Reviews for Taking rights seriously

The average rating for Taking rights seriously based on 2 reviews is 3.5 stars.

Review # 1 was written on 2011-03-02 00:00:00 Amber Tissandier Do human rights exist before laws are made, or do laws create them? Are law and morality even commensurable? Dworkin argues that they are. In a twist on the usual approach, he starts with law and works back toward moral theory in a series of essays. Three of the topics he covers give examples of his thinking. Legal Positivism: Under the theory of legal positivism rights are thought to be purely a product of jurisprudence. Positivists like this detachment from moral reasoning, which they don‘t believe should supersede legal reasoning. Law, construed as a system of rules, means courts decide cases based on statutes, precedent, or judicial discretion in hard cases. Dworkin distinguishes several concepts in order to look critically at positivism. He notes a difference, for example, between laws of policy which set goals and laws of principle which set standards. It is the latter that entail rights and bring law into the moral realm. No one, then, can really say that only legal principles can count in legal arguments. Legal rules require justification, which inevitably leads to moral reasoning. Law, Dworkin writes, is no more independent of moral reasoning than of any other discipline. The use of precedent, as an example, upholds equal consideration, an idea that depends upon moral principles. With judicial discretion, positivism holds that litigants have no rights until a judge rules. Dworkin disputes this and argues that it is a judge’s duty to discover rights in hard cases, not to invent new law. Equality: Dworkin devotes some of the book to Rawls’s theory of justice. He distinguishes between antecedent and actual self-interest in order to justify the original position (the choice of equality as one's core political value). He writes that to abandon the original position would mean to abdicate moral reasoning altogether. Rights, as opposed to duties or goals, are the real basis for a sound political structure. And the most essential of these is the right to equality. Making a distinction between rights and liberties, Dworkin denies a general right to liberty, saying it cannot provide an adequate basis for rights. He argues that there isn’t any one general liberty but instead many, each justified by separate arguments. Individuals could not be sure the general concept would protect their legal standing and have reasons to suspect it would not. They may have interests that can be protected only by political constraints on others. The writer disputes what he calls the “dangerous notion” that individualism is the enemy of equality. Utilitarianism: The author argues that political rights are a response to the defects of utilitarianism and a right to equality is anti-utilitarian. Utilitarianism applies only to issues of policy. Legal and political principles, on the other hand, are rights-based. Thus, a goal-oriented right to liberty claimed by some cannot trump the claim to equal treatment by others. Laws of policy, on the other hand, take away nothing an individual has a right to. Thus, utilitarian arguments of policy respect equality, whereas utilitarian arguments of principle do not. Rights are trumps over appeals to the collective welfare. ------- Some issues remain because Constitutional law in the United States has had difficulty isolating the problem of rights against the state. Dworkin suggests that by rejecting the positivist approach to law, the difficult clauses of the Bill of Rights would be understood as referencing moral concepts, not as laying down some specific conception of rights. But, he asks, does the Equal Protection Clause extend past laws of principle to include laws of policy? The 13 chapters of this book are followed by a lengthy but enlightening appendix in which Dworkin replies to critics of his essays and extends a discussion of consequentialism. I like that. On the other hand, the index was much too short and doesn’t include many of the binary concepts Dworkin uses. The reading can get tedious, but only for short stretches. Otherwise, the book is a significant contribution to political philosophy. I recommend it for people interested in the question of how morality can be converted to political doctrine.

Review # 2 was written on 2014-05-02 00:00:00 Tucker Langlois 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?