Abstract

There is probably no conceptualisation of rights more famous than Ronald Dworkin’s, according to whom they are ‘trumps’. Yet, his claim is puzzling in at least two ways. First, it is not at all clear what it means to say that rights are trumps; whatever the correct answer may be, it cannot mean that rights such as the right to private life, the right to property, or the right to an education – to name just a few rights that are widely recognised in contemporary rights discourse – always or at least normally ‘trump’ all or most interests that clash with them. Second and related, by singling out their ‘trumping’ quality as their central, defining feature, Dworkin knowingly or unknowingly places his theory in sharp contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, far from trumping conflicting interests, ultimately have to be balanced against them. The goal of my article is to show that, far from being in conflict with proportionality, properly understood, Dworkin’s theory of rights supports and supplements that doctrine by providing a coherent conception of the moral commitments to human dignity, freedom, and equality on which it is based.

Kai Möller is an Associate Professor of Law at the LSE. Before joining the Law Department in 2009, he was a Junior Research Fellow and previously a Lecturer in Jurisprudence at Lincoln College, University of Oxford. He holds M.Jur., M.Phil. and D.Phil. degrees from Oxford and a PhD in law from Freiburg University. He is also qualified for the German bar. His main interests lie in constitutional theory, human rights law and theory, comparative human and constitutional rights law and moral, political and legal philosophy.