Dworkin outline Notes for March 8

Outlining Dworkin

Dworkin writes very long articles that take up many different objections and arguments. He consistently provides exceptional examples of analytical writing.

However, it can be a bit much to swallow at one go. In particular, outlining everything would be very cumbersome. But the answer isn’t to abandon outlines entirely. It’s to make them shallower, leaving out the dialectical twists and turns and focusing only on the central arguments instead.

§1 The rights of citizens

This section sets out his aims and assumptions. He’s assuming that citizens have moral rights, distinct from rights that exist only because they are declared in laws. He’s taking it for granted that his audience agrees with him about this. He wants to draw out the implications of that assumption.

§2 The right to break the law

This section is devoted to identifying the dispute about rights that he seeks to resolve. In this case, the disputants are identified as liberals and conservatives. What they seem to disagree about is whether citizens can break the law. However, Dworkin argues, their apparent disagreements cover substantial agreement about philosophical principles.

The discussion of this “orthodox” position that the “liberals” and “conservatives” share (see pp. 187, 190) is a little misleading, since Dworkin himself will propose a different, unorthodox view about the right to disobey the law (see p. 192). Having shown what the liberals and conservatives share in common, in other words, Dworkin proposes something else, which happens to annoy the conservatives more than the liberals.

An important distinction is made here, between what Dworkin calls a right “in the strong sense” and another sense of the term “right” that I will call a right in the weak sense. If someone has a right in the strong sense to do something, it would be wrong for anyone else to interfere with his doing that thing.

This is distinct from its being the right thing for him to do: one might have a right in the strong sense to gamble, even though that’s not a very smart thing to do. Conversely, trying to escape from a prisoner of war camp might not be the wrong thing for a prisoner to do, but the army holding him may not do anything wrong in preventing him from leaving. (188-189)

Dworkin’s position is unorthodox because he takes the main issue to be whether one ever has the right in the strong sense to do something against the law. If so, the government cannot enforce the law or punish the person who breaks it. The orthodox position, by contrast, just holds that citizens sometimes have a privilege to disobey the law but that the government can punish them for doing so, much like the prisoner of war and the army.

According to Dworkin, the normal justification for government action is not sufficient to justify a government action that would would violate a citizen’s right (in the strong sense). According to the normal justification, a government’s actions are justified if they promotes the general welfare or utility. In the case of government acts that violate fundamental rights, however, the normal justification isn’t good enough, though some extreme justifications might be. (191-2)

Dworkin considers the objections of “conservatives” to his contention that the right to free speech is a fundamental right in the strong sense and that government should therefore not interfere with those who exercise it.

§3 Controversial rights

Dworkin compares two models for deciding about what to do when it’s unclear whether a proposed policy would violate an individual’s fundamental rights.

The first model involves balancing individual rights against other social goals. The second model holds that one should err on the side of individual rights instead of balancing. The argument against the one is the argument in favor of the other (197-200). Most importantly, Dworkin identifies what he regards as the grounds of fundamental rights (198-199).

This section closes by re-examining the Chicago Seven case.

§4 Why take rights seriously?

A few short remarks about how protecting rights might have the consequence that citizens will have greater respect for the law.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2007.
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