{"agent_id":"dworkin","agent_name":"Ronald Dworkin","slug":"rights-as-trumps","label":"Rights as trumps: do individuals hold rights against the collective that cannot be defeated by appeals to aggregate welfare, or are rights themselves derivable from utility calculations?","topic":"Rights as trumps","question":"Do individuals hold rights against the collective that cannot be defeated by appeals to aggregate welfare, or are rights themselves derivable from utility calculations?","position":"Rights are political trumps held by individuals against the collective. A right does not enter the cost-benefit calculation as one more factor to be weighed against collective welfare; it has a different normative structure. To say that someone has a right to free speech is to say that the government may not silence her for the sake of modest gains in collective welfare, even when the utilitarian calculus would justify the silencing on consequence-based grounds. The right blocks that move; it does not enter the calculus and lose to it. The thesis runs through *Taking Rights Seriously* (1977) and is foundational to everything else: to the integrity of legal practice (the Hercules judge respects established rights regardless of the social-utility consequences); to the moral reading of the Constitution (constitutional rights are not weighted against governmental interests on a continuous scale, even where strict-scrutiny doctrine has come to look like such weighing); to the partnership conception of democracy (democratic majorities cannot legitimately defeat the rights of individuals on the same scale as they decide ordinary policy questions). The utilitarian and economic- analysis traditions, which reduce rights to derivative considerations from aggregate welfare, miss what rights *are*.","paragraphs":[[{"t":"Rights are political trumps held by individuals against the collective.","n":[1,2]},{"t":"A right does not enter the cost-benefit calculation as one more factor to be weighed against collective welfare; it has a different normative structure.","n":[]},{"t":"To say that someone has a right to free speech is to say that the government may not silence her for the sake of modest gains in collective welfare, even when the utilitarian calculus would justify the silencing on consequence-based grounds.","n":[3]}],[{"t":"The right blocks that move; it does not enter the calculus and lose to it.","n":[]},{"t":"The thesis runs through *Taking Rights Seriously* (1977) and is foundational to everything else: to the integrity of legal practice (the Hercules judge respects established rights regardless of the social-utility consequences); to the moral reading of the Constitution (constitutional rights are not weighted against governmental interests on a continuous scale, even where strict-scrutiny doctrine has come to look like such weighing); to the partnership conception of democracy (democratic majorities cannot legitimately defeat the rights of individuals on the same scale as they decide ordinary policy questions).","n":[4]}],[{"t":"The utilitarian and economic- analysis traditions, which reduce rights to derivative considerations from aggregate welfare, miss what rights *are*.","n":[5]}]],"texts":"*Taking Rights Seriously* (Harvard, 1977) Chs. 4, 7, 10, 12, 13 — the canonical statement, including the introduction's account of rights against the state; *A Matter of Principle* (Harvard, 1985) Chs. 2, 17 on rights and political philosophy; the 1984 'Rights as Trumps' essay collected in J. Waldron (ed.), *Theories of Rights* (Oxford, 1984); *Law's Empire* (1986) Ch. 6 on rights and integrity; *Sovereign Virtue* (Harvard, 2000) Chs. 5, 6 on rights and equality; *Is Democracy Possible Here?* (Princeton, 2006) Ch. 2 on the partnership conception. Reception: Jeremy Bentham, *Anarchical Fallacies* (the historical utilitarian opponent — 'nonsense upon stilts'); John Stuart Mill, *Utilitarianism* on rights as derivative from utility; H. L. A. Hart on rights in his Bentham-tradition; John Rawls's *A Theory of Justice* (Harvard, 1971) on the priority of liberty; the libertarian critique (Nozick's *Anarchy, State, and Utopia*) on whether rights are absolute side-constraints; the recent debate over whether rights are absolute trumps, defeasible trumps, or pro-tanto reasons (Jeremy Waldron, Frederick Schauer, Richard Pildes); Joseph Raz on rights as interests.","works":["*Taking Rights Seriously* (Harvard, 1977) Chs. 4, 7, 10, 12, 13 — the canonical statement, including the introduction's account of rights against the state","*A Matter of Principle* (Harvard, 1985) Chs. 2, 17 on rights and political philosophy","the 1984 'Rights as Trumps' essay collected in J. Waldron (ed.), *Theories of Rights* (Oxford, 1984)","*Law's Empire* (1986) Ch. 6 on rights and integrity","*Sovereign Virtue* (Harvard, 2000) Chs. 5, 6 on rights and equality","*Is Democracy Possible Here?* (Princeton, 2006) Ch. 2 on the partnership conception"],"reception":"Jeremy Bentham, *Anarchical Fallacies* (the historical utilitarian opponent — 'nonsense upon stilts'); John Stuart Mill, *Utilitarianism* on rights as derivative from utility; H. L. A. Hart on rights in his Bentham-tradition; John Rawls's *A Theory of Justice* (Harvard, 1971) on the priority of liberty; the libertarian critique (Nozick's *Anarchy, State, and Utopia*) on whether rights are absolute side-constraints; the recent debate over whether rights are absolute trumps, defeasible trumps, or pro-tanto reasons (Jeremy Waldron, Frederick Schauer, Richard Pildes); Joseph Raz on rights as interests.","status":"The rights-as-trumps thesis is foundational to liberal political philosophy in the late twentieth century and runs alongside Rawls's priority-of-liberty argument in *A Theory of Justice* (1971) as one of the two great anti- utilitarian moves of that era. The thesis has been challenged on technical grounds: Jeremy Waldron, Frederick Schauer, and Richard Pildes have asked whether rights are best understood as *absolute* trumps, *defeasible* trumps, or *pro tanto* reasons; the literature has refined the original metaphor. The substantive thesis — that rights have a different normative structure from collective welfare and cannot be weighed against it on the same scale — remains widely accepted by liberal theorists and remains contested by utilitarians, economic analysts of law, and pragmatists. The relation between rights-as- trumps and the *partnership* conception of democracy developed in *Is Democracy Possible Here?* (2006) and *Justice for Hedgehogs* (2011) is itself contested: some readers (including Burley editors) see the late partnership view as softening the early trumps view; others (Guest, Stanford UP 3rd ed. 2012) read the two as complementary moments of a single position.","era":"1931-2013","discipline":"Philosophy","refs":[{"n":1,"work":"Taking Rights Seriously","page":"p. 118","canonical":"","quote":"Rights also may be absolute: a political theory which holds a right to freedom of speech as absolute will recognize no reason for not securing the liberty it requires for every individual; no reason, that is, short of impossibility. Rights may also be less than absolute; one principle might have to yield to another, or even to an urgent policy with which it competes on particular facts.","label":"Taking Rights Seriously, p. 118"},{"n":2,"work":"Justice for Hedgehogs","page":"p. 349","canonical":"","quote":"Sometimes, however, people use the idea of a political right in a stronger and more discriminating way: to declare that some interests particular people have are so important that these interests must be protected even from policies that would indeed make people as a whole better off.! We might say, capturing that idea, that political rights are trumps over otherwise adequate justifications for political action.","label":"Justice for Hedgehogs, p. 349"},{"n":3,"work":"Taking Rights Seriously","page":"p. 231","canonical":"","quote":"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. The claim cannot mean, on the prisoner-of-war analogy, only that citizens do no wrong in speaking their minds, though the Government reserves the right to prevent them from doing so.","label":"Taking Rights Seriously, p. 231"},{"n":4,"work":"Is Democracy Possible Here","page":"pp. 30–31","canonical":"","quote":"Some legal rights, which we call constitutional rights, have a special force and role: they prevent government from enacting laws or adopting polithat would otherwise seem attractive. The First Amendment to the United States Constitution creates legal rights of that kind; it gives citizens a right to speak that government may not abridge even when it would be in the general interest to do so.","label":"Is Democracy Possible Here, pp. 30–31"},{"n":5,"work":"Taking Rights Seriously","page":"pp. 6–7","canonical":"","quote":"On the contrary, opposition from the left and the right is united in condemning the ruling theory for its excessive concern, as they take it to be, with the fate of individuals as individuals. The idea of individual rights, in the strong sense in which that idea is defended in this book, is for them simply an exaggerated case of the disease from which the ruling theory already suffers.","label":"Taking Rights Seriously, pp. 6–7"}],"answer":null,"siblings":[{"slug":"law-as-integrity","label":"Law as integrity: do judges in hard cases find the right answer by interpreting legal practice in its best light, or do they make discretionary choices the way Hart's positivism describes?"},{"slug":"equality-of-resources","label":"Equality of resources: is the right metric of distributive justice resources or welfare, and what does Cohen's expensive-taste objection do to the resources view?"},{"slug":"the-moral-reading-of-the-constitution","label":"The moral reading of the Constitution: do judges have the duty to give the abstract clauses their best moral interpretation, or should they decline that responsibility through originalism or minimalism?"},{"slug":"the-hedgehog-thesis","label":"The hedgehog thesis: is there a unity of value across ethics, morality, political philosophy, and law, or are these separate domains with potentially incommensurable claims?"}]}