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| Taking Rights Seriously | |
|---|---|
| Name | Taking Rights Seriously |
| Author | Ronald Dworkin |
| Country | United States |
| Language | English |
| Subject | Constitutional law; political philosophy |
| Publisher | Harvard University Press |
| Pub date | 1977 |
| Media type | |
| Pages | 368 |
| Isbn | 9780674156807 |
Taking Rights Seriously is a 1977 work by Ronald Dworkin that reshaped debates in constitutional law, jurisprudence, and political philosophy. The book challenges prevailing doctrines associated with legal positivism, H.L.A. Hart, and Kelsen and advances a rights-centered theory influencing scholars, judges, and institutions across Anglo-American and international legal cultures. It situates rights within a framework connected to figures such as John Locke, Immanuel Kant, John Stuart Mill, Jeremy Bentham, and modern thinkers like Lon Fuller and Joseph Raz.
Dworkin wrote during a period marked by debates involving H.L.A. Hart after the publication of "The Concept of Law", responses from H. L. A. Hart and exchanges including Fuller and Kelsen traditions. The book engages controversies connected to landmark cases and institutions such as Brown v. Board of Education, Roe v. Wade, the United States Supreme Court, and comparative practice in courts like the House of Lords and the European Court of Human Rights. Influences include historical thinkers like Thomas Hobbes, Baron de Montesquieu, Alexis de Tocqueville, William Blackstone, and contemporary legal philosophers such as H.L.A. Hart, Joseph Raz, Lon L. Fuller, John Rawls, and Michael Oakeshott.
The intellectual milieu also featured debates among scholars at institutions including Harvard University, Yale Law School, Oxford University, Cambridge University, the University of Chicago Law School, and groups such as the American Bar Association and American Philosophical Association. Political and legal events such as the Watergate scandal, the work of Warren Court, and shifts in constitutional interpretation by figures like Earl Warren and William Rehnquist framed public responses.
Dworkin argues against a strict separation of law and morality propounded by proponents associated with H.L.A. Hart and echoes criticisms directed at John Austin and Jeremy Bentham. He proposes that individual rights are trumps against utilitarian aggregate calculations associated with John Stuart Mill and Jeremy Bentham and develops the notion of rights as grounded in principles rather than mere rules, connecting to debates advanced by John Rawls and Ronald Dworkin's interlocutors.
Central themes include the concept of the "right answer" in hard cases, the model of judges as constructive interpreters influenced by traditions traced to John Locke and Immanuel Kant, and the critique of positivist accounts resembling work by Kelsen and H.L.A. Hart. Dworkin introduces doctrines such as "rights as trumps" and elaborates interpretive methods similar to hermeneutic practices associated with scholars at Princeton University and Columbia Law School. He contrasts principled adjudication with pragmatic approaches linked to Richard Posner and Legal Realism proponents like Oliver Wendell Holmes Jr..
Taking Rights Seriously has implications for constitutional interpretation in jurisdictions influenced by texts and figures like the United States Constitution, the Federalist Papers, and decisions by jurists including Benjamin Cardozo, Felix Frankfurter, Antonin Scalia, Ruth Bader Ginsburg, and Thurgood Marshall. It reorients debates about judicial review practiced by institutions such as the United States Supreme Court and the European Court of Human Rights, and informs theory related to rights instruments like the Universal Declaration of Human Rights and the European Convention on Human Rights.
Philosophically, it engages with metaethical questions addressed by G.E. Moore, W.V.O. Quine, Gilbert Ryle, and A.J. Ayer, while interacting with political theory from John Rawls, Isaiah Berlin, and Michael Sandel. The work influences discourse on statutory interpretation in systems shaped by the Judicial Committee of the Privy Council, appellate review in the Supreme Court of Canada, and constitutional courts such as the Constitutional Court of South Africa.
Critics include advocates of legal positivism like H.L.A. Hart and defenders of pragmatic judicial restraint associated with Richard Posner and Frank H. Easterbrook. Scholars from the Critical Legal Studies movement, including figures tied to Duncan Kennedy and Roberto Mangabeira Unger, dispute claims about objectivity and the "right answer". Conservative jurists and commentators aligned with Antonin Scalia and Robert Bork object to Dworkin's methodological commitments, favoring textualist or originalist approaches connected to Edwin Meese and Judge Learned Hand's jurisprudential legacy.
Philosophers such as Jürgen Habermas and Alasdair MacIntyre raise broader concerns about rational consensus and moral grounding; utilitarians like Jeremy Bentham's intellectual heirs and contemporary proponents such as Peter Singer contest the privileging of deontic rights over consequentialist calculations. Empirical legal scholars at institutions like University of Chicago and Stanford Law School have challenged normative claims with behavioral and socio-legal evidence.
The book shaped later work by scholars including John Rawls's interpreters, Martha Nussbaum, Cass Sunstein, Ronald Collins, Philip Bobbitt, and influenced judges across the United States and other common law systems. It contributed to curricular shifts at law schools such as Harvard Law School, Yale Law School, and Columbia Law School and informed human rights advocacy by organizations like Amnesty International and Human Rights Watch.
Dworkin's philosophy resonated in constitutional drafting and adjudication debates in countries including South Africa and in supranational bodies like the European Union and the Inter-American Court of Human Rights. It spurred further literature addressing rights theory by authors such as Ronald Dworkin's contemporaries and successors including Jeremy Waldron, Joseph Raz, Charles Taylor, and Stephen Holmes.
Reception ranged from acclaim among proponents of rights-based jurisprudence to sustained critique by positivists, textualists, and critical theorists. The book remains central in seminar discussions at universities including Harvard University, Oxford University, Cambridge University, Yale University, Princeton University, and law faculties worldwide. Contemporary relevance is visible in debates over privacy rights in cases involving technology giants like Google and Facebook, in litigation before the Supreme Court of the United States and tribunals such as the European Court of Human Rights, and in policy discussions involving international instruments like the International Covenant on Civil and Political Rights.
Category:Books about law