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Introduction of Taking Rights Seriously by Ronal Dworkin
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Review of Taking Rights Seriously
By Ronald Dworkin
Kimberly Harding
PSC 129
March 31, 2005
Ronald Dworkin's Taking Rights Seriously is a collection of randomly written essays about rights in American society. There is no flowing or continual thesis throughout the book as each essay has its own separate thesis. However, each essay does supposedly try to define and defend a particular theory of law: known as the ruling theory of law but Dworkin does a poor job of actually explaining this theory. Basically, the theory has two parts: one about what law is and the second about what the law is supposed to be. Even so, few chapters in the book reflect this theory, or apply this theory to their individual theses.
(Due to the randomness of the book and the lack of continuity, I was forced to summarize each chapter individually. I apologize in advance.)
Chapter 1: Jurisprudence
This chapter discusses issues of political jurisprudence, when there is no general agreement in the world of law on how to proceed in particular cases and whether it is important to figure one out. For example, it discusses questions such as \"Do men have a moral obligation to obey the law?\" or \"Do judges always follow rules or do they sometimes make rules up and apply them retroactively?\" and \"What makes these new rules valid, especially in that particular case?\" Dworkin claims that at the heart, these are issues of moral principle, not issues of fact or strategy, and in effect, we must treat them as such. Finding answers to these questions will not lie in having talented or persuasive lawyers take on particular cases but rather in finding out where our values lie as a society and what principles we hold dearest.
Dworkin also discusses the notions of blame, fault, and cause. He uses the example of a drunk driver who hits a pedestrian. While the pedestrian's injuries would not normally be fatal, this particular pedestrian was a hemophiliac and subsequently bleeds to death. Who is to blame and should the driver be punished as a murderer? Dworkin's thesis is that \"in general, we will only be prosecuted for acts done with the awaresness that prosecution might follow (10).\" Thus, if we are to prosecute someone to the fullest extent, there should moreorless have been a decision by the defendant to break the law.
Chapter 2: Model of Rules I
The point of this chapter is to try and refute the theory of legal positivism. The simplest explanation of legal positivism contains three principles:
• The law of a community is a set of special rules used to determine which behavior will be punished.
• This set of rules is exhaustive of the law. If no law exists for a particular case, a judge can use his discretion to reach beyond the law if he deems it necessary.
• Someone has a \"legal obligation\" if there is a valid legal rule that requires or forbids him to do or not do something (17).
Criticisms of this theory call into question the issue of whether a citizen is obliged or obligated to follow \"rules\". The claim is that citizens are obligated to follow \"rules\" when they are bound the law. These rules are binding if one of the following statements holds true:
• The community or group accepts the rule as a standard of conduct
• A secondary rule stipulates that rules so enacted shall be binding (for example, a Constitution) (20)
*It is also important to note that accepting a rule as binding based on one of these statements is not the same as personally \"making it a rule to do something\" (29). Rules, however, are different than principles. Different principles can have different weight or importance in society. Rules, on the contrary, can be functionally more or less important than others, but cannot have more or less importance in the entire system of rules. If that were the case, then it would be difficult to ever enforce an entire system, as one rule would always be able to outplay another. Despite their differences, principles are still important in the functioning of our legal system, which raises the question: Can principles be applied as law(29)?
The issue of discretion is one of the most significant parts of this chapter. In the sense used for this matter, judicial discretion is the idea that no higher authority reviews the decision made by the courts. Since no one is reviewing the judge's decision, there are standards that determine when a judge may or may not overrule or alter an established rule. These are:
• The change must advance a principle (in question during the case) worth advancing
• The judge must take into account the more important standards that argue against a departure from established doctrines (37).
Dworkin disagrees with legal positivism because he feels it is wrong to suppose that there is a fundamental test for determining which standards count as law.
Chapter 3: Model of Rules II
This chapter defends a response Dworkin received when he published Model of Rules I. Dworkin states that the law does not say what citizens ought or ought not to do; it simply lists their duties and rights of what they can or cannot do. Also, social rules can provide a citizen with duties as well. For example, there is a social rule providing that a judge has the duty to identify and apply standards as law. Any disagreements with this idea are not where the judge's duty to decide lie, but rather about how the judge ought to decide. There is also a difference between the existence of these rules and duties and the acceptance of them by the people. If the rules are accepted, the people apply the rule as a guide to their daily life.
Chapter 4: Hard Cases
Hard cases frequently arise in American politics. Oftentimes, \"even when no settled rule predisposes a case, one party may nevertheless have the right to win,\" says Dworkin (81). There are two kinds of arguments, he says. Arguments of policy justify their decision by advancing or protecting some collective goal of the community as a whole. Arguments of principle show that the decision rendered respects or secures an individual group or right. Dworkin believes that \"judicial decisions in civil cases characteristically are and should be generated by principle, not policy(84)\" because it is more important to take individual rights in society seriously.
When settling a case, the argument for a particular rule may be more important than the argument from that rule to the particular case. This is shown by the tendency of judges to try to appeal to past cases or rules or try to explain the constraints they feel by history, even when instituting a new rule. Very seldom do judges practice unoriginality in their decisions. Additionally, judicial decisions must be justified by arguments of principle, not policy, as again, the individual rights must be taken seriously. Even so, judges must remember that history can be mistaken and thus, judges must make their own decisions and use humility when hard cases arise so as not to continually infringe upon individual rights in society.
Chapter 5: Constitutional Cases
Contrary to popular belief, the Constitution is not a vague document, nor was it intended to be. It only seems vague when we take clauses to be incomplete or schematic attempts to lay down particular conceptions. These phrases are really only moral concepts and could not be made more specific even if more detail was used. The Constitution rests on the idea that men have moral rights against the State.
Chapter 6: Justice and Rights
This chapter discusses John Rawls' hypothesis that if a group of rational men and women come together to form a social contract and act only in their own self-interest, they will choose his two principles of justics, which are:
1. Every person must have the largest political liberty compatible with a like liberty for all.
2. Inequalities in power, wealth, income, and other resources must not exist except in so far as they work to the absolute benefit of the worst-off members of society.
Rawls comes to this conclusion as a result of the concept of \"reflective equilibrium\", or the state in which, after much contemplation and decision-making, we are satisfied, or as much satisfied as we can reasonably expect (156).
Dworkin rejects this hypothesis on the grounds that the situation is hypothetical, thus Rawls can make no real argument. Additionally, the group must use \"antecedent\" and not their actual interest, because if they are allowed to use hindsight or apply information retrospectively, their choices would undoubtedly change.
Chapter 7: Taking Rights Seriously
In this chapter, Dworkin tries to answer the question of \"What rights do citizens have?\" The Constitution does not tell us whether it recognizes all the moral rights that citizens have or even that citizens would have a duty to obey the law, even if it did invade their moral rights (185).
Does an American ever have a moral right to break the law? Dworkin takes the position that a man must honor his duties to his God and his conscience. If these morals conflict with those of the State, he must use his own judgment, but be ready to submit to the judgments and/or punishments of the State if he chooses to break the law. There is a difference between having the right to do something and the assumption that this action is the \"right\" thing to do (188). If a man believes that he has the right to break the law, he must then ask himself if it is right to exercise that right.
While the government chooses not to enforce a law, even if it is bad, respect for the law is weakened and society suffers. Thus, it is the responsibility of the government to create laws that do not violate the morals of individuals, as a person should not be conflicted in whether or not he should morally break the law. Additionally, the it is very important to create and support an institution of rights because \"it represents the majority's compromise to the minorities that their dignity and equality will be respected(205)\".
Chapter 8: Civil Disobedience
The points made in this chapter particularly refer to draft dodgers. Dworkin acknowledges that the government will collapse if it tolerates all disobedience, however, there is no evidence to suggest that it will collapse if it tolerates some. There always seem to be exceptions to the rules and sometimes there are reasons not to prosecute (like if someone had a good reason for dodging). However, we must wonder whether the failure to prosecute some dodgers will lead to wholesale refusals of citizens to serve.
The first question that we must consider is whether or not the law is valid. After all, no real crime is committed if the law is invalid. There were many moral positions against the war in Vietnam and there were arguments that the Vietnam War draft was unconsitutional. Also, if the government accepts refusals to be drafted on religious grounds, how can it turn down refusals based on moral grounds? If one believes that a law is or could be invalid, he basically has three options:
1. Obey the law, but try to change it using the political process
2. Disobey the law, have a court decide the case, then abide by the court's ruling
3. Disobey the law, have a court decide the case, act contrary to the decision of the Court if it is not in your favor, since the Constitution is not always what the Court says it is (210-11)
If we follow the first model all the time, we lose the necessary tests of our legal system that are vital for the proper functioning of our government. The second modeal should also be rejected, as the Court can and does overrule itself. Thus, the third model is what Dworkin claims we should typically do, as it is arguable that the Court made a mistake and we should follow the path of our rights.
Chapter 9: Reverse Discrimination
This chapter examines the differences between two cases of \"racial discrimination.\" In the first case, a black man, Sweatt, was refused admission to the University of Texas Law School because a state law provided that only whites could attend, a violation of his 14th Amendment rights. In the second case, which was never decided, a white man, DeFunis was refused admission from the University of Washington Law School, although his college grades and test scores were such that he would have been accepted if he were an ethnic minority. DeFunis argued that this was also a violation of his 14th Amendment rights.
This would have been a tricky case, if pursued, because DeFunis has no right to a legal education as a citizen and intelligence is frequently not the only criterion for admission. He does however have the right that race not be used as a standard for admission. \"There really is no good legal argument in favor or DeFunis in this case unless there is a good moral argument that all racial classifications, even those that make society as a whole more equal, are inherently offensive to an individual's right to protection for himself,\" says Dworkin (226).
There are has two kinds of equality rights:
• The right to equal treatment: the right to equal distribution of some opportunity, resource, or burden
• The right to treatment as an equal: the right to be treated with the same respect and concern as anyone else (227)
DeFunis does not have the first kind of right in this case, however, he indisputably has the second kind of right in regards to admissions standards. However, any admissions policy is justified if it serves a proper policy that respects the right of all the members of the community to be treated as equals, but not otherwise (239).
Chapter 10: Liberty and Moralism
The ideas discussed in this chapter pertain mainly to views on homosexuality. Dworkin refers to Lord Devlin's Macabbean Lecture, in which he states:
• Some moral conformity is essential to the life of society. Thus, society has the right to insist on some conformity to preserve its existence.
• Society can use punishment to enforce these rights.
• Society should not exercise this right against every form of immorality.
Based on these assumptions, Devlin summarizes that \"if [homosexuality] is genuinely regarded as an abominable vice, society's right to eradicate it cannot be denied (243).\"
Chapter 11: Liberty and Liberalism
There was no point to this chapter.
Chapter 12: What Rights do we Have?
Dworkin believes that the public's consensus to favor the right to liberty is vast, but misguided (266). This is because any law created is an infraction to personal liberty, although it may be justifiable to protect the liberty and security of others. Even so, these laws do not take away anything we have a right to have (269). Thus, we have a right to liberty only as long as it does not compete with other stronger rights, such as equality. We may argue for certain liberties specifically, but that, says Dworkin, is different than arguing for liberty as a whole. Therefore, there is no such thing as any general right to liberty (277).
Chapter 13: Can Rights be Controversial?
Dworkin simply defends some of his previous theses against objections he received. No new points. This book, to me, seemed like too random of a collection of essays. The lack of a main thesis made the book hard to follow and essentially very boring. I felt that the ideas in the book would have remained much more powerful if he had kept them as what they were: separate essays. Also, many of the essays were just reviews or his thoughts on the works of others, not significant enough to really form the backbone of a book. The book was also outdated, as you may assume. It was written in the 70s and thus, while some of the issues he discusses were pertinent at the time, the views of society have changed dramatically. Take for instance the section on homosexuality. This book discusses punishing homosexuality and trying to eliminate it from society, whereas now we are promoting gay rights and gay marriage. Times have certainly change. There are also references to desegregation and the draft, issues that have moreorless passed their prime. Lastly, I felt that the editing of the book could have been better, as I found many errors, especially with run-on sentences and the lack of commas. Some words were even misspelled. Maybe it is just me, but I expect more from a published work.
I agree with Thomas Conrad that there is no continuity to this book. Conrad cites points such as how individual rights are put second to public policy and the judge's desire to act in the public interest, judgments determining what are the exact moral rights require much moral reasoning by the judges, and how a government must acknowledge the right of citizens to break the law. However, I think he focuses too much on Dworkin's representation of Hercules in the book, as I did not find it to be as crucial to the book as he did. |
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发表于 2005-11-23 15:13:35
发表于 2005-11-23 15:58:12
