the neutral uillitarian’s ase for trying o achieve a pol structure in which the average fulfilment of preferences is as high a posible, The question is not whether a goverment ean achieve Hat paltical structure if it counts political preferenevs like the proferencrs of the Sarahviovers? or whether the government will in fact then have counted any particular preference twice and so contradicted wiltarian- ism in that direct way. It is rather whether the goweinment ean achieve allthis without implicitly contcaditing that eas. Suppose the community contains & Nari, for example, whose setof preferences includes the proforence that Aryans have more and Jens les oftheir preferences filled just because of who they ae. A neutal uiltarien cannot say that there is no reason in political morality, for rejecting or dishonouring that preference, for not dismissing it simply sirong, for not striving to full it with all the dedication tat officals devote to fuliling any other soit of preference. For utlk tarlanis ise supplies such a reason: ils most fundamentel tenets that people's preferences should be weighed on an equal bassin the same scales, that the Nazi Uheory of justice is profoundly wrong, and that officals should oppose the Nazi theory and strive to defeat rather than fulfil i A noutral utilitarian is in fact batted, for reasons af consistency, ftom taking the same politically neutral attitude t0 the Nazi's political preference that he takes to other soxts of prefereies But then he cannot make the exse just deseribed in favour of highest average utility computed taking that preferenes into account, T do not mean to suggest, of course, that endorsing someone's right to have his preference satistied automatically endorses his preferenee as good or noble. The good ulilitarian, who says that the pushin player is equally entitled to satisiaction of that taste as the poet is entitled to the satisfaction of his, is not for that reason committed to the proposition that a life of push-pin is as good asa life of poet. Only vulgar erties of uilitarianism would insist on that inference. The uliltarian says only that nothing in the theory of justice provides ay reason why the political and economic arrangements and decisions of society should be any closer to those the poet would prefer than these the push-pin player would like. It is just a matter, from the standpont of political justies, of how many people prefer the one tothe other and how stiongly. But he cannot say that about the conflict between tie 2 Though there are obvious dangers of « circle here. Soe Dworkin, ‘Whats Equality? Par: Pauly of Wala Philoophy and Public Affabs (1981, RIGHTS AS TRUMPS 57 Nazi and the neutral ulitazian opponent of Nazism, because the corect political theory, his political theory, the very political theory to which he appeals in attending to the fact of the Nazi's claim, does speak to the conflict. It says that what the neutral vilitaian prefers Isjust and accurately describes what people are, os a matter of political morality, entitled to have, but that what the Nazi profers is deeply unjust and describes what no one is entitled, as 2 mattor of political morality, to have. But then it is contradictory to sey, again as a matter of political morality, that the Nazi is as much entitled to the political system he prefers as isthe utilitarian, The point might be put this way. Political preferences, like the Nazis preference, are on the same level—puspott to occupy the same space—as the uiilitarian theory itself. Therefore, though the wtlitarian theory must be neutral between personal preferences like the profer- fences for push-pin and pootry, a8 8 matter of the theory of justice, it cannot, without contradiction, be neutral between itself’ and Nazism, Teannot accept at once a dury to defent the false theory that some people’s preferences should count for more than other people’s and a duty to strive to full the political preferences of those who passionately accept that false theory, as energetically as it strives for aay other pteferences, The distinction on which the reply to my argument rests the distinction hetween the truth and the fact of the Nazi’s political proferences, collapses, because if utilitarianism counts the fact of these Preferences’ it has denied what st cannot deny, which is thet justice equites it to oppose them. We could escape this point, of course, by distinguishing two different forms or levels of utilitarianism. The first would be presented simply 38 a thin Lheory about how a political constitution should be selected in a community whose members prefer different kinds of political theories. The sceand would be a candidate for the constitution to be s0 chosen; it might argue for a distribution that maximized agg satisfaction of personal preferences in the actual distuibution of goods and opportunities, for exemple. In that case the first theory would e only that the preferences of the Nuzi should be given equal weight with the preferences of the second sort of utilitarian in thy thoive of a constitution, because each is equally entitled to the consti tution he prefers, and there would be no contradiction in that proposi- tion, But of course the neutral wilitarian theory we are now considering is not simply a thin theory of that sost, It proposes @ theory of justice 12 full political constitution, not simply a theory about how to choose tone, and so it cannot escape contradiction through modesty Now the same argument holds (though perhaps less evidently) when158 R, WORKIN the political preferences are not familiar and despicable, like the Nazi theory, but more informal and cheetful, like the preferences of the Surah-lovers who think that her preferences should be counted tw. ‘The latter might, indeed, be Saraliocrats who believe that she is entitled to the treatment they recommend by virtue of birth or other charac‘ Istics unique to her. But even if their proferences rise from special affection rather than from politcal theory, these preferences nevertie less invade the space claimed by neutral utilitarianism and so cannot be counted without defeating the case utilitarianism provides. My argu ment, therefore, comes to this. I utilitarianism isto figure as part of an attractive working political theory, then it must be qualified 30 as to restriet the preferen: that count by excluding political preferences of Doth the fonnal and inforinal sort. One very practical way to achieve this restriction Is provided by the idea of rights as trumps aver un restricted utilitarianism, A society committed to utilitarianism general background justification which does not in terms disqualify ‘ny preferences might achieve that disqualifieation by adopting a right to political independence: the right that no one suffer disadvantage in the distribution of goods or opportunities en the ground that others think he should have less because of who he is or is not, or that oth care less for him than they do for other people. The right of polit independence would have the effect of insulating Jews from the prefer. ences of Nazis, and those who are not Sarah from the preferences of those who adore her. ‘The tight of moral independence can be defended in a parallel wey. Neutral utilitarianisw cejects the idea that some ambitions that people ‘might have for their own lives should have less command over social resources and opportunities than others, excopt as this is the conse quence of weighing all preferences om an equal basis in the same seals. Ic tejects the argument, for example, that some people’s conception of what sexual experience should be like, and of what part fantssy should play in dust expetience, and of whet the character of that fantasy should be, are inherently degrading or unwholesome, But then it cannot (for the reasons just canvassed) count the moral preferences, of those who do hold such opinions in the caleulation whether indi duals who form some sexual minority, including homosexuals and pomographers, should be prohibited from the sexual experiences they want to have, The right of moral independence is part of the sane collection of rights s the right of political independence, and itis 28 justified as a trump over an unrestricted utilitarian defence of prohti tory laws agsinst pornography, in a community of those who find offence just in the idea that thelr neighbours aze reading ditty bools, RIGHTS AS TRUMPS 159 in much che same way as the latter tight Js justified as a trump over a iltarian justification of giving ows less or Sarah more in a society of Nozis or Saral-lovers, It remains to consider whether the abstract right to moral inde- dence, dete way, would nevertheless peimit restriction pendence, defended in this way, would neverth ai of pubiie display of pomography in 4 society whose preferences against that display were backed by the mixed motives we reviewed im the last part, This is @ situation in which the egalitarian cast of utilitarianism is threatened froin not one but two directions, To the extent fo which the motives in question ate moral preferences about how others should behave, and these motives are counted, then the neutrality of util farianism is compromised, But to the extent to which these are the rather different sort of motives we reviewed, which emphasize not how ots should Tead thes Ives, but rahe the character of he experience people want for themsslves, and these motivesace dir the neutrality of utilitarianism is eampromised in the other direction ecessarily inhospitable (o the special and impostant lose control of a eruial aspect of their tmbitne of thow Who the Sim slfdevelopment. Te sation therefore nol an appropiate tite fora prophylactic refusal to cout any mative whenever we cannot bono that the motive i unmised with orl, because the danger Tesrbed inthe ast part is leas belt tan hat, This agues hat Testtlion uay yfutiied even though we cannot be re that the peferences people have forresirction ae untingod ty the Kind preferences We sould exchde, provided thatthe damage done to those Uo tre affested adversely isnot serous damage, even In thee own tye. Allowing restctions on public display i in one sense a com promise; but sa compromise recommended by the right of moral Independence, once the cue for that sight set out, not «compromise ott ih IL. HART'S OBJECTIONS Thee are, then, good grounds for tho who accept wilt as 2 feos! bacgreued usiction for polleal dzcias aso to xcept, Suet Of te ame package, ght ct mon independence {shale thd cay by conlarng ceva hlelions thal Professor HLA. Han har mde, cet ale! fo sila argument tet T made some Jeasraye about te conection betvesa ulin and tev Het > Hari, ‘etween Usiity and Right’, Col. Rev, 79 (1980), pp. 828, 836 4 See Dworkin, Taking Right! Seriously, Introduction, ch. 12, and Appendix,60 R, DWORKIN Hart’s objections show what I think is a comprehensive misunderstand ing of this argument, which my earlier statement, as I now see, 2 couraged, and it might therefore be helpful, as insurance agains: « similar misunderstanding now, to report these objections and my reasons for thinking that they misconceive my argument, T suggested, in my easier formulation of the present argument, tha if a ulilitarian counts preferences like the preferences of the Sarah lovers, then this is a ‘form’ of double-counting because, in effect, Surah’s preferences are counted twice, once on her own account, end ‘once through the seconé-order preferences of others that ineorpoite hher preferences by reference. Hart says that this is a mistake, because in fact no one’s preferences are counted twice. and it would under count the Sarah-lovers’ preferences, and so fail to treat them as equis, if theit preferences in her favour were discarded. There would be sone thing in this last point if votes rather than preferences were in isue, because if someone wished to vote for Sarah's success rather than his own, his role in the calculation would be exhausted by this gf and if his vote was then discarded he right well complain that he tad been cheated of his equal power over political decision, But preferenzes (2s these figure in utilitarian calculations) are not like votes in that way. Someone who reports more preferences to the utilitarian cant puter does not (except trivially) diminish the impact of other prefer fences hhe also reports; he rather increases the role of his prefeten: veal, compaced with dhe sole uf wiles people's preferences, in the giant calculation. So someone who prefers Saral’s suocess to the succes Of poople generally, and through the contribution of that preference to an unrestricted utilitarian calculation secuses more for her, d not have any less for himseli—for the fulfilment of his more perso preferences—than someone else who is indifferent to Sarah's fortunes, I do not think that my desctiption, that counting his preferences in favour of Sarah isa form of double-counting, is misleading or unfe. But this description was meant to summarize the argument, not to make it, and I will not press that particular characterization, (Indeed, a8 Hart notices, I made it only about some of the examples I gave in which unrestricted wiilitacianism produced obviously. inegalitaran fesults. Hart makes more substantial points about a different examale L used, which raised the question of whether homosexuals have the Tight to practice their sexual tastes in private, He thinks I want to say “chat if, as a result of [preferences that express moral disapproval of pp. 357-8, Soo also Dworkin, “Liborlsm’, tn Hampshire (ed), Pubte and Price Moray, (Cambridge, 19792 and Dworkin, ‘Social Science and Constitionl Rights: the Consequonces of Uncarainy", 77 & Eaue, 61977), p. 3, RIGHTS AS TRUMPS 161 homosexuals) tipping the balance, petsons are dniod some liberty, say fo form some sexual relations, those so deprived see because by this rest their concept of a proper or desirable form of life i despised by others, and this is tantamount to treating thom as inferior to ar of less worth than others, or not deserving of equal concern, and respect.* But this nustates my point, It is not the result (or, « Hatt later describes it, the “upshot of the utlfarian ealeulation that causes or schieves the fact thet homosoxuals ave despited by others. Tes nither the other way round: if someone is denied liberty of sexual practice by virtue of a ulitaran jstfiention that depends critically on other people's monic preferences, then he sufers disadvantage fn virte OF the fact that lis concept of a proper life is already despised by others, Hart says that the ‘main emess” in my aygument—the feature that makes it fundamentally wrong’—is that {assume that if someone's liberty is testricted this must be interpreted as a denial of his treatment as an equal, But my argument i that this isnot in- evitably or even usually 9, but only when the constraint is justified in some way that depends on the fat that others condema his conve tions or values. Hart siys that the interpretation of denial of lsety 4 «denial of equal concer i “east credible’ in exacly the case | dis cuss, that when the denial justified throwph ariifarin argument, because (he says) the message of that justification is not that the defeated minorty or their oral convictions are inferin, bt only that they are loo few fo outweigh the preleronees of tie majority suhich can only be achieved ifthe minority isin fact denied the ihery iL wishes. But once agtin this ignores the distinction I want to make IF the utilitarian justification for denying liberty of sexual practice to tiomosexuals can succeed without counting the moralistic preferences of the majority in the balance (as it might if there was good reason to belive wit isin fact incredible, thatthe spread of homosexuality fosters violent crime) then the mesage of prohibition wolf, indeed be only the message Hart finds, which might be put this way: ‘It is impossible that everyone he protected in all his interes, and the interests of the minority must Yield, regrettably, to the concer ofthe iajoity for its sfety’ There % (at lest in my present argument) no denial of treatment as an equal in that message. Butt Ue ublitarian justifieation cannot succeed without relying on the majority's morals te preferences about how the minority should liv, and the goverament nevertheless urges that justification, then the mesage is very different, Sand, in my view, nesier. Hts exsetly thatthe minority must site * tact, supra, . 842,162 R, DWORKIN because others find the lives they propose to lead disgusting, which seems no mote justifiable, in a society committed to treating people a8 equals, than the proposition we earlier considered end rejected 2s incompatible with equality, that some people must su under the [aw hocause others do not like them. Hart makes further points. He suggests, for example, that it was the “disinterested? political preferences of Uberals that tipped the balance in favour of repeating laws against homosexual relationships in 1967 in England, and asks how anyone could object that counting these preter ences at that time offended anyone's rights to be treated as an equal But this question misunderstands my point in a fundamental way T do not argue—how could anyone argue?—that citizens in a den. racy should not campaign and vote for what they think is just, The question is not whether people should work for justiee, but rather wh lest we and they should apply to determine what is just, Utilitarianism hholds that we should apply this test: we should work to achieve maxi: ‘mum possible satisfaction of the preferences we find distributed in our community. If we acvepied this test in an unrestricted way, then we would count the attractive political convictions of the liberals of the nineteen-sixties simply as data, o be halanced against the less attractive convictions of otless, to see which carried the day in the contest of number and intensity. Conceivably the liberal position would have won this contest. Probably it would not have. But T have been arguing that this i a faze text, whic in fact wid mines the case of ulitarianism, if political proferences of either the liberals or their opponents are counted and balanced to determine what justice requires. That is why I recommend, as part of any overall polit cal theory in which utltarianism figures as a backgiound justification, rights t0 political and moral independence. But the liberals who campaigned in the interests of homosexuals in England in the nineteen: sixties most certainly did not embrace the test I reject. They of couse expressed their own politcal preferences in thei Votes and arguments, but they did not appeal to the popularity of these preferences at providing an argument in itself for what they wanted, as the unrestricted uiiliarian argument I oppose would have encouraged them to do, Peshups they appealed instead to something like the right of moral independence. In any case they did not rely on any argurent incon tent with that right. Nor is it necessary for us to rely on any such argument to say that what they did was right, and treated people 3s equals. The proof is this: the case for reform would lve been just 3s strong in political theory even if there had been very few of no lieleto sexuals who wanted reform, though of cousse reform would not then disadvant RIGHTS AS TRUMPS 163 have been practically posible, Ifs, then we cannot condemn the pro tatore thin fact prodced reform on the ground shat thst procedure rfid anyone's aps to independence Herts misunderstanding hee was no doubt encourezed by my ow desertion of how tighstike the ight 0 moral independence function tha coraiitional system, ike that of the United Sates, which uses ats ava tet of the legality of leglation T sd hata constitutional Shlem of tissort is valuable when the commemy aa whole harbours tjudiesaguinst some minority or convictions thatthe way of life of that minority isoffensive to people of good character. In that situation the ordinary political process is antecedenty key to reach decisions that would il the test we have constrted, because these dckons sotid Tit the fteedom oF the minority and yet could not be used tn politcal theory, except by eouming that some ways of ving ie irony wrong o degrading, orby contig the fac thatthe majority thinks them so a5 lf part ofthe ustibeation. Since these represre Sovnions would tn be wrong, forthe ressons T offer, the consti: Chal ght Froid chemin ace, (Of course, the decison for reform that Hart describes would not— conld not~be a deckion justified only on these offending grounds remit the benign liberal preferences Figored 2s data rather than ae Thon, as aie they should not, no ene would be in & poston to Sham the ght to mocal or political independence as a shield against, ideation tht was Tact rathed. But semnenne right have heen [ed to suppose, by my dacson, that what I condsran any pola proces tat would allow any desison to be taken if people's easons for supporting one devin rather than another ae Wkly tli beyond their own petsonal interests T hope its now plin why ths wrens That poston souk not allow a democracy t0 vote for soca eae Inieod inthe absene ofan adequate constitusana system, the oly hope for justice precisely that people will vote witha disinterested tte otfatmes I eondema pobtlal process that asumes thatthe act that people have such reasons is Helf part of the casein political morality for what they Tavout, Harts heterosexual liberals may have boon Taking the following argument to thet fellow citizens. “We iow ‘that many of you find. the ides of homosexual relationships troubling and eten offense. Some of us do es vel, But you must tomize that it would deny esusity, inthe fom ef moral indepen- dence, to count the fact that we have these felings asa jstication for penal legislation. Since that Iss, we in fact have mo jstiiestion forthe present lav, and we ought, i'l juste, to vefoam i! Nothing168 R, DWORKIN in this argument counts the fact that either the liberals or those they address heppen to have any particular political preferences or convic tions as itself an argument: the argument is made by appeal to justice. hot to the fact that many people want justice. There is nothing in that argument that fails to treat homosexuals as equals. Quite the eontrary But that is just my poins, T shall consider certain of the remaining objections Hast make: together. He notices my claim, that the rights people have depend on the background justification and political institutions that are aso in play, because the argument for any particular right must tecognize that ight as part of a complex package of other assumptions and practices that it trumps, But he finds this odd. 11 may make sease to say, he remarks, that people reed rights less under some forms o government than others. But does it make sense to say that they have Jess rights in one situation rather than another? He also objects to my suggestion (which is of course at the centre of the argument | made in the last section) that sights that have long been thought to beri to liberty, like the rights of homosexuals to freedom of sexual practice for the right of pomogruphers to look at what they like in privalo, axe in fact (at least in the cizeumstancos of modern democracies) rights tc ment as an equal. That proposition, which Hart calls ‘fantastic would fiave the consequence, he Says, that « tyrant who had forbidder fone form of sexual activity or the practice of one religion would ally climinate the evil rather thon increase it if he broadened lis ban to include all sex and all religions, and in this way removed the inequality of treatment. The vice in prokibitions of sexual or religious activity, he says, isin fact that these diminish liberty, not equal liberty adding a violation of equality to the charge makes equality an empty and idle idea with no work 10 do, ‘These different objections are plainly connected, because they suppose that whatever tights people have are atleast in large pat time. less rights necessary to protect enduring and important interests fixed by human nature and fundamental to human developrnent, like interests in the choice of sexual partners and acts and clioive of religious conviction, That is a familiar theory of what rights are and what they ate for, and I said that I would not give my reasons, in this essay, for thinking that itis in the end an inadequate theory of rights, I did say that this theory is unlikely to produce defence of the righ? J have been considering, which Is the right of moral independence as applied to the use of pomography, because it seems implausible that any important human interests are damaged by denying dirty books for films. But thet is not much of an argument against the general RIGHTS AS TRUMPS 165 fundamentalnterests theory of rights, because thote who accept that theory might be ready to concede (or peas even to insist) that the appml to rights in favour of pomoqrapes isan evr that cheapens the idea of igh(s, and that there fs nothing in polities morality that condor. the prohibition of portogaphy altogether i that is what wil bt full Ue preferences ofthe commit 88 wha Dir aim isto develop a theory of hs tat i eative to the other element ofa pla theory, and fo explore how Ear tht theory might fe constucted ftom the efeestingly abstact (But fa fom empl) ies that goverment ust eal people a equals, OF couse that theory makes rights eiae in only one way. ram anxious to show how tas Tint aferent packages, so that {war st, for example, which Tes should be accepted 25 trumps over uty wtity sceeptd, Emany poople think should be cecepied, a the proper background fsifcaion That an important queuion because, atl ad, a lat fal Kn of etn a or te ne bo a i racial politics It has supplied, fr exaiple, the working station mest of the constants on ous bers though Iw tht we accept as proper, But tt does aot follow from this investigation that L mos Trove a8 {am someting sid to endorse Ue pakage of ultaran fn togetter wi the nhs that utitarnian requ 35 the es prckage thal can be constevted. In fact I'do not, Though rights ae Flatve to. packages, one package might stl be choten over others 8 esc aes ott lea ee Vander farm of uaa wil tum out 0 be best Nor does it follow fom ny aigument that tere ae no sights tht any defensible pckage must conta sights that ar tls sense natural rights—though the cuenta ier re such sighs and th explanation of what these si must obvoudy proceed Ina rater ferent yay fromm th route I folowed in arguing for the ght to mora independence as ¢ ump over ular justifeation, Dut i ig Dgue in complex packages of politcal theory, itis both vnneteatarg tnd 00 erode Too to igi forthe only dooce upalat tier lupe orwiked pollcal ceckions, No doubt Hier and Nero Solna Whatever rig ary plmalsl poll theory vould prove Tv itis no tre tha th en thee monsters cated could find no Minport even im the background fulfenlon of ay fh theory Sippow some tyrant (an Angelo gone even move mad) cid forbid sex Aiea on pealy of doth cr banned al relilous practice In Sony howe rmmibers weve all devout. We should sy that what * Scose.e Hartge, p. 845 0.3,166 R, WORKIN he did (or tried to do) was insane oF wicked or that he wa Jacking in the concern for his subjects which is the most basic swe do not 1 (Lam deliberately cautious here.) Bu of rights. We need rights, ss distinct element in political theory, only when some decision that injures some people nevertheless finds pelma-acie support in the claim that it will make the community as a whole bet off on some plausible account of where the community's general welfare lies, But the most natural source of any objection we might have to such a decision ts that, in its concem with the welfare or prosperity or flourishing of people on the whole, or in the fulfilment ‘of some interest, widespread within the pays insufficient attention to its img appeal to equality seems a natural exi that source. We want to say that the decision is wrong, in spite of its apparent merit, because it does not take the damage it causes to some into account in the sight way and therefore does not treat these people a5 equals entitled to the same concern as others. Of course, that charge is never selF-validating, It must be developed through some theory about what equal concern requires, of, as ia the caso of the argument I offered, about what the background justifieition iteelf auppaces that equal concern requires. Others will inevitably jock any such theory. Someone may claim, for example, that equal coacem requires only that people be given what they are entitled to have when their preferences are weighed in the seales with the preference ing the political and moral preferences, of others. In that case (fT am conrect that the right to sexual freedom is based in equality) he would tno longer support that right. But how could he? Suppase the deci to ban homosexuality even in private is the decision that is reached by the bal preferences that he thinks respeets equality. He could ‘not say that, though the decision treats homosexuals as equals, by 4iving them all that equal concern for their situation requires, the Gecision is nevertheless wrong because it invades their liberty. IF some constraints on liberty can be justified by the balance of pref why not this one?? Suppose he falls back on the idea that sexual freedom is a fundamental interest, But does it treat people as eq invade their fundamental interests for the sake of minor gains to avery large number of other citizens? Perhaps he will say that it does, because the decision and some * See Dworkin, Ting Rights Seriously, pp. 266- RIGHTS AS TRUMPS 167 the fundamental character of the interests invaded have been taken into account in the balancing process, so that if these aze outweighed the gains to others, at least in the aggregate, were shiown to be too large in all fatness to be ignored, But if this sso, then deferving to the interests of the outweighed minotity would be giving the minority more atten tion than equality allows, which is favouritism, How can he then object, to the decision the balancing process reached? So if anyone really does think that banning homosexual relationships treats homosextials as equals, wen this is by an unrestiicted ulilitarian balance, hie seams to have no very persuasive grounds left to sty that that decision nevertheless invades their rights, My hypothesis, thet the rights which have traditionally been described as consequences of sen to liberty are in fact the consequences of equality instead may e wrong. But it is not, as Hart says it is, e decision rea ‘a