D
Dworkin, Ronald - Theory of
Rights
Anthony R. Reeves
Department of Philosophy, Binghamton
University, Binghamton, NY, USA
Introduction
Dworkin famously characterizes political rights as
trumps, and his explication of this idea is his
central contribution to general theorizing about
rights. The claim that rights are trumps primarily
concerns one question we might ask about the
nature of moral rights: what is the practical force
of a moral right? Or, slightly differently: what do
moral rights accomplish in terms of our reasons
for action? Dworkin’s view is that political rights,
i.e., the moral rights asserted by individuals
against their government in liberal societies, gen-
erate distinctive practical requirements that effec-
tively disable otherwise operative justifications
for acting. The theory is somewhat narrow, then,
in offering an account of the role of rights in a
liberal political theory, rather than an analysis of
moral and legal rights assertions generally.
Intuitively, the basic idea can be expressed as
follows. Suppose we think that utility promotion
is typically sufficient grounds to justify structur-
ing public rules in one way or another. For
instance, if a system of traffic regulations
increases efficiency overall, the fact that the
# Springer Nature B.V. 2018
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
https://doi.org/10.1007/978-94-007-6730-0_4-2
system is inconvenient for me (because, for
instance, it increases my commute time compared
to another system) does not render the system
illegitimate. On the other hand, if I assert a right
to free expression, for example, Dworkin has it
that I am claiming that a policy restricting my
protected expression is illegitimate (and wrongs
me) if all that can be said in its favor is that it
promotes utility overall. A policy restricting
unpopular political speech, for instance, is illegit-
imate even if it produces a marginal gain in utility.
The right trumps a utilitarian justification. The
nature of rights’ trumping, though, requires
explication.
Main Text
Dworkin provides a formal and a substantive
characterization of rights. The formal account
states the general features of both a successful
justification of a right and a right as a component
of any liberal political morality. The substantive
picture displays how rights operate on one partic-
ular normative political theory. Formally, an indi-
vidual right grounds a requirement whose force is
the justificatory power of a political theory’s goals
the right outcompetes. A goal is a state of affairs
the basic commitments of a theory seek to pre-
serve or attain, so that action promoting that goal
is recommended or required by the theory. For
instance, a theory might demand maximum satis-
faction of preferences, the cultivation of human
2 Dworkin, Ronald - Theory of Rights
excellence, or the pursuit of a certain type of
national character. If goals compete within a the-
ory, we can assess their value and the extent to
which they would be served by various policies
and aim for optimal expected value. A right mod-
ifies this logic by generating an obligation to an
individual that can undermine maximal goal pro-
motion. A right-holder’s claim on obligation-
bearers withstands or “trumps” a certain level of
goal promotion, the degree of a right’s resistance
to goals being its force. “The strength of a partic-
ular right, within a particular theory, is a function
of the degree of disservice to the goals of the
theory, beyond a mere disservice on the whole,
that is necessary to justify refusing an act called
for under the right.”1 When rights compete, we
ought to prefer the stronger to the weaker.2
Dworkin’s label of rights as “trumps,” then, is
modestly misleading. In cards, any trump card
defeats any nontrump card, no matter the value
of the nontrump card. Although it is possible that a
political theory could have rights that defeat all
goal-based reasons, frequently rights will only
outcompete some of those reasons (or will be
especially undermining with respect to some
types of goals, and less so against others – see
below). Given a strong enough “goal card,”
rights-based obligations will not prevail.
Why would a political theory include rights
among its normative components? It appears that
Dworkin’s most general, considered answer is
this: in order to protect individuals’ sphere of
self-determination from communal goals in a
way that enhances fidelity to the political theory’s
foundational commitments (the commitments that
would also explain why and how any particular
goal generates reasons). Dworkin is clear that
what is distinctive about theories that give rights
pride of place is their concern with protecting
individual thought and choice by creating duties
in others. The reasons of such duties are sourced,
so to speak, in individuals, i.e., in the significance
of individual independence for them. If a theory
1 6
Ronald Dworkin, Taking Rights Seriously (Cambridge,
MA: Harvard University Press, 1977), 169–170.
2
Ibid., 193–194.
merely needed to constrain goal promotion to
retain fidelity to its central commitments, it
could simply introduce self-standing duties,
duties that do not treat individuals as the ground
of duties.3 It is when and where pursuit of a
theory’s goals threatens the proper recognition of
the significance of individual independence
(on the theory’s own terms) that rights will prop-
erly be recognized.4 Consequently, for Dworkin,
rights will only have a role in a political theory
that takes individual independence seriously.
Dworkin’s explication of rights in terms of a
substantive political theory raises some interpre-
tive difficulties about how far his views evolved
over the years, especially since he apparently
gives (at least) two different accounts of the
trumping phenomenon as part of an egalitarian,
liberal political theory.5 I think the theory can be
stated in a unified way, and it appears to have been
his intention that it be so treated, so I will suggest
how to do so here, while acknowledging the com-
plexity. First, though, I discuss the background
political theory in terms of which he articulates
the substantive view. Dworkin frequently dis-
cusses rights in the context of a utilitarianism
requiring optimal preference satisfaction and
sees utilitarianism’s goal as a plausible basis for
much legitimate government policy.6 However,
preference utilitarianism is attractive as a political
theory, Dworkin contends, because of its facially
egalitarian nature: “Utilitarianism owes whatever
appeal it has to what we might call its egalitarian
cast. . .Utilitarianism claims that people are
treated as equals when the preferences of each,
weighted only for intensity, are balanced in the
same scales, with no distinctions for persons or
merit.”7 Utilitarianism is plausible as part of a
3
Ibid., 170–177.
4
A Matter of Principle (Cambridge, MA: Harvard Univer-
sity Press, 1985), 369–371.
5
Yowell’s careful textual analysis of the evolution of
Dworkin’s views shows this clearly. See Paul Yowell, “A
Critical Examination of Dworkin’s Theory of Rights,”
American Journal of Jurisprudence 52, no. 1 (2007).
See, for example, Dworkin, Taking Rights Seriously, 191.
7
A Matter of Principle, 361. See also Taking Rights Seri-
ously, 233–234.
Dworkin, Ronald - Theory of Rights
political theory because it is plausibly supported
by an egalitarian norm: people deserve to be
treated by their government with equal concern
and respect, in accordance with their dignity as
persons. This is a crucial idea for Dworkin, gen-
erating a place for rights in a political theory that
otherwise seeks impartial preference satisfaction
and explaining the structure of rights’ interaction
with utilitarian justifications. The core of “equal
concern and respect” is that political entitlements
ought to be arranged so as to give equal regard to
each person’s ability to determine for herself how
to live a worthwhile life. Politically established
opportunities, goods, and protections from inter-
ference ought to enable each person to indepen-
dently endeavor to live well by her own judgment
and do so without distinction based in a view of a
person’s worth or a life’s merit.
Government must treat those who it governs with
concern, that is, as human beings who are capable
of suffering and frustration, and with respect, that is,
as human beings who are capable of forming and
acting on intelligent conceptions of how their lives
should be lived. Government must not only treat
people with concern and respect, but with equal
concern and respect. It must not distribute goods
and opportunities unequally on the ground that
some citizens are entitled to more because they are
worthy of more concern. It must not constrain lib-
erty on the ground that one citizen’s conception of
the good life of one group is nobler or superior to
another’s.8
I should emphasize two separate items here, as
they inform the logic of Dworkin’s approach in
distinct ways. First, a government has reason to
treat people with respect, i.e., to create conditions
for an independent, self-determining life. This is a
basic reason of political morality to secure for
individuals control over their lives, not a response
to a preference or desire for such control.9 Second,
the structure of entitlements cannot be a response
to differential evaluations of persons or the lives
they pursue. This would be to fail to give equal
8
Taking Rights Seriously, 272–273. Dworkin offers a sim-
ilar statement of the idea in Justice for Hedgehogs
(Cambridge, MA: Harvard University Press, 2011), 330.
9 13
See Taking Rights Seriously, 176.
3
respect to people’s capacity and responsibility to
discern a valuable form of life.10
Now returning to Dworkin’s substantive char-
acterization of rights, Dworkin first says that a
right works to counteract utilitarian justifications,
as such (i.e., whatever the character of the utility
or preferences at issue). If I have a right to free
expression, the government has a duty to avoid
intruding upon expression within the scope of the
right, and this duty cannot be overridden merely
on grounds of a marginal gain in utility. Normally
(on the theory in question), such a justification
would be adequate to legitimate government pol-
icy, but not when a right is at issue – the force of
the particular right setting the bar for how much
utility gain would render invasion permissible.11
The right to free expression would be justified by
showing that the freedom has value from the
perspective of treating persons as independent,
dignified beings. The force of a right depends on
its significance from this point of view, whatever
people’s preferences.12
On the second substantive picture of rights,
Dworkin describes them as categorically dis-
abling certain preferences from counting as polit-
ical justifications.13 Again, on the theory being
considered, preferences count as reasons for struc-
turing entitlements in a way that would satisfy
them because this gives effective recognition to
people’s self-determination. Normally, when pref-
erences are counted equally, people are shown
equal concern and respect. However, some of
our preferences concern not our own lives (call
self-regarding preferences “personal prefer-
ences”), but the lives of others (call other-
regarding preferences “external preferences”).
One might prefer that some or all of certain others’
preferences are satisfied or dissatisfied because
one regards their mode of life as noble or ignoble,
or certain of their preferences as base or worthy, or
those persons’ as having greater or lesser inherent
10
For further discussion, see Justice for Hedgehogs,
191–218, 327–378.
11
See, for instance, Taking Rights Seriously, 190–191.
12
Ibid., 198–200.
Ibid., 223–239, 66–78; A Matter of Principle, 335–372.
4 Dworkin, Ronald - Theory of Rights

worth, or simply because one likes or dislikes overall preferences in the community that we
them. For instance, one might prefer that another’s know, from our general knowledge of society, are
likely to contain large components of external pref-
preferences be discounted in weight because of erences, in the shape of political and moral theories,
her race, gender, or ethnicity, or prefer that which the political process cannot discriminate and
another’s preferences be given greater weight in eliminate.14
politics because of her devotion to certain kind of
Rights have a proper role in state institutional
spiritual excellence. If external preferences were
practice, then, of eliminating certain decisions
permitted to count (on par with personal prefer-
from democratic purview, and this role is a func-
ences) in political justification, it would violate
tion of democratic procedure’s relationship to
the more basic commitment to equal concern and
illicit (from view of equal concern and respect)
respect since some people’s self-determination
relationship to external preferences.
would effectively be privileged. If external pref-
Apparently, then, Dworkin offers two different
erences favor the preferences of group A, and we
accounts of rights as trumps. On one version, a
count those preferences as reasons in settling enti-
political right trumps some degree of preference
tlements, then A members will have greater scope
satisfaction-based justification by supplying a
for realizing their ends than nonmembers. Simi-
preference-insensitive mandatory reason to act
larly, if external preferences that disfavor group
consistent with the right’s corollary prescriptions
B are counted, the resulting structure of the social
or proscriptions. A right thereby affects the total
world will disadvantage their self-determined
array of reasons to be legitimately relied upon for
aims. Slightly differently, to treat external prefer-
political action, essentially by adding nontrivial
ences as political reasons is to make the structure
reasons that operate independent of people’s pref-
of entitlements responsive to evaluations of peo-
erences (and hence, are only contingently consis-
ple’s lives and choices, or views that understand
tent with maximal preference satisfaction). When
the worth of persons discriminately. This is a core
we claim that the right to free expression trumps
part of what the fundamental value of equal con-
“collective welfare” on some issue, we are simply
cern and respect forbids, and hence, rights prop-
saying that the rights-based reasons of equal con-
erly limit the goal of maximal preference
cern and respect outweigh reasons of preference
satisfaction by disabling external preferences in
satisfaction in a practically important way. The
political justification.
balance of reasons does not, in this case, favor
In practice, the second account views rights as
maximal preference satisfaction, and to pursue a
counteracting preference-sensitive decision-
maximizing policy would violate at least some-
making procedures that are unable to reliably
one’s right by not according it adequate weight.
ignore external preferences. In the context of con-
On the second picture, rights trump by categori-
stitutional democracy, we can see rights as claims
cally disabling certain types of preferences as
against democratic legislatures. Dworkin con-
sources of legitimate reasons for political action,
tends that such legislatures are largely sensitive
preferences that tend to threaten equal concern
to the preferences of constituents, but cannot reli-
and respect in prevailing social conditions.
ably constrain external preferences from affecting
A right to sexual autonomy, for instance, articu-
decisions. In matters where external preferences
lates a constraint on the types of decisions that the
have tendency to intrude into democratic decision,
otherwise fair political process can reach, forbid-
political rights prohibit results that are likely a
ding decisions that could only be grounded in
feature of those preferences specifically.
external preferences. These two accounts, more-
It should be plain how this theory of rights might be over, can deliver different verdicts on the same
used to support the idea. . .that we have distinct case. Taking Yowell’s example of a statute that
rights to certain liberties like the liberty of free
expression and of free choice in personal and sexual prohibits newspapers in order to reduce paper
relations. It might be shown that any utilitarian
constraint on these liberties must be based on
14
Taking Rights Seriously, 277.
Dworkin, Ronald - Theory of Rights 5

consumption, the preference excluding model has successful justifications for political action
no objection to the law, so long as the justification (justifications that are facially recommended by
for the law appeals only to personal preferences the goals of the theory), and that disability
(e.g., personal preferences concerning the price of improves conformity with the underlying values
paper goods). On the other hand, supposing the of the theory.
prohibition overburdens expression relevant to
individual independence and free self-
determination, a justified claim of a rights viola-
Conclusion
tion appears available on the model of rights as
reasons. On that model, rights can count against
I will offer a final word concerning Dworkin’s
any utilitarian justification, not simply justifica-
understanding of “human rights.” As we have
tions based on external preferences.15
seen, Dworkin treats political rights as theory
What should we make of this? My suggestion
relative. In contrast, human rights – such as
is that we see Dworkin’s analysis as complex,
those appealed to in the Universal Declaration of
rather than conflicting and dis-unified. Although
Human Rights – are to be seen as both distinct
he develops the different approaches on different
from political rights and less tied to a particular
occasions, he appears to affirm versions of both at
theory of justice. A human right, for Dworkin, is
various points in his later work16 and acknowl-
fundamentally a claim to an attitude on the part of
edge that his discussions differ in emphasis.17
governors: that they treat those they govern as
Perhaps more importantly, there is nothing inco-
dignified human beings, i.e., as creatures deserving
herent about including both accounts as part of the
equal concern and respect on some plausible inter-
analysis of political rights. In the context of pref-
pretation of that idea. Whereas the contours of
erence utilitarianism, a political right can perform
a political right would be tied to a particular under-
as a significant reason to structure entitlements in
standing of equal concern and respect, the perspec-
a certain way (independent of anyone’s prefer-
tive of human rights is more abstract in that permits
ences), as a claim against a legislative outcome
an array of possible interpretations. To violate a
likely generated by external preferences, or both.
human right is to treat someone in a way that no
A right to free expression, for instance, might
intelligible interpretation of equality could allow –
insulate a sphere of liberty from a certain degree
by, for instance, treating some prejudicially in law,
personal preference satisfaction by being a
or imprisoning someone without due process, or
weighty reason and prohibit categorically intru-
punishing heresy.19 Although human rights require
sive legislative initiatives grounded in preju-
an attitude of seeking to treat people with dignity
dice.18 Moreover, both models fit at least the
in good faith, the conditions for the satisfaction
thrust of the formal role of rights in a political
of human rights are public and objective.
theory: rights serve to disable otherwise
The distinction between human rights and other
political rights is of great practical importance and
theoretical significance. It is the distinction between
15
Yowell, “A Critical Examination of Dworkin’s Theory of mistake and contempt. The test, I emphasize, is
Rights,” 105–106. Yowell concludes that the accounts are, interpretive; it cannot be satisfied simply by a
in fact, in tension. nation’s pronouncement of good faith. It is satisfied
16
For instance, the “rights as reasons” model is affirmed at only when a government’s overall behavior is
Dworkin, Justice for Hedgehogs, 329. The “preference defensible under an intelligible, even if unconvinc-
excluding model” is affirmed at Freedom’s Law: The ing, conception of what our two principles of dig-
Moral Reading of the American Constitution (Cambridge, nity require.20
MA: Harvard University Press, 1996), 101–104.
17
Taking Rights Seriously, xi–xv.
18
Some of Dworkin’s discussion of preference exclusion
seems to suppose complex rights by treating certain 19
spheres of activity as prima facie protected from legislative Justice for Hedgehogs, 332–339.
20
intrusion. See, for example, ibid., 277. Ibid., 335–336.
6 Dworkin, Ronald - Theory of Rights
Are human rights in any sense trumps? This is
unclear and closely related to another interpretive
difficulty facing Dworkin’s theory of rights.
Throughout much of his work, Dworkin asserts
that it is a right to equal concern and respect that
sits at the basis of political justice. Given that, on
Dworkin’s analysis, the force of a right is its trump
of other justifications within the theory, it is uncer-
tain what it means to say that the normative basis
of a theory is a right. What is it trumping? As
Waldron notes, “The force of this underlying
right, and of other rights which are derived from
it directly, is not captured either by the trumping
image nor explained by the external preferences
argument.”21 Nonetheless, however we are to
understand the practical force of fundamental
and human rights, Dworkin’s theory of rights
offers a sophisticated and plausible account of
the nature of many political rights assertions.
Cross-References
▶ Rights (general)
▶ Rights and Collective Goods
▶ Rights, Moral and Legal
21
Jeremy Waldron, “Introduction,” in Theories of Rights
(New York: Oxford University Press, 1984), 17.
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