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262 Chapter 11
Botha’s contention that ‘human goods are often incommensurable’. 54
How much work is being done by the weasel word – ‘often’? We might ask
how often are the principles that conflict with each other in constitutional
cases in fact incommensurable? Take Brümmer as an example, with its conflict
between, on the one hand, a right of access to court, valued because it
promotes the peaceful resolution of disputes and avoids resort to self-help
and, on the other, a principle promoting order and efficiency in the
administration of justice. Or take Marper as another example, which pits the
right to privacy, valued, amongst other things, for its dignity-reinforcing
effects, against the public interest in the efficient and error-free detection of
crime. Deciding which principle to prefer on the facts of the case might be a
more or less difficult decision, but it does not seem to require the weighing
of incompatible options like, to borrow an example from the
incommensurability literature, the decision whether to become a lawyer or
a clarinettist. 55 Decision making about these instances of the competition
of principles is made on the basis of a common point of view: that is, the
point of view of the Constitution with its range of values all requiring
simultaneous accommodation to the greatest degree possible. I will say
more about this in the treatment of the weight formula below.
Subjectivity and arbitrariness. Confronting the necessity to decide
between arguments in favour of rights and in favour of their limitation
requires, according to Woolman and Botha, ‘constitutional interpretation –
and extended and reflected engagement with the meaning of the
constitutional text’. The danger with balancing is that it encourages such
decisions to be made instead on the basis of the ‘subjective preferences of
individual judges’; the contention is nicely exemplified by the Marper case
with its stark division of opinion between the English courts and the
European Court on the proper balance between privacy and the claims of
the criminal justice system. 56 Along similar lines, Habermas has argued that
balancing is ‘arbitrary’ and lacking in ‘rational standards’. Because there
are no rational standards for balancing, ‘weighing takes place either
arbitrarily or unreflectively, according to customary standards and
hierarchies’. 57
This is a serious charge. ‘If balancing or weighing were incompatible
with correctness, objectivity, and justification’, Alexy admits, ‘it would have
no place in constitutional law.’ 58 Recall the three stages of the balancing
enquiry outlined above. The irrationality criticism would be justified if, as
Alexy puts it ‘... it were not possible to make rational judgments about, first,
54
Woolman & Botha (n 24 above) 34 - 96.
55 See J Raz ‘Value incommensurability’ (n 26 above) 126.
56 Woolman & Botha (n 24 above) 34 - 100.
57
Habermas Between facts and norms (n 30 above) 259. ‘Customary standards’ means, at least
in Alexy’s interpretation, something like the doctrine of precedent. See Alexy Theory of
constitutional rights (n 35 above) 405.
58
R Alexy ‘Balancing, constitutional review, and representation’ (2005) 3 Int J of Constitutional
Law 572.