On Taking Rights Seriously

Ronald Dworkin's title is also his thesis: that a society committed to rights must take them seriously, which means treating them as genuine constraints on what government may do even when overriding them would be convenient or popular. Taking Rights Seriously, published in 1977, is the central statement of his philosophy of law, and it is a sustained argument against the idea that law is merely a system of rules backed by force, and against the idea that rights are simply whatever the powerful choose to grant.

Dworkin's first target is the dominant theory of law of his time, which held that law consists of rules laid down by recognized authorities, and that where the rules run out, judges simply exercise discretion, making new law as they see fit. Dworkin argued that this misdescribes how law actually works. Beyond the explicit rules, he contended, the law contains principles, standards of justice and fairness that have moral weight and that judges are bound to consider even though no statute commands them. When a hard case arises that the rules do not clearly settle, judges are not free to decide however they like; they must reach the answer that best fits and justifies the law as a whole, the answer the underlying principles require. There is, Dworkin famously argued, a right answer even in hard cases, though reasonable people may disagree about what it is.

His second and deeper argument concerns rights themselves. To take rights seriously, Dworkin insisted, is to understand them as trumps, as claims that individuals hold against the majority, which cannot be overridden simply because doing so would produce a marginally greater good for society as a whole. A right that gives way whenever it is outweighed by collective benefit is not really a right at all. The whole point of a right is that it protects the individual even when the numbers favor sacrificing them, even when the majority would prefer otherwise. A government that respects rights only when convenient does not respect them.

This is a demanding conception, and a deeply political one. It is the philosophical foundation for the idea, central to constitutional democracy, that there are things the majority may not do to the individual no matter how large the majority or how strong its preference, the idea embodied in a bill of rights. Dworkin gives that idea its most rigorous defense, against both the legal theorists who would reduce law to commands and the utilitarians who would let rights yield to the greater good.

The book belongs in this library because the nature and weight of rights is one of the foundational questions of self-government, and Dworkin is among its most important modern thinkers. It pairs naturally with Hart's The Concept of Law, also on these shelves, whose theory Dworkin was in part arguing against, and with Rawls's theory of justice. Taking Rights Seriously is in copyright and widely available in print and digital editions. It is philosophically demanding but lucid. Read it for the argument that rights are only real if they hold even when it costs us something to honor them.