This is a book about fundamental theoretical issues of political philosophy and jurisprudence. In his familiar forceful and incisive style Professor Dworkin guides the reader through a re-examination of some perennial moral, philosophical, and legal dilemmas.
Dworkin (Taking Rights Seriously) is one of the foremost legal theorists around, and his title for this collection of essays pinpoints his central theme. Dworkin does not believe that the legal system is apolitical - judges, he says, are always introducing political considerations into their rulings. Rather than decry this fact, Dworkin turns his attention to what principle ought to guide those decisions, and here he makes the case that the guiding principle ought to be a liberal one. Liberalism, he argues, is based on the principle of individual rights at the expense of some overriding conception of the public good. Judges ought not to decide in terms of a conceivable benefit to the community as a whole, or a significant fragment of it. Instead, they ought to hew to the fundamental fights of individuals, whether or not such rights happen to dovetail with the welfare of the community at any particular point (even, indeed, if assertion of an individual right would be detrimental to the welfare of the community). In Dworkin's own language, he makes a case for political principle over political policy. This argument rests on the theory that a government can treat its citizens as equals by allowing each of them to define what is of value to them, not by applying a single conception of the good life to everyone. Dworkin uses that theory to support specific legal rulings in several of the essays here: two focus on the Bakke case, and argue in favor of affirmative action programs (the individual rights of racial minorities take precedence here, while Bakke had no claim to a violation of individual fight); another essay argues against anti-pornography statutes on the basis of a right to sexual preference; yet another takes issue with the Snepp ruling, arguing for the primacy of First Amendment rights. These are difficult issues, but Dworkin has the gift of clarity - and even if he nowhere gives a convincing account of just what a right is and how it comes to be, he does illuminate the American legal tradition and its guiding principles. (Kirkus Reviews)