Abstract
Ronald Dworkin, following a holistic conception of thought, claims the law to be “a branch of political morality”. Taking this as a starting point, I explore two implications he derives thereof. The first one is that in the analysis of the concept of law, moral considerations are necessarily involved; the second implication is that human rights are part of the content of morality. Particularly, Dworkin maintains that, whenever we ask what law demands, forbids or allows in any specific legal system, morality is decisively relevant. Morality is so decisive when identifying law that the difference among confronting theories in this respect does not lie in the fact that some include morality and others exclude it, but in the different level of analysis in which morality is introduced by each of them. Dworkin, in turn, provides us with a characterisation of human rights as a particular kind of political rights, the latter being generally conceived by him as trumps. Hence, opposed to a set of legal rights and having their groundings in an attitude of respect towards human beings as beings entitled to dignity.
My hypothesis is that, even if the former theses do not commit him to any version of iusnaturalism whatsoever, he rescues some premises generally linked to the Natural Law tradition that allow him to organize the academic debate on the relationship between law and morality in a much more enlightening and rigorous way. Doing so, Dworkin particularly succeeds in his attempt to neutralize what I shall call the (double) trivialisation of both morality and human rights.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
See Santos Pérez (2003).
- 3.
Dworkin (2008, 223).
- 4.
Dworkin (2008, 4–5).
- 5.
Dworkin (2008, 9).
- 6.
Dworkin (2008, 10–11).
- 7.
Dworkin (2008, 12).
- 8.
Dworkin (2008, 12).
- 9.
Dworkin (2008, 21).
- 10.
- 11.
Dworkin (2008, 13).
- 12.
See Dworkin (1986).
- 13.
See Dworkin (2008).
- 14.
In particular, Dworkin refers to two dimensions under which we can measure the success of a proposed justification: a dimension of fit (i.e. the proposal must be minimally compatible with that which is justified) and a dimension of substance (i.e. the proposal must serve some important value). He also notes that the legal interpretations are also complex because they seek to justify not only the substantive claims about rights and obligations, but also institutional claims. This is a thesis that he had already developed at some length in Law’s Empire (see Dworkin 1986) and has taken up again more recently (see Dworkin 2008, 2011).
- 15.
Dworkin (2008, 18).
- 16.
Dworkin (2008, 21).
- 17.
Dworkin (1981 3, 91).
- 18.
Dworkin (1981 3, 91).
- 19.
Dworkin (1981 3, 92).
- 20.
Dworkin (1981 3, 82).
- 21.
Dworkin (1981 3, 92).
- 22.
Also: “What he cannot do is to say that the Government is justified in overriding a right on the minimal grounds that would be sufficient if no such right existed. He cannot say that the Government is entitled to act on no more than a judgment that its act is likely to produce, overall, a benefit to the community. That admission would make his claim of a right pointless, and would show him to be using some sense of “right” other than the strong sense necessary to give his claim the political importance it is normally taken to have”. Cfr. Dworkin (1981 3, 191–192).
- 23.
Dworkin (1981 3, 188).
- 24.
Dworkin (1981 3, 188).
- 25.
Dworkin (1981 3, 190–191).
- 26.
Dworkin (2011, 332).
- 27.
Dworkin (2011, 335).
- 28.
Dworkin (2011, 335).
- 29.
Dworkin (2011, 203).
- 30.
Dworkin (2011, 204).
- 31.
Dworkin (2011, 204).
- 32.
Dworkin (2011, 336–337).
- 33.
Dworkin (2011, 344).
- 34.
See Dworkin (2011).
- 35.
See Dworkin (2011).
References
Dworkin, R. 19813. Taking rights seriously. London: Duckworth.
Dworkin, R. 1986. Law’s empire. Cambridge, MA: Belknap.
Dworkin, R. 2008. Justice in robes. Cambridge, MA: Harvard University Press.
Dworkin, R. 2011. Justice for Hedgehogs. Cambridge, MA: Harvard University Press.
Santos Pérez, L. 2003. Una filosofía para erizos: Aproximación al pensamiento de Ronald Dworkin. Doxa 26: 347–385.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht.
About this chapter
Cite this chapter
Pérez, M.L.S. (2013). Dworkin and the Natural Law Tradition. In: Contreras, F. (eds) The Threads of Natural Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 22. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5656-4_13
Download citation
DOI: https://doi.org/10.1007/978-94-007-5656-4_13
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-5655-7
Online ISBN: 978-94-007-5656-4
eBook Packages: Humanities, Social Sciences and LawPhilosophy and Religion (R0)