Liberty and personal responsibility in Dworkin’s theory of rights

Human and constitutional rights protect every person’s status as free and equal, and accordingly, a useful and convincing theory of rights must include attractive accounts of freedom and equality. Somewhat surprisingly, however, rights theorists have given relatively little attention to freedom and equality in recent decades and have instead focused on proportionality, the right to justification, and the culture of justification. One notable exception to this trend is Ronald Dworkin, who in the last years of his life revised and restated his famous theory of rights as trumps and presented rights as giving effect to an equality principle (the principle of intrinsic value) and a liberty principle (the principle of personal responsibility). This article explores the roles of liberty and personal responsibility in Dworkin’s theory of rights. It demonstrates that from a moral and philosophical perspective, Dworkin’s doctrine of liberty is somewhat deficient. However, from a legal or constitutional perspective, it achieves something which proportionality and the culture of justification cannot and do not want to deliver, namely a ‘good enough’ protection of a distinct sphere of liberty. This, the article suggests, makes Dworkin’s final statement on rights and liberty the first in his long career to become a candidate for being judicially endorsed and applied.