In his ‘Taking Rights Seriously’, Ronald Dworkin discusses rights of citizens within a state and the government’s role in protecting and enforcing them. His theory of rights examines how rights granted by the government does not always align with citizens’ conscience. Dworkin examines the extent to which citizens have a right against the government when this occurs in his paper, but more importantly, the implications such a right has for governments that accept it. Dworkin’s contemporary philosopher John Rawls discussed two principles of justice in his ‘A Theory of Justice’. These principles are at the basis of the distribution of the most fundamental rights and liberties. Rawls continues to discuss the duty to obey laws, whether or not they are just, by zooming in on civil disobedience and conscientious refusal.
In Dworkin’s opinion, there may be a distinction between rights granted by the government and rights we ‘ought to’ have. The second rights differ per person, as they are tied to the conscience of the individual. In reality, it is the government that decides what particular rights its citizens have. The government controls those who enforce the law, therefore it is the government that has the final word when it comes to individual rights. However, this does not necessarily mean that this ‘final word’ is also the right word. Sometimes certain moral rights are not recognized by the government, this does not however mean that they are not as important as the rights that are granted by the government.
Fundamental rights are those moral rights that have been adopted into the Constitution and have therefore been transformed into legal rights. These fundamental rights include the right to free speech and peaceful assembly. When the government goes against fundamental rights in the mind of an individual, one has the right against the government in the strong sense. For example, if a government was to curtail free speech, that could be an infringement of the fundamental rights of an individual. Rawls also discusses fundamental rights and liberties when he explains the two principles of justice. These fundamental rights, similar to those discussed by Dworkin, include free speech, political liberty (both passive and active voting rights) and freedom of thought. The government of a state has the duty to ensure all of these rights for its citizens and is therefore the agent of rights. In order to oversee the allocation of these fundamental rights and liberties, the two principles of justice come into play.
Rawls puts forth two separate, but arguably mutually dependent principles from which rights are derived. The first principle states that everyone should have equal rights to the most far-reaching liberty, without infringing on others’ rights. By stating this first principle, Rawls argues that in order to live in a democratic society, we must have equal rights.
The second principle that Rawls sets forth consists of two parts. It contends that inequalities in society should be organized so that they are a) “reasonably expected to be to everyone’s advantage” and b) “attached to positions and offices open to all” (Rawls, pp.60). By ‘everyone’ in part a), Rawls indicates those people in society that are most disadvantaged. The second principle implies that everyone should have equal opportunities, without discrimination. This principle hinges on the first principle Rawls indicated, as equal opportunities would be pointless without equal rights in the first place. Therefore, they should be viewed in a serial order.
Even in a just state, the government can still generate unjust laws. Therefore, citizens have some right (to a certain extent) to break those laws. Since the legal system is in place for a reason, to create order in society, one could still be punished if one was to break a law, even if it is unjust. Rawls argues that citizens have a duty to comply with unjust laws, as long as they do not surpass certain levels of injustice, in which case civil disobedience and conscientious refusal may be justified. For example, this duty to comply may be unfair to minorities in a system of majority rule.
Dworkin argues that citizens have the right against government in the strong sense, for example if the government infringes on the right to free speech. If a right is necessary to protect one’s dignity, one should be able to exercise that right. Subsequently, citizens should not be punished if the government infringes on human dignity and political equality.
Question 3: Rawls’ theory of justice and Nozick’s critique of ‘patterning’
“Whether men are free is determined by the rights and duties established by the major institutions of society. Liberty is a certain pattern of social forms” (Rawls, p. 63). This quote from John Rawls’ book ‘A Theory of Justice’ captures the thought behind the two principles of justice he puts forth in the book. These two principles form a just framework of the distribution of rights and duties by the “major institutions of society” (Rawls, p.63), i.e. the government of a state. The principles essentially establish the importance of equal rights and liberties for all (the first principle), and equal opportunities for all (the second principle). The first principle mentions the most extensive basic liberties one can have without infringing on someone else’s basic liberties. These basic liberties include political liberty, freedom of thought, freedom of association etcetera. Rawls develops an egalitarian notion of justice from these principles that recognizes differences in circumstances and people’s backgrounds and urges people to consider those less fortunate. From his ‘Veil of Ignorance’ thought experiment, Rawls concludes that all rational people would agree that the ideal society takes care of the most disadvantaged members of society.
The rights and liberties mentioned in these principles are essentially determined by the basic social structure, which is in turn (partly) constructed by the government. The government therefore decides the extent to which citizens are free. Out of the social values mentioned in the book, liberty remains the most important value. Rawls’ general theory of justice states that all aspects of social life (liberty, income, opportunity etc.) should be distributed in an equal manner, unless this equal distribution is not to the benefit of all. This idea of distributive justice thus focuses on a system of justice where some inequalities are allowed as long as those most disadvantaged are better off with these inequalities than they would be in a system of total equality.
A rather well-known response to Rawls’ work in ‘A Theory of Justice’ is Robert Nozick’s ‘Anarchy, State and Utopia’. As a libertarian, Nozick is a supporter of a minimalist state. In response to Rawls, Nozick argues that citizens have a right to whatever resources they produce. Distributive justice as described by Rawls is thus unjust, since a system of redistribution forces some people to work for others without having agreed to this. It robs those same people from the resources they have put time and effort into. The planned distribution as portrayed by Rawls, also explained by the concept of ‘patterning’, is problematic according to Nozick. Whenever a distribution is ‘patterned’, it correlates with some other natural dimension, such as moral merit. Nozick criticizes ‘patterning’ (or ‘planned distribution’) because redistribution of resources should be voluntary. As long as the acquisition and transfer of goods happens in a just manner, there is no need for redistribution. Distributive justice as put forth by Rawls only upsets this system and would lead to injustice.
Question 6: Theories and the understanding of modern democracy
Out of all the theories we have discussed in class so far, I have found Will Kymlicka’s group-differentiated rights to be the most insightful for understanding modern democracy. In the text Kymlicka, a multicultural theorist, discusses justice and minority rights. In order to accommodate “national and ethnic differences” (Kymlicka, p. 367), Kymlicka advocates group-differentiated rights, which go beyond rights that everyone has within a state. His argument consists of three different parts: equality for minorities, the importance of revision of historical agreements, and the added value of diversity. I find the argument Kymlicka proposes to be insightful because it challenges the conventional view of equal rights for everyone. This benign neglect assumes that the state is universal, and that everyone should have the same set of rights. However, this is focused on the majority, and simply ignores the difficulties that minorities face on a daily basis. In order for everyone to actually be equal, minorities should be able to enjoy the same things the majority enjoys, like deciding on the language that is used in public school and learning about their own culture and history in school. This insight into equality shows that the established view of equal rights may not always be ideal.
By contrast, the theory I found to be least insightful for understanding the workings of modern democracy is Brown’s sacrificial citizenship. In the text, Brown discusses the ‘economization’ in all domains of life in light of the rise of neoliberalism. She argues that when we went from liberalism to neoliberalism we gained more freedom but at the same time guidelines substituted law, responsibilization of the individual substituted responsibility of the state, and ‘what’s right’ replaced ‘what works’. According to her, all areas of life have been economized, and responsibility has shifted to the individual. In my personal opinion, I find this to be a bit of an exaggeration of the actual situation. Of course, neoliberalism brings along some freedom and therefore also responsibility, but in the end the government is still responsible for the well-being of its citizens. Moreover, in her conclusion she does not offer any realistic alternatives, but simply poses multiple questions. Brown makes some relevant points, like non-state actors such as big corporations gaining more power, but in general I find her theory to be not extremely insightful.
In my opinion, the most pressing issue contemporary democratic theory should focus on is political polarization, and ‘us versus them’ politics. The key to achieving a functional multicultural society is discussion, and not putting others in boxes and rejecting everything they say immediately. By simply entering into the debate and listening to the points others we can achieve much more as a society. However, pretty much the opposite of this has been happening over the past decades in many democracies across the world. An example of this is the United States, where Republicans and Democrats can barely have a decent discussion where they reach middle ground. There is a split between left and right in American politics, and neither side is open for discussion. This development is dangerous for the functioning of a democracy, as it can result in a grid-lock where no-one is willing to compromise. In addition, people refuse to take in any information that they don’t initially agree with. This results in a sort of echo-chamber, where people only hear confirmation of their original stance. This makes any form of debate enormously difficult. Democratic theory should focus on this issue because it may have very serious consequences for the functioning of democracy itself.