Accessible Requires Authentication Published by De Gruyter November 29, 2018

Dworkin’s Theory of Rights in the Age of Proportionality

Kai Möller

Abstract

There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s theory of rights which does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality.

Acknowledgements

I would like to thank Jurriën Hamer, Ester Herlin Karnell, Mattias Kumm, Dimitrios Kyritsis, Iddo Porat, Gila Stopler, and Samuel Tschorne for their valuable comments and suggestions. Various versions of this paper were presented at the Law Faculty Seminar Series at Utrecht University and the Free University of Amsterdam, the Public Law Theory Seminar Series at Humboldt University Berlin, and the Berlin Colloquium on Global and Comparative Public Law at Humboldt University. I am grateful to the organizers and the participants for their valuable feedback. Furthermore, I would to acknowledge the support of the Grant Agency of the Czech Academy of Sciences as part of a project on “The Role of the Principle of Proportionality in the Decision-Making of Courts” (grant ID: 15-23955S – Subsidy RVO: 68378122), awarded to the Institute of State and Law of the Academy of Sciences of the Czech Republic.

Published Online: 2018-11-29
Published in Print: 2018-11-27

© 2018 Walter de Gruyter GmbH, Berlin/Boston