Discuss the doctrine of ‘rights as trumps’. (2019, 15 Marks)
Ronald Dworkin stated the doctrine in Taking Rights Seriously (1977) and refined it in the essay “Rights as Trumps” (1984): Individual rights are political trumps held by individuals. A person has a right when no collective goal can justify denying them what they wish to have or do, or imposing a loss on them. As a trump card beats any card of another suit, a right defeats arguments from aggregate welfare.
The doctrine
- Principle over policy. Rights are arguments of principle; collective goals are arguments of policy. The first cannot be traded for the second.
- Target. Utilitarianism and unchecked majoritarianism. If a right yields whenever overriding it would raise total welfare, it protects no one.
- Strong sense. A right in the strong sense makes it wrong for government to interfere even when interference would serve the general good.
- Threshold. Not every interest becomes a right, only one backed by a moral reason weighty enough to resist the aggregate.
The justification: equal concern and respect
Government owes every citizen equal concern and respect. Utilitarian counting fails this test because it adds external preferences, people’s wishes about what others should have or do, to personal ones. Racist or moralistic preferences then count twice against a minority. Rights pre-empt outcomes that such prejudice would drive.
Limits inside the doctrine
- Trumps are not absolute. Dworkin allowed override where the right’s values are not really at stake, where honouring it would impose an exceptional cost such as an emergency, or where it collides with another’s right.
- So rights rank among themselves; only non-right goals are automatically beaten.
Critiques
- H. L. A. Hart (“Between Utility and Rights”, 1979) argued that losing a vote shaped by external preferences does not itself deny equal concern, so the argument cannot generate the rights Dworkin wanted.
- Michael J. Sandel (Liberalism and the Limits of Justice, 1982) saw in the priority of right an unencumbered self detached from community. Mary Ann Glendon (Rights Talk, 1991) warned that absolutist rights language crowds out compromise and responsibility.
- Jeremy Waldron (“The Core of the Case Against Judicial Review”, 2006) observes that citizens reasonably disagree about rights. Letting judges play the trump displaces majoritarian democracy where it matters most.
Indian practice
- Article 13 voids laws that abridge Part III, and the basic structure doctrine (Kesavananda Bharati, 1973) protects core rights even from amending majorities.
- Navtej Singh Johar (2018) placed constitutional morality above popular morality: in Dworkin’s language, external preferences cannot defeat a right.
- Yet Article 19 carries reasonable restrictions, and Puttaswamy (2017) adopted proportionality: legality, legitimate aim, proportionate means and procedural safeguards, which is structured balancing.
- After the 44th Amendment (1978), Articles 20 and 21 cannot be suspended even in an Emergency, a trump that survives Dworkin’s own exception.
Conclusion
The doctrine is right about direction: rights must not be traded against aggregate welfare. Read as absolute, it fails. Constitutional democracies such as India treat rights as heavy weights placed on the scale before balancing begins, with a core that no majority may touch.