This Note argues that the rights thesis is untenable. It shows that Dworkin's distinction between arguments of principle and arguments of policy, upon which the rights thesis is based, cannot withstand close scrutiny. The Note questions whether it is sensible to speak of an objectively soundest theory of law, and argues that, even if such a theory is feasible, Dworkin has failed to prove that it will always dictate a unique result (or, put in different words, that the rights thesis is part of the putative soundest theory). If Dworkin's idea of a soundest theory is oppugned, or if the rights thesis is not part of that theory, then the rights thesis must be renounced. The criticisms presented in this Note do not, however, undermine a fundamental insight underlying Dworkin's rights thesis-that judges face certain institutional constraints not placed upon legislators. The final section of the Note explores the nature of these constraints by examining the "universalizability" of judgments of moral and legal obligation. The thesis presented here is that the central role played by the doctrine of precedent in judicial adjudication, and the requirement that like cases be treated alike, can best be explained as a product of normative reasoning. This thesis steers a middle course between Hart's position -that judges exercise a legislative-like discretion in cases within the open texture of legal rules, and Dworkin's contrary view that there is a uniquely correct legal solution in every civil case.
Michigan Law Review,
Dworkin's "Rights Thesis",
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol74/iss6/3