Dworkin's Two Conceptions of Rights

Author(s): Richard H. Pildes

Source: The Journal of Legal Studies, Vol. 29, No. 1 (January 2000), pp. 309-315
Published by: The University of Chicago Press for The University of Chicago Law School
Stable URL: http://www.jstor.org/stable/10.1086/468073
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DWORKINS TWO CONCEPTIONS OF RIGHTS

RICHARD H. PILDES*

Abstract
This brief reply redefends the view that two distinct conceptions of the justification and structure of constitutional rights can be found in constitutional theory, political philosophy, and the discourse of constitutional adjudication. The first is labeled the immunities conception; the second is characterized as the structural or
reason-restraining conception of rights. This reply also defends the common association of Ronald Dworkins Taking Rights Seriously with the immunities view, while
recognizing that multiple conceptions of the justifications and structure of rights
can be found in Dworkins corpus of writings.

Jeremy Waldron, one of Ronald Dworkins most distinguished former

students, uses the occasion of my three-paragraph discussion on Dworkin to

propose a comprehensive and single rationalization of Dworkins corpus on
rights over Dworkins prolific career. Had Waldron acknowledged the basis
in Dworkins work for my discussion but then argued for an alternative view,
even one Waldron finds more convincing, we would have no quarrel. But does
laws empire admit of only an indisputably unitary and timelessly consistent
Dworkin? It would seem so, for in a mere seven pages, Waldron turns differences of emphasis and interpretation into misrepresentations or their equivalent about seven times (I leave aside the occasions on which he has no
doubt, finds it difficult to understand, or is mystified, and Im still
trying to figure out whether Im guilty of knee-jerk thinking by association).
Yet Joseph Raz, the English political and legal philosopher, and Waldrons Columbia Law School colleague, seems to have had the same problems with Dworkins Taking Rights Seriously that I haveand many more
beyond, for he found the work teeming with obscurities and apparent contradictions, as well as ambiguity and unclarity. 1 In particular, Raz
* Professor of law, University of Michigan Law School; visiting professor of law, New
York University Law School.
1
Joseph Raz, Professor Dworkins Theory of Rights, 26 Pol. Stud. 123, 126 (1978) (on
ambiguity and unclarityaggravated by the confusion concerning the relation between
welfare and rights); id. at 128 n.2 (on obscurity and apparent contradiction).
[ Journal of Legal Studies, vol. XXIX ( January 2000)]
2000 by The University of Chicago. All rights reserved. 0047-2530/2000/2901-0013$01.50

309
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THE JOURNAL OF LEGAL STUDIES

noted that two Dworkins, and two distinct conceptions of rights, had
emerged over the course of the 11 years during which the essays that constitute the book were published. Precisely in accord with the views in my
paragraphs, Raz wrote that throughout nearly all of Taking Rights Seriously,
Dworkin argued as if he regarded important rights as overriding all but
very weighty considerations of social welfare. Fundamental rights were
seen as competing with collective goals, and requiring weighty considerations to override them. 2 This is the immunities conception of rights, what
Waldron calls conception b. It is this view of rights of which so many
rightly take Dworkin to be a leading proponent, particularly with respect to
certain rights such as free speech. Waldron acknowledges that this view of
Dworkin is widely shared. Raz then went on to note that in a couple of final
chapters, published more than a decade after the first, Dworkin dramatically
shifted ground. As Raz put it, Dworkins views on the foundations of politics have undergone considerable change over the years, and a different
picture emerges at the end of the book.3 This later picture of rights is the
reason-constraining one, what Waldron calls view a; it is this aspect of
Dworkin that Waldron would emphasize to the exclusion of any other. Similar to Raz, Donald Regan, another leading political and legal philosopher,
observed that Dworkins essays [making up Taking Rights Seriously],
written over a number of years and republished recently without any attempt at harmonization, do not add up to a definitive statement of what
Dworkin believes. 4 And in a less respectful vein, Brian Barry, also a political philosopher, characterized the life-cycle of the typical Dworkinian
controversy, in which Dworkin first announces some unorthodox and
striking thesis; thenlike a prudent sea captain in a storm jettisoning
some cargo to save the restDworkin subtly redefines terms and modifies
claims to arrive at more plausible but less novel positions.5 If Waldron genuinely believes Dworkin does provide such a definitive, single, and unambiguous justification of rights throughout his career, let alone in Taking
Rights Seriouslyconsistent and clear enough, to be sure, to banish any
2

Id. at 129.
Id.
4
Donald H. Regan, Glosses on Dworkin: Rights, Principles, and Policies, 76 Mich. L.
Rev. 1213, 1214 (1979). Regan further lamented that [i]mportant passages in Dworkin can
be distressingly obscure, or tantalizingly incomplete. Id. at 1213. Regan presented Dworkins theory as an immunities conception, in much the same vein as the parts of Dworkin I
emphasize, and Regan treated the essays on external preferences as interesting digressions
from the main current of Dworkins theorizing. Id. at 121921.
5
Brian Barry, Courts and Constitutions, Times Literary Supplement, October 25, 1985, at
1195. This is a review of Ronald Dworkin, A Matter of Principle (1985).
3

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EXCHANGE: WALDRON AND PILDES

311

other justifiable reading as a serious misrepresentationit seems, at the

least, an idiosyncratic view.
It was not my project to rehearse the familiar family squabbles and interpretive disputes over Dworkins views that Waldron resuscitates and that
have engaged H. L. A. Hart, Raz, Regan, and many others.6 Nor was it to
chronicle all the intricate twists and turns that Dworkins rights theories
have traversed over his long career.7 Instead, my article emphasized an aspect of Dworkins views, clearly present in the work, that has played an
important role in fueling a particular understanding of rights within the
broader political culture. I contrasted two general conceptions of constitutional rights. In the first, the immunities view, rights emanate from some
conception of the self; rights demarcate spheres of belief and conduct insulated from majoritarian preferences to enable fundamental attributes of that
self to develop. I offered passages in Dworkin as one example of this antiutilitarian conception and also noted its wide embrace among political philosophers of rights-oriented liberalismboth friends and critics.8 It is a
view that the Supreme Courts discourse of rights sometimes encourages,
as when the Court insists that rights are essentially personal. 9 I believe
it is the dominant view of rights in the contemporary political culture
(though I do not know how one would prove that). And it is a view for
which many, in academic writing as well as public discourse, find inspiration in the work of Dworkin. I take Waldron not to dispute any of that. It
was against this understanding of rights as trumps that my article argued.
I call the second view the structural conception of rights. On this view,
rights are not justified as all-purpose shields that enable individuals to do
as they like, regardless of majoritarian judgments; instead, rights deny the

6
In a recent book-length analysis of Dworkins theories, Stephen Guest, also a former
student of Dworkins and on the faculty of laws, University College, London, similarly observes that Dworkins conception of rights shifted in his later writings, but Guest dates this
shift to works later than Taking Rights Seriously itself. Stephen Guest, Ronald Dworkin 53
(2d ed. 1997).
7
Dworkin himself acknowledges that he does not believe in a single justification for
rights. For two major sources of claims about rights in our political culture, see Ronald
Dworkin, Freedoms Law 73 (1996); on universal human rights, see also Ronald Dworkin,
Taking Rights Seriously 365 (1977).
8
As an example of a Dworkin friend, my article quoted Alan Gewirth; as an example of
a Dworkin critic, my article quoted Michael Sandel.
9
For a collection of such statements, see Matthew Adlers recent analysis of constitutional
rights, which offers an understanding of rights similar to mine, although Adlers treatment is
far more analytically sustained. Matthew D. Adler, Rights against Rules: The Moral Structure
of American Constitutional Law, 97 Mich. L. Rev. 1, 39 n.148 (1998).

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THE JOURNAL OF LEGAL STUDIES

state the power to infringe individual interests on the basis of certain reasons but permit infringement on other grounds. Rights do not entitle persons as much as they channel the kinds of reasons upon which the state can
constitutionally act in diverse institutional and other contexts. Conceived in
this way, rights are still ultimately justified on the grounds of the individual
interests10 they promote, but these interests are distinct, or promoted in distinct ways, from the way interests are conceived and promoted in the immunities conception. There is no general state duty of noninterference with
such rights, but a duty not to interfere for certain reasons. There is no undifferentiated right to free speech, but rather a right not to have the state ban
certain kinds of speech in certain settings and for certain reasons. Waldron
also apparently agrees with these distinctions among types of rights theories.
The central aim of my article was to counter the current dominance of
the immunities conception in thought and language. Some rights undoubtedly do have this structure (a right not to be tortured might be one), but
more often than many realize, the rights of constitutional adjudication do
not.11 The structural conception, or what Waldron labels the reasonrestraining conception, better justifies and explains these rights. Legally,
politically, and culturally, there are genuine stakes in the choice between
these alternative ways of thinking and talking about legal rights. I appreciate Waldrons positive comments on my elaboration of the structural conception, as well as his recognition that, even on his interpretation of Dworkin, interesting differences would still remain between my view and
Dworkins on how this conception does or should work in practice. Indeed,
Dworkin can perhaps be enlisted on both sides of this debate; I have no
problem with that. But Waldron remains fundamentally perplexed, even angered, that the association of Dworkin with the immunities view is both
widespread and yet, paradoxically, so self-evidently misguided that it is difficult for him to bear anyone (let alone so many) making that association.
Yet there is no mystery in this. I will leave the fine points of textual exegesis to a note.12 But more broadly, when Dworkin published most of the
10
In fact, my argument is that many rights promote collective interests in public goods,
in the economists sense of nonexcludable goods, as well as, arguably, in the distinct sense
that public goods have value only in that they exist for all, as is true for the good of a pluralistic, tolerant society.
11
Some rights, of course, might be justified in part on both conceptions.
12
For example, Waldron reports being mystified that I do not refer to the short-lived concept of external preferences. Jeremy Waldron, Pildes on Dworkins Theory of Rights, in
this issue, at 302 n.4. These are preferences that citizens have about the extent to which the
preferences of other citizens should be satisfied, as in Dworkins condemnation, as impermissibly external, of the altruistic preferences nonswimmers might have to support swimming
pool construction because they approve of sports. See Dworkin, Taking Rights Seriously,

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EXCHANGE: WALDRON AND PILDES

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articles that make up Taking Rights Seriously, he was seeking to resurrect

rights-oriented liberalism from its burial under several generations of increasingly refined utilitarian thought. With his zeal for sharp contrasts and
aggressive advocacy of a self-proclaimed anti-utilitarian 13 alternative,
Dworkin penned soaring, confrontational celebrations of individual rights
as broad antimajoritarian immunities: A right against the Government
must be a right to do something even when the majority thinks it would be
wrong to do it, and even when the majority would be worse off for having
it done. 14 Enduring passages such as these became cri de coeur for the
emerging rights culture in the United States, as well as for human-rights
advocates worldwide. They remain compelling articulations of powerful
trumps against all majoritarian or utilitarian preferencesinternal, external,
supra note 7, at 235. My paragraphs tried to minimize technical discussions of interest only
to the most devoted Dworkinians, and I have no desire to extend my criticisms of Dworkin,
a generous colleague. But Waldrons response requires me to say more, for I have long been
convinced by the arguments of others that the distinction between internal and external preferences is unintelligible as a basis for evaluating public policies, is used in ambiguous and
contradictory ways by Dworkin, and at the end of the day plays no meaningful role in Dworkins overall theory. This distinction is unintelligible for policy making because, as Regan
put it concisely, I should think that in a populous and heterogeneous democracy like our
own almost every law is passed in response to external preferences and that these preferences
are crucial as often as not. Regan, supra note 4, at 1221, n.18. When Dworkin apparently
conceded this point, in an appendix to the second edition of Taking Rights Seriously (Ronald
Dworkin, Taking Rights Seriously 358 (2d ed. 1978)), Regan rightly noted that this concession made it impossible to argue that any right at all exists simply by virtue of the fact that
legislation inconsistent with the supposed right would probably reflect external preferences.
Regan, supra, at 1221, n.18. Precisely because no legal system could make sense of the edict
that rights are violated by those laws likely to be too dependent upon preferences citizens
have about the preferences of others, Raz pointed out that Dworkins concrete examples of
external preferences do not actually involve external preferences as such. Instead, it is the
substantive content of particular preferences, not their externality per se, that makes certain
preferences unacceptable bases for political action; a racist preference, Dworkins favorite
examplesee, for example, Dworkin, Taking Rights Seriously, supra note 7, at 275is unacceptable not because it is external but because it is a preference that persons should not
be respected. Raz, supra note 1, at 131. Again, this seems obviously correct to me. H. L.
A. Hart offered the same critique, as well as numerous others, of the external preferences
idea (the vice is not of the mere externality of the preferences that have tipped the balance
but of their content: that is, their liberty-denying and respect-denying content). H. L. A.
Hart, Essays in Jurisprudence and Philosophy 217 (1983). After a brief rejoinder that, in my
view, sub silentio modified the concept substantially (Ronald Dworkin, Rights as Trumps, in
Theories of Rights 15368 (Jeremy Waldron ed. 1984)), Dworkin seems to have dropped the
language and concept of external preferences altogether. Instead, Dworkin refers to specific
purposes constitutionally forbidden on substantive grounds, such as racist or religiously sectarian ones, or to the substantive requirement of equal concern, which are entirely different
and far more conventional constitutional principles. Waldrons effort to continue presenting
Dworkins theories in terms of external preferences, despite Dworkin himself having
abandoned the language and modified the concept substantially, strikes me as a further attempt to preserve an image of greater continuity than is necessary or justified.
13
Dworkin, supra note 7, at 269.
14
Id. at 194.

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or any other sort. Expressly in Dworkins words, these rights are not to be
limited by the general interest, administrative convenience, costs, the prospect of utilitarian gains, effects on public morale, whether they cause more
harm than good, or nearly anything else. In later work, Dworkins similarly
well-known grounding of absolute free speech rights on the individual interest in moral personality, rather than on potentially more limited instrumental grounds (such as the advancement of democracy or truth),15 directly and forcefully presents the immunity conception of rights. So, too,
his defense of the right to moral independence 16 further encourages,
whether or not it requires, the common association of trumps with personal immunities. For every passage Waldron rightly describes as quite
explicit that rights merely counter external preferences, at least as many
passages equally, explicitly, and unqualifiedly proclaim the distinct and
broader justification for rights that so many others have had no trouble
seeing. None of these passages make sense on the narrow external preferences justification, which at best comes in and out of Dworkins early
work and later disappears.17 A brief note, limited for reasons of space to
Taking Rights Seriously only, provides a few of the numerous examples of
the immunities view in Dworkins work.18
15

Dworkin, Freedoms Law, supra note 7, at 200201 (1996).

Id. at 25; Dworkin, Taking Rights Seriously, supra note 7, at 263.
17
See supra note 11.
18
It may be that abridging the right to speak is the least expensive course, or the least
damaging to police morale, or the most popular politically. But these are utilitarian arguments in favor of starting one place rather than another, and such arguments are ruled out
by the concept of rights (Dworkin, Taking Rights Seriously, supra note 7, at 203 (emphasis
added)). It makes sense to say that a man has a fundamental right against the Government,
in the strong sense, like free speech, if that right is necessary to protect his dignity, or his
standing as equally entitled to concern and respect, or some other personal value of like consequence. It does not make sense otherwise (id. at 199). There are utilitarian arguments
in favour of limiting the exception to religious or universal groundsan exemption so limited may be less expensive to administer, and may allow easier discrimination between sincere and insincere applicants. But these utilitarian reasons are irrelevant, because they cannot count as grounds for limiting a right (id. at 201 (emphasis added)). If citizens have
a moral right of free speech, then governments would do wrong to repeal the First Amendment that guarantees it, even if they were persuaded that the majority would be better off if
speech were curtailed (id. at 191). The claim that citizens have a right to free speech must
imply that it would be wrong for the Government to stop them from speaking, even when
the Government believes that what they will say will cause more harm than good (id. at
190). If I have a right to speak my mind on political issues, then the Government does
wrong to make it illegal for me to do so, even if it thinks this is the general interest (id. at
192). The prospect of utilitarian gains cannot justify preventing a man from doing what he
has a right to do, and the supposed gains in respect for law are simply utilitarian gains (id.
at 193). [A government that professes to recognize individual rights] must not define citizens rights so that these are cut off for supposed reasons of the general good (id. at 204).
These oft-cited examples present a conception of rights much broader than that of the more
limited external preferences conception. Whether they should be further read to reflect the
16

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Parts of Dworkins work, of course, reflect the conception of rights Waldron prefers to emphasize. That emphasis is still in tension with other aspects of Dworkins work, as perhaps any other single interpretation would
be; Waldrons reply cannot explain the many places where Dworkin rules
out majoritarian policies obviously not corrupted by external preferences, and many readers would be surprised to discover that Dworkins
anti-utilitarian rights are not antiutilitarian at all, but resistin the name
of utilitarianism itselfonly a subset of utilitarian-justified policies.19 At
moments, Dworkin has indeed tried to reconcile the competing strands in
his work by ambitiously deriving all rights from the single principle of
equal concern.20 But at other moments, including recent work, he has explicitly acknowledged that [i]n our political culture [there] are two major
sources of claims of individual rightequal concern and an independent
moral commitment to basic freedoms21 too central to personality, too
much at the core of liberty, to allow a majority to decide what everyone
must believe. 22 One can try to reconcile these diverse views into a single,
consistent theory, but that was not my aim, nor would the success or failure
of that effort matter for my point. For the antiutilitarian rights as trumps
rhetoricianand the immunities conception of rightsis one aspect of
Dworkin that the writings do indeed express, as Raz and many others have
recognized, and for my brief purposes that was sufficient.
The larger exegetical disputes over Dworkins corpus cover tired and familiar terrain, though the underlying issues are indeed challenging. What
perplexes me is why Waldron has chosen this particular occasion to treat
long-standing and widely shared differences of reading and emphasis as if
they were grounds for apostasy. I cant speak for the others Waldron perhaps unwittingly neglected to include in his indictment, but if Waldron professes no doubt that there is a single, unitary, and constant Dworkin on
the justification and structure of rights, I think I will keep mine.
immunities conception, or whether they can be reconciled with the structural conception,
would depend on precisely how Dworkin conceived of utilitarian arguments; if the ban
on such arguments ruled out appeals to all justifications for limiting rights, as the language
can easily be taken to suggest, these passages would express the immunities view.
19
Waldron recognizes these tensions. Jeremy Waldron, Liberal Rights: Collected Papers
19811991, at 365 (1993).
20
In an appendix, Dworkin rejected Razs critiques. Dworkin, Taking Rights Seriously
(2d ed. 1978), supra note 12, 36468. But see also supra note 11.
21
Ronald Dworkin, Freedoms Law 73 (1997).
22
Id. at 146. Dworkin continues to believe that liberty and equality, rights and equal concern, can be reconciled through the proper interpretation of the concepts, but the claim that
they can be reconciled is a different matter from the claim that all rights derive from the
commitment to equal concern, which is the part of Dworkins work that Waldron emphasizes
to the exclusion of all others.

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