Dworkin’s Rights Thesis

Ronald Dworkin set out a third theory in Jurisprudence, separate from naturalism and positivism.
In Law's Empire, Dworkin has distinguished three legal conceptions: conventionalism, pragmatism
and "law as integrity”. By criticizing conventionalism and pragmatism, Dworkin concludes that "law
as integrity" is the most plausible and defensible.

Dworkin provides a third theory of law, which he believes not only better represents what actually
happens when judges decide cases but is also a morally better theory of law. Integrity is Dworkin's
version of legal theory.

The social origin of Rights

Dworkin believes that the specification and guaranteeing of the rights of individuals is a
fundamental requirement for justice in society. Each person has an equal basic right to equal
concern and respect.
For Dworkin, the rights of individuals arise not from some metaphysical source, but from the
social, political, and legal institutions of the society in which they live. These rights express and
protect certain interests which the majority of people in such a society commonly regard as
valuable.
When the members of a society generally agree on the value of certain interests, they tend to
articulate such interests in the form of abstract rights. You may find general or abstract rights to life,
liberty, private property, and certain rights pertaining to the protection and maintenance of self-
respect. In most cases these rights are then institutionalised so that they become concrete rights,
which the institutions of that society will be geared to protect. Certain standards are put in place to
safeguard these rights.
Such standards include rules of law and legal principles. Social policies may also be developed which
tend to advance the welfare of the society’s members generally and these may govern the processes
of legislation and government. Legal rules and principles are used by judges during the adjudication
of disputes to determine the rights of individuals and to determine the extent of individual liberty.
These standards make up the “moral fabric” of the society in question. Since they are used to judge
and to evaluate the justice or injustice of the social institutions in their operation.
The legal protection of rights
The courts, for Dworkin, are extremely important vehicles for the articulation and safeguarding of
the rights of individuals against undue interference by other social institutions in the pursuit of the
wider goals of general welfare. The legislature in a particular society, for example, will have regard
to matters of policy in creating arrangements for the general good. The implementation of these
policies may have the effect of restricting the enjoyment of individual rights by certain members of
society.
Where such interference occurs, there is usually a dispute between the individual and the state or
other groups of individuals regarding the extent of the individual’s rights and the limits of social
goals. In such a situation, it is then the role of the judge to determine what rights a person has and
to ensure the institutional protection of such rights. Sometimes, these rights are clearly specified by
clear rules of law, in which case the judge merely applies the rule to the facts and comes up with an
answer. In some cases, no rule of law will clearly apply, and the judge has to rely on principles in
determining the disputed rights.
 Principles, Policies and Rules
Another crucial cornerstone in Dworkin’s theory is the distinction he makes between principles,
policies and rights.
Dworkin believes that, in making decisions on the basis of standards other than rules, judges
should, and in fact do normally, rely on principles rather than on policies. He defines the distinction
between principles and policies in the following way:
‘Principles’ are standards relating to aspects of justice, fairness, and morality. These are broader
than rules, and in the adjudication process they are concerned with rights.

Principles are, however, distinguished from 'Policies': policies are concerned with a social goal, such
as providing subsidies for farmers affectedly floods. Policies are therefore a matter for the
legislature.

Principles and Policies are different from 'Rules’ because rule could only determine whether a
particular act is valid or not. There is nothing in between, for instance a will must be witnessed by
two witnesses and if only one has signed, then the will is invalid. A rule has, therefore, an all or
nothing character.

General distinction - Principles are propositions that describe rights; policies are propositions that
describe goals.
Distinction between a principle-based and a policy-based approach to justice: Arguments of policy
justifying a political decision by showing that the decision advances or protects some collective goal
of the community as a whole. The argument in favour of a subsidy for aircraft manufacturers, that
the subsidy will protect national defence, is an argument of policy. Arguments of principle justify a
political decision by showing that the decision respects or secures some individual or group right.
The argument in favour of anti–discrimination statutes, that a minority has a right to equal respect
and concern, is an argument of principle.
Rights as “trumps”
For Dworkin, rights, as described by principles, are ‘trumps’ which serve to protect the individual
against the encroachment of measures which seek to advance collective goals.
To this extent, a right is a claim which an individual person can make that their interests be not
sacrificed for the sake of the advancement of some social goal. The requirements of pragmatism
and utilitarianism may sometimes mean that legislators will make decisions based on policies
which are intended to secure some benefit, substantial or otherwise, for society generally. Such
policies may require the sacrifice or at least a limitation of certain individual rights, including the
general right to equal concern and respect. Justice requires that the courts should protect these
rights and so principles must become the basis for judicial decisions in relevant situations.
For Dworkin, once a right has come into existence as a genuine right, then it can never be
extinguished. In every case where there is a conflict between rights and social goals, the rights of
individuals must take precedence. In this regard, Dworkin makes a distinction between ‘strong
rights’, which cannot ever be extinguished or restricted, and “other, weaker rights”, whose
operation may in exceptional circumstances be restricted for the sake of some overwhelming
beneficial goal which is in the general interest.
 The Role of Judicial Decision Making in Dworkin’s Theory

And how it ties into “law as integrity”

Dworkin points out that judges are required to construct a theory of law which can fit past legal
decisions and makes the law as good as possible. In doing this, the judges are required to search out
legal principles which have been previously mentioned in the historical and social characteristics
of the legal system and then improve the law for the future by "making it more coherent”. Hence,
we can say that according to Dwokin's theory, in dealing with a certain case, the judge should try to
interpret the law in a way which promotes the coherence of the legal system as well as possible.

For Dworkin the judges’ discretion is weak because they are constrained, and he believes that
judges only ‘find law’ and not ‘make law’. So, he opposes judicial discretion as,

(1) It is contrary to the democratic ideal of representation

(2) Judge made law is retroactive and creates new duty after the event.

Law as integrity requires judges to treat the techniques that they use in interpreting statutes and
measuring precedents not simply as tools handed down by the legal system, but as principles they
assume can be justified in political theory, and when that is in doubt, they construct a theory of the
system to better them.

To Dworkin, a judge must treat any general principles or rules as thumb he has followed in the past
as provisional and stand ready to abandon these in favour of more sophisticated and searching
analysis when the occasion demands.

As a consequence of this conception of law, judges and lawyers are invited to search for an answer
in legal materials using reasons and imagination to determine the best way to interpret legal data. It
is therefore possible for them to confront fresh and challenging issues as a matter of principle, and
this is what law as integrity demands of him.

Constructive Interpretation

Principles could be discovered by judges engaging in ‘Constructive Interpretation’. Constructive

interpretation is a methodology for interpreting social practices, texts and works of art. The
distinctive feature of this is that it is argumentative. The process of constructive interpretation is
made up of three analytical stages:

(1) Pre-interpretive stage

(2) Interpretive stage

(3) Post-interpretive stage

In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the
practice. Then, in the interpretive stage, the interpreter settles on some general justification for
those elements identified at the pre-interpretive stage. At the post-interpretive stage, the
participant adjusts his sense of what the practice really requires so as to better serve the justification
he accepts at the interpretive stage.
 The Role of Principles in Legal Arguments
In order to demonstrate the role of principles in legal arguments, he cites the cases of Riggs V Palmer
and Henningsen V Bloomfield Motors.

Riggs V Palmer

The beneficiary under a will had murdered the testator, who was his grandfather, to claim the
inheritance. The law at the time in the US had no provision to exclude such claims by wrongdoers.
The court, however, considered whether it was just and fair to grant the inheritance to the murderer
of the testator. They reasoned out that all contracts are regulated by the fundamental principle of
common law that no one shall be permitted to profit by his own fraud or to take advantage of his
own wrong. They refused to give the murderer the inheritance.

Henningsen V Bloomfield Motors

Henningsen had bought a car and signed a contract which said that the manufacturer's liability for
defects was limited to making good the defective parts. After buying the car, the car crashed injuring
its passengers. Henningsen argued that the manufacturer should not be permitted to rely on the
contractual limitation and ought to be made liable for medical and other expenses of the injured. He
was not, however, able to cite any statute or legal rule in support of his argument. Yet, the court
considered a number of competing principles such as (i) freedom of contract (ii) the freedom of
contract is not so sacred as not to admit of any qualification (ii) the manufactures' obligation to
consider the safety factor in the manufacture of passenger vehicles and (iv) courts should not permit
themselves to be used as instruments of inequity and injustice. A number of such principles arose,
for and against each party to the action. The court had to assess the strength of each principle
against the competing principles, and at the end, the court granted relief to the claimant.

If, in such an instance, two competing legal rules came to the forefront, one rule would cancel out
the other. In the case of principles, the principles that were not considered in arriving at the
decision would remain valid to be applied in another case.

Criticism
As this method is so complex, no judge could attempt to practice this method without it
affecting his ordinary functions.
The judge may intentionally or unintentionally express his subjective and/or political bias in
the guise of him applying principles.
Does not facilitate judicial discretion.