Jurisprudence

An International Journal of Legal and Political Thought

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Dworkin on Human Rights

George Letsas

To cite this article: George Letsas (2015) Dworkin on Human Rights, Jurisprudence, 6:2, 327-340,
DOI: 10.1080/20403313.2015.1044309

To link to this article: https://doi.org/10.1080/20403313.2015.1044309

Published online: 13 Jul 2015.

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Jurisprudence, 2015
Vol. 6, No. 2, 327–340, http://dx.doi.org/10.1080/20403313.2015.1044309

Dworkin on Human Rights

George Letsas*

No doubt, you have a moral right that I keep the promise I made to meet you for
lunch. No doubt, I would wrong you if, for no good reason, I do not to turn up.
Few however would accuse me of violating your human rights. By contrast, most
of us would immediately condemn acts of police brutality as a human rights viola-
tion. Wall-standing, hooding, sleep deprivation and other interrogation techniques,
to which the police are known to resort,1 are paradigm examples of human rights
abuses. The widely held intuition is that not all moral rights are human rights.
Promissory rights are not. So we may ask: which rights, out of the many we have,
are human rights? Call this the classification question.
The classification question is not new, but it has become the focus of much philo-
sophical attention since the end of the Second World War and the subject of numerous
international treaties and declarations proclaiming lists of human rights. The setting
up of the United Nations and of various regional organisations (such as the Council of
Europe and the Organization of American States) was pivotal in creating various types
of international mechanisms for bringing to light serious moral wrongs committed by
states and for holding them accountable. The current practice of human rights, as it
has developed since, comprises a rich and complex set of institutions, documents,
rules, courts, NGOs and many others, all of which invoke the term ‘human rights’
as a justificatory basis for alleging that a state has committed some moral wrong.
Some philosophers ask the classification question against this background of the
continuing expansion of the practice of human rights in international law and
politics since 1945. They offer practice-dependent theories that take fidelity to
current practice to act as a constraint on a plausible theory of human rights.2 By

* Faculty of Laws, University College London, UK. Email: george.letsas@ucl.ac.uk. I am grateful to John
Tasioulas and Saladin Meckled-Garcia for comments on an early draft of this paper.
1 See the judgment of the European Court of Human Rights in Ireland v United Kingdom, Series A No 25,
(1978) 2 EHRR 25.
2 Charles Beitz calls this ‘a practical’ approach in The Idea of Human Rights (Oxford University Press,
2009) 7–12. James Griffin calls his approach ‘bottom-up’ in On Human Rights (Oxford University
Press, 2008) 29.

© 2015 Taylor & Francis

328 G. Letsas

contrast, other philosophers, like John Rawls, do not condition the success of their
theory of human rights on the extent to which it accounts for current practice. A
further divide exists between so-called ‘political’ and ‘orthodox’ theories of
human rights. The former classify human rights on the basis that they serve some
political function.3 The latter classify them on the basis that they are rights we
have simply in virtue of being human.4 John Rawls’ theory of human rights is distinc-
tively political in the above sense: he characterised human rights as those moral
norms that perform a dual political role, serving as conditions for both the internal
legitimacy of states and their immunity from external interference. On this view,
states that violate these norms have no legitimate authority over their people and
are subject to justifiable coercive interference by other states. Orthodox theories,
by contrast, like the one put forward by James Griffin, trace the intellectual
origins of human rights back to the doctrine of natural rights, offering criteria for
classifying human rights that relate to universal human interests.5
In Justice for Hedgehogs,6 Dworkin offers a theory of human rights that can be
described as political and practice-dependent. In line with the interpretivist method-
ology employed in previous work and defended throughout the book, he takes the
practice of human rights to invite a moral judgement about which value, if any,
justifies having such a practice. For Dworkin, our theory of human rights should
be the product of this moral judgement. It should propose criteria for classifying
human rights that are not morally arbitrary: the criteria should be furnished by a
moral value which we take to be genuine and appealing, independently of the
practice. But at the same time, the candidate moral value must be such that it is per-
tinent to the actual practice of human rights, as opposed to some other—real or
hypothetical—practice. Unless we condemn the practice of human rights altogether
as a form of ethical witch-hunt, our theory should be able justify many, though not
necessarily all, of its salient aspects. If we said for example that our current practice
of human rights is justified by the value of promising, we would be pointing to a
genuine moral value but we would be explaining some other practice and not the
practice of human rights. In Dworkin’s familiar vocabulary from his earlier work,
a theory of human rights is an interpretive theory, which must both ‘fit and
justify’ existing practice.7
The discussion of human rights fills a dozen or so pages of Justice for Hedgehogs,
but the building blocks of Dworkin’s theory of human rights have been laid through-
out the book, as well as in previous work. In this review essay, I shall begin by looking
at Dworkin’s critique of existing theories of human rights, political and orthodox,
before I turn to his proposed alternative.

3 Joseph Raz, ‘Human Rights without Foundations’ in Samantha Besson and John Tasioulas (eds), The
Philosophy of International Law (Oxford University Press, 2010).
4 See John Tasioulas, ‘Human Rights’ in Andrei Marmor (ed), The Routledge Companion to the Philosophy
of Law (Routledge, 2012).
5 See Griffin (n 2).
6 Hereinafter JfH.
7 See Ronald Dworkin, Law’s Empire (Harvard University Press, 1986).
 Jurisprudence 329

HUMAN RIGHTS AS TRUMPS-OVER-SOVEREIGNTY

Dworkin assesses rival theories of human rights on the basis of the two dimensions of
fit and justification, mentioned above. He finds that most political theories of
human rights fail on the dimension of fit, being unable to explain sufficiently
well the current practice of human rights. He considers mainly the Rawlsian con-
ception according to which human rights are those rights whose violation by a
state may—subject to other conditions8—justify military intervention and economic
sanctions. This conception, which Dworkin calls the ‘trump-over-sovereignty’ classi-
fication, picks out a value, the value of state sovereignty, and assigns to human rights
the role of justifying certain limits on it. Dworkin takes no issue with the view that
state sovereignty is a genuine value and that it is subject to normative limits that
relate to individual rights. The view proposes a coherent and non-arbitrary criterion
for classifying human rights and therefore meets the dimension of ‘justification’. Its
problem for Dworkin lies elsewhere. He remarks that if we understand those limits
to be military intervention or economic sanctions, then very few of the rights pro-
claimed in international treaties and declarations would be classified as human.
This is because only egregious violations of certain rights—Dworkin calls them
acts of ‘barbarism’—can justify limiting sovereignty in this way. Military intervention
would not be a permissible response to a state violating the socio-economic rights
declared in the Universal Declaration of Human Rights (UDHR), or even important
civil rights such as the right against death penalty, as declared by the additional
Protocols to the European Convention on Human Rights (ECHR). ‘It would be
wrong’, he says, ‘to invade Florida to shut down its gas chambers.’
Rawls was of course aware of the fact that most rights proclaimed in inter-
national treaties and declarations would not be classified as human, according to
his theory. He called these rights ‘liberal aspirations’ and not human rights
‘proper’.9 But for Dworkin, this fact challenges the theory of human rights as
limits to sovereignty. It is not that he thinks that state sovereignty has no value, or
no limits; rather, it is that linking sovereignty to human rights fails to explain
salient features of the current practice of human rights, which is what for
Dworkin a theory of human rights should be able to do. On his view, a successful
theory of human rights should at least explain why nations and groups have been

8 Dworkin rightly points out that violation of individual rights may not be a sufficient condition for mili-
tary intervention: see JfH, 333. Raz makes a similar objection in ‘Human Rights without Foundations’
(n 3). I shall here assume that the Rawlsian conception can easily be amended so as to include further
conditions, such as conformity with international law, for the justifiability of intervention and econ-
omic sanctions. A further issue is whether violation of individual rights is a necessary condition for
the justifiability of coercive measures against sovereign states.
9 ‘Right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom
and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of reli-
gion and thought); to property (personal property); and to formal equality as expressed by rules of
natural justice (that is, that similar cases be treated similarly).’ Rawls notes that only Articles 3–18
of the UDHR contain human rights ‘proper’ and that the remaining rights in the UDHR (freedom
of expression, freedom of religion, non-discrimination, the right to education etc) are merely
‘liberal aspirations’.
330 G. Letsas

tempted to include the rights one finds in the various treaties and declarations. The
trumps-over-sovereignty classification leaves too much of the practice of human
rights unexplained.
I find Dworkin’s rejection of the trumps-over-sovereignty classification too quick.
We may agree with Dworkin that it is a condition for the success of a theory of human
rights that it should fit current practice ‘sufficiently well to make our discussion per-
tinent to it’. But it is not clear to me why it should fit the current practice in the way
Dworkin suggests, namely that most of the rights proclaimed in the texts of the various
treaties and declarations must, according to the theory, come out to be human rights.
This sets a higher threshold of ‘fit’ than showing that the moral value which the theory
postulates explains central aspects of the current practice and the motivations behind
it. Why should the list of rights found in the various documents act as a constraint,
such that it counts as flaw of a theory that many (or even most) of the rights pro-
claimed therein are not, according to the theory, human? It is not obvious why the
interpretive requirement of fit would impose such a constraint.
To begin with, the current practice of human rights is far wider than the texts of
the various treaties and declarations and the aspirations of their drafters. A large
part of the practice comprises the work of various United Nations bodies that
send fact-finding missions, examine country reports and individual petitions,
create thematic and country-specific rapporteurs, adopt resolutions and the like.
My sense is that the trumps-over-sovereignty classification is very pertinent to this
part of the practice of human rights. Consider for example the practice of the
main human rights body established under the Charter of the United Nations.
The main procedures employed by the former United Nations Commission (and
now its successor, the Human Rights Council) aim at investigating ‘situations
which appear to reveal a consistent pattern of gross and reliably attested violations of
human rights’.10 Between 1972 and 1999, 75 states were scrutinised under the 1503
procedure for allegations of gross violations of individual rights.11 The vast majority
of these states were in Africa, Asia, Latin America and Eastern Europe. The pro-
cedures have mainly been used to investigate systematic violations of specific civil
rights such as torture, forced disappearances, extra-judicial killings and arbitrary
detention. These rights fall within Rawls’ list of human rights ‘proper’. Arguably,
the UN Commission’s notion of ‘a consistent pattern of gross violations of human
rights’ refers to acts that are egregious enough (‘barbaric’ to use Dworkin’s
phrase) to defeat state sovereignty, should other conditions obtain. The practice
of the charter-based system of the United Nations fits very well the view that the
role of the practice of human rights is to reveal forms of governmental abuse for
which the state cannot tell the international community: ‘I am a sovereign state
and this is none of your business.’ Why is this part of the human rights practice
less salient than the text of the UDHR that proclaims extensive socio-economic
rights?

10 UN Resolutions 1235 and 1503 (emphasis added).

11 Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford
University Press, 2nd edn 2000) 616.
 Jurisprudence 331

Moreover, the theory of human rights as limits to sovereignty can say something
about the part of the practice (ie the expansive list of rights proclaimed in various
documents) that it leaves unexplained. It does not have to dismiss the UDHR refer-
ences to the right to work, the right to an adequate standard of living or the abol-
ition of death penalty as conceptual or moral mistakes. The theory can assign to
such rights an evidential role. It can say for example that it is important that the
international community monitors compliance with these rights, even though
they are not human rights properly understood, because the systematic violation
of these rights often co-relates with barbaric acts of the kind that justify sanctions
or military intervention. In fact, the theory does not even have to assume that
most ‘rights’ proclaimed in the international treaties and declarations are rights,
as opposed to policy goals or principles of social justice. Circumstances of
extreme poverty, suffering caused by natural disasters or lack of natural resources,
corruption or mass unemployment often co-relate with barbaric acts, of the kind
that other states are justified in sanctioning and in trying to prevent. Perhaps the
concern of those who drafted the declarations on extreme poverty or unemploy-
ment can be explained as a proxy for the presence of egregious moral wrongs
that justify intervention or sanctions. The theory can thus provide a plausible expla-
nation for the UDHR’s references to the ‘right to work’ or ‘the right to an adequate
standard of living’, without assuming either that these are all references to sover-
eignty-limiting rights or even that they are references to rights.
I do not mean to suggest that the trump-over-sovereignty classification is correct
or that it provides the best explanation for why nations and states included in the
text of the various declarations the references that they did. Clearly a large part
of the practice of human rights invokes rights the violation of which does not
justify sanctions or military intervention. My objection is that Dworkin’s reason for
rejecting the trumps-over-sovereignty theory is not compelling. The theory is perti-
nent to at least some salient aspects of the practice of human rights and can provide
a plausible explanation for the references to this or that right in the various declara-
tions. I see no reason why a successful theory of human rights must necessarily show
that most of the rights proclaimed in the texts of the various documents are, accord-
ing to the theory, human rights. In fact, it is doubtful, as we shall see, that Dworkin’s
own theory meets this high threshold. I do not even see a reason why a theory must
show that the references in the various declarations are to individual rights and not,
say, to policy goals or principles of social justice.
As Dworkin himself acknowledges, the dimension of ‘fit’ is evaluative, not descrip-
tive.12 Ultimately, there must be a moral reason why we should take at face value all
these references to this and that human right in the various international documents.
And it is not clear to me what this reason is. Quite the opposite, it is clear that there are
moral reasons to assign little or no weight to some of these documents. The UDHR is
a declaration, not a treaty, and has no binding force in international law. The two UN

12 On p 474 of JfH Dworkin says explicitly that ‘top down principles have to fix the raw data of the prac-
tice’. On the issue of the relevance of past practice within the interpretivist methodology see Nicos
Stavropoulos, ‘Interpretivism’ in The Stanford Encyclopedia of Philosophy (online).
332 G. Letsas

Covenants, the ICCPR (International Covenant on Civil and Political Rights) and the
ICESCR (International Covenant on Economic, Social and Cultural Rights), are inter-
national treaties—though, unlike the ECHR, states did not create a legally binding
judicial procedure for protecting them. Even according to the text of the Covenants,
the nature of states’ obligation to respect socio-economic rights differs from that relat-
ing to civil rights. According to Article 2 of the ICESCR, the obligation of states parties
to the Covenant is, unlike that of the ICCPR, one of progressive realisation.13 It seems
to me that it does not matter much whether we explain this difference by saying that
socio-economic rights are not human rights ‘proper’, or by saying that they are
human rights that do not impose an immediate obligation on states. Either way,
there is a difference within the practice of human rights between socio-economic
rights and civil rights, a difference that appears to be morally relevant. The mere
fact that the various socio-economic rights in the UDHR and ICESCR that Dworkin
mentions (the right to education, to adequate housing and health care, to marriage,
to adequate compensation for work, to equal pay for equal work) do not count as
human rights ‘proper’ according to a particular theory of human rights, is in my
view insufficient to condemn it.

HUMAN RIGHTS AS FUNDAMENTAL RIGHTS

The classification question assumes that not all individual rights are human rights. A
theory of human rights according to which all rights come out as human rights
would debunk, rather than answer, the classification question. But for Dworkin
the classification question is premised on a further assumption: human rights are
rights against one’s government;14 and not all rights against one’s government,
which he calls political, are human rights. If this assumption is sound, then a success-
ful theory of human rights must be able to distinguish human rights from other pol-
itical rights. But what other political rights are there?
Dworkin points out, rightly in my view, that individual rights against the govern-
ment include the legal rights that are enforceable in court, as well as rights, not

13 Article 2 of the ICESCR reads as follows: ‘Each State Party to the present Covenant undertakes to take
steps, individually and through international assistance and co-operation, especially economic and
technical, to the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means, including par-
ticularly the adoption of legislative measures.’
14 It is worth noting that the view that human rights are primarily rights against one’s government forms
an inherent part of the current practice. According to international human rights law, it is a condition
for the admissibility of an individual petition that it is directed against a state. Moreover, the facts that
constitute the violation of an individual right must be attributed to an act or omission of the state. In
cases where the state has failed in its duty to prevent or prohibit violation of rights between private
individuals, it is the state’s failure that constitutes the human rights violation, not the action of
private individuals. This aspect of the practice of human rights would be troublesome for ‘orthodox’
theories of human rights that are practice-dependent because the list of rights one has in virtue of being
human would not necessarily be limited to the rights against one’s government. An orthodox theory
that does not seek to show fidelity to current practice would need to count criminal and tort law
(which address violations of rights between private individuals) as human rights law.
 Jurisprudence 333

necessarily enforceable, to a socially just distribution of the community’s resources.

For Dworkin, all political rights operate as ‘trumps’ over ordinary modes of justifica-
tion for governmental action, such as that some proposed policy would make the
community better off in some sense. For example, a community might reduce
unemployment by allowing employers to dismiss employees at a short notice and
without cause. It would nevertheless be wrong for the community to allow employers
to dismiss people without notice or cause, so long as employees have an enforceable
legal right against it. Their legal right would trump the argument from reducing
unemployment. It would also be wrong—of a different kind this time—for the com-
munity to allow employers to dismiss people without notice or cause, if doing so con-
demns most of them to unjust poverty. Their right to a just distribution of the
community’s resources would trump the argument from reducing unemployment.
Legality and justice ground special and stringent moral rights against the govern-
ment. Dworkin sees both of these values as instances of the broader right to be
treated with equal respect and concern by one’s government, and the right to be
treated as someone whose dignity matters and matters equally to those of others.
If we accept that there is a distinction between human rights and other political
rights, then we must be able to draw a principled distinction between the two. Our
theory of human rights must point to a normative concern that is not only distinct
from legality or justice but also genuine and non-arbitrary. It is on this point that
various so-called ‘orthodox’ theories of human rights fail on Dworkin’s view. He
argues that it is arbitrary to classify human rights, like many orthodox theories do,
as those political rights that are somehow more fundamental or more important
to people. He is critical for example of James Griffin’s theory of human rights,
which attempts to distinguish human rights as grounded on the value of person-
hood.15 Why would rights grounded on personhood be more fundamental or
important, he asks, than the right to be treated with equal respect and concern in
matters of distributive justice? Violations of the latter right deny people their funda-
mental entitlements and can be very serious (leading for instance to extreme
poverty), calling for urgent measures. Nor can we say that human rights are more
fundamental because they trump ordinary modes of justification for political
action. This would not distinguish human rights from other rights because, on
Dworkin’s view, it is part of what it means to have a political right against the govern-
ment: that it trumps ordinary justifications for political action.
Now, we may agree with Dworkin that all rights against the government are
trumps over ordinary justifications for political action. Since the publication of
Taking Rights Seriously, Dworkin has convincingly argued that a number of the con-
stitutional rights recognised and enforced in the United States (such as freedom
of expression, abortion rights, free exercise of religion) operate as liberal-egalitarian
trumps over certain kinds of reasons for political action.16 But it is not clear why we
should agree that the term ‘human rights’ singles out a sub-set of political rights.

15 Griffin (n 2).
16 See Ronald Dworkin, ‘Is there a Right to Pornography?’ (1981) 1 Oxford Journal of Legal Studies 177;
Ronald Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia(HarperCollins, 1995);
334 G. Letsas

Why can’t ‘human rights’ refer to all the liberal-egalitarian rights against the govern-
ment that we have in a constitutional democracy? Why can’t we answer the classifi-
cation question in that way?
In Europe, as in other parts of the world, the term ‘human rights’ does not
necessarily imply a distinction between constitutional rights and other political
rights. Take the example of the European Convention on Human Rights. The
ECHR has been incorporated into domestic law in the majority of European
states and some of them have given it supra-legislative, or even supra-constitutional,
status.17 The United Kingdom, which has no domestic bill of rights, enacted the
Human Rights Act 1998 (HRA), incorporating the ECHR into domestic law. In
applying the HRA, UK courts have seen no reason to depart from the case law of
the European Court of Human Rights. They understand their constitutional duty
to be that of protecting ‘no more and no less’ than the ECHR.18 Here is what the
House of Lords said:

It is of course open to member states to provide for rights more generous than those guar-
anteed by the Convention, but such provision should not be the product of interpretation
of the Convention by national courts, since the meaning of the Convention should be
uniform throughout the states party to it. The duty of national courts is to keep pace
with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less.19

To be sure, there may be valid moral reasons why international human rights courts
should in certain circumstances refrain from recognising or enforcing the full
panoply of the liberal-egalitarian rights one has against one’s government. In the
context of the ECHR for example, there may be limited moral reasons for granting
states a ‘margin of appreciation’ when they interfere with Convention rights.20 But
we should not infer from this fact that the moral rights protected by international
human rights law are necessarily fewer, and more fundamental, than the rights pro-
tected by constitutional law. As I have argued elsewhere, the ECHR grounds rights
that, just like the rights of the US Constitution, are justified by the values of legality
and justice.21
Dworkin could respond that the ECHR is an anomaly in the practice of human
rights. He might invoke other parts of the international human rights practice
where people distinguish between human rights and national constitutional
rights. But the point I am making is that, ultimately, we need a moral reason for

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution(Harvard University
Press, 1997).
17 See Alex Stone Sweet (ed), A Europe of Rights (Oxford University Press, 2008).
18 This is called the ‘mirror principle’. See Brenda Hale, ‘Argentoratum Locutum: Is Strasbourg or the
Supreme Court Supreme?’ (2012) 12(1) Human Rights Law Review 65.
19 Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20.
20 See George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal
Studies 705; George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in
Andreas Follesdal et als (eds), The European Court of Human Rights in a National, European and Global
Context Cambridge University Press, 2012).
21 See George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford
University Press, 2009).
 Jurisprudence 335

accepting that such a distinction is sound. And unlike Dworkin, I do not find the
distinction between human rights and other political rights obvious. If we assume
that such a distinction exists, then Dworkin is right to complain against
Griffin that he fails to show that human rights are more fundamental or more
important than other political rights. But if we do not assume this distinction,
then we can re-interpret the claim that human rights are more fundamental than
other rights. We can take this claim to mean that human rights are rights and
hence more important and fundamental than non-rights-based moral concerns
(such as goals). In other words, we can take this claim to mean that human rights
are fundamental in that they are—in Dworkin’s own sense—trumps.
Dworkin might reply that this re-interpretation shrinks the category of human
rights and leaves unexplained a large part of the practice of human rights. But as
in the case of the trumps-over-sovereignty classification, one could return the alle-
gation: why are the parts of the practice that invoke a distinction between human
rights and other political rights more important or salient that the parts which do
not?
Note moreover that denying that there is a distinction between human rights
and other political rights need not take away the force of Dworkin’s objection to
Griffin’s theory. We could then make a different complaint against Griffin’s
personhood-based account, which is that it does not sufficiently explain why
human rights, or—what would be the same—political rights in general, are rights.
As John Tasioulas has argued, Griffin’s account takes rights out of human
rights.22 I find this criticism more to the point and more compelling than the com-
plaint that it fails to distinguish between human rights and other political rights. We
can criticise Griffin’s account for misunderstanding the nature of political rights in
general, without assuming that human rights form some special sub-set of political
rights. And we can take the slogan that human rights are fundamental to stand for
the trumping character of all political rights one has in a liberal-egalitarian society.
Doing so might invite charges of ethnocentrism or parochialism by states that do not
endorse the liberal-egalitarian values that underlie the constitutional rights pro-
tected in western democracies. But these charges can be addressed by defending
the truth of these values. As Dworkin himself points out: ‘If we believe in human
rights at all—or in any other rights for that matter—we must take a stand on the
true basis of such rights.’23

HUMAN RIGHTS AS THE RIGHT AGAINST CONTEMPT

Dworkin’s critique of the trumps-over-sovereignty classification and the human-

rights-as-fundamental-rights classification highlighted two conditions that a success-
ful theory must meet. First, it must invoke a genuine moral concern that provides
principled and non-arbitrary criteria for classifying human rights. And second,

22 John Tasioulas, ‘Taking Rights out of Human Rights’ (2010) 120 Ethics 647.
23 JfH, 33 (emphasis added).
336 G. Letsas

the concern must be such that it counts as pertinent to the practice of human rights,
justifying most—though not necessarily all—of its salient features. Dworkin’s cri-
tique was that the trumps-over-sovereignty classification fails to fit the practice of
human rights sufficiently well, whereas the human-rights-as-fundamental-rights
classification fails to offer non-arbitrary criteria for classifying human rights. His
own theory of human rights seeks to succeed where the other classifications failed.
Dworkin locates the normative concern underlying the practice of human rights
in the notion of governmental legitimacy. His suggestion is promising because we do
find the normative concern for governmental legitimacy a genuine and morally
appealing one, and we do so independently of the existence of the practice of
human rights. We moreover take our concern for legitimacy to be distinct from
our concern for justice. A government can be unjust yet legitimate. This would nor-
mally mean that citizens have a political obligation to obey its laws and not to seek to
undermine it or overthrow it. But if a government is illegitimate, then citizens may
be justified in taking action against it, ranging from protest and civil disobedience to
revolution. The distinction between justice and legitimacy, though widely accepted,
is controversial territory in political philosophy. Dworkin draws the distinction in the
following way: a government is legitimate when it makes a good-faith attempt to treat
its citizens with equal respect and concern and to protect their dignity; it is just when
it succeeds in doing so. The distinction between an unjust and an illegitimate act or
policy, Dworkin remarks, is that between ‘mistake’ and ‘contempt’.24
I have no quarrel with Dworkin’s theory of governmental legitimacy, or with the
values of equality and dignity upon which it is premised. It offers a clear and attrac-
tive conception of the difference between the legitimacy of a government and the
justice of its laws and policies. Some of course may worry that the theory sets the
threshold of governmental legitimacy too low because many tyrannical governments
will come out to be legitimate just because they think—or claim—that they try to
respect the dignity of their citizens. Dworkin’s reply is that this worry is misplaced:
the judgement as to whether something is a good-faith attempt to respect one’s
dignity is interpretive, by which he means that it is not (or not only) a matter of inten-
tions or motivations.25 Some practices or policies are so egregiously wrong that they
cannot be justified under any intelligible conception of what dignity requires.26 In
other, less clear cases, our interpretive judgement about whether some policy shows
contempt or good faith may draw on other principles. What shows contempt may
vary from place to place because many moral principles (such as protection of legit-
imate expectations) make local circumstances relevant.

24 Ibid, 335.
25 Note that the test of good faith in law is similar: one is in bad faith not only when one knows some
relevant fact but also when one ought to have known.
26 In previous work Dworkin called these wrongs ‘baseline violations of dignity’: ‘Some acts of govern-
ment are so obviously inconsistent with the principles of human dignity that they cannot be
thought to be justified by any intelligible conception of those principles’: Is Democracy Possible Here?
(Princeton University Press, 2008) 36. The distinction between baseline and other types of violations
of dignity does not appear in JfH.
 Jurisprudence 337

What is more controversial is the idea that legitimacy, as Dworkin understands

it, is the basis for classifying human rights. Does this idea fit human rights prac-
tice? And does it fit sufficiently well to be pertinent to it? Dworkin rightly remarks
that if legitimacy, thus understood, is the moral basis of human rights then there
is just one basic human right, namely the abstract right to be treated with a
certain attitude: as a human being whose dignity fundamentally matters. This is
a special kind of political right, one that is different from justice-based or legal-
ity-based rights, but that operates equally as a trump over ordinary modes of jus-
tification for policy. The challenge for Dworkin is to show how this abstract right
fares better than trumps-over-sovereignty, or other classifications, in explaining
salient parts of the human rights practice. Does it show for example that the
various rights recognised in the documents (such as the right to education, to
equal pay for equal work, to marriage, or a right against death penalty) are
genuine human rights?
Recall that Dworkin dismissed the trumps-over-sovereignty theory partly because
of its inability to justify these rights as human rights. It seems to me, however, that the
basic human right against contempt for one’s dignity does not fare much better
either. To be sure, the violation of some of the rights we call human shows manifest
contempt for the victim’s dignity: torture, genocide, punishing the innocent, racial
discrimination. And this contempt is a defeasible basis for taking action against
one’s government for acting illegitimately. But the abstract right against contempt
overstretches the further we move away from these non-derogable civil rights. Con-
sider for instance the detailed procedural safeguards that international human
rights impose on states in relation to arrest and trial:27 states may arrest and
detain persons only in specific cases, exhaustively defined; states have a duty to
inform those arrested promptly, and in a language that they understand, of the
reasons for their arrest; to bring them promptly before a judge; to try them
within a reasonable time or release them pending trial; to allow judicial review of
the lawfulness of the arrest or detention; to compensate victims of unlawful
arrest. The idea here is that states are required, as a human rights issue, to
observe these detailed safeguards, regardless of whether failure to do so manifests
contempt or not. For we can imagine a number of alternative schemes of procedural
safeguards that do not necessarily express contempt for the dignity of the accused,
yet fall short of current international human rights standards. For example, a state
that fails to compensate victims of unlawful arrest, say because of scarcity of
resources, does not show contempt for their dignity. The same difficulty applies
to various unqualified rights of a non-procedural character, such as the right not
to be subject to forced and non-consensual marriage (Article 16 paragraph 2
UDHR) or the right to change one’s religion (Article 18 UDHR). The practice of
arranged marriages, or the prohibition of religious conversion, need not show con-
tempt for the dignity of women or religious believers. Arguably many traditional
communities adopt these practices by way of respect, rather than contempt, for
the dignity of those involved. Yet, like the drafters of the UDHR, our judgement

27 See Articles 5 and 6 European Convention on Human Rights.

338 G. Letsas

that these practices constitute paradigm violations of human rights is insensitive to

cultural context. And, unlike genocide or torture, such practices can be given an
intelligible defence as an acceptable, yet deeply mistaken, conception of dignity.
I do not mean to suggest that the above difficulties are necessarily a problem
for the right-against-contempt classification. They pose a problem only if we
assign to the list of human rights that we find in current practice a normative sig-
nificance that, as I argued earlier, is unwarranted. What these difficulties show
nevertheless is that Dworkin’s right-against-contempt classification enjoys no com-
parative advantage over the trumps-over-sovereignty classification, as far as the
dimension of fit is concerned. Both propose criteria for classifying human
rights that, though non-arbitrary, leave out parts of existing human rights
practice.
My main worry, however, lies elsewhere. We do use the practice and the voca-
bulary of human rights to express concerns about the legitimacy of various tyran-
nical governments around the world. And the legitimacy of such governments is
often stained because of policies that, in Dworkin’s sense, show manifest contempt
for the dignity of their people. The problem is that this is not the only end to
which the practice and the language of human rights are put. As I have argued
elsewhere, the European Court of Human Rights interprets the ECHR by using
liberal-egalitarian principles and upholding individual moral rights, even in cases
where governments have acted in good faith.28 The role of the European Court of
Human Rights is not simply to check whether contracting states have overstepped
the bounds of their legitimacy. The Court routinely declares violations of human
rights for state acts that do not undermine the legitimacy of the respondent state.
Consider for example the landmark case of Demir and Baykara v Turkey,29 just to
take one example out of hundreds. The authorities of the respondent state had
refused to recognise legal personality to a trade union formed by municipal civil
servants and annulled the collective agreement into which the trade union had
entered. The Grand Chamber found a violation of Article 11 ECHR on both of
these points. We cannot say in this case that Turkey acted illegitimately by
showing contempt for the dignity of the applicants. We should however say that
Turkey had made a good-faith mistake about what the political right to freedom
of association requires. And it was a mistake that the European Court of
Human Rights had the moral authority to correct, based—amongst other
considerations—on the value of legality.
What are we to say of those parts of human rights practice that, like the
ECHR, assume or claim a human right against good-faith mistakes of what
dignity requires? Dworkin could reply here that his theory need not fit all the
parts of human rights practice and he might seek to account for the ECHR in
one of two ways. First, he might criticise the European Court of Human Rights
for unjustifiably expanding the scope of the ECHR and enforcing more rights

28 For a more extensive defence of the claim that the jurisprudence of the European Court includes the
finding of good-faith violations of human rights, see Letsas (n 21) ch 2.
29 Demir and Baykara v Turkey App no 34503/97 (Judgment) (Grand Chamber, 12 November 2008).
 Jurisprudence 339

than those that are human. Such a criticism would seem to me to be clearly mis-
placed. The European Court’s expansive approach is fully justified by the value of
legality in international law. Since the reform introduced by Protocol 11 to the
ECHR, contracting states agreed to be legally bound by the judgments of the
Court and to give the Court jurisdiction to hear individual petitions, knowing
that its approach to human rights is an expansive one that includes scrutinising
state action for good-faith errors. It would be unfortunate if Dworkin’s theory had
the effect of leading the European Court to lower the level of protection it offers
under the Convention, convinced that human rights only protect individuals
against bad-faith mistakes of what dignity requires.
Alternatively, Dworkin could defend the European Court’s expansive
approach by saying that the ECHR began in the 1950s as a human rights instru-
ment, responding to problems of legitimacy, and gradually became one of consti-
tutional rights, responding to problems of constitutional justice. This sounds
plausible, and similar views have been defended in the relevant literature.30
But now I begin to worry about how pertinent the value of legitimacy is to the
practices currently operating under the heading of human rights. We saw that
a large part of the practice is to do with investigating ‘consistent patterns of
gross human rights violations’ of the kind that justify sanctions or intervention.
Other parts of the practice, like the ICESCR, proclaim an obligation to ‘realise
progressively’ certain socio-economic rights or principles of social justice. Yet
other parts of the practice, like the ECHR, seek to correct good-faith mistakes
and misunderstandings about the political rights people have against the govern-
ment. My worry is not only that the normative concern of legitimacy only explains
a small part of current human rights practice. My worry is also that it is doubtful
whether any single normative concern can explain, sufficiently and in a non-arbi-
trary way, the rich and complex practice of human rights. After all, an account of
the practice of human rights does not have to be monistic in order to be non-
arbitrary. Different parts of the practice of human rights may each be responding
to different, yet real, normative concerns (such as limiting sovereignty, promoting
social justice, enforcing legal and political rights, legitimacy). In this sense, there
need be no ‘one-size-fits-all’ theory of the practice of human rights.31 Or, to put it
differently, there may be various practices operating under the heading ‘human
rights’, each of which is a response to a distinct normative concern. If this is true,
then any practice-dependent theory that—like Dworkin’s—seeks to be pertinent to
all or most practices currently operating under the heading ‘human rights’ is
bound to fail. And the various theories of human rights that different philoso-
phers have proposed may be perfectly compatible with each other, each addres-
sing a different moral concern.
Against this background, is there any point in insisting that a single normative
concern best captures the diverse and complex practice of human rights? It is not

30 See Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects
(Cambridge University Press, 2007).
31 Letsas (n 21) ch 1.
340 G. Letsas

clear what the motivation for this approach is, particularly if our interest in the classi-
fication question (‘what are human rights?’) is derivative from our interest in how
institutions and other agents ought to act within our existing human rights practices.
And it seems to me moreover that it is the interest in how current actors (human
rights courts, governments, international organisations, victims of abuse) ought to
act that motivates the methodological focus of practice-dependent theories on the
post-1945 practice.32
Be that as it may, if we do, for some reason, have to shrink the category of human
rights in some way, it seems to me better to shrink it in the direction of legal and
political rights rather than that of legitimacy. This is so for two reasons. First,
because what seems to capture the imagination and to ignite the passion of those
engaged in the human rights movement, is the idea that human rights have a trump-
ing force. And second, because the largest part of contemporary human rights
approximates more and more the practice of claiming individual rights before con-
stitutional courts, rather than the practice of scrutinizing illegitimate governments.
One sees this in the ever increasing practice of comparing the case law of national
courts, like the Supreme Court of the United States, with that of international
courts, like the European Court of Human Rights or the European Court of
Justice. To provide an example, in Lawrence v Texas33 the Supreme Court addressed
the question of whether anti-sodomy laws violate due process under the 14th
Amendment of the US Constitution. In Dudgeon v United Kingdom34 the European
Court addressed the question of whether anti-sodomy laws violate the human
right to private life under Article 8 ECHR. Most people, including the two Courts,
took these two questions to be about the same thing.
We should normally care about classification questions only to the extent that
something important hangs on them. Dworkin’s classification draws attention to a
genuine normative concern about the legitimacy of our government and the con-
ditions under which we have a right to disobey it. He is right that the question of
whether someone has a human right to some liberty (say not to be sent to a gas
chamber) is often used to invite a judgement about the legitimacy of the state
that restricts this liberty. But we do not need to use the language of human
rights in order to invite this judgement. Nor is the question of whether someone
has a human right not to be sent to a gas chamber necessarily a question about the
legitimacy of his state.

32 In this respect, I find it puzzling how orthodox theories, like Griffin’s or Tasioulas’, can be practice-
dependent, seeking to give an account of the post-1945 practice of human rights. This is because the
rights we have simply in virtue of being human are timeless and their existence does not depend on
any institutional practice. They are simply discoverable through natural reason. For orthodox the-
ories, our current practice of human rights should at best play an evidential rather than a constitutive
role. In theory, none of the rights we now call human need be rights we have simply in virtue of being
human. The more these theories treat current practice as imposing a normative constraint, the less
orthodox they become. So the methodological focus of these orthodox views on current practice
must be explained in some other way.
33 Lawrence v Texas, 539 US 558 (2003).
34 Dudgeon v United Kingdom App no 7525/76 (Judgment) (24 February 1983).