Idle Thoughts -- Dworkins on Rights

What are Dworkins two models ? Explain, and apply his second model to the issue of protecting a country against terrorism.

Dworkins' first model, which he rejects, says that we must balance the rights of the individual against the needs of society. In other words, rights are not total and absolute. They are flexible depending upon circumstances. Your book uses the right of free speech as an example from Dworkins. He says in that statement that a person might conclude that the right to free speech is limited if the circumstances become more dangerous. So, a person making a speech to a group of people in a quiet public park presents no problem. But a person making the same speech to an angry group of individuals in the street, perhaps a mob, may have his speech limited because the presence of a mob makes his statements likely to lead that mob to take dangerous actions which harm to others.

He rejects this. In other writings he refers to human rights as a trump. This refers to the game of bridge in which a certain card is the trump. It beats all others. Dworkins says rights trump all other interests. Therefore, he rejects this first model.

One wonders though, just how far with this he would go. The classic example is shouting fire in a crowded theater. Does Dworkins think that the right to free speech allows this to happen? Shouting this out, when there is no fire, could result in a panic and many deaths. The Supreme Court has concluded that, under such extreme circumstances, the right of free speech is limited. I do not know how Dworkins would respond.

Basically, Dworkins position in number one, the reason that he rejects it, is that rights can never be traded for other benefits. Rights are to politics what elements are to chemistry. Everything else is built up from them. You cannot go down lower than this. Even worse, says Dworkins, we can't be sure that the free speech would actually cause problems. We just think it might. And we must take never away a basic right because of what might happen or might not happen.


Dworkin's second model is the one that he believes should be applied. He believes that the protection of negative rights is essential. That is to say, your right to be free from interference by the government or other authority is the required basis for freedom. In this argument, he is in agreement with John Locke. Many of Locke's ideas were used to write the U.S. Constitution.

However, Dworkins does say that if we are sure the consequences of an action might be extremely great, say in an extreme emergency, then the government might be able to restrict free speech. He seems very uncomfortable about this possibility. So, he might agree that you can't shout fire in a crowded theater. But he isn't really very clear on that point as far as I can tell. He seems to feel a real urge to keep rights always as the trump. But, he is forced to admit that there might possibly be some circumstances which would allow some restriction of free speech.

America has taken many extreme actions in response to the threat of terrorism. We have already, taken as a whole, decided at some of those actions went too far. At one point in time, most Americans strongly supported the use of torture in order to protect ourselves. Polls show now show most Americans feel that that was a mistake. The heavy use of collecting data on Americans private phone calls and internet behavior is a big controversy right now. Polls show that most Americans feel the government has gone too far. However, one wonders if that opinion would change if another terrorist attack occurred? It seems very likely that it would.

The only way to know what position Dworkins would take on this issue is to ask Dworkins, and he died in February of this year. What is clear, is that he would not believe the individual rights should be intruded upon unless that was a truly immediate danger and that danger was of a very serious nature. It is clear that he believes that only the most extreme circumstances should allow us to even consider restricting people's rights.

During the Civil War Abraham Lincoln temporarily suspended the rights of habeas corpus. That's the right to be released from jail unless a legal reason can be given for keeping you there. Even before the terrorist attacks, this was a very controversial move. To this day people still debate wether Lincoln was correct or not correct in doing so. One thing people cannot deny is that the circumstances were extreme. We were in the middle of the Civil War!

I do agree with Dworkins' second model. Rights should almost always been regarded as the trump. They really are the absolute basic elements of building a free society. The idea of taking away or even limiting someone's rights is repulsive to me. However, I can imagine circumstances under which it might be necessary in order to save the society. As I am sure Dworkins realized, once you say that, there are people who will start to find excuses to take rights away. They will always claim that they are doing it to protect society, even when they are doing it to protect themselves or to gain a profit.

As the entry in your text noted, majorities just love to take rights away from minorities. There is almost always what seems to be a good excuse for it, and it is almost always promised to be temporary. In practice, it though, it usually turns out to be permanent. If everyone's rights, including those of the minority, are trumps, then this cannot happen.

For example, I think that Lincoln did the right thing. It was wrong to take away peoples rights, but it was the lesser of two evils. And remember, once the war was over, all rights were fully restored. It really was a temporary measure under very extreme circumstances.

When you look at it carefully, you begin to wonder what the difference is between model one and model two. The answer, is that in number two you may take no action to limit rights unless absolutely forced to do so. Whereas, in model one, you may restrict rights as a precaution.