Taking Rights Seriously (1978) by Ronald Dworkin - A Review
- Stephen Morris
- May 9
- 2 min read
Category | Dworkinian Definition |
Principle | A standard observed because it is a requirement of justice or fairness. |
Policy | A standard that sets out a goal to be reached, usually an improvement in a social feature. |
Background Rights | Abstract rights held against decisions taken by the society as a whole. |
Institutional Rights | Specific rights held against a decision made by a particular institution, like a court. |
Whether or not the "Wilson categories" of Ronald Dworkin's legal theory should inform your writing depends on how you interpret his departure from legal positivism. Dworkin’s Taking Rights Seriously serves as a foundational critique of the "ruling theory of law"—the idea that law is simply a collection of rules established by social institutions (positivism) and that the goal of these rules should be the general welfare (utilitarianism).
If you are developing a framework for adjudication or human rights, Dworkin’s work offers several key conceptual pillars:
1. The Distinction Between Rules and Principles
Dworkin argues that law is not just a "model of rules". While rules function in an "all-or-nothing" fashion (e.g., a speed limit), principles have a dimension of weight.
Rules: If the facts a rule stipulates are met, the rule is either valid—and the answer it supplies must be accepted—or it is not.
Principles: These do not set out legal consequences that follow automatically. Instead, they state a reason that "argues in one direction but does not necessitate a particular decision".
2. Rights as "Political Trumps"
A central "Wilsonian" theme in Dworkin’s work is the idea that individual rights are political trumps held by individuals.
Rights exist when a collective goal (such as the general welfare or economic efficiency) is not a sufficient justification for denying an individual what they wish to have or do.
This directly opposes the utilitarian view that law should serve only the "general welfare".
3. The Rejection of Judicial Discretion
Dworkin challenges the positivist view (held by H.L.A. Hart) that when a case is not covered by a clear rule, a judge has "discretion" to manufacture a new rule.
Dworkin contends that even in "hard cases" where no rule applies, judges are still bound by principles.
Therefore, a judge is not "reaching beyond the law" for extra-legal standards but is instead discovering what the law already requires through an analysis of principle.
4. The Fundamental Right to Equality
In his analysis of justice, Dworkin argues that the most fundamental right is the right to equal concern and respect.
He distinguishes this from a "right to liberty" (which he considers a confusion) and suggests that specific liberties—like freedom of speech—are actually derivatives of the right to equality.
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