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Jeremy Waldron [FNa1]

Journal of Legal Studies,January, 2000

Copyright © 2000 University of Chicago; Jeremy Waldron

This note corrects a serious misrepresentation of the views of Ronald Dworkin on the subject of rights, in a recent paper by Richard Pildes. The note makes it clear that Dworkin's theory of rights is based on a conception of limits on the kinds of reason that the state can appropriately invoke in order to justify its action. The idea of "rights as trumps" is an expression of this conception. "Rights as trumps" does not, as Pildes believes, express an alternative view of rights (which Pildes argues against), in which rights protect certain key interests against any demands made in the name of the general good.

A RECENT article in the Journal of Legal Studies, by Richard Pildes, entitled "Why Rights Are Not Trumps," [FN1] is marred by a serious misrepresentation of Ronald Dworkin's account of individual rights. The aim of this note is to set the record straight and to encourage readers to treat the phrase "rights as trumps" more carefully, paying more attention to the argument that is used to support the "trumping" idea.

Pildes argues in his article that rights are better understood as (a) constraints on the kinds of reasons that government may legitimately act upon, than as (b) simple protections for certain individual interests against the demands of the common good. He labels view b the "rights as trumps" conception. The image of "rights as trumps" is familiar from the work of Ronald Dworkin. [FN2] And, indeed, Pildes attributes conception b to Dworkin and criticizes Dworkin for neglecting conception a. [FN3]

*302 But there is a problem for Pildes's critique. Even though Dworkin uses the term trumps to describe rights, he explicitly rejects view b. In fact, the account of rights that Dworkin provides in Taking Rights Seriously and elsewhere is almost exactly the view that Pildes chides him and his followers for not taking. It is something like view a--namely, the view that the function of rights is to preclude governmental actions motivated by reasons that denigrate or express contempt for certain members or sections of the community. I am afraid there is no doubt about this. Dworkin is quite explicit that the point of rights is to counteract the ineliminable presence of "external preferences" (views that people may have about the value of others or the worthiness of others' desires) in utilitarian and majoritarian justifications for state action. [FN4] Dworkin writes:

I wish to propose the following general theory of rights. The concept of an individual political right, in the strong anti-utilitarian sense I distinguished earlier, is a response to the philosophical defects of a utilitarianism that counts external preferences and the practical impossibility of a utilitarianism that does not. It allows us to enjoy the institutions of political democracy, which enforce overall or unrefined utilitarianism, and yet protect the fundamental right of citizens to equal concern and respect by prohibiting decisions that seem, antecedently, likely to have been reached by virtue of the external components of the preferences democracy reveals. [FN5]

Immediately following this passage, Dworkin reinforces the point that his conception of rights is a type a rather than a type b conception by criticizing the idea of a right to liberty of contract (as sustained, for example, in Lochner v. New York). [FN6] "I cannot think of any argument that a political decision to limit such a right, in the way which minimum wage laws limited it, is antecedently likely to give effect to external preferences.... If, as I think, no such argument can be made out, then the alleged right does not exist." [FN7] This is exactly the view that rights should be invoked only in cases where invocations of the common good are likely to have been polluted by a prohibited class of reasons.

*303 In a later piece, Dworkin is even more explicit. He notes that various objections to his theory "suppose that whatever rights people have are at least in large part timeless rights necessary to protect enduring and important interests fixed by human nature and fundamental to human development, like interests in the choice of sexual partners and acts and choice of religious conviction." [FN8] That supposition would amount to a type b view, that is, a view of the type that Pildes criticizes. But Dworkin goes on immediately to distance himself from it: "That is a familiar theory of what rights are and what they are for, and I said that I would not give my reasons, in this essay, for thinking that it is in the end an inadequate theory of rights." [FN9]

There is no tension between Dworkin's type a view and the image of "rights as trumps." Trumping contrasts with balancing: we choose trumping where a balancing analysis would for some reason be inappropriate. That is exactly the case with Dworkin's type a view. Rights are made trumps over general utility only because the way to establish that a right exists is to show (i) that utilitarian or majoritarian arguments in a given area are likely to have been corrupted by the wrong sort of reasons and (ii) that it is impossible to disentangle those reasons from whatever respectable reasons a utilitarian or majoritarian argument may also comprise. Once we have shown i and ii, then we may not appeal back to the utilitarian or majoritarian case to counterbalance the right: to allow such an appeal would be to give force to a corrupt argument against the very consideration that was introduced to offset the corruption.

Thus, the "trumping" force of rights, on Dworkin's theory, is not a way of rendering certain individual interests as such impervious to considerations of the general good. Nor is it a way of saying that certain individual interests require special protection against majorities. And it is certainly not a way of committing oneself to "atomism." [FN10] Instead, the idea is that certain reasons are to be excluded from politics, and the term trumps simply expresses a determination not to let such excluded reasons back in. It does not (at least in Dworkin's theory) represent any standing opposition (in the name of individuals or their interests) either to ordinary political appeals to the common good or to the general interest of the community.

It is difficult to understand why Pildes missed all this. The view I have described is set out most clearly in chapters 9 and 12 of Taking Rights Seriously, but it has also figured in Dworkin's work since then. I have already *304 mentioned the article "Rights as Trumps," which continues to be cited commonly in discussions of Dworkin's work. [FN11] Law's Empire talks about the "rights securing each person's independence from other people's prejudices and dislikes," [FN12] and it argues that the rights upheld in Brown v. Board of Education [FN13] could be explicated "either on grounds of banned sources, that some preferences must be disregarded in any acceptable calculation of what makes the community better off on the whole, or on grounds of banned categories, that some properties, including race, must never be made the basis of legal distinction." [FN14] Both interpretations suggest a type a "excluded reasons" approach--the sort that Pildes applauds in his article. In Life's Dominion, Dworkin argues against an interpretation of the right upheld in Roe v. Wade [FN15] as a right protecting the individual woman's interest in controlling her physical body, and in favor of a First Amendment-- based interpretation that associates abortion rights with the exclusion of religious or quasi-religious reasons as grounds for coercive prohibitions. [FN16] Dworkin's most recent book is Freedom's Law, which collects together a number of his pieces on public policy issues such as abortion, pornography, academic freedom, defamation law, and judicial appointments. Throughout this book, when rights are in question, they are always presented in terms of the exclusion of certain sorts of reasons for official action rather than the immunization of particular interests for their own sake. Abortion rights are presented, as they are in Life's Dominion, in terms of the wrongness of governments imposing a view about the sanctity of fetal life; [FN17] free speech rights are presented in terms of the exclusion of reasons that governments might have for thinking that people need to be protected from communications of a certain character; [FN18] and academic freedom is interpreted on the basis of certain reasons being inappropriate in regard to the appointment and tenure of university professors. [FN19]

It is true that in all these cases, the right in question can be presented *305 as a right protecting an interest--the interest in reproductive autonomy, in speaking freely, and so on. But that does not make the underlying view of rights a type b rather than a type a view. Everything depends on whether our understanding of the right is that a certain interest, understood in itself, is to be insulated from any compromise or derogation in the name of the general good, or whether our understanding is that the interest in question is just an interest in not being at the mercy of certain sorts of reasons and considerations. I think Dworkin has pretty consistently presented rights in the second of these ways. The same conclusion can be reached if one looks at the right from the perspective of the correlative duty. If we are dealing with a genuine type b conception, then the duty will tend to be phrased bluntly as a duty not to limit or interfere with a specified interest. But if it is a type a conception, then the duty will tend to be presented as a duty to refrain from interfering with the interest for certain reasons. The language of "interests" is present in both cases, but it is a mistake to assume that the presence of this language by itself shows that the aim is to protect the interest against all interference, irrespective of how that interference is motivated or justified.

It is a pity that Pildes spoiled his argument with this misrepresentation, for the general case he makes is a good one--I mean Pildes's own affirmative argument about how to understand rights. [FN20] As he puts it:

Rights are ways to channel the kinds of reasons and justifications government can act on in different domains; rights enable courts to attend to the expressive dimensions of governmental action and the social meanings those actions convey. Because rights are not trumps over the common good, they can be qualified when the state acts on the basis of justifications consistent with the character of the relevant common good in question. That is what makes a state interest compelling, not its "weight." The "right" to vote means that government may not make financial means a basis for defining political competence. The "right" to free speech means that government may not attempt to politically indoctrinate public-school students. The "right" to freedom of religious conscience means that government may not act for the purpose of endorsing religion or religious sects. [FN21]

As Pildes emphasizes, this approach to rights accords with constitutional practice, it explains the partly expressive and symbolic character of rights, and it provides for a less centrifugal right-based politics than a theory that insists that specified individual interests are simply to be privileged, come what may. This is an important case to make; but there is a danger of its *306 being discredited when readers cotton on to the fact that it is coupled with a misrepresentation of current work in the area by others.

Also, by misrepresenting Dworkin's account, Pildes fails to enlist a powerful ally for his more sophisticated understanding of rights. He prefers instead to join in an almost knee-jerk association of Dworkin's theory with the views of those who share only the Dworkinian terminology. [FN22] This is a pity. Precisely because Dworkin's work is associated so tightly in the literature with the image of "rights as trumps," a proper representation of the theory that lies behind that image in Dworkin's work would have a salutary effect on rights-thinking generally. People might hesitate before adopting a type b view, or before assuming that liberals generally are committed to a type b view, if they knew that one of the best-known and best-worked-out theories of rights in recent times was in fact a theory that adopts a type a view.

The fact that Pildes is wrong (and that he has also made a strategic error) in identifying Dworkin as an opponent of type a conceptions does not mean that he and Dworkin agree about everything. There is surely room for disagreement even once the main confusion is sorted out.

I can think of four possible sources of disagreement between Pildes and Dworkin. (1) The two theorists may not share exactly the same views about which reasons are or ought to be prohibited and why. In particular, Pildes may not accept Dworkin's grounding of his view about these issues on a foundational right to equal concern and respect. (Still, some of Pildes's comments about the importance of the expressive dimension of rights come close to Dworkin's position.) [FN23] (2) Pildes may or may not think the distinction between external and personal preferences is a particularly helpful one in this regard. (3) Pildes may reject Dworkin's views that we can identify ex ante areas of political concern where the wrong sort of reasons are likely to be present, and that we can set up rights as more or less permanent correctives in those areas. (4) Pildes's remarks about balancing suggest--though I am not certain about this--that he does not think that rights on *307 conception a have a sufficiently robust and independent existence to be balanced against one another. [FN24] If an appeal to a right is just a way of excluding a certain type of reason in politics, then rights may not have a long enough half-life to conflict with one another, as opposed to blocking the reasons that they are supposed to exclude. Dworkin's remarks on balancing seem to indicate that he thinks it may sometimes be necessary to balance one right against another, though the way he suggests that this should be done is by paying attention to whether the reasons that one or the other of the rights is supposed to exclude are really present in the particular political conflict, on one side or the other. [FN25]

These are challenging issues. And it surely would have been better to focus on disagreements such as these--recognizing that not everything is settled once we opt for a type a rather than a type b conception--than to distract us with a misrepresentation that underestimates the complexity and the interest of Dworkin's approach to rights.

[FNa1]. Maurice and Hilda Friedman Professor of Law and director of the Center for Law and Philosophy, Columbia University. I am grateful to the editor of and an anonymous referee for this journal for some helpful suggestions, and also to Richard Pildes for a graceful, timely, and informative response.

[FN1]. Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Stud. 725 (1998).

[FN2]. Ronald Dworkin, Taking Rights Seriously, at xi (1977).

[FN3]. Pildes, supra note 1, at 727. See also Richard H. Pildes, Two Conceptions of Rights in Cases Involving Political "Rights," 34 Hous. L. Rev. 323, 325 (1997).

[FN4]. For reasons that are a mystery to me, Pildes makes no reference whatsoever in his article to this aspect of Dworkin's theory. And that is despite the fact that the Dworkinian argument associating rights with the exclusion of external preferences is well known in the literature and is the focus of one of the best-known critiques of Dworkin's view: see H. L. A. Hart, Between Utility and Rights, in Essays in Jurisprudence and Philosophy 198, 208- 21 (1983).

[FN5]. Dworkin, supra note 2, at 277.

[FN6]. Lochner v. New York, 198 U.S. 45 (1905).

[FN7]. Dworkin, supra note 2, at 278. See also the argument on 232-38, which distinguishes between utilitarian arguments for segregation and utilitarian arguments for affirmative action. Dworkin maintains that rights may not be invoked to oppose affirmative action because there is no reason to believe that consequentialist arguments in favor of affirmative action have been corrupted by prejudice in the way that consequentialist arguments for segregation almost certainly were.

[FN8]. Ronald Dworkin, Rights as Trumps, in Theories of Rights 152, 164 (Jeremy Waldron ed. 1984).

[FN9]. Id.

[FN10]. Compare Pildes, supra note 1, at 729. See, by contrast, Ronald Dworkin, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom 61, 167 (1993).

[FN11]. Dworkin, supra note 8 and accompanying text. A longer version of Rights as Trumps is included in Dworkin's collection, A Matter of Principle 335 (1995), under the title Do We Have a Right to Pornography? For the relevant sections of that argument, see 369-72.

[FN12]. Ronald Dworkin, Law's Empire 307 (1986)

[FN13]. Brown v. Board of Education, 347 U.S. 483 (1954).

[FN14]. Dworkin, supra note 12, at 388.

[FN15]. Roe v. Wade, 410 U.S. 113 (1973).

[FN16]. Dworkin, supra note 10, at 154-68.

[FN17]. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 92-110 (1996).

[FN18]. Id. at 200, 238.

[FN19]. Id. at 254.

[FN20]. See also Richard H. Pildes, Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law, 45 Hastings L. J. 711, 724 ff. (1994).

[FN21]. Pildes, supra note 1, at 761.

[FN22]. There is no doubt that many people who use the slogan "rights as trumps" do hold a theory of the sort that Pildes criticizes--that is, that the function of trumping rights is to protect crucial individual interests against those of the community--and that they do associate it with Dworkin. For two examples, taken more or less at random from the recent literature, see Evan Tsen Lee, On the Received Wisdom in Federal Courts, 147 U. Penn. L. Rev. 1111, 1131 (1999): "I use the term 'right' in Ronald Dworkin's sense, that rights are 'trumps.' For Dworkin, a right is an individual preference that trumps other preferences"; and Thomas F. McInerney, Common Ground: Reconciling Rights and Communal Concerns in Real Property Law, 25 B.C. Envtl. Aff. L. Rev. 831, 847 (1998): "Rights are trumps over the majority will; by definition they involve an attempt to shield individuals from the intrusion of social forces."

[FN23]. See Pildes, supra note 1, at 754-60.

[FN24]. Id. at 733 ff.

[FN25]. See Dworkin, supra note 2, at 200. See also the discussion of the difference between pure balancing and excluded-reasons approaches to rights conflicts in Jeremy Waldron, Rights in Conflict, in Liberal Rights: Collected Papers 1981-1991, at 203, 220-24 (1993).
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