When Trumps Clash: Dworkin and the Doctrine of Proportionality

12 Pages Posted: 1 Sep 2016 Last revised: 2 Sep 2016

Jacob Weinrib

Queen's University

Date Written: August 30, 2016

Abstract

This paper explores the relationship between Ronald’s Dworkin’s rights as trumps model and the doctrine of proportionality. If there is one point on which defenders and critics of proportionality agree, it is that Dworkin’s model stands as a radical alternative to the doctrine – an alternative that takes constitutional rights seriously by denying that their infringement could be justified. This paper argues that this view is mistaken. Far from rejecting the doctrine of proportionality, Dworkin’s model is an instance of a prominent version of it. Proportionality formulates a set of conditions that specify what it means for government to take rights seriously when they conflict with other trumps. When Dworkin engages with the moral complexities of cases in which trumps conflict, he reaches for the same conditions.

Keywords: Constitutional Law, Comparative Constitutional Law, Ronald Dworkin, Constitutional Theory, Robert Alexy, Proportionality, Constitutional Rights, Limitations, Proportionality

Suggested Citation

Weinrib, Jacob, When Trumps Clash: Dworkin and the Doctrine of Proportionality (August 30, 2016). Available at SSRN: https://ssrn.com/abstract=2832405 or http://dx.doi.org/10.2139/ssrn.2832405

Jacob Weinrib (Contact Author)

Queen's University ( email )

Mac-Corry Hall
Room 529
Kingston, Ontario K7L3N6
Canada
6472378471 (Phone)

HOME PAGE: http://https://queensu.academia.edu/JacobWeinrib

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