 The argument is better interpreted as a normative argument—as advancing the claim about what the law ought to be and not what it is. The standard of proof ought to vary from case to case. But this proposal faces a second objection. For convenience, the objection will be elaborated in the criminal setting; in principle, civil litigants have the same two rights that we shall identify. According to Dworkin (1981), moral harm arises as an objective moral fact when a person is erroneously convicted of a crime. Moral harm is distinguished from the bare harm (in the form of pain, frustration, deprivation of liberty and so forth) that is suffered by a wrongfully convicted and punished person. While accused persons have the right not to be convicted if innocent, they do not have the right to the most accurate procedure possible for ascertaining their guilt or innocence. However, they do have the right that a certain weight or importance be attached to the risk of moral harm in the design of procedural and evidential rules that affect the level of accuracy. Accused persons have the further right to a consistent weighting of the importance of moral harm and this further right stems from their right to equal concern and respect. Dworkin’s theory carries an implication bearing on the present debate. It is arguable that to adopt a floating standard of proof would offend the second right insofar as it means treating accused persons differently with respect to the evaluation of the importance of avoiding moral harm. This difference in treatment is reflected in the different level of the risk of moral harm to which they are exposed.