The Liberty of Ancients Compared with That of Moderns

Dworkin's central claim is that individuals have rights that function as political trumps—they override collective goals that would otherwise justify denying someone what they wish to have or do [citation:3][citation:9]. He rejects the dominant Anglo-American legal theories of his time: legal positivism, particularly H.L.A. Hart's version, which holds that law is a system of rules and that judges exercise discretion when rules run out; and utilitarianism, which justifies state action by aggregate welfare [citation:1]. For Dworkin, the fundamental right is the right to equal concern and respect, from which other rights derive.

Dworkin introduced the ideal judge Hercules to illustrate his theory of adjudication. When faced with a hard case—where statutes and precedents provide no clear answer—Hercules would construct the theory of law that best explains and justifies the existing legal materials, including constitutional provisions, statutes, and precedents [citation:6][citation:11]. If more than one theory fits, he chooses the one that most appeals to his theory of morality. Crucially, Hercules does not make law retroactively; he discovers the rights that the parties already possess. This framework rejects the positivist view that judges legislate in hard cases.

Critics often present Dworkin's rights-as-trumps model as a radical alternative to proportionality, which allows rights to be balanced against competing interests. However, scholars have argued that Dworkin's model actually converges with a prominent version of proportionality: rights-as-trumps allow for balancing sufficiently important interests, making them proportionate trumps [citation:5][citation:18]. The difference lies in how rights are framed. Dworkin's later work presents rights as protecting interests against certain sorts of reasons government might act on, rather than insulating interests against all interference regardless of motivation [citation:14]. This is a more nuanced view than the simple trump metaphor suggests.

Dworkin's legal theory is inseparable from his political philosophy. The right to equal concern and respect, which grounds his jurisprudence, is also the foundation of his liberalism [citation:1]. His theory of law is prescriptive rather than merely descriptive: it aims not only to explain the legal system but to justify it [citation:4]. He argues that legal reasoning cannot be separated from moral reasoning, and that judges must make judgments of political morality to determine what the law is [citation:11]. This tight connection between law and morality is what distinguishes his approach from legal positivism, which insists on a conceptual separation.

Critics have raised several objections. First, Dworkin's claim that there is a single right answer in hard cases has been challenged as implausible and unverifiable; he never provides objective standards for determining whether the correct decision has been reached [citation:6]. Second, his reliance on the right to equal concern and respect as the foundation has been called a 'hopeless muddle,' with critics arguing he fails to define what this right entails [citation:9]. Third, some argue his theory is neither coherent nor liberal because the right to equal concern and respect is incompatible with his argument for right answers [citation:13]. Fourth, his treatment of legislative duties has been criticized as 'illiberal' [citation:15].

The book's publication in 1977 created a sensation and established Dworkin as one of the most influential legal philosophers of the twentieth century [citation:6]. It was praised as the most important work in jurisprudence since H.L.A. Hart's The Concept of Law and provoked extensive commentary [citation:1]. Dworkin's attack on legal positivism and utilitarianism challenged the dominant paradigms, and his rights thesis—that judicial decisions enforce existing rights rather than create new ones—offered a powerful alternative to both positivism and natural law theory. The book was published by Harvard University Press and has remained in print with a new appendix responding to critics [citation:1][citation:12].