Customer Reviews

Taking Rights Seriously

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Things are quite simple. If there is A contemporary debate in jurisprudence, it is the so-called Hart/Dworkin debate. It all starts with this wonderful book that cuts deeply and challenges the theory of legal positivism on many levels. As for the theory of rights, Dworkin is a proponent of one of the most coherent, interesting and complex articulations of liberalism. In short: to the extent that fundamental rights are in play, the "political majority" (if such a thing exists) does not have the moral right to tell members of the minority what to do with their own lives. Is not this a simple but powerful moral truth?

There are harder works to read in jurisprudence. Ronald Dworkin's book is a modern classic, and it is thought provoking and a great introduction to many of the topics in the field. It's good.

My concern is that he uses a good bit of the book to bash H.L.A. Hart's theory of law. Fine. That COULD have been a useful way to present ideas, but instead Mr. Dworkin provides a very thin strawman of Hart's real argument. And, then, predictably bashes it for its weakness!

So it goes. Dworkin can be a powerful writer, and the book is worth knowing and worth reading.

Unlike a lot of the scholarship out their debating standards for judicial review, Dworkin's work is both moderate, clearly argued, and intellectually compelling. He argues that many constitutional rights and clauses have strong moral components to them, and as such it is these moral principles judges should interpret. This is in contrast to originalism, which tries to enforce the policy preferences of the founders, not just the concepts they left us with. However, Dworkin also states it might contradict some liberal excesses, particularly judges who substitute their own policy preferences in for faithfulness to the constitution. Throughout, Dworkin is clear in his assumptions, direct in his writing, and tries to engage the reader in a serious conversation (rather than speaking over the readers' heads). I'm not sure I personally would go as far as Dworkin, or even agree with him, but it's nice to finally see a strong argument in defense of a liberal theory of constitutional interpretation.

This book gives great arguments on how our rights should be valued in our legal system and how they can be argued. I would recommend however that he fire his editor, there seems like there should be more to the book and a lot more arguments could be made from this book. I would still recommend this book for any theory law class, constitutional, philosophical or just as a good read for anyone who likes the discussion of peoples rights.

... and this is a welcome breeze in the current political fog of an America drowning in six-shooters and visceral-response-teams. The Dworkin-challenge before us is the discovery of rights as emanating from the individual, and their use in daily life. This is where Dworkin may break down. Unlike Dershowitz's "Shouting Fire", for example, Dworkin does not write as if there is a human behind the logic who is actually extolling our necessary freedoms. Perhaps it is just me, but I'd like to hold on to and celebrate my rights and yours; I'd also like to affect change-- as would Dworkin, on a global scale. Though he sees humanity's natural path to decency, his writing "feels" far too cold to be effective.

Dworkin is provocative, complex and though-full. This work shifts between levels of abstraction and works toward grand theories of natural-law that will flip less talented contemporaries on their collective heads. Because our job as citizens includes the requirement that we think (far beyond our childhood systems of ordering the world), "Taking Rights Seriously" should indeed be taken to heart and mind. My instinct is to suggest that one supplement Dworkin with John S. Mill and Dershowitz. With a nod to Dworkin, I "think" the latter suggestion is well-reasoned.

It is a brave author that attempts a new perspective on a topic that has been fodder for politicians and philosophers for thousands of years. Dworkin clears out the old cobwebs and provides insights and new perspectives for the 21st century. It is a must read for anyone serious about our dwindling rights in today's modern society. Well written, not an academic sleeping pill.

Dworkin's thesis is that a tyranny of a minority is better than a tyranny of the majority. His argument is based on rigorous logic. But Justice Holmes observed that, "The life of the law has not been logic, it has been experience." Dworkin's theory is similar to those of Plato and Marx. But experience with the latters' theories has been negative. For an analysis of that experience, read Kark Popper's The Open Society and Its Enemies.

I have only read the first two chapters so far but mostly it is an attempt to discredit Justice John Marshall and his judicial review or judicial activism to cultivate individual rights or protect the common man from an abusive govt and the rich who have bought local and national politicians, with some nonsense about the priority of community or majority rules and principles. How dare the common man protest abuse by the majority!!! So much for freedom and the Bill of Rights. There is some suggestion that may redeem from the prospective that there maybe a better way to challenge injustice of the majority than use of judicial activism, but I haven't got that far yet.