Dworkin's Two Conceptions of Rights

Abstract:     
This brief reply defends the view that two distinct conceptions of the justification and structure of constitutional rights can be found in constitutional theory, politcal philosophy, and the discourse of constitutional adjudication. It is a follow-up to a previous essay in the same journal, which elaborates this position in more detail. The first conception of rights, often associated with the view of "rights as trumps," conceives of rights as personal immunities that secure individual freedom of action and belief. The second conception of rights views rights more as constraints on the kinds of reasons for which the State can act in differentiated normative spheres, such as politics, education, religion, public employment, and the like. On the first view - the "rights as immunities" view - rights protect fundamental aspects of individual dignity, or liberty, or personhood against State infringements justified in name of various common goods, such as the general welfare. On the second view - the "rights as restraints on reasons" view - rights are not opposed to various common or public goods, but are rather the tools through which those goods are realized. Rights create common goods in education, or democratic politics, or religion, by defining permissible and impermissible bases for State regulation of such goods. This reply also defends the common association of Ronald Dworkin's Taking Rights Seriously with the view of rights as personal immunities, while recognizing that multiple conceptions of the justifications and structure of rights can be found in Dworkin's work.

JEL Classification: K00

Accepted Paper Series