When Trumps Clash: Dworkin and the Doctrine of Proportionality

14 Pages Posted: 1 Sep 2016 Last revised: 31 May 2017

Multiple version iconThere are 2 versions of this paper

Date Written: August 30, 2016

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.

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 )

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416 452 9268 (Phone)

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

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