From Rights To Human Dignity

Dworkin called the conception of the rule of law that he wanted to develop ‘the rights conception of the rule of law'.Dworkin's rights conception of the rule of law is reflected in many of his works.His rights thesis provides substantive requirement for the protection of individual rights for his rights conception of the rule of law.The theory of integrity provides an ideal value for his conception of the rule of law.Dworkin's later treatise on human dignity points to the concept of human dignity as the protection of rights,so as to root the rights conception of the rule of law in human dignity.According to the distinction made by Tamanaha to the theory of rule of law,Dworkin's rights conception of the rule of law is a substantive theory of rule of law.The substantive theory of rule of law can be divided into three types from weak to strong.The weakest substantive theory of rule of law involves the protection of individual rights,and the stronger version involves the preservation of the human dignity.Dworkin's rights conception of the rule of law has experienced the development from rights to human dignity,and thus completed the transformation from a weak substantive theory of rule of law to a strong substantive theory of rule of law.In his work Taking Rights Seriously,Dworkin completed the foundation of his rights conception of the rule of law.In which,Dworkin queried the version of legal positivism about the fundamental test of a rule of law.He pointed out the fact that the version of positivism ignores norms beyond rules,namely legal principles.Legal principles and political moral principles should overlap in content,so we must use the version of fundamental test including both form and content.After completing the elaboration of the theory of legal principles,Dworkin put forward his core idea of the rights thesis.The practice of the right thesis in the judgment theory shows that the judge must judge the right submitted by the two parties and decide whether it is worth protecting by law.When no settled rule disposes of the case,one party may nevertheless have a right to win.A judge should make a judgment on the basis of arguments of principle,which are arguments intended to establish an individual right.Besides,legal principles have the dimension of weight.This characteristic of legal principles will lead to the fact that,when the judge applies the arguments of principle,he will make value judgment inevitably.The importance of rights thesis is not only reflected in the judgment theory,but also in the moral rights enjoyed by citizens.Dworkin argued that when the government disregards the rights of citizens or the law denies the rights,citizens have some basic moral rights to oppose the government and to disobey.Such moral rights are related to the validity of the law.He also warned governments to take rights seriously before they could take laws seriously.Dworkin's rights conception of the rule of law has the connotation of protecting individual's basic moral rights.In his theory,Dworkin takes the value of individuals' equal care and respect as the moral basis of their rights.So far,his rights conception of the rule of law has become a weak version of the substantive theory of rule of lawIn Law's Empire,Dworkin showed a concept of integrity,which he regarded as an ideal value of the rights conception of the rule of law.Dworkin claimed that integrity is superior to other theories in justifying the legitimacy of political power.He started from the perspective of community obligations,and put the justification of legitimacy of political power rooted in the obligation of equal concern among community members.And then,he worked out a conclusion that only a community of principles that espoused the idea of integrity would have such an obligation of equal concern.Thus,integrity successfully justify the legitimacy of political power.Besides,the obligation of equal concern in the community of principle proves why Dworkin regards the right to equal concern and respect as the core of his fundamental moral rights.The constructive interpretation through legislation and judgment required by integrity,not only explains the process of the judge's confirmation of legal rights in the judgment,but also explains the process of the constructive interpretation of legislation to transform moral rights into legal rights.Therefore,integrity,as the ideal value of the rights conception of the rule of law,makes the rights conception of the rule of law more integrated and systematic.In Dworkin's theory,how to root the rights conception of the rule of law in human dignity can be solved by two theoretical approaches.The first approach discusses how human dignity constitutes the basis of moral rights,and the second approach regards the protection of human dignity as the substantive requirement of the rights conception of the rule of law.For the first approach,the discussion material mainly comes from Dworkin's concept of human dignity.Scholars have different understandings,among which Yu Baihua's solution is feasible.He establishes an interpretive cycle between ethics and morality through the distinction made by Dworkin in Justice for Hedgehog.Dworkin defined ethics as ‘living well' and ‘good life'.The requirement to ‘living well' is consistent with the two principles of human dignity.Thus,human dignity joins the interpretive cycle of ethics and morality.When human dignity is set in the background of the community,the requirement of morality will become the concern between each other.After the relationship between human dignity and the obligation to concern each other was established,through the process of justifying political power with integrity,human dignity could be interpreted to constitute the basis of moral rights,so that the rights conception of the rule of law has been finally rooted in human dignity.Another possible solution is to adopt another expression of the two principles of human dignity in Dworkin's work Is Democracy Possible Here?.The two principles of this expression are the principle of intrinsic value and the principle of personal responsibility.The principle of intrinsic value is a prerequisite for the principle of individual responsibility.The realization of this prerequisite inevitably requires an appeal to equality between the individual and the others.It seems to link human dignity more directly to the obligation of equal concern among members of the community.Then we can follow the same pattern of argument as before,which can be seen as another solution.As for the second approach,we can incorporate Dworkin's discussion on human dignity into the substantive requirements of his view on the rule of law.By putting forward the substantive requirement of protecting human dignity by the rule of law,We can find out that Dworkin's concept of human dignity not only belongs to the individual,but also is closely related to moral rights and the validity of the law.Finally,the rights conception of the rule of law successfully rooted in human dignity,and Dworkin's rights conception of the rule of law completed the transformation from a weak theory to a stronger one.