The Blackwell guide to the philosophy of law and legal theory Book

Dworkin aims at a grandly ambitious apologia for moral liberalism in this book, trying to defend an enlightenment philosophy of human rights and common welfare against attack from the Left and Right. Towards the Left, Dworkin argues against legal positivism, which says that laws are essentially arbitrary and political in nature, a matter of interest groups and power rather than justice. Towards the Right, Dworkin makes a case for judicial discretion and the use of law to advance equality even at the cost of liberty. Written through the mid 70s, these books deal with issues that are still salient today-civil disobediance, affirmative action, the balance between public and private interest, and the legal philosophy of Strict Constructionism.

Jeremy Bentham called human rights 'nonsense on stilts'. How then should a philosopher who considers himself a utilitarian include human rights in their system of justice? Dworkin sets up a three tiered system: at the bottom is policy-the enacted and enumerated laws and legal precedents that describe how disputes are to be resolved and the public good obtained. Policy should be describable by legal principles, the foremost being consistency--that the same principles describe all similar cases. Above principles is morality, and the idea that rights serve as a kind of override on the utilitarian calculus of politics. Drawing from Rawl's veil of ignorance, Dworkin develops fundamental rights of liberty and equality of respect (not outcomes, or even opportunity). From a utilitarian perspective, personal preferences (those affecting only yourself) are legitimate, while external preferences (those affect others) are not. Dworkin's judges are active, intelligent, moral agents, responsible for seeking balance between competing principles and interests according to their own interior sense of rightness. Ordinary citizens act as judges as well, whether in matters of conscience like avoiding the draft in an unjust war, or in selecting their representatives.

Dworkin's thinking is dense and subtle, and there's a lot for ideologues of any stripe to dislike and misinterpret in this book. From my own perspective, I'm concerned about the prescriptive vs descriptive elements of this book. Judges should be moral adjudicators balancing competing rights in a society that protects both liberty and the common good. However, after Foucault and Jasanoff, judges are agents which create knowledge and exercise power. What purpose do rights serve in a more descriptive account of the law?