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JURISPRUDENCE PROJECT

INDIVIDUAL RIGHTS IN DEMOCRACY IN LIGHTS OF


UTILITARIANISM

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,


RANCHI

SUBMITTED BY: SUBMITTED TO:

SHILPA RANI Dr. RABINDRA KUMAR PATHAK

SEM 8TH ‘A’ ASSISTANT PROFESSOR

ROLL NO. 410

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INTRODUCTION

Democracy is a way of life that recognizes liberty, equality and fraternity, which are not to be
considered different notions of a trinity. They form a unit in such a way that to separating any
one of these notions from the other would defeat the very purpose of democracy. Neither
liberty can be kept away from equality nor equality can be separated from liberty and also
both liberty and equality can never be divorced from fraternity”1. Democracy has also been
defined from utilitarian perspective by several philosophers. John Hart Ely suggests that
“democracy is an applied utilitarianism, unfortunately possessing utilitarianism's weaknesses
as well as its strengths that lie in an institutional way of determining the happiness of the
greatest number.”2

Democratic laws generally tend to promote and propagate the welfare of the greatest possible
number; for they spread out from the majority of the citizens as they cannot have an interest
opposed to their own advantage. The advantage of democracy does not consist in favouring
the prosperity of all, but simply in contributing to the well-being of the greatest number.3

Democracies are expected to understand the importance of protection of rights, cultural


identities, social practices, and religious practices of all individuals. Also democracy must be
understood for the protection of the minority's rights no matter how alienated a minority is
from the majority society; not recognising the rights of the minority renders the rights of
majority to lose core meaning. Minority like majority have rights that are guaranteed by the
virtue of democracy and cannot be de eliminated by a majority vote. Democracy allows
citizens to maintain individual rights while following the direction of the majority. Theories
focusing upon the importance of individual and collective rights have to often justify the
prevalence of each other.

The paper attempts to bring out the balance between the majority and minority rights in the
democratic setup and tries to conceptualize whether it is justified to sacrifice the rights of
minority for the goals of the majority. Initially, notions of rights in general has been
discussed which is important to have a better understanding of the individual rights. The next
section discusses utilitarianism as propounded by J Bentham and J S Mill that attempts to
provide a general idea about utilitarianism in lights of individual rights.

1
Basu, D.D. Introduction to the Constitution of India, Lexis Nexis Butterworths 18th Edition, p 24.
2
Ely, J. H. (1981), Democracy and the Right to be Different". 56 N.Y.U. L. Rev. 397
3
Tocqueville, A. (1835), Democracy in America, ed. P. Bradley (New York: Vintage Books, 1945), vol. 1, pp.
247-49.

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The subsequent part discusses the relation between democracy and the utilitarian theory. The
paper further discusses theory of rights as propounded by Dworkin that enlists important
insights on the independent existence of individual rights from the collective good and
welfare, a departure from the notion of utilitarianism. The meaning of trumping feature of
rights has been discussed as given by Dworkin. The next part of the paper presents analysis
and criticisms by other legal jurists and authors of the Dworkin’s conception of rights as
trump. In the subsequent section a balance between individual rights and utilitarian theory has
been attempted to establish in a democratic system of governance.

CONCEPT OF RIGHT

The concept of rights is an important and indispensible part of a constitutional system and
therefore, it is essential to define rights before moving further with the subject. “Right” in its
objective sense means “what is just” or “what is fair”4. Hohfeld5 gave four basic components
of rights, known as “Hohfeldian incidents”: the privilege, the claim, the power, and the
immunity, but “in the strictest sense” all rights are claims. To have a right is to have a “valid
claim”6. A claim of right must be universal but universal ability demands that the reasons for
holding that there is a duty to serve the interest of one person should also apply to the same
effect in the case of any other, if her interests and circumstances are relevantly similar.

Nozick7 concludes rights as side of constraints-limits on the actions that are morally available
to any agent. These are essentially negative in character and agent-relative which means that
each agent is taken to be concerned only with her own observance of the constraints. A
person is not required to look for observance of rights i.e. constraints by others. This view
seems to be wrong when compared to the views of Raz8 who believes that a person has a
right if and only if some aspect of it is sufficiently important in itself to justify holding some
other person or persons to be under a duty.

Marx objected that these alleged rights derive from a false conception of the human
individual as unrelated to others, as having interests can be defined without reference to
others, and as always potentially in conflict with others. The rights-bearing individual is an

4
Finnis, J., 1980, Natural Law and Natural Right, Oxford: Clarendon Press.
5
Hohfeld, W., 1919, Fundamental Legal Conceptions, W. Cook (ed.), New Haven: Yale University Press.
6
Feinberg, J., 1970, “The Nature and Value of Rights”, Journal of Value Inquiry, 4: 243–257.
7
Nozick, R. (1974), Anarchy, State and Utopia (Oxford: Basil Blackwell), pp. 28-29
8
Raz, J. The Morality & Freedom; Oxford: Clarendon, 1986, p. 166.

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isolated nomad withdrawn behind his private interests and whims and separated from the
community individual right to liberty reinforces selfishness9.

Utilitarian reasoning involves trade-offs. The idea of rights was seized on by many as a way
of resisting these trade-offs. Rights express limits on what can be done to individuals for the
sake of the greater benefit of others. They impose limits on the sacrifices that can be
demanded from them as a contribution to the general good. People can feel exploited when a
"right" of theirs is traded off against the "rights" of others as they are when a similar choice is
made under the blander guise of maximizing satisfaction10.

Dworkin analyses the notion of a right in terms of its contrast with collective goals or aims: a
right is an individuated aim, and a goal is a non-individuated aim. Dworkin describes natural
rights as individual rights and he denies that there could be a 'right of a majority or society
which overrides individual rights. A right of a majority or of society can only be a right of the
individuals in the majority or society and they have that right no matter how many there are
in the group who also have the right11.

BENTHAM AND MILL’S UTILITARIAN THEORY

According to Bentham12, mankind is governed by two sovereign masters, pain and pleasure
and these are capable of giving a binding force to any law or rule of conduct. He proposed a
hedonistic calculation for the measurement of pleasure and pain based upon how intensely its
pleasure is felt, how long that pleasure lasts, how certainly and how quickly it follows upon
the performance of the action, and how likely it is to produce collateral benefits and avoid
collateral harms. Meaning of moral obligation has been given by reference to the greatest
happiness of the greatest number of people. Bentham supposed that social policies are
properly evaluated in light of their effect on the general well-being of the populations they
involve. The general object of laws is to augment the total happiness of the community and to
exclude everything that tends to subtract from that happiness or any mischief. An action or a
measure of the government must conform to the principle of utility.

9
Marx, K., 1844, “On the Jewish Question”; page reference in the text is to the reprint in Waldron 1987, pp.
137–50.
10
Riley, J. (1990), Utilitarian Ethics and Democratic Government, Ethics, The University of Chicago Press,
Vol. 100, No. 2, pp. 335-348.
11
Dworkin, R.(1978),Taking rights seriously, Duckworth, London. Available at
http://philosophyfaculty.ucsd.edu/faculty/rarneson/DWORKINTakingRightsSeriously.pdf. Last accessed on
25/04/2018.
12
Bentham, J.(1781), An Introduction to the Principles of Morals and Legislation. Available at
http://www.utilitarianism.com/jeremy-bentham/index.html. Last accessed on 19/04/2018.

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Mill13 extended the explanation of utilitarian moral theory and offered significant
improvements. He claimed universal agreement on the role of moral sanctions in eliciting
proper conduct from human agents including not only external sanctions like punishment and
blame, but also internal sanctions as self-esteem, guilt, and conscience. He pondered upon
the possibility social tyranny resulting from utilitarianism, where society executes its own
mandates separate individuals, which is according to him, more formidable than many kinds
of political oppression. He asserted that self-protection is the sole end for which interfering
with the individual liberty can be done to prevent harm to others. He agreed with Bentham
and regarded utility as the ultimate appeal on all ethical questions. Subjection of individual
spontaneity to external control can be authorised only in respect to those actions which
concern the interest of other people.

Waldron14 posed a serious question on employment of the utilitarian calculus which is that
important individual interests may end up being traded off against considerations which are
intrinsically less important and which have the weight that they do in the calculus only
because of the numbers involved. Sometimes one life must be sacrificed so that a greater
number of lives may be saved. But some of the trade-offs that can be simply obscene. It is
possible that a minority's interest in political freedom may be traded off against the
satisfaction of the desires of a majority to be free from discomfort and irritation or a person's
life may be sacrificed for the sake of enjoyment by millions. On this account, what is wrong
with utilitarianism is not that it contemplates trade-offs but that it combines the idea of trade-
offs with a doctrine of the quantitative commensurability of all values. Relative importance of
the interests at stake must be seen and qualitative priorities must be established in some
places.

UTILITARIAN ETHICS IN DEMOCRACY

Democracy and utilitarianism are two very different concepts. Where utilitarianism aims at
utility maximisation i.e. greatest benefit, democracy aims to achieve equal distribution. But a
close link can be found between these two. Democracy can said to be an applied
utilitarianism as it is an institutional way of determining the happiness of the greatest number.
Formation of any public policy involves utilitarian questions like how many are helped, how

13
Mill,J.S.(1869),On Liberty. Available at http://www.sjsu.edu/people/james.lindahl/courses/Hum2B/s2/JSMill-
On-Liberty-Chs-1.pdf. Last accessed on 19/04/2018.
14
Waldron, J., (1989), Rights in Conflict, Ethics, Vol. 99, No. 3. pp. 503-519.

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many hurt, and by how much15. Democratic laws generally tend to promote the welfare of the
greatest possible number16.

Riley tried to show that utilitarian procedural norms really are equivalent to democratic
norms mainly in decision- making procedure, though he maintains that Democrats need not
be a utilitarian. He found a logical link between utilitarian and democratic values, not with
the practical implementation of democracy per se. Procedural equality is the condition
satisfied by both democratic voting methods and utilitarian procedures. Complete utilitarian
calculus is too costly to establish and run and hence, democratic government can be seen as a
set of procedures for calculating the general welfare. But Mill fears that if representation
itself is determined by majority vote, then there can be serious danger of "false democracy" in
which a minority of citizens is erected into a "ruling class": "Democracy, thus constituted,
does not even attain its ostensible object, that of giving the powers of government in all cases
to the numerical majority. It does something very different: it gives them to a majority of the
majority; who may be, and often are, but a minority of the whole.17

DWORKIN’S TRUMP RIGHT THEORY

Dworkin18 while Taking Rights Seriously, developed the idea of rights as trumps which
means that there are some moral rights against Government, which are so important that they
cannot be taken away irrespective of the circumstances. Trumps are rights in a strong sense
and that can only be said of certain fundamental and individual rights against Government,
not of social and collective interests. The legislature has general duty to pursue collective
goals defining the public welfare, not based on simple majoritarian theory. Comfort of the
majority will require some accommodation for minorities but only to the extent necessary to
preserve order in the society, but that does not take away individual’s rights. As per Dworkin,
rights must permit individuals to take an action “even if the majority would be worse off for
having it done.”

Dworkin viewed the Constitution as designed to protect individual citizens and groups
against certain decisions that a majority of citizens might want to make, even when that
majority acts in what it takes to be the general or common interest. The fundamental rights
given under constitutional theory do not necessarily represent such moral rights i.e. trumps.
Governments would do wrong to repeal such fundamental rights, even if they were persuaded
15
Supra 3
16
Supra 4
17
J. S. Mill, "Considerations on Representative Government," p. 449.
18
Supra note 12.

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that the majority would be better off that way. Certain interests of individuals are so
important that it would be wrong for the community “to sacrifice those interests just to secure
an overall benefit.” 19
The point of having trumps is precisely that they are not subject to
being weighed. If the relevance of fundamental rights can be weighed at every new upcoming
factual scenario and like any other social interest, then balancing “is a confusion that
threatens to destroy the concept of individual rights.”

Although a fundamental right trumps most welfare and consequentiality considerations, it


does not mean, according to Dworkin himself, “that the State is never justified in overriding
that right.” There are limits of rationality and fairness, to check upon the arbitrariness in its
pursuit of collective goals. All decisions must serve a justifiable mix of collective goals and
nevertheless respect whatever rights citizens have. Proper justification for limiting a right is
that other competing rights are at stake. But ‘‘competing rights’’ must be understood as the
rights other members of society might have as individuals; it cannot mean the rights of the
majority. Government may override the right to free speech, for example, “when necessary to
protect the rights of others, or to prevent a catastrophe, or even to obtain a clear and major
public benefit, but not on the minimal grounds.

Dworkin further extended theory on rights in Rights as Trump20 and discussed the need of
political morality and constitution, even in a utilitarian state. Utilitarianism does not treat all
people equally as it pays insufficient attention to the minority. He established two basic
foundation of his theory: First, principle of equal concern and respect and Second,
Dworkin’s belief of truth in interpretation i.e., disagreements and differences in way people
define the contours of interpretive concepts such as rights, good life, democracy, etc. The
right of moral independence is a part of same collection of rights as the political
independence, and it is to be justified as a trump over unrestricted utilitarianism. In a
constitutional system, rights are used as the test of the legality of legislation and it is valuable
where there is conviction and prejudice against some minority groups. He observed that, “If
utilitarian is to figure as a part of an attractive working political theory, then it must be
qualified so as to restrict preferences that count by excluding political preferences of both the
formal and informal sort.” He suggests treating rights as trump is a practical way to impose
restriction on utilitarianism.

19
Dworkin, R.(2006), Is Democracy Possible Here? Principles for a New Political Debate, Princeton
University Press, 2006.
20
Dworkin, R., 1984, “Rights as Trumps”,Theories of Rights, ed. Jeremy Waldron, Oxford University Press, pp.
153-67.

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ANALYSIS OF DWORKIN’S THEORY

Waldron21 observed that utilitarian reasoning involves trade-offs. Minority's rights may be
traded off against the satisfaction of the desires of majority to be free from discomfort and
irritation. He even went on saying that utilitarian reasoning means that “a person's life may be
sacrificed in the circus for the sake of a momentary thrill enjoyed by millions.” According to
him, we may reasonably be required to accept some losses. Rights are there to protect certain
interests which are essentially not to be traded off for the sake of the greater benefit of others.
Waldron agreed with Dworkin upon the use of rights as "trump cards," to be played in the last
resort to protect the basics of our individual freedom.

Hart22 analysed the thoughts of Dworkin and disagreed on the point of use of rights as last
resort or ‘trumps’. He said that individual persons are merely the channels and one
individual's happiness or pleasure, however innocent he may be, may be sacrificed to
pleasure located in other persons. According to him, it is a morality which both imposes
moral limits on the coercive powers of governments, and in the last resort justifies the use of
that power and not the individual rights as contended by Dworkin. He justified the denial of a
certain liberties of minorities as they are too few to outweigh the preference of majority and
this has nothing to do with superiority or inferiority of moral convictions of majority or
minority. All interests can never be protected.

Haworth23 asked an important question: when an individual is justified to act against an


beneficial enactment to jeopardize its success. Dworkin supposed that in very many areas, a
legislature need only have welfare in view and to defend an enactment, showing welfare
enhancement is sufficient for example traffic regulations. But the same argument cannot be
applied in other areas where human rights and liberty is involved, such as law curtailing
freedom of speech. Not to allow us to criticize the government is lack of concern and respect
for us; but a traffic regulation that constrains our freedom as motorist shows no lack of
concern and respect. As per Haworth, in both cases freedom is at issue and Dworkin failed to
explain the difference. The manner of application of right to concern and respect is also not
clear: whether to be applied in a straightforward manner to advance some goal a majority in
the society. Dworkin’s idea is that constraints on a minority's freedom can be applied as per

21
Supra note 15.
22
Hart, H. L. A. (1979), Between Utility and Rights Between Utility and Rights, , Columbia Law Review, Vol.
79, No. 5,pp. 828-846.
23
Haworth, L. (1979), Dworkin, Rights, and Persons, Canadian Journal of Philosophy, Vol. 9, No. 3 (Sep.,
1979), pp. 413-423

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personal preference of the majority which would yield incremental social benefit, but not on
external preferences. But personal and external preferences are often so intertwined that
external ones cannot be identified. It clearly indicates that in general coercion is non-
problematic, that in a liberal democracy, at least, social control of the individual in the
interest of maximizing welfare is normal and needs no justification.

Haworth differs from this view and maintains that if the idea of a right to be free is accepted,
then it must be accepted as well that promise of incremental benefit is never sufficient to
justify coercion. There has to be a general right to be free. To take personhood seriously is
simply to demand that the reasons offered for interfering with people's freedom be good
reasons.

Pildes24 made an important observation that, Rights are not general trumps against appeals to
the common good or anything else; instead, they are better understood as channelling the
kinds of reasons government can invoke when it acts in certain arenas. Some rights may
function in this way in some contexts. Because rights are not trumps over the common good,
they can be qualified when the state acts on the basis of justifications consistent with the
character of the relevant common good in question. That is what makes a state interest
compelling, not its ‘‘weight.’ ’He examined the theory in the light of constitution and judicial
pronouncements in United States and found out that courts permit rights to be limited, even
when applying the most intensive judicial scrutiny and reasons given by Dworkin’s theory
are not relevant. Governments can infringe even the most fundamental rights for sufficiently
‘‘compelling’’ justifications by imposing least restriction possible. Atomistic interests of
individuals are not protected.

Shapiro25 feels that Dworkin's theory only concerns a subset of individual rights i.e. political
rights which has not been given a definite meaning. The basic political right to equal concern
and respect remains abstract. Dworkin also failed to provide the exceptions. He suggests that
balancing is required to give exceptions where individual rights can be sacrificed. Balancing
imposes on public authorities a burden of justification which obliges them to defend a
limitation to a constitutional right in terms of public reason.

24
Pildes, R. H. (1998), Why Rights are not Trumps: Social Meanings, Expressive Harms, and
Constitutionalism,The Journal of Legal Studies, Vol. 27, No. S2 (June 1998), pp. 725-763
25
Shapiro, D. (1982), Does Ronald Dworkin Take Rights Seriously?, Canadian Journal of Philosophy, Vol. 12,
No. 3 (Sep., 1982), pp. 417-434.

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BALANCING INDIVIDUAL RIGHTS

Dworkin accepts exceptions where State is justified in overriding individual right when
necessary to protect the rights of others, or to prevent a catastrophe, or even to obtain a clear
and major public benefit, not on minimal grounds.26 However, no method has been provided
by him to determine such exceptions. Balancing offers rational and transparent method.
Balancing is required to give exceptions where individual rights can be sacrificed.27
Balancing imposes on public authorities a burden of justification which obliges them to
defend a limitation to a constitutional right in terms of public reason. Courts can adjudicate to
the safeguard of a minimum regarding constitutional and human rights and hence, balancing
provides a structure for the assessment of public reasons.28

Balancing constitutional rights often seen as incompatible with the idea of rights as trumps as
balancing needs to be done without any type of prefixed priority or lexical ordering.Dworkin
disagrees with the idea of balancing because if the relevance of fundamental rights can be
weighed at every new upcoming factual scenario, then it would cause a confusion that
threatens to destroy the concept of individual rights as it would involve the competing of
rights of the individual and demands of society.

The question arises that how such balancing to be done in the complex constitutional
framework and procedure. Judicial review seems to be a way of balancing the rights. But, it
means the balancing of means and ends established by the legislator, is superseded by
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unelected body of judges. The adoption of balancing in the adjudication of constitutional
rights does not entail totally disregarding public interests when such rights come into play.
Constitutional Court should adopt a minimum core approach while adjudicating on
constitutional rights to safeguard of a minimum regarding constitutional and human rights.

Klatt and Meister30 came up with a systematic way of balancing involving three steps. First,
the degree to which a given right is infringed must be assessed. Second, the importance of
satisfying a competing principle is established. Finally, it must be decided whether or not the
importance of fulfilling the competing principle justifies infringement of the right involved.

26
Supra Note 20.
27
Supra Note 27.
28
Kumm, M. (2010), The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based
Proportionality. Law and Ethics of Human Rights, n. 4, p. 141-157.
29
Silva, V. A. (2011), Comparing the Incommensurable: Constitutional Principles, Balancing and Rational
Decision. Oxford Journal of Legal Studies, n. 31, p. 273-301.
30
Klatt, M.; Meister, M.The Constitutional Structure of Proportionality, Oxford: Oxford University
Press.

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Constitutional rights must be given higher weight to have priority over ordinary interests. If
balancing were to put public interests and constitutional rights at exactly the same level, the
state would be free to use public interest to justify interference with such rights arbitrarily
undermining the constitutional rights. The idea of trumping or lexical ordering between
principles can be incorporated in balancing by attaching abstract weights which will yield
similar effect. The preferred position of constitutional or human right will be maintained.

CONCLUSION

Democracy is an institutional application of utilitarianism as explained by many authors.


Happiness of the greatest number and general welfare is promoted in a democracy. But,
democracies are also expected to understand the importance of protection of rights, cultural
identities, social practices, and religious practices of all individuals, not only the majority.
Minority rights also have to be considered.

Rights in the present discussion means universalized claims which denotes “what is just or
fair”. Rights of an individual also impose a corresponding duty on others. These rights are to
be understood as available to individual and not to the community or society. The Marxist
conception of rights completely differs from this and thinks the idea of individual rights as
selfishness. Rights are to be understood as an individuated aim for the purpose of this
discussion. There cannot be a 'right of a majority or society which overrides individual rights.

The utilitarian theory takes into account only the overall welfare. ‘Greatest happiness of the
greatest number of people’ is the main objective and government should aim for the same.
Interfering with the individual liberty can be done to prevent harm to others is acceptable.
However, this poses a significant question of trading off of important individual interests
against intrinsically less important considerations which gives rise to the need of
establishment of qualitative priorities as per relative importance of the interests at stake.

The discussion of utilitarianism is important in the present context as there is a close link
between these two. Democracy can also be described as applied utilitarianism and
Democratic laws generally tend to promote the welfare of the greatest possible number.

Dworkin’s theory of rights considers individual rights as political trumps held by the
individuals over unrestricted utilitarianism. Any collective goal is not a sufficient justification
for denying them what they wish, as individuals, to have or to do, or not a sufficient
justification for imposing some loss or injury upon them. Constitution is designed to protect
individual citizens against the majority decisions. Rights are used as the test of the legality of

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legislation and it is valuable where there is conviction and prejudice against some minority
groups.

Dworkin’s theory has been criticised by many authors. One of the grounds of such criticism
is that individual's happiness may be sacrificed to pleasure located in other persons within the
moral limits as all interests cannot be protected. The question also comes about when
individual is justified to act against a beneficial enactment and what are the limitations
applicable on the individual rights. Governments can infringe even the most fundamental
rights for sufficiently ‘‘compelling’’ justifications by imposing least restriction possible.

Since Dworkin failed to provide the exceptions, balancing is required as it imposes on public
authorities a burden of justification. Courts can adjudicate to the safeguard the rights.
Balancing can be done in the manner given by Klatt and Meister under which assessment of
the degree infringed right is done and after that, importance of competing principle is
established. The final decision is made on considering these two. Balancing seems to be in
consonance of the trumping feature as the trumps are assigned more ‘weight’ in the process
of balancing. Balancing provides a systematic method to decide upon the exception which
can be applied on individual rights.

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