In contrast to the procedurally (through a hypothetical contract) justified contractarian models of rights-based legitimation, Ronald Dworkin, the most prominent proponent of a strong constitutionalist model of liberal democracy, offers a deontological justification of the primacy of liberal rights. In Dworkin’s account a political order is legitimate if and when it respects the basic rights of the individual.
Dworkin does not belittle the role of democracy but he interprets democracy itself through the concepts of rights: for him the protection of equal individual rights constitutes democracy as well as political legitimacy. In this version of the liberal
model, rights are not established through a thought experiment generating hypothetical consent of all “universal” citizens to a rights-based constitutional arrangement. Instead, they are more or less taken for granted as inherently valuable;
if not as “natural rights” in a Lockean tradition, then at least as instantiations of some basic liberal moral-political values that Dworkin assumes that a legitimate political regime is bound to respect. In Dworkin’s theory individual rights as the expressions of a set of deontological moral values are superior to any process of democratic legislation and do not require a justification through such a process, actual or hypothetical. (Dworkin 1977; 184-205; 1984, 153-167; 2003, 241-257.)
In Dworkin’s view, rights are based on something more stable than, and external to, the political institutions of a liberal democracy and the views of its citizens. Arguing for “taking rights seriously”, Dworkin refers to moral rights as opposed to legal rights, the latter being the rights established by political authorities through legal norms, while the former essentially precede the positive law and exist prior to political processes and law: it is the task of political institutions to legislate those naturally existing moral rights, which are not derived from political processes. The actually existing possibility that legislatures may make decisions that wrongly override individual rights justifies according to Dworkin civil disobedience by those whose morally justifiable rights are violated by such decisions, even if these are made in a procedurally democratic manner and even if they are supported by existent positive law. This means that Dworkin rejects both the positive-legalist and democratic agreement- or participation-based arguments about the legitimacy of political decisions, including the legislative decisions establishing valid rights. In his view, legal rights should ideally be based on the moral rights conceptualized as both pre-legal and pre-political – in an ideal state, these two categories, legal and moral rights, coincide as a result of morally sound legitimate political decisions. But how do we know which moral rights we do have, once they are separated from the political processes of legislating and democratic decision-making, even at the hypothetical level? Dworkin offers two foundations on which his notion of rights is based: first, the Kantian notion of human dignity; and second, the idea of political equality (Dworkin 1977, 198). He does not pose the question whether these values are universally shared; in his view the legitimacy of rights is not dependent on their democratic endorsement.
Dworkin does not present additional justification for the values on which the notion of equal individual moral rights is based; in his view they apparently do not need justification. His position appears strongly political while presented as moral and deontological: he protects the institutionalization of these particular values as foundational in a legitimate theory as the undebatable moral values that a decent society rests on. Although Dworkin is arguably right about the constitutive position of the values of human dignity and political equality in liberal democracies, it is problematic for his position as political theory that it fails to theorize the extent to which these moral notions may inspire different political solutions even if generally endorsed (as they mostly, but not unconditionally and univocally, are in current liberal democracies). The notions of dignity and equality allow a wide range of interpretations which can result not only in a variety of policy options but even in different conceptions of which moral rights these values imply that we have; and which particular legal rights follow from those moral rights whose political institutionalization is agreed upon. This problem will be further discussed below in part III in connection with conflicts of rights, and along with the question of the basis of the legitimacy of constitutional rights, if democratic agreement by citizens or their representatives by itself is considered too instable to provide such basis.
In Dworkin’s model of legitimacy the relationship between democracy and rights is not given much thought; it appears to be somewhat contradictory. On the one hand, Dworkin seems to take for granted the priority of rights to democracy: he presents a classical liberal argument on the potential threat that democracy as “the tyranny of majority” poses against individual rights and thus defends rights as a value that should be institutionalized and protected from democratic political decision making, in order for the political regime to remain legitimate from a liberal-egalitarian point of view. On the other hand, he still implicitly relies on the notion of consent when it comes to the basic liberal values that lend legitimacy to the moral rights of the individual: he seems to take for granted that these values enjoy universal endorsement and support, even if the political-legal establishment fails to respect them through the enforcement of respective legal rights; and even if the majority through democratic representation at particular moments passes legislation that overrides some of these rights. (Dworkin 1977, 184-205; 2003, 241-256.)