The Demise of Rights as Trumps

Abstract

For much of the post 9/11 period, liberal jurists have resisted the entrenchment of radical measures and insisted upon the compatibility of freedom and security. Yet they have been largely ignored in a political climate in which fear and reaction dominate. This chapter argues that the nature of this impasse can best be understood in terms of the decline in the cultural currency of Ronald Dworkin’s concept of ‘rights as trumps.’ First argued in 1970, in a period of human rights ascendency, Dworkin’s approach rejected the notion of balancing individual and collective interests in favour of the moral priority of individual dignity and equality. Despite an increasing concern with security and risk in western law and politics, rights as trumps retained a degree of currency from the 70s to 2001. But 9/11 would radically undermine the ideal by altering our assumptions about the magnitude of the risk posed by criminal activity, and specifically in terms of what can be called the harbinger theory — a belief that 9/11 marked a new order of terror, with further attacks likely to occur on a similar or greater scale, possibly involving WMD. This chapter examines Dworkin’s defence of rights as trumps in light of this later imaginary to reveal its implied conditions and their complication by the harbinger theory. The demise of rights as trumps — and the larger impasse in current debates about rights and security — is seen here to be a consequence of an inability to reconcile the prospect of mass terror with earlier ideas about rights, risk, and security.

Keywords: Ronald Dworkin, Rights as Trumps, National Security, Terrorism