We spent about half of the class introducing a series of distinctions concerning the meaning of the term “right” (see the handout). These are extremely useful for analyzing rights in both morality and the law.
Most of the elements we distinguished from one another are present in the rights that we commonly talk about. That’s the point of the example concerning property rights on the handout. At the same time, it’s possible to have rights that have some of these elements but not others. That’s the point of the examples on the back page of the handout.
Those examples happen to correspond to Dworkin’s distinction between rights “in the strong sense” and rights, uh, not in the strong sense (I called them “rights in the weak sense”). The second half of the session concerned Dworkin’s claims about what is involved in taking moral rights seriously.
Taking rights seriously
Most of us believe that there are rights prior to the specific positive laws of particular states. That’s what you’re committed to believing if you believe in human rights, for instance: individuals have rights that no legal system can repeal. Exactly where those rights come from is the subject of a different class. In any event, Dworkin claims that all participants in the political debate in this society believe that there are such rights. That’s both true and good enough for his purposes.
The burden of the paper is to explain what it means to take such rights seriously.
One of Dworkin’s claims is that what he calls the orthodox position on disobedience and the law, shared by both the left and the right, is wrong. According to the orthodox position, citizens have the liberty to disobey laws that they believe are wrong. However, the government has no duty to allow these citizens to get away with breaking the law and they have to accept its punishments. Dworkin believes that the orthodox position fails to take rights seriously. If citizens have rights “in the strong sense” (a.k.a. claim rights), then the government has duties to allow them to act on their rights. It has those duties even if that means failing to enforce its laws.
Another claim he makes is that the normal justification for government action is not sufficient to justify acts that infringe individual rights. Normally, the fact that a given government action would improve the common welfare is sufficient to justify the action (provided the government follows the proper procedures and so on). There will always be those who object to nearly anything the government does; the fact that its actions serve the general welfare is enough to override those objections. However, Dworkin claims, this is not sufficient justification for acts that violate individual rights. A society that takes rights seriously would not sacrifice individual rights for the sake of the general welfare, even though it is willing to sacrifice individual interests for that reason.
It just occurred to me that I’m not really sure how those two claims go together. They are certainly compatible with one another. But I had thought for years that they are more than that. I had thought they are two different ways of explaining the same idea. But now that I look at them, I don’t see that this is so. Couldn’t someone who accepted the orthodox view about disobeying the law also accept the point about the normal justification for government action?
How should a court (or any other government body) decide a case where it’s unclear whether a fundamental right applies? For example, we know that free political speech is protected by the First Amendment. But what about speeches that seem designed to spark a riot and especially those that precede by riots?
One way of making the decision about whether to extend the First Amendment protection to the controversial case is by balancing the individual interest in speaking against the society’s interest in avoiding riots. Dworkin argues that fails to take rights seriously.
The other way of making the decision is to limit First Amendment protection to any political speech only for very specific reasons. That’s the way of making the decision that Dworkin favors.
I made three complaints.
- The presumption in favor of extending First Amendment protection seems to beg the question. The question is whether there really is a right to free speech in a way that might cause a riot. Since that’s what is at issue, we can’t assume that there is a right to speak in this way and then proceed by asking what is involved in taking a right seriously. By hypothesis, we don’t know if there are any rights involved in the case at hand or not. (I should say that Alex made a good case against this point).
- Dworkin hasn’t really eliminated what a normal speaker would call “balancing”. He allows a government to ignore even fundamental rights when the costs of respecting them would be extremely high. That’s still balancing the costs of respecting the right against the benefits from doing so; it’s just giving a lot of weight to rights in the balance.
- I proposed a way of understanding Dworkin’s position that would distinguish it from any recognizable sense of “balancing”. I said that he might say we should compare individual rights against individual rights. We should not count up or aggregate everyone’s interests in suppressing an individual’s rights.
- Thus, if respecting A’s right to speech would result in, say, 100 deaths in a riot, you would compare one individual’s right to life against A’s right to free speech. You would not compare 100 individuals’ right to life against A’s right to free speech. A would lose either way in this case.
- But if we’re comparing A’s right to speech against 1,000 people’s right to travel without annoyance, things might turn out differently. A’s right wins against an individual’s right to travel without annoyance, even if A’s interest in speaking seems small compared with 1,000 individuals’ interests in getting home on time.
- Of course, that might strike you as giving too much weight to individual rights. At least, that’s the way it struck Will and me. But that’s another issue.