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Taking Rights Seriously

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Taking Rights Seriously

Harvard UP,

15 min read
10 take-aways
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Individuals possess moral, legal and political rights – whether the state recognizes them or not.

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Editorial Rating

9

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  • Analytical
  • Innovative
  • Eloquent

Recommendation

In the mid-1970s in America, controversies over thorny questions surrounding the rights of dissenters, minorities and women, as well as free speech and abortion abounded, and legal positivism dominated jurisprudential thought. One of the most influential thinkers in American jurisprudence, Ronald Dworkin (1931–2013) entered this fray with a series of essays which put forth a radical theory of law that posed a powerful challenge to prevalent views. Dworkin explains why individual rights exist independent of legal recognition, and outlines how judges and lawyers should think about and argue for them. Dworkin’s sophisticated but accessible essays are necessary reading for lawyers, lawmakers and judges, but getAbstract also recommends them to lay readers who care about legal practice, political philosophy or the history of law.

Summary

The “Ruling Theory of Law”

Legal positivism – the dominant theory of law – asserts that the law is made up of rules about the use of public power. According to this theory, no law exists outside of these rules. In cases where the law does not stipulate a ruling, judges have discretion to decide as they see fit. By “reaching beyond the law,” judges arrive at decisions that create new laws or add to existing ones. The process by which legal rules gain validity distinguishes them from other kinds of rules. Some legal rules (secondary rules) define how other legal rules (primary rules) come into or pass out of existence. The prevalent positivist view holds that in each community, a “rule of recognition” provides the standard, ultimately, by which the legality of all other rules is determined. Too, according to positivism, no legal rights exist except for those provided by the legal rules.

Positivism errs in its assertion that judges and lawyers only rely on legal rules when they argue and reason, however. In actual fact, they also base their justifications and decisions on principles. A principle’s power...

About the Author

Ronald Dworkin (1931–2013) was Professor of Philosophy and Frank Henry Sommer Professor of Law at New York University. One of the most highly regarded and influential legal philosophers of the post-war era, his numerous publications include Freedom’s Law and A Matter of Principle. 

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