드워킨(R.Dworkin)의 도덕적 권리론 -구성적 모델과 권리 기저적 권리론-

Abstract

There has been a confrontation between utilitarianism and contemporary theory of human rights over whether human rights is considered from the legal rights or moral rights point of view in the field of the contemporary legal philosophy. The contemporary theory value untransferable individual rights above everything else with respect to the former, meanwhile the utilitarianism give the whole of social interests a preference with respect to the later. R. M. Dworkin developed new theory replacing dominant value relativism and utilitarianism in the academic world of Anglo Ethics for a long time thorough challenging a criticism introduced by J. Bentham on the doctrine of moral human rights with doctrine of moral rights based on the doctrine of natural rights. He also presented ‘constructive model’ endorsing Rawls’ method of reflective equilibrium. The model is that his embrace of consistent moral principal undermines law as integrity treating one’s own moral intuition and confident as subject matter that lies at the heart of his theory of law. As practicable political theory obtained by the constructive model, he suggested right-based theory based on the right to equal concern and respect instead of goal-based theory such as utilitarianism. Owing to right-based theory is reflected on the legal system, a right to equal concern and respect is intrinsic morality either. Consequently, human rights is justified as moral rights by the right to equal concern and respect.