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Ratio Juris. Vol. 30 No. 3 September 2017 (341-352)

When Trumps Clash: Dworkin

and the Doctrine of Proportionality
JACOB WEINRIB*

Abstract. If there is one point on which defenders and critics of the doctrine of pro-
portionality 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 doc-
trine. On the other, this version takes rights seriously.

1. Introduction
This paper explores the relationship between Ronald Dworkin's rights as trumps
model and the doctrine of proportionality.
In the decades since the Second World War, proportionality has emerged in
jurisdictions around the world as the leading doctrine for the adjudication of con-
stitutional rights (Barak 2012, 145-210; Grimm 2010, 42). The doctrine formulates a
set of conditions that, when jointly satisfied, indicate that the limitation of a consti-
tutional right is justified. According to an influential formulation of the doctrine
articulated by the Supreme Court of Canada (R. v. Oakes, [19861 1 SCR 103), the
doctrine is applicable only in cases in which a right is limited by a law that pursues
an objective that is pressing and substantial in a free and democratic society. The
doctrine justifies a limitation when (1) there is a rational connection between the
means that the law employs and the objective that it pursues, (2) the law pursues
its objective in a manner that minimally impairs the right, and (3) the values of a
free and democratic society are realized more fully by rights' limitation than by its
exercise. At each stage of this justificatory sequence, the government bears the
onus of justifying the limitation of a constitutional right.

*This project was supported by a Dworkin-Balzan Postdoctoral Fellowship at the New York
University School of Law and a SSHRC Postdoctoral Fellowship. For comments, I am grateful to
Kathryn Chan, Howard Kislowicz, Ariel Zylberman and an audience at the Legacy of Ronald
Dworkin Conference, University of Buenos Aires, 2015. Megan Pfiffer provided excellent
research assistance.

© 2017 The Authors. Ratio Juris 0 2017 John Wiley & Sons Ltd.
342 Jacob Weinrib

If there is one point on which the defenders of proportionality and its critics
agree, it is that Dworkin's rights as trumps model repudiates the doctrine. Thus,
those who are sympathetic to proportionality reject the rights as trumps model for
failing to acknowledge the conditions under which a right may be justifiably
infringed (Barak 2012, 365; Kumm 2007, 131-2; M6ller 2007, 460; Thorburn 2016,
310-11). In turn, critics of proportionality conceive of the doctrine as a dangerous
confusion that dilutes the categorical protections that rights afford their
bearers (Rao 2008, 238; Tsakyrakis 2009, 489; Webber 2009, 110-4). In failing to
acknowledge that rights are trumps, proportionality collapses the distinction
between rights and interests, principles and policies (Habermas 1996, 258-9; Young
2014, 44 and 48).
This paper argues that each of these views is mistaken. Instead of opposing the
doctrine of proportionality, Dworkin's model instantiates a prominent version of it.
Proportionality formulates 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 clash, he reaches for the jus-
tificatory conditions articulated above.
I am not aware of any passage in Dworkin's corpus where he explicitly discusses
proportionality in relation to the judicial review of legislation.' When he discusses
limitation clauses in the human rights context, he rejects them as "political compro-
mises" forged to appease countries that do not take rights seriously (Dworkin 2006,
49). And, as critics of proportionality have noted, Dworkin's account of rights does
not employ the distinctive terminology that typically attends the application of the
doctrine (Webber 2009, 117). Nevertheless, I will argue that when one's focus shifts
from Dworkin's words to his ideas, the antagonism between the rights as trumps
model and proportionality dissolves.
Because my aim is to explicate the interconnection between the rights as trumps
model and the doctrine of proportionality, I will largely abstract from two sets of
interpretive controversies. The first concerns how best to understand Dworkin's
theory (or theories) of rights (Pildes 2000; Regan 1978; Yowell 2007; Waldron 2000).
The second concerns how best to understand the justification of the doctrine of pro-
portionality, the relationship between its conditions, and the significance of the var-
iations in the way that the doctrine is conceptualized and formulated in different
constitutional jurisdictions (Alexy 2002; Barak 2012; Beatty 2004; Cohen-Eliya and
Porat 2013; Klatt and Meister 2012; Moller 2012; Weinrib 2016). The primary pur-
pose of this paper is not to contribute directly to either of these debates, but to
explore the ground on which they overlap. To be sure, there are conceptions of pro-
portionality that run afoul of the rights as trumps model, for example, by balancing
rights against considerations of policy. But there is one prominent conception of

1 However, Dworkin acknowledges and seems to endorse the role of proportionality in the judi-
cial review of administrative conduct: "In the decades after World War II, more and more [...]
democracies gave judges new and-except in the United States-unprecedented powers to
review the acts of administrative agencies and officials under broad doctrines of reasonableness,
natural justice and proportionality [...]" (Dworkin 2003, 5). I am grateful to Teodor Papuc for
drawing my attention to this passage.

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 When Trumps Clash 343

proportionality with which Dworkin's model elides. For those who defend this ver-
sion of the doctrine, Dworkin is an ally rather than an opponent.

2. Trumps and Their Limits

Dworkin's theory of rights reflects a simple conviction: Individual rights limit the
pursuit of goals asserted in the name of the public interest. As Dworkin (1978, xi)
puts it: "Individuals have rights when, for some reason, a collective goal is not a
sufficient justification for denying them what they wish, as individuals, to have or
to do, or not a sufficient justification for imposing some loss or injury on them."
On this view, collective goals may be pursued only in the interstices of individual
rights. Thus, Dworkin claims that collective goals-including utility, preference,
non-prohibitive cost, and administrative convenience-must answer to the enjoy-
ment of individual rights.
So conceived, rights are incapable of being balanced against a collective goal
(Dworkin 1978, 197-8; 1990, 10; 2006, 27ff.). Individual rights and collective goals
cannot be balanced against one another because whenever a right appears, the pur-
suit of collective goals must yield. This means that even if it was possible to sub-
stantially further the realization of a collective goal by slightly curtailing an
individual right, it would not be permissible to do so. A right might be violated by
a collective goal, but it cannot be outweighed by one.
Dworkin maintains that a right trumps ordinary collective goals, but he also dis-
tances himself from the claim that government is "never justified in overriding that
right" (Dworkin 1978, 191). Rejecting the view that rights are absolute, Dworkin
explains that the infringement of a right calls for "some special justification more
powerful or compelling than the justification" that government must provide
for "other political decisions" (Dworkin 2002, 127). In Taking Rights Seriously, he
suggests that rights may be justifiably limited when the right is confronted by
an opposing trump, whether another right or some goal of "special urgency"
(Dworkin 1978, 92).
Defamation is Dworkin's leading example of competing rights. The law of defa-
mation limits freedom of expression in order to safeguard the "right of others not
to have their reputations ruined by a careless statement" (ibid., 193). Conflicts of
rights are not confined to the law of defamation: "The individual rights that our
society acknowledges often conflict in this way, and when they do it is the job of
government to discriminate" (ibid.). Further, Dworkin suggests that when govern-
ment is confronted by competing rights, it is "appropriate" to engage in balancing
(ibid., 199; Klatt and Meister 2012, 27).
When Dworkin claims that goals of "special urgency" can justify infringing a
right, he cannot be claiming that rights can be set aside for the sake of furthering
"ordinary routine goals of political administration" (ibid., 92). After all, this would
betray the simple conviction at the core of the rights as trumps model. Instead,
Dworkin holds that rights may be limited only by a "compelling reason" that "is
consistent with the suppositions on which the original right must be based" (ibid.,
200). These suppositions concern "the vague but powerful idea of human dignity"
or "the more familiar idea of political equality" (ibid., 198). Thus, rights may be jus-
tifiably infringed only for the sake of an objective that reflects the underlying moral
currency of rights (du Bois 2004, 160-1). An example of such an objective is an

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344 Jacob Weinrib

emergency that threatens the safety and security of rights-bearers, or the viability
of the rights-protecting legal order. In such cases, "we might say, the trump gets
trumped not by an ordinary justification but by a higher trump" (Dworkin 2011,
473; 2002, 127; 2006, 50).
From the standpoint of the rights as trumps model, rights stand in different kinds
of relations towards different kinds of objectives. Rights trump any objective that is
extraneous to the moral supposition on which they rest. In contrast, any objective
that reflects the underlying basis of rights is itself a trump. Whereas rights limit the
former kind of objective, they may be limited by the latter. We can therefore formu-
late a threshold condition for justifying the limitation of a constitutional right:

Threshold Condition: A government that takes rights seriously does not subordinate rights
for the sake of realizing objectives that are extrinsic to the moral suppositions on which
rights rest.

The same condition precedes the application of the doctrine of proportionality in

Canadian constitutional jurisprudence. The limitation clause in the Canadian Char-
ter of Rights and Freedoms "guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society." 2 Chief Justice Dickson of the Supreme Court of Can-
ada interpreted this provision to indicate that the "underlying values of a free and
democratic society" have a "dual function." 3 In the pre-eminent Canadian case on
the limitation of constitutional rights, Chief Justice Dickson wrote:

The underlying values and principles of a free and democratic society are the genesis of the
rights and freedoms guaranteed by the Charter and the ultimate standard against which a
limit on a right or freedom must be shown, despite its effect, to be reasonable and demon-
strably justified. 4

For Chief Justice Dickson, the underlying values and principles of a free and demo-
cratic society ground all constitutional rights and all justified limitations. Fidelity to
these constitutional values requires government to fulfill constitutional rights or to
justify their limitation by appealing to the values on which rights rest. Once a court
determines that a law infringes a constitutional right, if government seeks to uphold
the validity of the law, it bears the onus of justifying the infringement by demon-
strating that the law furthers an objective that coheres with these values. Such objec-
tives include, inter alia, "public safety, order, health, or morals or the fundamental
rights and freedoms of others."5 Alternately, objectives that are "trivial or discordant
with the principles of a free and democratic society" are incapable of justifying the
limitation of a constitutional right.6 Such objectives include utility, non-prohibitive

2 Canadian Charter of Rights and Freedoms, s. 1, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 1.
3 Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038, 1056; R. v. Keegstra, [1990] 3 SCR
697, 736).
4 R. v. Oakes, [1986] 1 SCR 103, 136.

5 R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, para. 95.

6 R. v. Oakes, [19861 1 SCR 103, 138-9.

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 When Trumps Clash 345

cost, and administrative convenience 7-the same collective goals that Dworkin
regards as subordinate to rights.
The threshold condition for applying the doctrine of proportionality echoes the
structure of the rights as trumps model. The point of agreement is not that rights
invariably outweigh objectives that do not cohere with the suppositions that under-
lie rights, but that such objectives are incapable of justifying the infringement of a
right. The doctrine of proportionality, so conceived, applies to cases in which a
right is supposedly confronted by a competing instance of its underlying basis. To
put the point in Dworkin's terms, proportionality applies to cases in which govern-
ment claims that a right trumps another right with which it is in conflict.

3. Justificatory Conditions
Once Dworkin acknowledges that a right may conflict with another trump, a fur-
ther question arises: What are the conditions under which a government that takes
rights seriously would nevertheless be justified in limiting a right? Dworkin does
not put forward a systematic response to this question. However, we can formulate
a response on his behalf by looking at his discussions of cases in which rights are
alleged to conflict with other trumps.
An initial condition arises when Dworkin argues, in Life's Dominion, that the state
may not limit access to abortion on the grounds that

a society in which abortion is tolerated is one that holds human life cheap, and that in that
kind of society ordinary people are more likely to be assaulted and killed. Obviously, it is a
legitimate goal of society to protect people from murderous attack. But this argument is still
unsatisfactory, because a state needs a compelling reason to justify banning abortion and
therefore strong evidence that the ban is necessary. There is no evidence beyond the
barest speculation that allowing the abortion of nonviable fetuses generates a culture
in which people take a more callous attitude toward the slaughter of children or adults.
(Dworkin 1993, 115)

In this passage, Dworkin accepts that protecting persons from violence is the kind
of objective for which a right may be limited. But he immediately notes that this
objective is not actually advanced by limiting the right. Thus, to the extent that the
right is infringed, the infringement is gratuitous. As Dworkin (1978, 195-6) puts
the point, if we allow rights to be constrained on the basis of "speculation" or
"vague assumptions" concerning their relation to some compelling objective, then
"we have annihilated rights." This argument can be formulated as a justificatory
condition for the limitation of a constitutional right:

Condition 1: A government that takes rights seriously does not limit rights for the sake of
furthering a trump that the limitation does not actually advance.

The failure to satisfy this condition indicates that the government's justification for
infringing a constitutional right cannot succeed. For no matter how integral a given
objective is to fulfilling the moral suppositions underlying rights, the objective is
not advanced by the means that the law employs.

7 Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177, para. 70.

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346 Jacob Weinrib

The satisfaction of this condition alone cannot justify the infringement of a constitu-
tional right. Even when the rights-infringement advances the law's objective, it might
still be possible to realize the objective through means that infringe the right to a
lesser extent. In Freedom's Law, in a discussion of free speech, Dworkin suggests that
if it was true that "some forms of pornography" posed a "clear and present danger"
to the safety of women, censorship of those forms would be justified "unless less
stringent methods of control, such as restricting pornography's audience, would be
feasible, appropriate, and effective" (Dworkin 1996, 219; 1978, 204). This example
involves a supposed conflict between the government's duty to respect the right of
persons to free speech and its duty to protect persons from violence. In this case, the
first condition is satisfied because restricting free speech contributes to public safety.
However, Dworkin argues, the infringement of freedom of speech is not justified
because the objective (public safety) could be achieved while limiting the right (free
speech) to a lesser extent. This means that the limitation of the right is to some extent
gratuitous: It is more severe than the competing trump can justify. Moreover, rights
are not taken seriously when they are gratuitously infringed. This argument too can
be formulated as a condition for justifying the limitation of a constitutional right:

Condition 2: A government that takes rights seriously does not limit rights to a greater
extent than the competing trump demands.

The failure to satisfy this condition indicates that the conflict between the right and
the countervailing objective has been overstated. If the objective could be achieved
while infringing the right to a lesser extent, a more severe infringement cannot be
justified.
When Condition 2 is satisfied, it is not possible to fully realize one of the trumps
without diminishing the realization of the other. Accordingly, a difficult question
arises: What is the duty of government when it is confronted by competing
trumps? In Taking Rights Seriously, Dworkin (1978, 199) seems to reject the question
when he suggests that, in cases of conflict, "Government can do nothing but esti-
mate the merits of competing claims, and act on its estimate." This statement might
suggest that no moral standard exists for assessing government action (or inaction)
in cases in which trumps conflict. In the absence of such a standard, when trumps
conflict, government can do no wrong. However, this cannot be Dworkin's view.
For, a few pages earlier, after acknowledging that the "individual rights that our
society acknowledges often conflict," he immediately suggests that when govern-
ment is confronted by clashing trumps, it must make "the right choice" by uphold-
ing the "more important of the two" (ibid., 194). Thus, Dworkin is committed to
the view that there is a standard by which the rightfulness of government conduct
with respect to conflicting trumps can be assessed. So, what is that standard?
The rights as trumps model offers an answer to this question. Recall that
Dworkin understands all trumps-all rights and all admissible bases of limita-
tions-as instances of the state's duty to protect dignity and equality. The moral
suppositions that underlie discrete trumps offer a common standpoint for consider-
ing the severity of a rights infringement and the significance of the opposing
trump. Accordingly, we must consider whether these suppositions are furthered or
frustrated by limiting the right. Formulated as a justificatory condition for the limi-
tation of a constitutional right, this requirement holds:

0 2017 The Authors. Ratio Juris 0 2017 John Wiley & Sons Ltd. Ratio Juris, Vol. 30, No. 3
 When Trumps Clash 347

Condition 3: A government that takes rights seriously limits rights only in cases in which
the limitation furthers the moral suppositions on which rights themselves rest.

An illustration of this condition emerges in a chapter of Is Democracy Possible Here?

entitled "Terrorism and Human Rights" (Dworkin 2006, 24). Dworkin alludes to the
wrongfulness of supposing "that any act that improves our own security, no matter
how marginally, is for that reason justified" (ibid., 50). The acts that he has in mind
involve the US government "policy of imprisonment without charge or trial in
Guantanamo and our other bases around the world" (ibid.). Dworkin's example
involves a clash between the right not to be detained without charge and the state's
objective of safeguarding its members from terrorism.8 As we have seen, Dworkin
regards this as the kind of objective capable of justifying the limitation of a right.
Thus, the threshold condition is satisfied. Suppose that there is compelling evidence
that preventive detention advances security. Thus, Condition 1 is satisfied. Further,
suppose that there is no way to realize the government's security objective while
infringing the right to a lesser extent. Thus, Condition 2 is satisfied. Dworkin holds
that the detention would nevertheless be unjustified because it violates Condition 3.
On the one hand, he notes that preventive detention constitutes a staggeringly severe
infringement of a human right. On the other, he maintains that "the emergency is
not grave enough to justify" these practices (ibid., 26). While security is the kind of
objective for which a right may be justifiably infringed, the suppositions that under-
lie rights are not served by grievously infringing rights for meager gains in security. 9
I have argued that the rights as trumps model generates a series of conditions
that government must satisfy to justify the limitation of a constitutional right. A
government that takes rights seriously does not subordinate rights for the sake of
realizing objectives that are extrinsic to the moral suppositions on which rights rest
(Threshold Condition). Further, a government that takes rights seriously neither
limits rights for the sake of furthering a trump that the limitation does not actually
advance (Condition 1), nor limits rights to a greater extent than the competing
trump demands (Condition 2). Finally, a government that takes rights seriously

8 Here, Dworkin's discussion concerns human rights that the United States has entrenched
within its constitutional framework. However, for the purposes of the present argument, little
turns on the distinction between human and constitutional rights. For a discussion that roots
constitutional rights in those human rights that bind government (political rights) and then
explicates both political and constitutional rights by appealing to the rights as trumps model,
see Dworkin 2006, 30-2. For a discussion distinguishing human rights in terms of the conditions
of their violation as reflecting contempt for (as opposed to mere confusion about) the demands
of dignity, see Dworkin 2011, 335-9.
9 For a parallel illustration, see HCJ 2056/04 Beit Sourik Village Council v. Israel [2004] IsrSC 58(5)
807. When the Israeli government planned to build a separation fence to prevent terrorist attacks,
West Bank residents brought a complaint to the Israeli Supreme Court alleging that the separation
fence-much of which was built on West Bank land-posed a severe infringement of their rights,
including their rights to property, freedom of movement, and freedom of occupation. Applying
the proportionality doctrine, the Court determined that the government acted pursuant to an
appropriate objective (security), that a rational connection obtained between the means (the build-
ing of the separation fence) and the objective, and that there were no alternative means that realized
the same degree of security while impairing the rights of West Bank residents to a lesser extent.
Nevertheless, the Court held that the government had not satisfied the proportionality stricto sensu
requirement because, as Justice Barak later put it, an alternative route was available that "provided
slightly less security and much more protection of human rights." See Barak 2007, 376.

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348 Jacob Weinrib

limits rights only in cases in which the limitation furthers the suppositions on
which rights themselves rest (Condition 3).
Each of the conditions to which Dworkin appeals finds its reflection in a prominent
conception of the doctrine of proportionality. I argued above that Dworkin's thresh-
old condition arises within proportionality in terms of a constraint on the kinds of
objectives that government may invoke to justify the limitation of a constitutional
right: An objective that does not cohere with the values that underlie rights is incapa-
ble of justifying their limitation. The same is true of the remaining justificatory condi-
tions. Condition 1 is captured by the rational connection requirement, which is
satisfied when the rights-infringing means that the law employs advance the law's
objective. Condition 2 is encapsulated in the minimal impairment requirement, which
is satisfied when the law's objective is pursued through means that infringe the right
to the least extent. Condition 3 is formulated in the final stage of the proportionality
analysis, proportionality stricto sensu, which is satisfied when the limitation furthers
the realization of the values that underlie the infringed right. Further, Dworkin (1990,
11) affirms the condition that applies to each of the others: "government should bear
the onus of demonstrating that any interference with any part of the fundamental lib-
erties is really necessary to secure some essential goal." Thus, each of the piecemeal
moral considerations that Dworkin invokes to justify the limitation of a constitutional
right is consolidated within the sequence of moral conditions that form this concep-
tion of proportionality. Together, these conditions identify cases in which trumps
conflict and determine how government must respond.
The affinity between Dworkin's rights as trumps model and proportionality, as
set out in Canada's Oakes case, is formulated in the following chart:

Dworkin's Rights as Trumps Model Proportionality

Threshold A government that takes rights seri-
Condition ously does not subordinate rights
for the sake of realizing objectives
that are extrinsic to the moral sup-
positions on which rights rest.*
*Excluded objectives include: utility, preference, administrative convenience,
non-prohibitive cost, policy, etc.
Condition 1 A government that takes rights seri-
ously does not limit rights for the
sake of furthering a trump that the
limitation does not actually
advance.
Condition 2 A government that takes rights seri-
ously does not limit rights to a
greater extent than the competing
trump demands.
Condition 3 A government that takes rights seri-
ously limits rights only in cases in
which the limitation furthers the
moral suppositions on which
rights themselves rest.
Objectives that are "trivial or dis-
cordant with the principles of a
free and democratic society" are
incapable of justifying the limi-
tation of a right (R. v. Oakes,
[1986] 1 SCR 103, 138-9).*
The means of rights-infringing
that the law employs must be
rationally connected to the rele-
vant objective.
The law must pursue its objective
in a manner that minimally
impairs the right.
The values of a free and demo-
cratic society are realized more
fully by the limitation than the
right.

© 2017 The Authors. Ratio Juris 0 2017 John Wiley & Sons Ltd. Ratio Juris, Vol. 30, No. 3
 When Trumps Clash 349

In responding to the moral complexities of cases in which rights are alleged to con-
flict with other trumps, Dworkin appeals to the conditions that precede and com-
prise a leading conception of proportionality. The result is that the rights as trumps
model coheres with proportionality, but proportionality provides doctrinal guid-
ance by organizing the patchwork of moral considerations that Dworkin invokes
into an ordered sequence of considerations. One need not have Herculean powers
of adjudication to adjudicate a clash of trumps.
I do not intend to push too far and say that all of Dworkin's discussions of rights
and their limits adhere to the logic of proportionality as I have expounded it. For
example, Dworkin's critics have rightly noted his tendency to sidestep the moral
complexities that attend a clash of trumps. For example, in discussing the right to
pornography, Dworkin envisions a conflict between the trump of free speech and
the community's desire to censor materials that some of its members find distaste-
ful or even revolting. Dworkin fails to consider the possibility of a "rights-based
argument against pornography [...1. As a rule, when he raises the possibility of
any link between pornography and harm to women of a concrete and familiar sort,
he fails to take it seriously" (Langton 1990, 326-7). Dworkin's hesitance to acknowl-
edge that rights-based arguments both underlie and oppose his own views extend
from his discussions of pornography to hate speech. As Susan Brison (1998, 325)
argues, when Dworkin confronts arguments for restricting hate speech, he confines
his gaze to arguments that advocate censorship on the basis of popular preference
rather than a concern for persons targeted by hateful expression. If Dworkin's treat-
ment of these controversies is inadequate because he fails to acknowledge the pres-
ence of an opposing trump, perhaps a more adequate approach can be developed
by attending to his general method for resolving such conflicts.
Nor do I claim that every conception of proportionality accords with Dworkin's
theory of rights. Take the threshold condition, for example. In the Canadian formu-
lation of the doctrine, constitutional rights may not be infringed for the sake of real-
izing objectives that are trivial or discordant with the constitutional values on
which rights rest. In Germany, the threshold condition is weaker: A merely lawful
objective can, in principle, be a legitimate purpose (Legitimer Zweck) for justifying
the infringement of a constitutional right (Grimm 2007, 388-9). This means that
rights may not be limited for the sake of objectives that are discordant with constitu-
tional values, but objectives that are trivial from the standpoint of constitutional
values are not excluded from the proportionality analysis. From the standpoint of
the rights as trumps model, this approach is objectionable because it does not pre-
vent the balancing of rights against the very considerations that they trump. In
Dworkin's terms, the cost to constitutional principles may be balanced against the
benefits that accrue to policy. This does not mean that policies will invariably van-
quish principles. However, it does mean that these considerations are placed on a
common plane. For Dworkin, such an approach fails to give rights their due, even
if it is the case that rights often prevail.

4. Conclusion
By considering the interconnection between Dworkin's theoretical exposition of
rights and the doctrine of proportionality, two criticisms can be put forward. The
first is that Dworkin's theory of rights lacks resources for thinking about cases in

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350 Jacob Weinrib

which rights conflict with other trumps (Zucca 2007, xii). The second is that by
specifying the conditions under which rights can be justifiably infringed, the
doctrine of proportionality fails to take rights seriously (Tsakyrakis 2009, 489).
These criticisms are related. By working out what it means to take rights seri-
ously, Dworkin offers a theoretical basis for the conditions that precede and
comprise the doctrine of proportionality. In turn, the doctrine provides a way of
ordering the piecemeal considerations to which Dworkin appeals into an
ordered sequence of conditions. A government that takes rights seriously does
not subordinate rights for the sake of furthering an objective that is extrinsic to
their underlying suppositions. Nor does such a government infringe rights gra-
tuitously, whether by limiting rights for the sake of an objective that the limita-
tion does not actually advance or by limiting a right to a greater extent than the
objective demands. Finally, a government that takes rights seriously infringes
rights only in cases in which the limitation furthers the suppositions on which
rights themselves rest. These conditions form a demanding justificatory frame-
work that expounds what it means to take rights seriously whenever their
infringement is proposed. To the extent that competing conceptions of propor-
tionality depart from this framework, they are susceptible to the charge that they
fail to take rights seriously.10

Queen's University
Faculty of Law
Macdonald Hall
128 Union Street
Kingston ON K7L3N6
Canada
E-mail: jacob.weinrib@queensu.ca

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© 2017 The Authors. Ratio Juris 0 2017 John Wiley & Sons Ltd. Ratio Juris, Vol. 30, No. 3