1865.I First

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I first thought that Ronald Dworkin's distinction betwee~1. "fundal11.ental" and "nonfundamental" rights was only another way of

l11.aking GaIuwell's distinction between "formative" and "substantive" rights. But I've since COl11.e to think that this can hardly be correct-for one reason

because Gan1.well himself speaks of "a

Anyhow, according to Michael Lynch's interpretation,fundamental substan'tive right" (Politics as a Christian Vocation: 95; italics added). Broadly speaking, rights cCln be either fundamental or not. Fundclll1ental rights differ frorn other rights by being, as Ronald Dworkin has put it, matters of principle and not of policy. A right is granted CIS a l11.atter of social policy when a protection or an advantage is Clccorded to a person in order to Cldvance some desirable social goal. ... A fundamental right, on the other hClnd, is not a matter of policy.... Unlike rights justified by policy, which are justified because they are means to a worthwhile social goal, fundamental righ ts are justified either because they are directly necessary out of basic respect due to human persons, or because they are constitutive of Clny politicClI system that accords basic respect to persons. In either case, the justification for fundamental rights is seen ClS enormously strong, perhaps even Clbsolute; thus the tClg 'inalienable.' As Dworkin puts it, rights of this sort trump other political concerns. You can't lose them just becCluse the majority no longer wishes to respect them.... The whole point of having a fundamental or, CISit is often put, 'human right,' is that it can't justifiably be taken away just because a government suddenly decides it would be convenient to do so" (True to Life: 165 f.) .Perhaps one way to put the matter is this: That only formative rights are to be "constitutionaly stipulated/' as GaIuwell Inaintains, does not mean that only fonuative rights are "fundamental," in Dworkin's sense of the tenn.all. the other hand, substantive rights may be "fundamental" in Dworkin's sense without being "constitutionally stipulated" along with properly forn1.ative rights as Gamwell understands theln. Gamwell writes: [T]he ultimate terms of political assessment may be restated asCI fundamental substantive right: All individuals. have a right to the greatest measure of general empowerment the state can provide or promote equa.1ly for el11. ... [But i]nsisting that all have a substantive right or set of rights the state should secure is one thing, and stipulating these rights constitutionally is something else.... A democratic constitution anticipates that the full Clnd free discourse [it constitutes] will be successful and thus will, through statutOlY law, provide or promote for all the substantive conditions necessary to real equCllity ill rlw pnlirirnl prnrp" it,plf npmnrr:;]tic 1,()lHic~ it!>oIf knot ,1 Dl.lbotnnH\'G possibility unless the government fulfills its moral obligation by pursuing justice CIS general emancipation.... Because a democratic constitution 2presupposes the ultill'1ate terms of political assessment, the constitution itself implies that the principles of substantive justice are equally permanent[sc. with those of formative justice], even if it does not stipulate their content (95 f.) . Context Jnakes clear, I believe, that what GmTIwell understands by

20 Novenl.ber 2007"pennanent principles" are, in Dworkin's sense, ''fundamental principles." In any case, Gan1well removes any doubt that substantive principles of justice are "equally pernl.anent" with its formative principles.