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Published online by Cambridge University Press: 01 January 2020
One of the aims of Ronald Dworkin's recent book, Taking Rights Seriously, is to provide a theory of natural rights. His theory is novel and interesting in two respects. First, Dworkin argues that the commonly held belief that liberty and equality are fundamentally opposed to one another is false. Rights to various liberties are themselves derived from a form of a right to equality — what Dworkin calls the right to equal concern and respect. Second, Dworkin thinks that the notion of a general right to liberty, which can be opposed to egalitarian claims, is incoherent.
I wish to thank Thomas Atchison, Marilyn Bennett, Anthony Fressola, Michael Gorr, John Gray, Garry Pech, and Rolf Sartorius for their comments on earlier drafts of this paper. Later drafts of this paper were written during my stay at the Institute for Humane Studies in Menlo Park, California. I wish to express my gratitude to liberty Fund., Inc., for support during my stay at IHS.
1 Dworkin, Ronald Taking Rights Seriously [henceforth called TRS] (Cambridge, Mass.: Harvard University Press 1977) xiii.Google Scholar Dworkin also emphasizes this point in a recent interview. See ‘Philosophy and Politics’ in Magee, Bryan ed., Men of Ideas (New York: Viking Press 1976) 242-60.Google Scholar
2 TRS, 188-91. Dworkin only says that it is wrong to interfere, but I am sure he intended 'coercively interfere.’ After all, it is permissible to reason, beg, plead etc. with a person that he not exercise his right, or to use forms of social pressure to stop him; what is prohibited is the use or threatened use of force or violence, which I shall call coercion.
3 Dworkin, Ronald ‘Seven Critics,’ Georgia Law Review, 11 (1976-7) 1260-1Google Scholar
4 In TRS, 94, footnote 1, Dworkin does make a distinction between rights against citizens and rights against the state.
5 ‘Liberalism,’ in Hampshire, Stuart ed., Private and Public Morality (Cambridge: Cambridge University Press 1978). 126CrossRefGoogle Scholar (henceforth called L)
6 In fact, Dworkin believes the appeal of utilitarianism - the paridigm of a theory concerned with collective goals - is that it seems to embody the right to equal concern and respect. See TRS, 236.
7 At one point ('Seven Critics,’ 1260·2) Dworkin suggests this interpretation upon which I am building.
8 In ‘The Correlativity of Rights and Duties’ Nous, 4 (1970) 50-1, David Lyons argues against this. He claims that there are rights, such as these specified in the First Amendment (Congress shall make no law …’) that do not impose obligation on others, but merely a disability or lack of authority to violate the rights. Yet the First Amendment, says Lyons, still refers to genuine rights, for if Congress legislates in the areas the Amendment says it is forbidden to, citizens are entitled to complain and take their case to court where presumably the legislation will be declared null and void. Regardless of whether this analysis fits legal rights, it won't do for natural (moral, nonlegal) rights. When someone in a non-legal setting violates my moral rights, it is not a question of him lacking the authority to do so; it is that he ought not to do so. And since this ‘ought’ corresponds to specific treatment due an individual, we call it an obligation.
9 TRS, 267; also see p. 277 where he calls it ‘incoherent.'
10 TRS, p. 269; also see L, p. 124.
11 Admittedly, this specification of the right does not handle innocent threats and innocent shield cases as set forth by Nozick, Robert in Anarchy State and Utopia (New York: Basic Books 1974) 33-4.Google Scholar In such cases the use of coercion to combat coercion ends up being used against those who have not themeselves initiated coercion or voluntarily chosen to violate someone's rights. While a theory of rights must eventually account for such cases, all I can say here is this. It may be that when principles for such cases are enumerated, as well as principles for filial authority or putative cases of Justified paternalism, that the right against coercion gets reformulated as the right not to be coerced unjustifiably, where unjustifiably means ‘where there is no special and usually compelling reason.’ Even if the right is reformulated in this way, it would still be fundamental - since the cases of Justified coercion would be sharply limited - as well as coherent.
