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all. They would merely be protected interests, protected only for as long as
they do not become inconvenient. Rights only become important when they
are likely to be denied, that is, precisely when they are inconvenient and
unwelcome to the majority, especially when the majority in a democratic
society is faced with the accusation that withholding minority rights consti-
tutes an injustice. Defending them in these circumstances is one of the
things Dworkin means by taking rights seriously.
J.S. Mill on utility and rights
Although the Benthamite doctrine was highly influential, it did not prevail
unchallenged. John Stuart Mill s (1806 73) discomfort with the utilitarian
tradition was manifested in his rejection of Bentham s pleasure pain calculus
and his attempt to reintroduce the non-legal notion of a moral right. What
he was attempting here was the modification and completion of the utili-
tarian doctrine by arguing that it was compatible with moral rights and
justice. Mill s attitude to rights differed sharply from that of Bentham, but his
ultimate conclusion was not entirely dissimilar. Mill was more aware than
Bentham of the dangers inherent in unchecked majority rule. With some
prescience, he saw the main source of injustice in modern industrial democra-
cies in the growing suppression of the rights of individuals and minorities, for
the sake of the greater good of the majority, rather than in the oppression of
the masses by small governing circles. At the same time, however, he was
defending his own version of utilitarianism. One of Mill s main theoretical
objectives was to reconcile the requirements of utility with the demands of
liberty, justice and rights, to demonstrate their deeper compatibility.
Mill s strategy to effect this reconciliation was not to argue directly
against the anti-utilitarian theories of rights and justice, but to absorb them
by representing them as distorted versions of the doctrine of utility. Kant,
and Kantian theories of rights in particular, were interpreted as justifica-
tions of individual rights ultimately rooted in instrumental conceptions of
the social good. The central thrust of the Kantian approach was a non-
instrumental attitude to human rights, which are recognised in Kant s
famous maxim that individuals are always to be treated as ends in them-
Legal and moral rights 121
selves, never solely as a means. From Mill s point of view, the only thing that
can be treated as an end in itself is utility, or the general happiness. On his
interpretation of Kant, which attempts to neutralise his influence on moral
and legal theory, the justification of treating individuals as ends lies ulti-
mately in the value of this kind of policy for society.
This is a projection of Mill s own solution to the problem of rights and
utility, on to Kant and other respect-centred theories of rights derived from
him. The justification in these theories really does end with the individual
rights-holder, which is held to be the value in itself. Rights are respected for
their own sake. Mill s solution, as outlined in his celebrated defence of
liberty (Mill 1972a), was to argue that the cultivation of respect for indi-
vidual rights and liberty, as exemplified by the right to freedom of speech,
freedom of worship, the right to pursue one s own lifestyle and so on, has a
strengthening rather than a weakening effect on the health of society, and
the repression of individual difference and creativity has a devitalising effect
that will ultimately lead to its destruction. What he is arguing is that legal
and moral respect for individual rights and liberty is ultimately utilitarian,
that such respect does serve the interests of society as a whole.
As a matter of historical fact, this claim may or may not be true. But can
respect for individual rights be supported by this kind of appeal to utility?
One reason this is not a popular theory of rights a century later is that it has
become increasingly obvious that short-term utility is more persuasive than
the long term. In the short term, the suppression of individual rights makes
government more effective; the uncomfortable truth is that democratic free-
doms do not always coincide with the interests of the majority, or with
raising the aggregate welfare of society. It is much more conducive to effi-
ciency to suppress dissent. The interests of utility, it seems, do conflict with a
general respect for individual rights. Mill s is one of the more serious utili-
tarian attempts to accommodate a theory of rights, but ultimately, in
making rights contingent upon utility, it does not essentially differ from
Bentham s negative view of rights. With Mill s assumption that rights and
utility are compatible and complementary, there is no room for the defence
of rights for their own sake, in cases where they are contrary to the dictates
of utility.
Dworkin s theory of rights
In modern thinking in philosophy of law, there is agreement between most
utilitarians and their critics that there is no deep compatibility between the
doctrine of utility and the concept of a right. From the utilitarian point of
view, it seems that the unacceptable price of conceding reality to any kind of
prelegal moral right is the acceptance of it as an absolute, as an uncondi-
tional barrier to social welfare or public policy.
Dworkin s rights thesis offers a perspective that avoids this dilemma. As we [ Pobierz całość w formacie PDF ]