When Trumps Clash: Dworkin and the Doctrine of Proportionality |
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| Authors: | Jacob Weinrib |
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| Institution: | Queen's University, Faculty of Law, Macdonald Hall, 128 Union Street, Kingston ON K7L3N6, CanadaThis project was supported by a Dworkin‐Balzan Postdoctoral Fellowship at the New York University School of Law and a SSHRC Postdoctoral Fellowship. For comments, I am grateful to Kathryn Chan, Howard Kislowicz, Ariel Zylberman and an audience at the Legacy of Ronald Dworkin Conference, University of Buenos Aires, 2015. Megan Pfiffer provided excellent research assistance. |
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| Abstract: | If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. |
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