Download this publication - PULP

258 Chapter 11
4 The case for balancing
Missing from Botha and Woolman’s account is the powerful counter-case
in favour of balancing. The case is made in Alexy’s descriptive work on the
practice of the German Constitutional Court, a practice that has been
characterised since the inception of the court by a commitment to the
principle of proportionality and to its sub-principle, balancing. Though
Alexy is cautious about claiming the accuracy of his theoretical
conclusions about the nature of rights adjudication only in relation to the
jurisprudence of the German Court, his account of rights obviously has
more general application to any jurisdiction to which proportionality and
balancing has spread. What, then, is Alexy’s answer to the objections to
balancing that have been set out above?
We need to begin with an overview of Alexy’s argument about the nature
of constitutional rights, as the principle of proportionality and balancing are
necessary attributes of this particular conception of rights. One can begin with
Dworkin’s famous debate with Hart about positivism’s ‘model of rules’. 38 Law,
Dworkin showed, consisted of more than just a set of valid legal rules but
contained also ‘standards that do not function as rules, but operate differently
as principles, policies and other sorts of standards’. 39 Dworkin illustrated the
existence and operation of one of these standards – principles – by reference to
the 1889 case of Riggs v Palmer, which posed the question as to whether an heir
named in the will of his grandfather could inherit when he had murdered his
grandfather. 40 The decision entailed the clash of competing legal principles –
namely, that no one should profit from his wrong versus the principle that wills
should be upheld. The result in Riggs was in favour of the first principle, the
murderer did not inherit. But this decision did not invalidate the second principle,
which remained good law for use in a future case. This showed, Dworkin
reasoned, that principles were structurally different to rules, lacking the ‘all or
nothing’ quality of the latter and having, instead, a ‘dimension of weight’ which
permitted conflicting principles to be maintained in a legal system without
cancelling each other out:
When principles intersect ... one who must resolve the conflict has to take
into account the relative weight of each. This cannot be, of course, an
exact measurement, and the judgment that a particular principle or policy is
more important than another will often be a controversial one. Nevertheless,
it is an integral part of the concept of a principle that it has this dimension, that
it makes sense to ask how important or how weighty it is. 41
Alexy’s work builds from this relatively modest foundation a general
classification of constitutional rights norms into rules and principles: ‘the
38 R Dworkin Taking rights seriously (1977).
39 Dworkin (n 38 above) 22.
40
Dworkin (n 38 above) 23.
41 Dworkin (n 38 above) 26 - 27.