Professor Dworkin's Theory of Rights
| Date | 01 March 1978 |
| DOI | 10.1111/j.1467-9248.1978.tb01528.x |
| Author | Joseph Raz |
| Published date | 01 March 1978 |
| Subject Matter | Article |
PROFESSOR DWORKIN’S THEORY
OF
RIGHTS*
JOSEPH
RAZ
BaIlioI
Cotlege,
Oxford
THE crises of American society during the sixties affected the campuses and therefore the
activities
of
academics more profoundly than they did many other sectors
of
the
community. As a result the sixties in America saw academic theoretical interests being
drawn towards and sometimes even swallowed up by practical political and social
concerns. Professor Dworkin participated in this movement both in his articles in the
New
York
Review
of
Books
on civil disobedience, reverse discrimination and activism
or quietism in the American supreme court, and in his articles in American law journals
reacting to some
of
the major political and legal theories
of
the day such as those of
H.
L. A. Hart, Lon Fuller, Richard Wasserstrom, Lord Devlin, and
John
Rawls. Most
of
these essays are collected in the present volume and they demonstrate the great
strengths
of
the academic contributions to public debate in America: they infused the
best political and moral thought
of
the time into the public discussion of problems of
general and urgent practical concern which were tearing the whole nation apart, and
they turned moral philosophers away from exclusive preoccupation with problems of
moral epistemology and the foundations
of
moral systems towards concrete, everyday
moral questions. Like the best
of
his contemporaries Dworkin is well aware that
preoccupation with current problems may blind one to the flimsiness
of
one’s philo-
sophical foundations and in several articles especially during the last few years he has
addressed himself to the examination
of
the foundations
of
his views. Dworkin is firmly
rooted in the American liberal tradition and is a true heir to previous generations
of
American legal theorists but in both political morality and legal theory he strikes his
own distinctive note. In the following pages
I
shall disregard altogether Dworkin the
commentator
on
current controversies and concentrate on Dworkin the political and
legal philosopher.
1.
The Nature
of
Rights
Rights are at the foundation
of
both Dworkin’s
legal
and political theories. Both
presuppose a distinction between rights and collective goals and his main theses
concerning both politics and law are that in certain matters rights prevail to the
exclusion
of
goals. There are several attempts to explain what ‘a right’ means. The word,
were are told, ‘is used in politics and philosophy in many senses’
(268).
The one eluci-
dated and adopted by Dworkin is said
to
be
‘very close to the sense of right principally
used in political and legal writing and argument in recent years’, and it ‘is the heart
. . .
of constitutional theory in the United States’
(269).
On
four
occasions
Dworkin
specifically raises the question
of
the meaning
of
‘a
right’. The following are his answers:
I begin with the idea
of
a political aim as a generic political justification. A political
theory takes a certain state of affairs as a political aim if, for that theory, it counts
This
is
a
critical review of Dworkin’s
Taking
Rights
Seriously
(London,
Duckworth,
1977).
I
am grateful to H.
L.
A.
Hart,
K.
Campbell,
P.
M.
S.
Hacker, and
H.
Ganz
for
many helpful
comments
on
an earlier draft
of
this article.
Political
Studies,
Vd.
XXVI.
No.
1
(123-137).
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