Ronald Dworkin, Taking Rights Seriously

The articles reprinted in Taking Rights Seriously (Dworkin 1978, henceforth TRS) appeared over the previous decade, with the earliest—“The Model of Rules”—dating back to 1967. Today, it is hard to imagine an academic context in which either legal and political philosophy, or the institutions they seek to account for and justify, might not take rights seriously. Over the intervening period, rights have become the dominant discourse of both the theory and practice of law and politics; TRS played a significant part in that shift. However, Dworkin’s arguments differ in key respects from those of many contemporary rights theorists, reflecting the distinctiveness of the intellectual, disciplinary, and political contexts in which he developed them.

First, his theory of rights was framed as a critique of legal positivism and utilitarianism—the two components of what he termed “the ruling theory of law” (vii). These theories gained their ascendency by offering radical criticisms of, and an alternative to, natural rights theories—not least their alleged arbitrary deployment to defend the privileges of the well-off few against the interests of the disadvantaged many (ix–x). Dworkin’s account seeks to escape these criticisms by showing that rights may be adequately grounded and used by potentially oppressed minorities, while still leaving scope for majority decision-making promoting the public interest (xv).

Second, and in many respects most importantly, Dworkin’s theory is a general theory of law (vii–viii). His account of rights seeks to overcome supposed lacunae in legal positivism while offering a more determinate account of judicial reasoning. Dworkin’s views on substantive topics have appealed to political and moral philosophers with little interest in legal philosophy per se. These philosophers tend to assume that his account of law offers little or no constraint on his moral and political theory, and that he conceives of law and legal theory as little more than a branch of applied ethics. This is a mistake. As TRS illustrates, it would be truer to say that morality and politics form, for him, a branch of “applied legal theory.”

Finally, Dworkin was an American liberal in Oxford and London, whose theory evolved against the backdrop of his home country’s civil rights movement and protests against the Vietnam War. He saw liberalism as embattled, attacked by left and right for its individualism and rationalism (vii). As he noted, similar charges were also laid against legal positivism and utilitarianism (x). Yet these were not the grounds for Dworkin’s dissent from the ruling theory. On the contrary, he sought to defend an explicitly individualist and rationalist “liberal theory of law” (vii), and saw such a defense as resting most coherently on the very theory of rights these doctrines rejected (xi). It would be reductive to say that he merely rationalized the liberal judgments of the Warren Court; for one thing, his views often proved more liberal and radical than the Court’s. Rather, he attempted to offer a better rationale for the claims presented to the Court than the claimants often themselves provided, and for the response he believed judges should, could and—whether they realized it or not—in part did make when assessing their claims.

Three further introductory remarks are in order. First, as I noted above, TRS is a book of essays, written over a decade, and of very different kinds. Some are more occasional pieces than others; some focus on general jurisprudence concerning the nature of law, others on applications of the particular jurisprudence of liberal democracies to topics such as civil disobedience and affirmative action, and a few on the character of liberalism itself. The book does not lay out in a systematic way Dworkin’s theory of law and rights. Instead, it exemplifies it through exploring various disparate topics: Hart’s (1961)  Concept of Law, Hard Cases, or Rawls’ (1971) argument from the original position in A Theory of Justice. Nevertheless, Dworkin (2011) later made clear that he believed his views on particular topics formed part of a coherent whole. Although his overall vision is not laid out in TRS in anything like the systematic way he came to do, it contains the guiding principles concerning the independence, unity, and interpretative character of moral values that inform his mature view. Moreover, in TRS the origins of this approach in a moral reading of the theory and practice of constitutional law that is then extended to all other areas of human endeavor are especially noticeable.

Second, political theorists more familiar with Dworkin’s later writings on social justice will notice its conspicuous absence in TRS. Even the famous essay on Rawls is concerned with method, defending Dworkin’s constructivist approach by contrast to Rawls’s use of the Original Position, rather than with the virtues or otherwise of Rawls’s two principles. Nevertheless, the incorporation of the individualistic assumptions of choice and responsibility into arguments for egalitarian redistribution that would motivate his distinctive social egalitarianism, with its focus on equality of resources, can be found in his more general ambition in TRS to balance the collective perspective offered by utilitarianism with the individualism of rights within an overarching egalitarian framework focused on equality of concern as well as of respect (xv).

Third, this approach also flowed from his juristic starting point, reflecting a preoccupation with due process. Many commentators have been perplexed by Dworkin’s claim that rights derive from a core “right to equality” that reflects the underlying “political morality” of liberal democracies. However, this thesis can be traced back to a belief in equality before the law as the central commitment of a justified legal and political system. In Dworkin’s view, such equality is achieved by a due process offering the prospect of a fair trial and being able to put one’s case in a fair and equitable way. Indeed, this processual approach proves central to both his legal and political theory.

TRS begins with the opening salvos of the Hart–Dworkin debate (chapters 1–4, and in particular chapters 2–3). Carried out largely by others, this debate dominated Anglo-American legal philosophy right up to (and beyond) Hart’s posthumous postscript to The Concept of Law (for an overview, see Shapiro 2007).

Dworkin offered a brilliant if tendentious characterization of legal positivism in general, and Hart’s version in particular, as a “model of and for a system of rules” (22). He made three main claims about this model (17). First, that it identified laws as the laws of the community by “their pedigree or the manner in which they were adopted or developed.” Second, that laws that can be identified in this way exhaust the law, so that if a judge or administrator faces a case that is not unambiguously covered by an existing rule they cannot “apply the law” but can only exercise their discretion. Finally, that a legal obligation consists of abiding by the duties imposed by a valid law to do or not do certain things.

So conceived, legal positivism had a broadly Benthamite rationale to remove the lack of clarity and arbitrariness about the law which Bentham believed inherent to appeals to a mysterious natural law, even in the “modern” form of human rights. Two implications of this Benthamite position prove particularly important for Dworkin. First, Bentham believed that one could make a distinction between “expository” and “censorial” jurisprudence, between what the law is and what it ought to be. This argument has sometimes been regarded as entailing a sharp separation of law and morality, and TRS tends to adopt that view. However, arguably legal positivism merely involves the more modest position that what the law is can be identified without moral or evaluative concepts as to what the law ought to be in particular circumstances. It does not entail that the law cannot contain any moral principles.

Second, Bentham was infamously antagonistic to doctrines of natural rights, deeming them “simple nonsense,” with “natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts,” lacking any ontological basis. They simply reflected the personal desires of those claiming them, giving a veneer of legitimacy to often selfish passions. Bentham did not deny that valid moral claims could have the features of a right. He merely insisted that they had to be made on the basis of utility, as “securities against misrule.”

In criticizing the model of rules, Dworkin suggested that a moral reading of the law is not only possible but also unavoidable given law was thoroughly normative. Consequently, “expository” jurisprudence was necessarily “censorial” in character. Dworkin argued this did not imply a return to natural law, and could be undertaken in a way that respected legal certainty and what he later termed law’s integrity. Therefore, a moral view of the law could be more than an arbitrary identification of the law with one’s own subjective (and self-serving) position. Moreover, at the heart of this moral reading was a conception of individual rights. Dworkin sought to avoid the charge of “nonsense” by denying that rights “are spooky sorts of things that men and women have in much the same way as they have non-spooky things like tonsils.” He claimed that his theory did “not make ontological assumptions of that sort” (139). Rather, rights are “a special, in the sense of restricted, sort of judgment about what is right and wrong for governments to do” (139). He wanted to avoid identifying rights as core interests or goods of human beings. Yet he also wanted to deny that rights were simply correlative to legal duties. Rights are neither independent “things” nor merely formally enacted legal rights, but rather a kind of moral judgment that, he suggests, inhere in the nature of law, at least within liberal societies (198–199).

Dworkin’s rejection of positivism and his conception of rights thereby form two sides of the same coin: a moral account of the law. Dworkin accepted that human beings make law at a particular time and place. However, he disputed all three aspects of the so-called “model of rules” mentioned above: pedigree, gaps, and obligations. Dworkin argues that settled law embodies not only rules but also principles. Unlike rules, principles—such as “no person may profit from his or her wrong”—do not simply apply or not apply. Rather, they operate as reasons that can be accorded different degrees of “weight” according to both the case at hand and interplay with other principles.

Dworkin’s view that principles inhere in any system of laws leads him to deny that either the identification of law or the very notion of legality turn on the “pedigree” whereby written laws come into being. Instead, legality follows from the judgments of legislators, lawyers, citizens, and above all judges as to what understanding of the law in any given case best coheres with its underlying principles. Dworkin contends that public officials, such as judges, but also ordinary individuals in their public capacity as citizens, have a duty to integrate the legal principles found in the law into a coherent whole that presents the entire system of laws in the best possible moral light. Yet this integrative process is a matter of “construction” (162). Dworkin eschews not only the model of rules but also what he calls the “natural model,” whereby the aim of a coherent ordering of principles is to mirror an objective moral order. The constructive model makes no such assumption. As such, it makes no assumption that all our moral intuitions ought ultimately to cohere; it allows that we might reject some because they seem at odds with the best ordering of the principles we are able to construct. Dworkin claims this process of construction is a collective and public enterprise. Though he extends the model of construction to moral reasoning more generally, he regards it as exemplified by judicial reasoning. The natural model would see judges as each offering his or her view of what the objective moral order is, making it necessary to find some Archimedean point for adjudicating between their different understandings. Without such adjudication, they could regard disagreement as evidence of subjective preferences or inaccurate inferences and observations. By contrast, Dworkin sees judges’ efforts to accommodate precedents to a set of principles inherent in the law that might justify them as a necessarily collaborative exercise, one that seeks to discover the common morality behind the different judgments various judges have made. Nevertheless, in so doing judges do not simply adopt the conventional morality as found in widely accepted social rules. They make substantive moral judgments and seek to develop the morally best explanation and justification of the law as it has developed.

This raises Dworkin’s critique of the second feature he associated with positivism, the view that in the absence of a rule, judges must fill the resulting gap in the law by using their discretion to “invent” rights that seem to them appropriate in the given case. At best, only peer and social pressures hold them in check. Against this position, Dworkin argues that there is always a “right answer” to what the law requires in a given case, including those cases not covered by any existing legislation. Even when there is no settled rule covering a given case it remains “the judge’s duty … to discover what the rights of the parties are, not to invent new rights retrospectively” (81). A judge adopting the model of construction engages in a process of “discovery” of what an appropriate weighing of the principles underlying the entire body of settled law requires in any given case. Dworkin admits this is no easy task—indeed, it turns out to be a task of Herculean proportions, requiring “a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules” (105). However, even if only a hypothetical Hercules could arrive at a definitively right answer based on the morally “best” reading of what the principles behind settled law require in any given case, he contends all judges are obligated to try. Not being Hercules, we may come to different views (80)—indeed, the limits of our practical reasoning make disagreement almost inevitable. That does not invalidate the process of construction.

This brings us to what is in many respects the most radical, if also the most neglected, aspect of Dworkin’s argument, his critique of the positivist account of legal obligation. He believed not only judges but also citizens can and should engage in the constructive model of law. However, doing so challenges the view that we are necessarily under a legal obligation to obey validly made law. I remarked earlier that the protest movements of the 1960s framed the development of Dworkin’s theory. Activists found various forms of civil disobedience important tools in the movements of the time, from “freedom riders” who rode interstate buses to protest segregation to draft resisters objecting to the Vietnam War. As Dworkin observed, a standard view—even among these activists—was that as civil disobedients rather than revolutionaries they were duty-bound to suffer the legal consequences of disobeying even those laws they considered unjust (206–207). Dworkin disagrees; that position assumes the “pedigree” account of legal validity. On the constructive account, the unjust law may be invalid because it fails to reflect the best reading of the principles that ground the law. That may be true even if a court has affirmed it. After all, multimember courts often divide, while constitutional courts frequently revisit and overturn past decisions (213). So the judicial system itself acknowledges it can make mistakes. Therefore, “no judicial decision is necessarily the right decision” (185). As a result, a civil disobedient need not regard him or herself as necessarily defying the law, so much as suggesting that the court and government may have made a moral and legal mistake as to what the law is. He accepts that when individuals morally disagree about the state of the law, then it may be necessary for some authorized agent to “have the final say on what law will be enforced” to avoid anarchy (186). It will then be a matter of individual prudence whether those who continue to disagree acquiesce or not (213). However, if they continue to disagree, they are not necessarily doing wrong. On the contrary, society and the law may gain from their so doing, because their actions form part of the collaborative effort alongside the courts and government to get the law right by encouraging them to try their best to do so (213).

Critics have raised a host of problems with Dworkin’s account of the law. Positivists have never insisted on a hard and fast separation of law and morality. For example, Hart always acknowledged that in legal systems such as the United States “the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values.” Likewise, statutes “may be a mere legal shell and demand by their express terms to be filled out with the aid of moral principles” (1961, 199). Meanwhile, “inclusive” legal positivists have developed this argument further and argued that legal positivism can allow moral tests of legality without even requiring that they have a given pedigree (Coleman 1982, 44). Like Hart’s “rule of recognition,” such moral tests may originate as a social rule, a convention among judges and citizens, whereby certain moral norms are legally binding. Controversies about the bearing of this rule need not undermine the existence of such a convention; they reflect disagreements about its application to particular cases rather than about its content. Indeed, Hart himself endorsed this reading in his posthumously published response to Dworkin’s critique (Hart 1994, 250, 253, 258).

Nonetheless, positivists do affirm that at times it is possible to say: “this is law but too iniquitous to obey or apply” (Hart 1961, 203–207). Many have wondered whether Dworkin denies this. If not, then his account of legal construction will only yield a suitably moral view of the law in cases where the settled law incorporates liberal moral principles. In illiberal regimes such as Nazi Germany, apartheid South Africa, or the antebellum United States, it remains unclear how Hercules might reach liberal conclusions without appealing to natural law (Mackie 1977, 166–168; Dyzenhaus 2007). At the very least, it would appear that in such instances Dworkin must accept a distinction between “expository” and “censorial” jurisprudence (MacCormick 1982, 191; Hart 1994, 270–271).

Two important aspects of Dworkin’s legal theory are highlighted by such criticisms. The first is that though Dworkin appeals to principles in the settled law, he places no great weight on settlement per se. Laws that might appear settled can be challenged and even effectively disapplied by appeal to a constructive reading that shows them to be inconsistent with the law’s underlying principles, while the understanding of these principles themselves and their relation to past and future cases remain likewise open to debate and revision. Despite the hypothesis of an objective “right answer,” right answers as such do little work in his argument, and he ridicules as “nonsense” the idea that “there is always a “right answer” to a legal problem to be found … locked up in some transcendental strongbox” (216). As Waldron (2004) has remarked, Dworkin’s theory is more about process than result. It is a theory of the practice of legal argumentation, a practice that, as we saw, he seeks to make as open as possible. The importance of law lies in the way it shapes debate by encouraging all concerned to order their mutual legal relations in a coherent and principled manner, consistent with the moral and political values of the community as a whole.

The second aspect concerns his account of rights. Though rights in his theory relate more to moral principles found within the law than to legal rights resulting from duly enacted rules, he says little about their basis (MacCormick 1982, 193). As I noted, Dworkin denies that rights follow from interests in particular goods, including—most controversially, given his liberalism—any right to liberty, an idea he dismisses as “absurd” (178–179, 268–272). Instead, he offers two rather abstract reasons why we should take rights seriously—first, “the vague but powerful idea of human dignity,” second, “the more familiar idea of political equality” (199). The second most motivates Dworkin’s argument (272–273). Indeed, he even talks of “a right to equality,” whereby “the weaker members of a political community are entitled to the same concern and respect of the government as the more powerful members” (199). Again, this emphasis on dignity and equality can best be understood as a corollary of his view of the rule of law as a process of principled legal debate that “encourages each individual to suppose that his relations with other citizens and with his government are matters of justice” and “to discuss as a community what justice requires those relations to be” by promising “a forum in which his claims about what he is entitled to have will be steadily and seriously considered at his demand” (Dworkin 1985, 32). To take rights seriously is less to get rights right, than to show that the rights of all are given due consideration by conducting legal and political debate in an equitable way. As he famously put it, the “‘right to equality’ is not ‘a right to equal treatment’ but a ‘right to treatment as an equal,’” a right “not to an equal distribution of some good or opportunity, but … to equal concern and respect in the political decision about how these goods and opportunities are to be distributed” (273). The legal rights he believes we can invoke to specific liberties follow from the requirements of equal concern and respect in such a political and legal process.

His views of both the rule of law and of rights might be thought to promote the politicization of the law. Some have thought Dworkin’s account leads legal actors to assume a role more appropriately left to legislators (Mackie 1977). Of course, Dworkin denies that these legal debates entail legislating, given that they involve discovering, not inventing the law. However, his description of the legal process might be regarded as equally applicable to the political process, possibly more so (Waldron 1999; Bellamy 2007). Yet, Dworkin regards it as an inherently legal mode of argument, at variance with, and a necessary corrective to, that of political debate, with both playing a complementary role in a democracy.

Dworkin’s theory of law seeks to combine the advantages of legal positivism and natural law while overcoming their alleged disadvantages. Similarly, his account of politics and rights aims to employ the resulting principled view of law to counteract the disadvantages of the utilitarianism he perceives as inherent to democratic decision-making, while preserving its advantages. He views his deliberative conception of the nature of law as complementing the largely aggregative character of politics. If the former purports to secure the values and principles of the political community, above all the rights of individuals to equal concern and respect, the latter supposedly ensures that state policies serve the general welfare. In this way, he hopes to retain the radical progressivism of utilitarianism while upholding a liberal attention to individual rights.

His view of these rights largely reflects this account of the complementary roles of law and politics. Although Dworkin says little about the basis of rights, he does describe their nature and purpose. Rights are “an anti-utilitarian concept” in being something that it would be “wrong for the government to deny to [someone] even though it would be in the general interest to do so” (269). Such “individual rights are political trumps held by individuals” (xi). That sounds anti-collectivist and libertarian in character, prompting the Benthamite worry that rights might serve as spurious metaphysical justifications for placing the self-serving individual interests of a privileged minority above the general interest of the majority. Dworkin seeks to dispel such objections by accepting the legitimacy of redistributive and regulatory governmental action on largely utilitarian grounds, while reserving the appeal to rights to those whose voices may still go unheard in such calculations of utility, particularly under-privileged minorities.

Dworkin conceives of democracy as consisting in the aggregation of the preferences of citizens in order to arrive at policies that support the general interest. In his view, majoritarian decisions arrived at by a fair, free, and equal vote provide the most practical way to determine those policies that best promote the greatest happiness of the greatest number. Somewhat surprisingly from a traditional rights-based liberal perspective, he sees such a process as for the most part justified, because largely consistent with the core need for governments to treat people “with equal concern and respect” (272–273). Dworkin argues that this “postulate of political morality” demands equal and impartial processes for the allocation of goods that do not suppose “one citizen’s conception of the good life of one group is nobler or superior to another’s” (273). By counting everyone as one and only one, Dworkin maintains that utilitarian calculations “seem not to oppose but on the contrary to embody the fundamental right of equal concern and respect.” They treat “the wishes of each member of the community on a par with the wishes of any other” (275). On Dworkin’s account, human rights do not reflect core interests with a special weight that a utilitarian calculation might fail to take into account. So long as the right to be treated as an equal gets recognized, then many of the rights liberals have traditionally invoked as constraints on democratic governments may be justifiably overridden for the sake of utility.

I observed that, unlike many liberals and libertarian-minded conservatives, Dworkin contends there is no right to liberty as such but only to those liberties—like freedom of speech—necessary to protect the right to be treated with equal concern and respect. Consequently, he has no objections to an interventionist state that restricts various economic freedoms, such as property rights or freedom of contract, in order to advance social welfare overall. Indeed, he accepts that the state may need to regulate individual liberty in a variety of ways to secure certain kinds of public goods that are desired or more deeply valued by most people. He famously argues that there is no right to be free to drive both ways on Lexington Avenue (191, 269–278). If restricting drivers to one direction facilitates the overall flow of traffic, then that would be a sufficient reason for limiting an individual’s freedom. Likewise, he regards state-imposed limitations on working hours, such as those declared in Lochner to be incompatible with the freedom to enter into labor contracts involving more than ten hours of work per day, as allowable for the general welfare (278). So is taxation to support such public goods as state education, health care, art galleries, and museums. He supports policies not only to prohibit discrimination on grounds of race or gender, but also to enforce desegregation and reverse discrimination, through various kinds of affirmative action. All such policies prove allowable insofar as they can be regarded as products of an impartial, egalitarian procedure for promoting the general welfare.

None of the above examples lead Dworkin to invoke the need for an “anti-Utilitarian” concept of rights. On the contrary, he remarks that “the vast bulk of the laws which diminish my liberty are justified on Utilitarian grounds” (269). Why, then, are anti-utilitarian “trumps” necessary? The answer turns out to be because of an alleged fault in the way democracy operates, whereby its egalitarianism proves “often an illusion” (275). Two related distinctions do the work in producing this judgment. The first is a distinction between personal and external preferences (234–235, 275–276). An individual’s personal preferences are for, or derive from, the satisfactions that individual seeks personally to gain from certain goods and advantages. By contrast, an individual’s external preferences concern how they believe goods and advantages should be assigned to others. Dworkin contends that the only defensible form of utilitarianism is one that counts only personal and not external preferences. A calculation of utility that includes external preferences will not treat all those involved with equal concern and respect in the process of decision-making. A white supremacist holds the external preference that a black person should count for less than a white person. Certain people hold religious views about homosexuality and contraception that lead them not only to prefer avoiding these activities themselves, but also that others abstain from them. Dworkin regards such external preferences as a form of “double counting” (235), since the external preference for what others should do is in addition to one’s personal preference for what one should do oneself. As such, it offends the utilitarian injunction of everyone counting for one and only one.

A number of commentators have found this argument a little obscure and the ban on external preferences either too broad or too narrow to support the values Dworkin holds (Hart 1979, 219–220). It appears too broad in seeming to rule out the external preferences of, say, liberal heterosexuals in support of gay rights. It appears too narrow, in that rights would have no purchase at all among an electorate of highly tolerant and liberal voters, who simply express personal preferences. However, construing Dworkin’s argument simply as an attempt to refine utilitarianism—a construal he admits encouraging—is perhaps misleading. The key issue is that he seeks to avoid policies being made in ways that offend neutrality by treating some people as worthier or less worthy than others on account of personal features for which they have no responsibility. Dworkin considers it impossible to know whether such external preferences have figured in democratic decision-making or not, or how decisive they may have been. His argument is that when it seems likely that they will influence public decision-making given the character of the society, as in laws governing free choice in sexual relations in a community where many hold views that condemn certain choices as immoral, then rights will need to be upheld by courts. Democratic processes cannot be depended upon to take sufficiently seriously those rights needed to sustain the right to be treated with equality of concern and respect.

Dworkin’s second distinction, between policy and principle, enters here. Arguments of policy involve showing that a political decision “advances or protects some collective goal of the community as a whole,” whereas arguments of principle “justify a political decision by showing that the decision respects or secures some … right” (82). Dworkin offers this distinction as a way of describing a division of labor between democratic politics and liberal law that justifies a clear functional separation between the two branches, and the possibility for courts to strike down democratically enacted legislation on principled grounds. Yet, it is unclear that the two can be easily distinguished (Greenawalt 1977). A statute might specifically direct courts to consider different policies in order to see which promotes the general welfare. Legislation may also bestow rights on individuals, with the purpose of promoting a policy deemed to favor the general welfare. Dworkin suggests that in such cases courts should consider the “special political theory that justifies this statute, in the light of the legislature’s more general responsibilities, better than any alternative theory” (108). But if the legislature’s more general responsibility is to promote the general welfare, we seem to be back to square one. Moreover, if—as Dworkin suggests—on policy issues the legislative process is the most appropriate, then how can a court ever be competent to overrule it?

Likewise, upholding constitutional rights may involve courts making policy as to how to institute a given right. Yet, suppose the legislature has considered issues of constitutional principle in the making of policy. Perhaps, as in the United Kingdom under the Human Rights Act, it has explicitly undertaken a principled discussion of the implications and impact of the policy for rights. Some of the legislation issuing from such a process may even have the promotion of a constitutional principle as its focus. Dworkin recognizes that citizens and judges can both disagree on matters of principle, and that to take rights seriously can only be to consider them duly, showing equal concern and respect to the views involved and ensuring they are fully and equitably considered. His argument seems to be that democratic politics does that less well than courts simply because matters of principle are less in the foreground. But suppose they are in the foreground, that their due consideration forms an explicit part of the legislature’s remit and one that is undertaken seriously? Sometimes Dworkin suggests that the mere act of legislative voting indicates a lack of principled deliberation (e.g., Dworkin 1996). Yet multimember courts disagree in good (and bad) faith too, and vote to decide. Can judges legitimately strike down these policies by invoking rights as trumps if these trumps have already been played in the deliberations of the legislature? Is this not a most egregious form of double counting?

Dworkin’s account of the moral nature of law and the centrality of a right to equality may not commit us, as he believed, to some form of legal constitutionalism. Potentially, it works as well as a basis for political constitutionalism. Dworkin’s comments on civil disobedience can be read in a highly political way, empowering citizens to participate in the moral debate about the nature of law. In later writings, he even insisted that a key virtue of the judicial protection of constitutional rights lay in the way it could spark a broader public debate. Yet he remained opposed to allowing citizens to decide such rights-questions themselves, through the democratic process. In part, that could be because he sought to retain his critique of the pedigree element of the model of rules. If we regard democratic elections and legislative debates as engaged in principled argument on a fair and equal basis, then the fact that the pedigree of law lies within such a process gains additional weight. It suggests that judges may not be taking rights as seriously as they ought if they disregard the seriousness with which they have already been debated by citizens (Waldron 2008).

That does not mean that judges can play no role in the debate. Legislatures necessarily take a general view, even if not necessarily one that sacrifices principle to policy, while courts deal with individual cases. As a result, courts can discover that, in given circumstances, a law may have unfortunate consequences for particular individuals in ways that legislatures may not—possibly could not—have foreseen. In such cases, courts can play a vital role in prompting further deliberation by the legislature of individual rights. Yet this need only take the form of “weak” review, requesting that the legislature reconsider its legislation in the light of the difficulties highlighted by a case (Bellamy 2012). Given the court’s view can be as mistaken as the legislature’s, provided politicians engage in a process that takes rights seriously, there can be no justification for handing the final decision to the judges. Indeed, to do so fails to treat citizens and their elected representatives as having equally valid views on the topic of which laws are to govern their relations with others (Waldron 1999, 302; Bellamy 2007, 93–100).

One might argue that for a legislature to review its own decision would allow it to be judge in its own case. But Dworkin has no objection to courts reviewing their own precedents. On the contrary, he welcomes it. The evidence indicates that in most cases legislatures defer to judicial misgivings. Where they do not—as in the recent case of prisoners’ voting rights in the United Kingdom—the issue is usually legally and politically highly controversial. However, it is also a matter that a future legislature, with a different composition, can decide differently. After all, MPs can be and are regularly removed by the electorate, rendering them responsive to the moral arguments of the electorate in a way courts rarely are.

Dworkin’s critique of democracy has the character of a self-fulfilling prophecy. Nothing is more likely to lead politicians not to take rights seriously than suggesting they have no particular responsibility to do so. The few normative arguments he offers for this division of labor either prove incoherent or involve problems that apply as much to courts as to legislatures. By contrast, many of his arguments highlighting the role of a due process in taking rights seriously suggest that courts and democracy can work best together rather than separated, with each seen as a forum of principle.

TRS enlivened both legal and political theory, not least in pointing to the links between the two. Yet, though its criticisms forced those criticized to sharpen and develop their arguments, none have felt the need to concede defeat. As often happens with important books, Dworkin’s inspired others both to criticize his arguments and to develop his ideas in ways he neither anticipated nor would necessarily have welcomed. In particular, I have suggested that a book inspired by the need for a moral reading of the law can provide a basis for an account of the morality of law-making. Therefore, a twentieth-century classic of legal theory may become a classic of political theory for the twenty-first century.