Journal of Comparative Law

Journal of Comparative Law

RIGHTS AS TRUMPS

Document Type : Research Article

Authors
Ronald Dorkin 1
Mohammad Rasekh 2
1 the writer
2 Translator
Abstract
Rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole. This paper is to put forward such an analysis and theory of rights, that is, rights as overriding I reasons over utilitarian justifications. To this end, the author refers to two kinds of argument against utilitarian background justification: the pluralistic argument and the argument from the right to moral independence. Dworkin argues that further analysis of the grounds that we have for accepting utilitarianism shows utility must yield to some right of moral independence. Utilitarianism owes its appeal to its egalitarian cast in the sense that in the calculation how best to fulfill most preferences overall, preferences of some people should not be weighed more than that of some other. To fulfill such an aim, utilitarianism is bound to accept the right to moral independence as a trump. In the second part of the paper the author replies to professor Hart's criticisms of his theory. In the preface, analyzing the unifying precedent judgment No. 645 by the Iranian Supreme Court, attempts to indicate the necessity of dealing with theories of rights such as the Dworkin's theory of "rights as trumps".
Keywords
RIGHT
MORALITY
HART
DWORKIN
1. Dworkin, R. (1984) "Rights as Trumps". inj. Waldron (ed). Theories of Rights Oxford: Oxford university Press, ch. VII.
2. عضو هیات علمى دانشکده حقوق، دانشگاه شهید بهشتى
3. ر.ک روزنامه رسمى جمهورى اسلامى ایران، شماره 16036،22/12/1378،صص 5-4.
3. ر.ک روزنامه رسمى جمهورى اسلامى ایران، شماره 15111،18/7/1378،صص 15-1
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