| Phi 213 Spring 2014 |
|
(Site navigation is not working.) |
The sections in this assignment are introductory and make a first run through some ideas that are important for Dworkin’s presentation of his views (and that he will expand on later). Although they make up a substantial part of the paper, we will run through them quickly in order to have more time to explore the details of his views that appear in the later sections.
This is another rather long assignment. While all of it is worth reading, our discussion will concentrate on §§I and IIA (pp. 1057-1070).
Section I is Dworkin’s official introduction.
• In §I A, after setting out the problem of “hard cases,” Dworkin fills out the distinction between policies and principles (in a narrow sense) that he introduced in “The Model of Rules” (pp. 22f) but did not employ there. Think through both his examples and the general characterizations of policies and principles that he makes along the way. In the last paragraph of §I A, Dworkin offers a first statement of the “rights thesis” that he referred to in its title.
• §§I B-C are devoted to the difference between the legislature and the judiciary.
• As you read §I B, look for Dworkin’s reasons for thinking that arguments for judicial subordination apply to policies and principles in different ways and also ask yourself whether he is right.
• §I C begins with Dworkin’s preferred account of how judicial decisions can be both constrained and original; it concludes (beginning on p. 1064) with his idea of a “doctrine of political responsibility” and its different application to the legislature and the judiciary.
• The concluding §I D lays out the way he will develop these basic ideas in the remainder of the paper. Think through the problems he says he has to solve so you can be prepared to look critically at the solutions he will offer later in the paper.
Section II develops further Dworkin’s distinction between principles and policies. He addresses quite a number of different topics and we won’t be able to fit all of them into our class discussion, which will focus on the material in §II A.
• Behind Dworkin’s distinction between principles and policies lies a distinction between rights and goals. In §II A, Dworkin makes this distinction in terms of the difference between individuated and non-individuated aims. That characterization is rather abstract and it may be easier to think of the difference in terms of his discussion of tradeoffs (p. 1068), which points to what will prove to be the most important feature of goals. The section includes several further distinctions that Dworkin will employ later:
• aims that are absolute vs. those that aren’t
• background rights vs. institutional rights (a distinction that is developed further in §III)
• abstract vs. concrete rights
• In the rest of §II, Dworkin goes on to defend the distinction between rights and goals against attacks. We probably won’t reach this material in class but I’ll suggest a couple points in it that you might think about; and you should, in any case, notice the limitation of his rights thesis that Dworkin discusses at the end of § II (pp. 1077f).
• In §II B, he considers three attempts to reduce rights to goals; the second, an ethical theory called “rule utilitarianism,” is the most important (see pp. 1072f).
• In §II C, he looks at two ways economic goals have been seen to lie behind judicial decisions; his discussion of the example of Hand’s theory of negligence (pp. 1075-1077) is probably the most interesting part of this.