Treating People as Equals

A Yank at Oxford rethinks individual rights

Nine years ago, Oxford University offered its prestigious chair in jurisprudence to a relatively unknown Yale law professor who had not even applied for the post. Ronald Dworkin, then only 36, eagerly accepted. A group of his essays, published this year in book form (Taking Rights Seriously; Harvard University Press; $12), has been hailed by some as the most important work in jurisprudence in years and the most provocative philosophical contribution to that subject by an American scholar. TIME'S David Beckwith visited Dworkin at his summer home on Martha's Vineyard. His report:

On a typical morning, the tanned, sandy-haired law professor pulls on a pair of bathing trunks and is soon put-putting in his outboard en route to a brisk swim in the surf off his small stretch of private beach. An evening might well include conversation with some of the Vineyard's summer literati, such as Lillian Hellman, William Styron or Anthony Lewis. For Dworkin, the leisure is not mere idling, however, but a way of getting new ideas to augment his own original thinking on individual rights.

Dworkin's writing launches a frontal attack on the two concepts, utilitarianism and legal positivism, that have dominated Anglo-American jurisprudence in the 20th century. Utilitarianism, the reigning theory about what law should be, dates from Jeremy Bentham's 18th century dictum that laws should provide the "greatest happiness of the greatest number." Legal positivism claims that individuals possess only those rights that have been granted by man-made law.

To Dworkin, legal positivism is much too narrow, and he faults utilitarianism because it can be used by a democracy to justify disregarding minority rights, since minorities, by definition, are not "the greatest number." Instead, Dworkin offers a "rights thesis," an updated version of the classical natural rights theory that guided the 18th century authors of the Declaration of Independence and the U.S. Constitution. The basic tenet of his rights thesis is that an individual has a natural right "to be treated as an equal," or to be accorded respect, dignity and equal consideration by society.

Dworkin insists that the parties in a court case are often entitled to more consideration than is explicitly written down as "the law," and he feels that judges should be encouraged to range widely, asking fundamental questions and applying ethical principles as well as written legal rules to the case.

"Positivism holds that there is never a single correct answer to novel, hard questions of law. I disagree," says Dworkin. "An able judge may properly think he can find the right answer by considering written law--the Constitution, statutes and previous court decisions--plus all other considerations assumed in a society that has respect for other people's rights." Dworkin concedes that different judges may reach different answers to the same case based on their understanding of society's underlying morality, but he thinks the process is evolutionary and well worth doing. Modifying the axiom that "hard cases make bad law," Dworkin quips: "Hard cases make great judges."

Some Dworkian examples of how his theories would work in practice:

Finding new law Society occasionally has to be forced to treat people as equals. That is the basis of rights. So a judge should act imaginatively when he feels that a minority is threatened with moral and social prejudice. If a specific precedent is not available, the judge should ask whether a principle of justice inherent in the law as a whole covers the case.

Values Conservatives believe society can impose an official set of virtues--such as, talent should be rewarded, or the brighter people deserve more goods. That is a preposterous notion. Why should intelligence be officially superior to any other virtue--color, rhythm or kindness, for example? Obviously, people are not the same. But society should not make pre-judgments like "the intelligent life is the morally superior life."

Abortion funding Assuming the Supreme Court's 1973 decision on abortion was correct, the recent decision allowing cutoff of public funding is simply wrong. The state may consistently pay for an appendectomy while denying funds for cosmetic surgery, because that distinction does not involve any controversial moral views. But the supposed difference between an appendix removal and an abortion does depend on a moral position. The state has no business enforcing a moral judgment on a minority.

Reverse discrimination A qualified white has no inherent right to be admitted to medical school ahead of a less qualified minority member. Nobody has a basic right to a medical education. But the university does have a right to determine its own admissions policy based on many factors, including intelligence, reduction of racial tension and redress of historical inequities. Whites and blacks are owed respect and consideration, but "the right to be treated as an equal" does not always mean "the right to equal treatment." It does always mean, however, that competing interests will be considered in the decision-making process.

Obscenity Laws should not be founded on personal moral judgments. That is why liberals find themselves in court defending people they disapprove of. Pornographers are carriers of issues of principle, though they may lack principles themselves. Etiquette is a more acceptable basis for legislation than morality; "It's the wrong time and place" is acceptable, but "There's no place" is not.

Dworkin's theories have created shock waves among jurisprudential scholars, and much of the response is sharply critical. Says Duke University Law Professor George Christie: "Dworkin misconceives what legal decision making is all about. He views it as the search for right answers rather than a process for producing adequate justifications for legal decisions. Actual cases are simply too complicated to abstract into clear rights and clear duties."

But one measure of the extent to which Dworkin has succeeded in stimulating his colleagues--whether positively or negatively--is the experience of the Georgia Law Review. The editors solicited articles for a special issue on jurisprudence--and found that virtually every contribution addressed the challenging thoughts of the Yank at Oxford.

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