Rights

We have come to call Rawls' approach "deontological individualism."  Ronald Dworkin's theory of law is a development and application of that theory to the issue of the standards to use in judicial adjudication where he also elaborates on Lon Fuller's notion of the inner morality of law.  Dworkin begins with what may seem like a criticism or Rawls. He points out that the fact that someone would choose something in the highly artificial original position does not obviously make that choice correct.  How could the fact that we would choose something under those constraints bear on what we should accept now? Rawls' implicitly accepts with this criticism and now characterizes the choice in veil of ignorance feature of his theory as a way of stimulating our moral intuitions.  The real justification is what he calls reflective equilibrium. 

Reflective equilibrium is a method of reasoning in ethics where we try theoretically to harmonize our considered moral judgments or strong moral intuitions.  It is analogous to what we called earlier "inference to the best justification." Rawls thus argues that his two principles of justice are the best theoretical elaboration of our strong moral intuitions about liberty and equality.

Rawls later widened the notion of reflective equilibrium to include not only our moral intuitions but all of our presupposition.  He targeted three as particularly important: our theory of persons, of the well-ordered society, and of the world.  In a still later work, he represented the justification on a much more political model–as a result of bargaining where the alternative is costly conflict.  The "justice" challenge is to find a way to resolve issues via shared principles when we differ in basic values. We won’t say much about these later developments and concentrate on how Dworkin presents the basic idea of reflective equilibrium justification and what it presupposes.

Dworkin begins by wondering why the voting-contract model is even a helpful expository device. He agrees that it is, but wonders what it shows about the deep principles behind our choice.  The crucial feature of Rawls situation of choice, he claims, is the requirement that the decision be unanimous. What that means is that each one of us has a veto power with regard to the principles of justice.  What does this show about the presuppositions behind Rawls two principles?

Dworkin constructs his answer by dividing moral systems into three types: goal based, duty based and rights based. The first aims for some kind of perfection, the second for a conception of something to conform to and the third for an ideal of independence or autonomy.  Rawls' device, Dworkin argues, presupposes the third conception of morality.  It rests on an implicit theory of natural human rights. Dworkin uses the language of natural rights theory but without any commitment to the metaphysics. By calling a right natural, he means only that we must presuppose it in order to bring our moral reasoning into reflective equilibrium (coherence).  The best and most consistent theory to justify our considered moral judgments about justice is the theory that humans have some natural rights.

But what particular right is presupposed in the rule of law – or rather, in Rawls' first principle of justice, which is the one that supports rule of law?

Surprisingly, Dworkin argues, it is not a right to liberty. In fact, he argues there is no such right. We would reasonably veto a proposal to have such right because it would imply a lack of any constraint on the behavior of others. If were disadvantaged in the society (say if we were poor, defenseless, or so forth) we would find an unqualified right to liberty on the part of the rich and powerful a threat to our lives and well-being. Dworkin thus argues that any right to liberty is constrained by an equality condition. That is, we do not have a pure right to all kinds of liberty but to certain basic liberties that we can all exercise equally no matter what our status.  The basic liberties are those whose exercise infringes on no similar rights of others. Examples include such things as freedom of worship, conscience, speech, press, and association.  The equality of such freedoms is not only essential to the capacity for self-respect, but are also achievable without restricting the similar rights of others.

Dworkin, for the same reason, opposes treating right to property as a basic right. The right to control and dispose of what you own is a right that would benefit the well-off more than the poor.  Further, one person's right to property restricts every one else's access to it. We can give some arguments for making property rights basic, e.g., its connection to our self-respect. However, it could only be veto proof if it were combined with strict communism--fully equalized access to property and achieving that would require drastic curtailment of other rights.

The particular liberties we choose are important, Dworkin says, because they promote equal concern and respect.  Hence, he concludes, the deep fundamental right is the right to equal concern and respect in the design of basic institutions. This does not mean that the institutions promote absolute equality, but that each person’s concerns merit consideration as much as any other person’s. Our interests and concerns are respected and valued equally.  This natural rights of humans (as opposed to animals) is based on the now familiar arguments about our capacity.  Humans can plan and select courses of action, conform to the plans and adopt concepts and principles to live b--i.e., we are rational moral agents, persons. We can conform to conceptions, regulate our behavior, understand justifications, make plans, and alter our interests and desires and habits. These capacities deserve respect and social institutions should be build with a concern for beings with such capacities in the forefront.

It is important for Dworkin that we make this appeal to equality in terms of a right, not a want. Equality, he argues, is an entitlement and a mere want is not strong enough to deny it. A right is like a a trump in a card game.  A low trump can beat a high card of any other suit, but still loses to a higher trump.  Our rights can be trumps even against the general welfare, but not to the basic rights of others. (Dworkin emphasizes the basic because he worries that any focus on sheer liberty/freedom undermines the importance of these basic rights. If we don't separate and emphasize basic rights, then any choice that doesn't affect others can take on the character of a "right," e.g., my choice to eat Thai food tonight. Blurring all liberties together tends to turn a rights-theory into a simple utilitarianism, which Dworkin and Rawls agree is a more "socialist" moral theory. It ends up weighing the individual will against the "general will" which, naturally, always tips the balance. This happens when we start to talk about majority "rights" to impose their democratic will on the minority. Dworkin thinks that using the word 'rights' carelessly leads us astray here.

Democracy poses some interesting puzzles for this conception.  First, notice that we can justify democracy by appeal to the right to equal concern and respect. Giving one-person-one-vote demonstrates an equality of respect and is a way of building into the political institutional an equal concern. Since no single citizen’s concerns are more worthy than another's, no one should have more or less than one vote. Democracy is a form of equal treatment and equal protection. Political decisions may still go against some groups and favor others, but their concerns would have been equally weighted by the decision-making mechanism. The same concern has been shown but ultimately outweighed by a similar concern for others.

However, Dworkin argues that this plausible utilitarian justification of majoritarian rule is limited by the very principle that justifies it. His conception of equal concern and respect requires that we make a distinction between personal and external preferences.  Personal preferences are preferences I have for me—like wanting to be a Daoist. External preferences are preferences I have for others—like wanting them to be Daoists too.  The problem with external preferences is that if a majority has them, then the democratic decision-making system will pass a law requiring you all to be Daoists. 

Dworkin says that the principle of equal concern and respect requires that democratic decision-making reflect mainly people's personal preferences. Otherwise, the minority could have their basic rights (e.g., the right to freedom or religion and conscience) removed by a democratic majority. To dictate what a minority shall value and believe is not to show them equal respect or give their sense of values equal concern.  However, it is almost impossible in practice to filter out the impact of external preferences in a democracy. People will vote for a candidate who promotes their religion as they will one who promotes their economic well-being.  We cannot stop this without interfering with freedom of speech and the press and the right to vote.

Thus, he argues, any justified democracy should include another institutional arrangement that works to "sort out" external preferences from the social decision procedure. This means that the some institution serves as a check and balance on the legislature to guarantee that in the pursuit of the majority will, it does not violate the basic rights of individuals. It should treat the basic rights as a trump or veto on the democratic process. The rule of law is justified by the idea that the judiciary should protect certain basic rights against even democratic (utilitarian) majorities seeking to enforce external preferences. 

Thus, ultimately we justify the rule of law by appeal to the right to equal concern and respect. It justifies the principle of maximal equal liberty and the protection of basic rights.  These are essential to self-respect and capable of being exercised undiminished by everyone.