On Dworkin's Rights Thesis

Why rights thesises? Why Dworkin's? Why me?The answer to why studying rights thesises is that rights thesises are opportunities of the changing Chinese jurisprudence in the changing Chinese society. The answer to why studying Dworkin's rights thesis rather than studying other western scholars'rights thesis is that Dworkin's rights thesis has greatly influenced Chinese jurisprudence changing from duty-based to rights-based. Then the third question comes. There are already many Chinese scholars who studied or has studied Dworkin's rights thesis, then why me? The answer is that this article has two innovations. The first innovation is that this article attaches importance to the diference of assumpions and conclusions. That diference has been ignored in most Chinese articles which study Dworkin's rights thesis. The second innovation is that this article uses drawings and maps to describe the structures and logic of the theories of the article. That is why I rewrite Dworkin's rights thesis.Dworkin's rights thesis has its origin in the chaos of American social thoughts that liberalism which is the traditional western world's social attitude was being criticized by both conservatisim and radicalism in the 1950s and 1960s. Conservationists blamed liberalism for permissiveness and giving rise to the overflowing of pornography, carnal desire, abortions and drug taking. Ridicalists blamed liberalism for ecomomic injustice and poverty. That chaos of social thoughts resulted in a crisis of American social convictions which had lasted for centuries in the western world. Dworkin defends libersim by his political philosophy theory and legal theory. Dworkin argues, uncertainty about law reflects uncertainty about a conventional political attitude. In the 1960s and 1970s, Dworkin wrote a series of papers aiming to define and defend a liberalism of law. Those papers criticize legal positivism which is another liberal law theory. A general theory of law must be normative as well as conceptual. Dworkin begins his criticism of legal positivism form his principle thesis which resists the conceptual part of a few central and organizing propositions:the rule thesis, the pedigree thesis, the discretion thesis and the source of legal obligation thesis. In order to criticize utilitarianism which is the normative aspect of legal positivism, Dworkin develops the rights thesis which is the normative aspect of the early legal positivism. This article is a preliminary study of Dworkin's rights thesis.The article can be divided into five parts include the introduction and the epilogue. The first chapter is introduction that mostly states the backgrouds of the rights thesis, the motivation of writing the article, the issues of the article, the method used in the article and the framework of the article.The second chapter of this article discusses the nature of Dworkin's rights thesis. The conceptual part of a general theory of law draws upon the philosophy of language and theorfore upon logic and metaphysics. The normative part is embedded in a more general political and moral philosophy which may in turn depend upon philosophical theories about human nature or the objectivity of morality. As a general theory of law, Dworkin's rights thesis is a political theory which is subject to the doctrine of political responsibility. The responsibility doctrine demands articulate consistency. As any political theory, the rights thesis also demands articulate consistency. But to see consisitency of what, we should study the assumptions of the theory.Then the third chapter discusses the assumptions of Dworkin's rights theory. Dworkin's method of criticizing a theory is to criticize its assumptions. The assumptions of Dworkin's rights thesis have its orgins in accepting the methods of arguments which justify the theory of justice of Rawls. With Rawls'argumentation of his assumptions as a basis, Dworkin also analyses and extends Rawls'futher assumptions. Dworkin extends Rawls'three methods of arguments which are reflective equilibrium, the social contract and the original position. Dworkin accepts Rawls'most fundamental assumption of equal concern and respects and makes it the assumption of his rights thesis.With the above argumentation as a basis, the fourth chapter specifies how Dworkin justifies the rights thesis in three directions which are the conceptual analyse of rights, the principle system of law and judges'private convictions and the society'political morality. The first, in the the conceptual analyse of rights direction, Dworkin justifies from two smaller directions which are the use of political arguments as well as the burden and distribution of social intrests. The second, in the principle system of law direction, Dworkin constructs a vertical and a horizontal ordering. The vertical ordering is provided by distinguishing layers. The horizontal ordering simply requires that the principles taken to justify a decision at one level must also be consistent with the justification offered for other decisions at that level. The third, in judges'private convictions and the society'political morality direction, Dworkin's theory of adjudication at no point provides for any choice between judges'own political convictions and those which are taking to be political convictions of community at large. On the contrary, those conceptions hold that community morality is the political morality presupposed by the laws and institutions of community. Every Judge must rely on his own judgment as to what the principles of that morality are. The social morality is not the sum of all the social members'propositions, but every claim of ever social menber's.The fifth chapter is conclusion. The debates between Dworkin and legal positivism began from disputing the discretion thesis. This article uses two logical maps comparing the deferences between Dworkin's principle thesis and his rights thesis, then analyses the reason of the logical changes. The reason is that Dworkin has been greatly influenced by Rawls'justice theory. Dworkin accepts Rawls assumptions and developes the three assumptions, then developes his rights thesis. From the principle thesis to the rights thesis, Dworkin constructs a principle system of law as a seamless web. Although Dworkin describes an interpretation of American legal system, it does make sense of our Chinese society. Dworkin's rights thesis was born in the time when American society was changing in a high-speed and the rulling theory of law was legal positivism whose normative part is utilitarianism. As a scholar who has responsibility of the society, Dworkin claims private rights which were ignored. China is developing fast rencently, with the rapid ecomomic developments, the conception of people's rights are extending and the government has realized that law is not only the instruments of gomenments but also the instuments of protecting people's private rights which is sacred. Dworkin gives an interpretation of the question what rights do we have and why we have rights as human beings and as citizens for our Chinese to refer to.