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Balancing and the limitation of rights in the South African Constitution 257
(d) Quasi-scientificity. The balancing metaphor and related language suggests
that the process of limitation analysis is technical, even mechanical. The
result, as Aleinikoff puts it, ‘is simply read off the machine. Scientific balancing
decisions are neither opinions nor arguments that can engage us; they are
demonstrations’. 32 This might comfort critics troubled by the spectre of
excessive judicial discretion, but it is not an accurate description of the actual
practice and also ‘avoids dialogue about important moral and political
issues’. 33 A fifth criticism of balancing, not included in Woolman and Botha’s
compendium, can be added to this list. 34 This is the criticism, rehearsed in the
opening section of this article, that balancing fails to take rights seriously, that
it fails to accord to rights a necessary special priority. We can take Habermas
as a representative of this line of thought.
(e) Taking rights seriously. Habermas’s critique of balancing is a response to
Robert Alexy’s defence of the practice in his Theorie der Grundrechte (1986). In
the postscript to the English translation of this work, Alexy summarises
Habermas’s argument as follows:
… ‘goal-oriented weighting’ leads to the possibility that ‘individual rights can be
sacrificed at times to collective goals’. But then constitutional rights would lose
their firmness, which can only be guaranteed by way of a strict deontological
structure, that is by having the character of rules. By contrast, giving them the
character of principles destroys a ‘fire wall’. ‘For if in case of collision all reasons
can assume the character of policy arguments, then the fire erected in legal
discourse by a deontological understanding of legal norms and principles
collapses’. 35
Powerful though the case against balancing seems to be, this has not
discouraged the South African courts from continuing to practise it. 36 Nor
is the practice confined to this jurisdiction; as a component of
proportionality, balancing could be considered ubiquitous in contemporary
constitutional law. 37
32 Aleinikoff (n 29 above) 993, quoted in Woolman & Botha (n 24 above) 34-101.
33
Woolman & Botha (n 24 above) 34-101.
34 See, for a South African evaluation of the criticism, F du Bois ‘Rights trumped?
Balancing in constitutional adjudication’ 2004 Acta Juridica 155.
35
R Alexy A theory of constitutional rights (trans Rivers) (2002) 388, quoting Habermas
Between facts and norms (n 30 above) 254; R Alexy ‘Reply to symposium participants’ in
M Rosenfeld & A Arato (eds) Habermas on law and democracy (1998) 429.
36
As Woolman observes in ‘Vanishing Bill of Rights’ (n 31 above) 783 n 41: ‘I have offered
several related critiques of the court’s reliance on the metaphor of “balancing” when
undertaking limitation analysis. The court’s subsequent jurisprudence reflects neither an
engagement with those critiques nor any effort to offer a coherent account of what it
often calls “proportionality” analysis’.
37 A Stone Sweet & J Mathews ‘Proportionality balancing and global constitutionalism’ (2008)
47 Columbia Journal of Transnational Law 73 (the ‘dominant technique of rights adjudication
in the world’).