What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey?
A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the “ruling” theory in Anglo-American lawlegal positivism and economic utilitarianismand asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority.
Mr. Dworkin criticizes in detail the legal positivists’ theory of legal rights, particularly H.L.A. Hart’s well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of John Rawls’s theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials. Finally, Professor Dworkin considers the right to liberty, often thought to rival and even pre-empt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals.
Ronald Dworkin’s theory of law and the moral conception of individual rights that underlies it have already made him one of the most influential philosophers working in this area. This is the first publication of these ideas in book form.
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Table of Contents
2. The Model of Rules I
3. The Model of Rules II
4. Hard Cases
5. Constitutional Cases
6. Justice and Rights
7. Taking Rights Seriously
8. Civil Disobedience
9. Reverse Discrimination
10. Liberty and Moralism
11. Liberty and Liberalism
12. What Rights Do We Have?
13. Can Rights be Controversial?
Appendix: A Reply to Critics
Most Helpful Customer Reviews
Dworkin primarily argues against the normative philosophy of utilitarianism and its jurisprudential analogue, legal positivism, which he states, have dominated America's social, poltical and legal history. Utilitarianism, and legal positivism are mainly attributed to the work of Jeremy Bentham. Utilitarianism basically says that a social order can best be established and maintained through a calculation of the highest average amount of happiness of the people. This philosophy has been associated with the idea in American politics that we know as majoritarian democracy. Utilitarianism's jurisprudential analogue, legal positivism essentially holds that the law is best understood from actual provisions and texts as they were originally written and nothing else. Such and understanding is sometimes associated with American adjudicators who have interpreted the law in such ways like Hugo Black, or Antonin Scalia. Dworkin asserts that society and its people may be more favorably settled so as far as they are recognized for their individuality and/or autonomy. He says that utilitarianism is an insufficient method while attempting any type of decent social accord. Rather, moral philosophy like that of John Ralws may be a far better alternative in making such attempts. To that end, Dworkin believes that moral philosophy lends guidance towards legal principles that should be considered in legal proceedings when judges decide tough cases. In this text, Dworkin is extremely thorough, and precise while making his own case as well as responding to other critics. 'Taking Rights Seriously' is an essential read for anyone interested in the law. I only gave it four stars because not everyone can read and understand this text. Dworkin's points in this book are relavent to many situations that all Americans face, however terms and phraseology are not expressed and defined enough for the lay reader. Upper level undergraduates as well as graduate students should not be the only ones reading this book - that is, if they really want to take rights seriously.