Dworkin on rights Notes for March 9

Main points

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.”

Distinctions

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:

1. Claims: someone else has a duty corresponding to the right.
2. Privileges or liberties: the person with the right lacks a duty.
3. Powers: the person with the right has the ability to change rights and duties.
4. Immunities: others lack the ability to change the rights and duties of the person with the right.

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.

I illustrated the distinction with an example of a so-called right to do wrong.

You have a liberty to do Q if there are no obligations not to do Q. You have a claim right to do Q if others have obligations not to interfere with your doing Q.

Suppose Q = yelling at my kid for a minor infraction, making him cry and driving all the other shoppers in the store crazy. I assert the following:

1. It’s wrong of me to do Q. I have obligations to the kid and to the shoppers not to do that.
2. It would be wrong of others to interfere with my doing Q. My parenting skills, alas, are none of their business.

That is a description of a case in which I have no liberty to do Q but I have a claim right to do Q.

Taking rights seriously

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 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. But what is the alternative? It isn’t exactly refusing to balance anything at all: Dworkin agrees that rights should be infringed to avoid disaster. Instead, he thinks that recognized rights, such as rights of free expression, should be limited only for very specific, narrowly defined reasons.

But, you might think, the devil lurks in the details. The third reason is that the cost of respecting the right would be very high. But how high does it have to be and how do we determine that cost without comparing social interests against an individual’s interests?