Dworkin’s task is to explain what is involved in taking rights seriously. He maintains that people who believe there are moral rights “in the strong sense” are committed to believing that government should tolerate law-breaking in some cases, namely, when laws conflict with rights. This separates Dworkin’s “unorthodox” view from the orthodox one held by both “liberals” and “conservatives.”
We began with a series of distinctions that will be useful in discussing rights.
Specifically, most of the rights that we talk about can be broken down into separate elements. These include:
The familiar rights that we began with combine these elements in various ways. The legal right of free speech, for instance, is primarily a legal immunity: Congress cannot make a law abridging freedom of speech. It also gives citizens legal claims: they can sue a government agency that abridges the right of free speech. And there is, obviously, liberty involved: there cannot be a legal obligation against exercising the right of free speech.
Dworkin’s “rights in the strong sense” are claims or claim-rights (the terms are used interchangeably). His “rights in the weak sense” are liberties or privileges.
Taking rights seriously, according to Dworkin, means that the normal justification for government action is not good enough when the action might infringe on rights. That is a good way to put the point, in my opinion.
But how should courts or other government officials resolve cases in which it is not clear whether a government action would infringe on individual rights? Dworkin argues that it will not do to balance society’s interests against those of the person whose rights will be infringed. That would be to use the normal justification for government action.
Dworkin argues that a society that takes rights seriously will not try to balance individual rights against society’s rights. The point was that a society that worked in this way would always favor the society over the individual and that, Dworkin claimed, would not take individual rights seriously.
Callum wanted to go even further: he didn’t think it made sense to talk about society having any rights at all. I’m not sure I would join him, though. I think that society is represented by the state. The state, in turn, has rights. It has the right to defend its society against foreign invasion, for example. It also has the right to pass and enforce laws. And it has the right to employ violence to punish those who violate the law. (Here’s an interesting exercise: analyze those rights using the categories listed earlier.) To put it another way, I think there is a genuine question of why the state is permitted to employ force to punish people. I also think there’s an answer and that this answer means the state does nothing wrong in punishing. That amounts to saying that the state has a right to do that, in the sense of liberty.
But that’s my opinion.
Dworkin doesn’t actually try to establish that individuals have rights. He takes this for granted on the grounds that governments (now) all brag about how they respect individual rights. For the purposes of deciding how governments should treat those who engage in free speech and civil disobedience, the proposition that there are no rights at all is just not in dispute.
In our next reading, Hart will take a stab at the question of why individuals have rights.