Rights, Harms, and Duties: A Response to Justice for Hedgehogs

Abstract

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book - albeit briefly - so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators, state actors, lawmakers, or, simply, sovereigns, to make good law in the interest of the governed: the duty of lawmakers to exercise their lawmaking power in morally responsible or virtuous ways. Rights of citizens, not the moral duties of lawmakers, should guide our thinking in both politics and law. Third, the political principles that should inform our law are those which require us collectively to respect the rights of individuals to decide for themselves on the content of a good life, and do not permit or require us to collectively make those decisions and impose them on individuals through law. To live well, we must each decide for ourselves what it is to live a good life. Government must protect the individual latitude we need to live well, and that includes refraining from dictating or legislating on the basis of any state-generated understanding of the content of the good life.

Keywords: individual rights, legislative duties, liberty, constitutional law, jurisprudence, legal theory, Ronald Dworkin

JEL Classification: K00, K30, K39