|Brocker I 597
Rights/Dworkin: Thesis: The rights are not something finished that we would discover. Rather, we win them by means of an argumentative mediation and linkage of as many of our central beliefs as possible. Dworkin calls this "constructive interpretation". (1)
Interpretation/Dworkin: does not deal with moral rights; these form a background on which courts have to decide on the existence of concrete institutional rights.
Legal Rights/Dworkin: are creatures of both history and morality. (2)
StavropoulosVsDworkin: this gives the impression of a hybrid ((s) two-part) theory in which the principles are responsible for the moral, positivism for the historical part. (3) Problem: the two ends of the legal justification would then be unconnected.
DworkinVsVs: it is about a rational reconstruction of law as a whole. (Dworkin 1986) (1).
Brocker I 601
Rights/Individuals/Dworkin: Rights always protect the individual with reference to fundamental and central interests. Dworkin does not mean to say that all rights absolutely apply as well as the prohibition of torture. The fundamental point is again a logical one: rights only play their own normative role if they outdo collective goals in cases of conflict. Otherwise, any justification could be directly related to the objective (4).
Similarly, rights would be meaningless if they never authorized individuals to break the law. Also formally correctly created,
Brocker I 602
indeed even legal norms confirmed by the supreme court could nevertheless be wrong, because they violate individual rights. See Civil Disobedience, see Civil Rights/Dworkin.
This means, however, that civil rights activists do not necessarily have to invoke reasons of conscience in order to break the law. They can argue that the rules they violate are actually illegal because they violate existing rights (5).
1. Ronald Dworkin, Law’s Empire, Cambridge, Mass./London 1986.
2. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 153
3. Stavropoulos, Nicos, »Legal Interpretivism«, in: Stanford Encyclopedia of Philosophy, 2014, 〈https://plato.stanford.edu/entries/law-interpretivist/〉, letzter Zugriff 16. 02. 2017.
4. Dworkin 1990, S. 161f.
5. Ibid. p. 349-352.
Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Taking Rights Seriously Cambridge, MA 1978
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018