Ronald Dworkin, Taking Rights Seriously

Richard Bellamy

Abstract: Taking Rights Seriously is concerned above all with due

process, both in law and politics. In this respect, his theory of law and
critique of legal positivism frames his theory of politics. He conceives
both law and politics in terms of a “right to equality,” the aim being to
show individuals equal concern and respect. However, whereas he
regards legal process as a matter of principle, orientated toward viewing
our relations with others in terms of justice, he treats political process as
dealing only with policy and focused on promoting the general welfare.
The result is an account of law and politics that is original yet
idiosyncratic. Though he sees rights-based judicial review as legitimately
trumping utilitarian democratic decisions, his account of legal
deliberation is in its way democratic, as his view of civil disobedience
illustrates, and could apply as much—if not more—to legislatures as to
courts.

Keywords: Dworkin, rights, utilitarianism, equality, legal positivism,

democracy, judicial review, civil disobedience

The articles reprinted in Taking Rights Seriously (TRS) appeared over

the previous decade, with the earliest—“The Model of Rules”—dating
back to 1967. Today, it is hard to imagine an academic context in which
either legal and political philosophy, or the institutions they seek to
account for and justify, might not take rights seriously. Over the
intervening period, rights have become the dominant discourse of both
the theory and practice of law and politics; TRS played a significant part
in that shift. However, Dworkin’s arguments differ in key respects from
those of many contemporary rights theorists, reflecting the distinctiveness
of the intellectual, disciplinary, and political contexts in which he
developed them.

First, his theory of rights was framed as a critique of legal positivism and
utilitarianism—the two components of what he termed “the ruling theory
of law” (vii). These theories gained their ascendency by offering radical
criticisms of, and an alternative to, natural rights theories—not least their
alleged arbitrary deployment to defend the privileges of the well-off few
against the interests of the disadvantaged many (ix–x). Dworkin’s
account seeks to escape these criticisms by showing that rights may be
adequately grounded and used by potentially oppressed minorities, while
still leaving scope for majority decision-making promoting the public
interest (xv).

Second, and in many respects most importantly, Dworkin’s theory is a

general theory of law (vii–viii). His account of rights seeks to overcome
supposed lacunae in legal positivism while offering a more determinate
account of judicial reasoning. Dworkin’s views on substantive topics
have appealed to political and moral philosophers with little interest in
legal philosophy per se. These philosophers tend to assume that his
account of law offers little or no constraint on his moral and political
theory, and that he conceives of law and legal theory as little more than a
branch of applied ethics. This is a mistake. As TRS illustrates, it would
be truer to say that morality and politics form, for him, a branch of
“applied legal theory.”

Finally, Dworkin was an American liberal in Oxford and London, whose

theory evolved against the backdrop of his home country’s civil rights
movement and protests against the Vietnam War. He saw liberalism as
embattled, attacked by left and right for its individualism and rationalism
(vii). As he noted, similar charges were also laid against legal positivism
and utilitarianism (x). Yet these were not the grounds for Dworkin’s
dissent from the ruling theory. On the contrary, he sought to defend an
explicitly individualist and rationalist “liberal theory of law” (vii), and
saw such a defense as resting most coherently on the very theory of rights
these doctrines rejected (xi). It would be reductive to say that he merely
rationalized the liberal judgments of the Warren Court; for one thing, his
views often proved more liberal and radical than the Court’s. Rather, he
attempted to offer a better rationale for the claims presented to the Court
than the claimants often themselves provided, and for the response he
believed judges should, could and—whether they realized it or not—in
part did make when assessing their claims.

Three further introductory remarks are in order. First, as I noted above,

TRS is a book of essays, written over a decade, and of very different
kinds. Some are more occasional pieces than others; some focus on
general jurisprudence concerning the nature of law, others on applications
of the particular jurisprudence of liberal democracies to topics such as
civil disobedience and affirmative action, and a few on the character of
liberalism itself. The book does not lay out in a systematic way
Dworkin’s theory of law and rights. Instead, it exemplifies it through
exploring various disparate topics: Hart’s (1961) Concept of Law, Hard
Cases, or Rawls’ (1971) argument from the original position in A Theory
of Justice. Nevertheless, Dworkin (2011) later made clear that he
believed his views on particular topics formed part of a coherent whole.
Although his overall vision is not laid out in TRS in anything like the
systematic way he came to do, it contains the guiding principles
concerning the independence, unity, and interpretative character of moral
values that inform his mature view. Moreover, in TRS the origins of this
approach in a moral reading of the theory and practice of constitutional
law that is then extended to all other areas of human endeavor are
especially noticeable.

Second, political theorists more familiar with Dworkin’s later writings on

social justice will notice its conspicuous absence in TRS. Even the
famous essay on Rawls is concerned with method, defending Dworkin’s
constructivist approach by contrast to Rawls’s use of the Original
Position, rather than with the virtues or otherwise of Rawls’s two
principles. Nevertheless, the incorporation of the individualistic
assumptions of choice and responsibility into arguments for egalitarian
redistribution that would motivate his distinctive social egalitarianism,
with its focus on equality of resources, can be found in his more general
ambition in TRS to balance the collective perspective offered by
utilitarianism with the individualism of rights within an overarching
egalitarian framework focused on equality of concern as well as of
respect (xv).

Third, this approach also flowed from his juristic starting point, reflecting
a preoccupation with due process. Many commentators have been
perplexed by Dworkin’s claim that rights derive from a core “right to
equality” that reflects the underlying “political morality” of liberal
democracies. However, this thesis can be traced back to a belief in
equality before the law as the central commitment of a justified legal and
political system. In Dworkin’s view, such equality is achieved by a due
process offering the prospect of a fair trial and being able to put one’s
case in a fair and equitable way. Indeed, this processual approach proves
central to both his legal and political theory.

Between Legal Positivism and Natural Law: Dworkin’s Theory of

Law
TRS begins with the opening salvos of the Hart–Dworkin debate
(chapters 1–4, and in particular chapters 2–3). Carried out largely by
others, this debate dominated Anglo-American legal philosophy right up
to (and beyond) Hart’s posthumous postscript to The Concept of Law (for
an overview, see Shapiro 2007).
Dworkin offered a brilliant if tendentious characterization of legal
positivism in general, and Hart’s version in particular, as a “model of and
for a system of rules” (22). He made three main claims about this model
(17). First, that it identified laws as the laws of the community by “their
pedigree or the manner in which they were adopted or developed.”
Second, that laws that can be identified in this way exhaust the law, so
that if a judge or administrator faces a case that is not unambiguously
covered by an existing rule they cannot “apply the law” but can only
exercise their discretion. Finally, that a legal obligation consists of
abiding by the duties imposed by a valid law to do or not do certain
things.

So conceived, legal positivism had a broadly Benthamite rationale to

remove the lack of clarity and arbitrariness about the law which Bentham
believed inherent to appeals to a mysterious natural law, even in the
“modern” form of human rights. Two implications of this Benthamite
position prove particularly important for Dworkin. First, Bentham
believed that one could make a distinction between “expository” and
“censorial” jurisprudence, between what the law is and what it ought to
be. This argument has sometimes been regarded as entailing a sharp
separation of law and morality, and TRS tends to adopt that view.
However, arguably legal positivism merely involves the more modest
position that what the law is can be identified without moral or evaluative
concepts as to what the law ought to be in particular circumstances. It
does not entail that the law cannot contain any moral principles.
Second, Bentham was infamously antagonistic to doctrines of natural
rights, deeming them “simple nonsense,” with “natural and
imprescriptible rights, rhetorical nonsense—nonsense upon stilts,”
lacking any ontological basis. They simply reflected the personal desires
of those claiming them, giving a veneer of legitimacy to often selfish
passions. Bentham did not deny that valid moral claims could have the
features of a right. He merely insisted that they had to be made on the
basis of utility, as “securities against misrule.”

In criticizing the model of rules, Dworkin suggested that a moral reading

of the law is not only possible but also unavoidable given law was
thoroughly normative. Consequently, “expository” jurisprudence was
necessarily “censorial” in character. Dworkin argued this did not imply a
return to natural law, and could be undertaken in a way that respected
legal certainty and what he later termed law’s integrity. Therefore, a
moral view of the law could be more than an arbitrary identification of
the law with one’s own subjective (and self-serving) position. Moreover,
at the heart of this moral reading was a conception of individual rights.
Dworkin sought to avoid the charge of “nonsense” by denying that rights
“are spooky sorts of things that men and women have in much the same
way as they have non-spooky things like tonsils.” He claimed that his
theory did “not make ontological assumptions of that sort” (139). Rather,
rights are “a special, in the sense of restricted, sort of judgment about
what is right and wrong for governments to do” (139). He wanted to
avoid identifying rights as core interests or goods of human beings. Yet
he also wanted to deny that rights were simply correlative to legal duties.
Rights are neither independent “things” nor merely formally enacted legal
rights, but rather a kind of moral judgment that, he suggests, inhere in the
nature of law, at least within liberal societies (198–199).

Dworkin’s rejection of positivism and his conception of rights thereby

form two sides of the same coin: a moral account of the law. Dworkin
accepted that human beings make law at a particular time and place.
However, he disputed all three aspects of the so-called “model of rules”
mentioned above: pedigree, gaps, and obligations. Dworkin argues that
settled law embodies not only rules but also principles. Unlike rules,
principles—such as “no person may profit from his or her wrong”—do
not simply apply or not apply. Rather, they operate as reasons that can be
accorded different degrees of “weight” according to both the case at hand
and interplay with other principles.

Dworkin’s view that principles inhere in any system of laws leads him to
deny that either the identification of law or the very notion of legality turn
on the “pedigree” whereby written laws come into being. Instead, legality
follows from the judgments of legislators, lawyers, citizens, and above all
judges as to what understanding of the law in any given case best coheres
with its underlying principles. Dworkin contends that public officials,
such as judges, but also ordinary individuals in their public capacity as
citizens, have a duty to integrate the legal principles found in the law into
a coherent whole that presents the entire system of laws in the best
possible moral light. Yet this integrative process is a matter of
“construction” (162). Dworkin eschews not only the model of rules but
also what he calls the “natural model,” whereby the aim of a coherent
ordering of principles is to mirror an objective moral order. The
constructive model makes no such assumption. As such, it makes no
assumption that all our moral intuitions ought ultimately to cohere; it
allows that we might reject some because they seem at odds with the best
ordering of the principles we are able to construct. Dworkin claims this
process of construction is a collective and public enterprise. Though he
extends the model of construction to moral reasoning more generally, he
regards it as exemplified by judicial reasoning. The natural model would
see judges as each offering his or her view of what the objective moral
order is, making it necessary to find some Archimedean point for
adjudicating between their different understandings. Without such
adjudication, they could regard disagreement as evidence of subjective
preferences or inaccurate inferences and observations. By contrast,
Dworkin sees judges’ efforts to accommodate precedents to a set of
principles inherent in the law that might justify them as a necessarily
collaborative exercise, one that seeks to discover the common morality
behind the different judgments various judges have made. Nevertheless,
in so doing judges do not simply adopt the conventional morality as
found in widely accepted social rules. They make substantive moral
judgments and seek to develop the morally best explanation and
justification of the law as it has developed.

This raises Dworkin’s critique of the second feature he associated with

positivism, the view that in the absence of a rule, judges must fill the
resulting gap in the law by using their discretion to “invent” rights that
seem to them appropriate in the given case. At best, only peer and social
pressures hold them in check. Against this position, Dworkin argues that
there is always a “right answer” to what the law requires in a given case,
including those cases not covered by any existing legislation. Even when
there is no settled rule covering a given case it remains “the judge’s duty
… to discover what the rights of the parties are, not to invent new rights
retrospectively” (81). A judge adopting the model of construction
engages in a process of “discovery” of what an appropriate weighing of
the principles underlying the entire body of settled law requires in any
given case. Dworkin admits this is no easy task—indeed, it turns out to be
a task of Herculean proportions, requiring “a lawyer of superhuman skill,
learning, patience and acumen, whom I shall call Hercules” (105).
However, even if only a hypothetical Hercules could arrive at a
definitively right answer based on the morally “best” reading of what the
principles behind settled law require in any given case, he contends all
judges are obligated to try. Not being Hercules, we may come to different
views (80)—indeed, the limits of our practical reasoning make
disagreement almost inevitable. That does not invalidate the process of
construction.

This brings us to what is in many respects the most radical, if also the
most neglected, aspect of Dworkin’s argument, his critique of the
positivist account of legal obligation. He believed not only judges but
also citizens can and should engage in the constructive model of law.
However, doing so challenges the view that we are necessarily under a
legal obligation to obey validly made law. I remarked earlier that the
protest movements of the 1960s framed the development of Dworkin’s
theory. Activists found various forms of civil disobedience important
tools in the movements of the time, from “freedom riders” who rode
interstate buses to protest segregation to draft resisters objecting to the
Vietnam War. As Dworkin observed, a standard view—even among these
activists—was that as civil disobedients rather than revolutionaries they
were duty-bound to suffer the legal consequences of disobeying even
those laws they considered unjust (206–207). Dworkin disagrees; that
position assumes the “pedigree” account of legal validity. On the
constructive account, the unjust law may be invalid because it fails to
reflect the best reading of the principles that ground the law. That may be
true even if a court has affirmed it. After all, multimember courts often
divide, while constitutional courts frequently revisit and overturn past
decisions (213). So the judicial system itself acknowledges it can make
mistakes. Therefore, “no judicial decision is necessarily the right
decision” (185). As a result, a civil disobedient need not regard him or
herself as necessarily defying the law, so much as suggesting that the
court and government may have made a moral and legal mistake as to
what the law is. He accepts that when individuals morally disagree about
the state of the law, then it may be necessary for some authorized agent to
“have the final say on what law will be enforced” to avoid anarchy (186).
It will then be a matter of individual prudence whether those who
continue to disagree acquiesce or not (213). However, if they continue to
disagree, they are not necessarily doing wrong. On the contrary, society
and the law may gain from their so doing, because their actions form part
of the collaborative effort alongside the courts and government to get the
law right by encouraging them to try their best to do so (213).
Critics have raised a host of problems with Dworkin’s account of the law.
Positivists have never insisted on a hard and fast separation of law and
morality. For example, Hart always acknowledged that in legal systems
such as the United States “the ultimate criteria of legal validity explicitly
incorporate principles of justice or substantive moral values.” Likewise,
statutes “may be a mere legal shell and demand by their express terms to
be filled out with the aid of moral principles” (1961, 199). Meanwhile,
“inclusive” legal positivists have developed this argument further and
argued that legal positivism can allow moral tests of legality without even
requiring that they have a given pedigree (Coleman 1982, 44). Like
Hart’s “rule of recognition,” such moral tests may originate as a social
rule, a convention among judges and citizens, whereby certain moral
norms are legally binding. Controversies about the bearing of this rule
need not undermine the existence of such a convention; they reflect
disagreements about its application to particular cases rather than about
its content. Indeed, Hart himself endorsed this reading in his
posthumously published response to Dworkin’s critique (Hart 1994, 250,
253, 258).

Nonetheless, positivists do affirm that at times it is possible to say: “this

is law but too iniquitous to obey or apply” (Hart 1961, 203–207). Many
have wondered whether Dworkin denies this. If not, then his account of
legal construction will only yield a suitably moral view of the law in
cases where the settled law incorporates liberal moral principles. In
illiberal regimes such as Nazi Germany, apartheid South Africa, or the
antebellum United States, it remains unclear how Hercules might reach
liberal conclusions without appealing to natural law (Mackie 1977, 166–
168; Dyzenhaus 2007). At the very least, it would appear that in such
instances Dworkin must accept a distinction between “expository” and
“censorial” jurisprudence (MacCormick 1982, 191; Hart 1994, 270–271).
Two important aspects of Dworkin’s legal theory are highlighted by such
criticisms. The first is that though Dworkin appeals to principles in the
settled law, he places no great weight on settlement per se. Laws that
might appear settled can be challenged and even effectively disapplied by
appeal to a constructive reading that shows them to be inconsistent with
the law’s underlying principles, while the understanding of these
principles themselves and their relation to past and future cases remain
likewise open to debate and revision. Despite the hypothesis of an
objective “right answer,” right answers as such do little work in his
argument, and he ridicules as “nonsense” the idea that “there is always a
“right answer” to a legal problem to be found … locked up in some
transcendental strongbox” (216). As Waldron (2004) has remarked,
Dworkin’s theory is more about process than result. It is a theory of the
practice of legal argumentation, a practice that, as we saw, he seeks to
make as open as possible. The importance of law lies in the way it shapes
debate by encouraging all concerned to order their mutual legal relations
in a coherent and principled manner, consistent with the moral and
political values of the community as a whole.

The second aspect concerns his account of rights. Though rights in his
theory relate more to moral principles found within the law than to legal
rights resulting from duly enacted rules, he says little about their basis
(MacCormick 1982, 193). As I noted, Dworkin denies that rights follow
from interests in particular goods, including—most controversially, given
his liberalism—any right to liberty, an idea he dismisses as “absurd”
(178–179, 268–272). Instead, he offers two rather abstract reasons why
we should take rights seriously—first, “the vague but powerful idea of
human dignity,” second, “the more familiar idea of political equality”
(199). The second most motivates Dworkin’s argument (272–273).
Indeed, he even talks of “a right to equality,” whereby “the weaker
members of a political community are entitled to the same concern and
respect of the government as the more powerful members” (199). Again,
this emphasis on dignity and equality can best be understood as a
corollary of his view of the rule of law as a process of principled legal
debate that “encourages each individual to suppose that his relations with
other citizens and with his government are matters of justice” and “to
discuss as a community what justice requires those relations to be” by
promising “a forum in which his claims about what he is entitled to have
will be steadily and seriously considered at his demand” (Dworkin 1985,
32). To take rights seriously is less to get rights right, than to show that
the rights of all are given due consideration by conducting legal and
political debate in an equitable way. As he famously put it, the “‘right to
equality’ is not ‘a right to equal treatment’ but a ‘right to treatment as an
equal,’” a right “not to an equal distribution of some good or opportunity,
but … to equal concern and respect in the political decision about how
these goods and opportunities are to be distributed” (273). The legal
rights he believes we can invoke to specific liberties follow from the
requirements of equal concern and respect in such a political and legal
process.

His views of both the rule of law and of rights might be thought to
promote the politicization of the law. Some have thought Dworkin’s
account leads legal actors to assume a role more appropriately left to
legislators (Mackie 1977). Of course, Dworkin denies that these legal
debates entail legislating, given that they involve discovering, not
inventing the law. However, his description of the legal process might be
regarded as equally applicable to the political process, possibly more so
(Waldron 1999; Bellamy 2007). Yet, Dworkin regards it as an inherently
legal mode of argument, at variance with, and a necessary corrective to,
that of political debate, with both playing a complementary role in a
democracy.

Between Utility and Rights: Dworkin’s Theory of Politics

Dworkin’s theory of law seeks to combine the advantages of legal
positivism and natural law while overcoming their alleged disadvantages.
Similarly, his account of politics and rights aims to employ the resulting
principled view of law to counteract the disadvantages of the
utilitarianism he perceives as inherent to democratic decision-making,
while preserving its advantages. He views his deliberative conception of
the nature of law as complementing the largely aggregative character of
politics. If the former purports to secure the values and principles of the
political community, above all the rights of individuals to equal concern
and respect, the latter supposedly ensures that state policies serve the
general welfare. In this way, he hopes to retain the radical progressivism
of utilitarianism while upholding a liberal attention to individual rights.

His view of these rights largely reflects this account of the

complementary roles of law and politics. Although Dworkin says little
about the basis of rights, he does describe their nature and purpose.
Rights are “an anti-utilitarian concept” in being something that it would
be “wrong for the government to deny to [someone] even though it would
be in the general interest to do so” (269). Such “individual rights are
political trumps held by individuals” (xi). That sounds anti-collectivist
and libertarian in character, prompting the Benthamite worry that rights
might serve as spurious metaphysical justifications for placing the self-
serving individual interests of a privileged minority above the general
interest of the majority. Dworkin seeks to dispel such objections by
accepting the legitimacy of redistributive and regulatory governmental
action on largely utilitarian grounds, while reserving the appeal to rights
to those whose voices may still go unheard in such calculations of utility,
particularly under-privileged minorities.

Dworkin conceives of democracy as consisting in the aggregation of the

preferences of citizens in order to arrive at policies that support the
general interest. In his view, majoritarian decisions arrived at by a fair,
free, and equal vote provide the most practical way to determine those
policies that best promote the greatest happiness of the greatest number.
Somewhat surprisingly from a traditional rights-based liberal perspective,
he sees such a process as for the most part justified, because largely
consistent with the core need for governments to treat people “with equal
concern and respect” (272–273). Dworkin argues that this “postulate of
political morality” demands equal and impartial processes for the
allocation of goods that do not suppose “one citizen’s conception of the
good life of one group is nobler or superior to another’s” (273). By
counting everyone as one and only one, Dworkin maintains that
utilitarian calculations “seem not to oppose but on the contrary to embody
the fundamental right of equal concern and respect.” They treat “the
wishes of each member of the community on a par with the wishes of any
other” (275). On Dworkin’s account, human rights do not reflect core
interests with a special weight that a utilitarian calculation might fail to
take into account. So long as the right to be treated as an equal gets
recognized, then many of the rights liberals have traditionally invoked as
constraints on democratic governments may be justifiably overridden for
the sake of utility.
I observed that, unlike many liberals and libertarian-minded
conservatives, Dworkin contends there is no right to liberty as such but
only to those liberties—like freedom of speech—necessary to protect the
right to be treated with equal concern and respect. Consequently, he has
no objections to an interventionist state that restricts various economic
freedoms, such as property rights or freedom of contract, in order to
advance social welfare overall. Indeed, he accepts that the state may need
to regulate individual liberty in a variety of ways to secure certain kinds
of public goods that are desired or more deeply valued by most people.
He famously argues that there is no right to be free to drive both ways on
Lexington Avenue (191, 269–278). If restricting drivers to one direction
facilitates the overall flow of traffic, then that would be a sufficient
reason for limiting an individual’s freedom. Likewise, he regards state-
imposed limitations on working hours, such as those declared in Lochner
to be incompatible with the freedom to enter into labor contracts
involving more than ten hours of work per day, as allowable for the
general welfare (278). So is taxation to support such public goods as state
education, health care, art galleries, and museums. He supports policies
not only to prohibit discrimination on grounds of race or gender, but also
to enforce desegregation and reverse discrimination, through various
kinds of affirmative action. All such policies prove allowable insofar as
they can be regarded as products of an impartial, egalitarian procedure for
promoting the general welfare.

None of the above examples lead Dworkin to invoke the need for an
“anti-Utilitarian” concept of rights. On the contrary, he remarks that “the
vast bulk of the laws which diminish my liberty are justified on
Utilitarian grounds” (269). Why, then, are anti-utilitarian “trumps”
necessary? The answer turns out to be because of an alleged fault in the
way democracy operates, whereby its egalitarianism proves “often an
illusion” (275). Two related distinctions do the work in producing this
judgment. The first is a distinction between personal and external
preferences (234–235, 275–276). An individual’s personal preferences
are for, or derive from, the satisfactions that individual seeks personally
to gain from certain goods and advantages. By contrast, an individual’s
external preferences concern how they believe goods and advantages
should be assigned to others. Dworkin contends that the only defensible
form of utilitarianism is one that counts only personal and not external
preferences. A calculation of utility that includes external preferences
will not treat all those involved with equal concern and respect in the
process of decision-making. A white supremacist holds the external
preference that a black person should count for less than a white person.
Certain people hold religious views about homosexuality and
contraception that lead them not only to prefer avoiding these activities
themselves, but also that others abstain from them. Dworkin regards such
external preferences as a form of “double counting” (235), since the
external preference for what others should do is in addition to one’s
personal preference for what one should do oneself. As such, it offends
the utilitarian injunction of everyone counting for one and only one.

A number of commentators have found this argument a little obscure and

the ban on external preferences either too broad or too narrow to support
the values Dworkin holds (Hart 1979, 219–220). It appears too broad in
seeming to rule out the external preferences of, say, liberal heterosexuals
in support of gay rights. It appears too narrow, in that rights would have
no purchase at all among an electorate of highly tolerant and liberal
voters, who simply express personal preferences. However, construing
Dworkin’s argument simply as an attempt to refine utilitarianism—a
construal he admits encouraging—is perhaps misleading. The key issue is
that he seeks to avoid policies being made in ways that offend neutrality
by treating some people as worthier or less worthy than others on account
of personal features for which they have no responsibility. Dworkin
considers it impossible to know whether such external preferences have
figured in democratic decision-making or not, or how decisive they may
have been. His argument is that when it seems likely that they will
influence public decision-making given the character of the society, as in
laws governing free choice in sexual relations in a community where
many hold views that condemn certain choices as immoral, then rights
will need to be upheld by courts. Democratic processes cannot be
depended upon to take sufficiently seriously those rights needed to
sustain the right to be treated with equality of concern and respect.
Dworkin’s second distinction, between policy and principle, enters here.
Arguments of policy involve showing that a political decision “advances
or protects some collective goal of the community as a whole,” whereas
arguments of principle “justify a political decision by showing that the
decision respects or secures some … right” (82). Dworkin offers this
distinction as a way of describing a division of labor between democratic
politics and liberal law that justifies a clear functional separation between
the two branches, and the possibility for courts to strike down
democratically enacted legislation on principled grounds. Yet, it is
unclear that the two can be easily distinguished (Greenawalt 1977). A
statute might specifically direct courts to consider different policies in
order to see which promotes the general welfare. Legislation may also
bestow rights on individuals, with the purpose of promoting a policy
deemed to favor the general welfare. Dworkin suggests that in such cases
courts should consider the “special political theory that justifies this
statute, in the light of the legislature’s more general responsibilities,
better than any alternative theory” (108). But if the legislature’s more
general responsibility is to promote the general welfare, we seem to be
back to square one. Moreover, if—as Dworkin suggests—on policy
issues the legislative process is the most appropriate, then how can a
court ever be competent to overrule it?

Likewise, upholding constitutional rights may involve courts making

policy as to how to institute a given right. Yet, suppose the legislature has
considered issues of constitutional principle in the making of policy.
Perhaps, as in the United Kingdom under the Human Rights Act, it has
explicitly undertaken a principled discussion of the implications and
impact of the policy for rights. Some of the legislation issuing from such
a process may even have the promotion of a constitutional principle as its
focus. Dworkin recognizes that citizens and judges can both disagree on
matters of principle, and that to take rights seriously can only be to
consider them duly, showing equal concern and respect to the views
involved and ensuring they are fully and equitably considered. His
argument seems to be that democratic politics does that less well than
courts simply because matters of principle are less in the foreground. But
suppose they are in the foreground, that their due consideration forms an
explicit part of the legislature’s remit and one that is undertaken
seriously? Sometimes Dworkin suggests that the mere act of legislative
voting indicates a lack of principled deliberation (e.g., Dworkin 1996).
Yet multimember courts disagree in good (and bad) faith too, and vote to
decide. Can judges legitimately strike down these policies by invoking
rights as trumps if these trumps have already been played in the
deliberations of the legislature? Is this not a most egregious form of
double counting?

Dworkin’s account of the moral nature of law and the centrality of a right
to equality may not commit us, as he believed, to some form of legal
constitutionalism. Potentially, it works as well as a basis for political
constitutionalism. Dworkin’s comments on civil disobedience can be read
in a highly political way, empowering citizens to participate in the moral
debate about the nature of law. In later writings, he even insisted that a
key virtue of the judicial protection of constitutional rights lay in the way
it could spark a broader public debate. Yet he remained opposed to
allowing citizens to decide such rights-questions themselves, through the
democratic process. In part, that could be because he sought to retain his
critique of the pedigree element of the model of rules. If we regard
democratic elections and legislative debates as engaged in principled
argument on a fair and equal basis, then the fact that the pedigree of law
lies within such a process gains additional weight. It suggests that judges
may not be taking rights as seriously as they ought if they disregard the
seriousness with which they have already been debated by citizens
(Waldron 2008).

That does not mean that judges can play no role in the debate.
Legislatures necessarily take a general view, even if not necessarily one
that sacrifices principle to policy, while courts deal with individual cases.
As a result, courts can discover that, in given circumstances, a law may
have unfortunate consequences for particular individuals in ways that
legislatures may not—possibly could not—have foreseen. In such cases,
courts can play a vital role in prompting further deliberation by the
legislature of individual rights. Yet this need only take the form of
“weak” review, requesting that the legislature reconsider its legislation in
the light of the difficulties highlighted by a case (Bellamy 2012). Given
the court’s view can be as mistaken as the legislature’s, provided
politicians engage in a process that takes rights seriously, there can be no
justification for handing the final decision to the judges. Indeed, to do so
fails to treat citizens and their elected representatives as having equally
valid views on the topic of which laws are to govern their relations with
others (Waldron 1999, 302; Bellamy 2007, 93–100).

One might argue that for a legislature to review its own decision would
allow it to be judge in its own case. But Dworkin has no objection to
courts reviewing their own precedents. On the contrary, he welcomes it.
The evidence indicates that in most cases legislatures defer to judicial
misgivings. Where they do not—as in the recent case of prisoners’ voting
rights in the United Kingdom—the issue is usually legally and politically
highly controversial. However, it is also a matter that a future legislature,
with a different composition, can decide differently. After all, MPs can be
and are regularly removed by the electorate, rendering them responsive to
the moral arguments of the electorate in a way courts rarely are.
Dworkin’s critique of democracy has the character of a self-fulfilling
prophecy. Nothing is more likely to lead politicians not to take rights
seriously than suggesting they have no particular responsibility to do so.
The few normative arguments he offers for this division of labor either
prove incoherent or involve problems that apply as much to courts as to
legislatures. By contrast, many of his arguments highlighting the role of a
due process in taking rights seriously suggest that courts and democracy
can work best together rather than separated, with each seen as a forum of
principle.

Conclusion
TRS enlivened both legal and political theory, not least in pointing to the
links between the two. Yet, though its criticisms forced those criticized to
sharpen and develop their arguments, none have felt the need to concede
defeat. As often happens with important books, Dworkin’s inspired others
both to criticize his arguments and to develop his ideas in ways he neither
anticipated nor would necessarily have welcomed. In particular, I have
suggested that a book inspired by the need for a moral reading of the law
can provide a basis for an account of the morality of law-making.
Therefore, a twentieth-century classic of legal theory may become a
classic of political theory for the twenty-first century.

References
Bellamy, R. P. 2007. Political Constitutionalism. Cambridge: Cambridge
University Press.
Bellamy, R. P. 2012. “Rights as Democracy.” Critical Review of
International Social and Political Philosophy (CRISPP) 15(4): 449–471.
Coleman, J. L. 1982. “Negative and Positive Positivism.” In Ronald
Dworkin and Contemporary Jurisprudence, edited by M. Cohen, pp. 28-
48. London: Duckworth, 1984.
Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge: Harvard
University Press.
Dworkin, Ronald. 1996. Freedom’s Law. Oxford: Oxford University
Press
Dworkin, Ronald. 2011. Justice for Hedgehogs. Cambridge MA: Harvard
University Press.
Dyzenhaus, D. 2007. “The Rule of Law as the Rule of Liberal Principle.”
In Ronald Dworkin, edited by A. Ripstein, pp. 82-108. Cambridge:
Cambridge University Press.
Greenawalt, K. 1977. “Policy, Rights and Judicial Decision.” In Ronald
Dworkin and Contemporary Jurisprudence, edited by M. Cohen, pp. 88-
118. London: Duckworth, 1984.
Hart, H. L. A. 1961. The Concept of Law. Oxford: Clarendon Press.
Hart, H. L. A. 1979. “Between Utility and Rights.” In Ronald Dworkin
and Contemporary Jurisprudence, edited by M. Cohen, pp. 214-226.
London: Duckworth, 1984.
Hart, H. L. A. 1994. “Postscript” to The Concept of Law, 2nd edn.
Oxford: Clarendon Press.
MacCormick, N. 1982. “Dworkin as a Pre-Benthamite.” In Ronald
Dworkin and Contemporary Jurisprudence, edited by M. Cohen, pp. 182-
201London: Duckworth, 1984.
Mackie, J. 1977. “The Third Theory of Law.” In Ronald Dworkin and
Contemporary Jurisprudence, edited by M. Cohen, 161-170 London:
Duckworth, 1984.
Rawls, J. 1971. A Theory of Justice. Oxford: Oxford University Press.
Shapiro, S. J. 2007. “The Hart–Dworkin Debate: A Short Guide for the
Perplexed.” In Ronald Dworkin, edited by A. Ripstein, pp. 56-81
Cambridge: Cambridge University Press.
Waldron, J. 1999. Law and Disagreement. Oxford: Oxford University
Press.
Waldron, J. 2004. “The Rule of Law as a Theatre of Debate.” In Dworkin
and his Critics, edited by J. Burley, pp. 319-335 Oxford: Blackwell.
Waldron, J. 2008. “Can There Be a Democratic Jurisprudence?” Emory
Law Journal