The Real and Unrefuted Rights Thesis

Abstract

A s is by now well known, Ronald Dworkin's rights thesis has a descriptive and a normative aspect (123).1 In its descriptive aspect, it is the thesis that there are in hard cases pre-existing legal rights which judges characteristically enforce. In its normative aspect, it is the thesis that there are in hard cases pre-existing legal rights which judges have a duty to enforce. In defending the rights thesis, Dworkin means to be denying the discretion thesis. It is the thesis that judges do not have a duty in hard cases to enforce preexisting legal rights, but discretion to decide either way. The reason they have no such duty according to the discretion thesis is that there are in hard cases no pre-existing legal rights for judges to enforce. I shall be concerned only with the normative version of the rights thesis and will use 'the rights thesis' to refer only to that version. I will also generally avoid 'positivism' and 'positivist' in favor of 'the discretion thesis' and 'discretionist'. I will do that on the perhaps rash assumption that there is more agreement on what the doctrine ofjudicial discretion is than on what legal positivism is. My purpose is to show that in spite of the voluminous commentary Dworkin's work generated, the truth of the rights thesis has yet to be adequately assessed. The reason is that the rights thesis that was roundly attacked by Dworkin's critics is one that Dworkin need not, and in fact did not, argue for. Whether the rights thesis is true is not of course the only interesting and important question that may be raised about it. And a host of others have been, e.g., whether the thesis is important,2 really an alternative to positivism,3 con-