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Does balancing adequately capture the nature of rights? 269
of rights (such as that outlined by Alexy) with a more substantive account of
the nature of fundamental rights. In so doing, it will also seek to provide
an understanding of at least one element of the substantive perspective
from which a balancing enquiry should take place.
1 Does Alexy’s account of rights render them too
weak?
1.1 Balancing and the weight of rights
Enshrining fundamental rights in a Constitution and in international treaties
grants them a special status: It involves an assertion that such rights are
higher-level norms with which other parts of the law and policy must
conform. 8 This in turn implies that such rights must have a particular
importance for the individual or society such that they are enshrined above
other norms. The idea must be that rights grant protections to individuals
for interests that are of fundamental importance to them. 9
This idea has been captured by a number of prominent legal
philosophers in various ways. Dworkin, famously, has conceptualised
rights as ‘trumps’ over utilitarian considerations. 10 Though this is
famously quoted as being Dworkin’s view, it is in some sense a misnomer as
Dworkin does in fact recognise that collective interests may in certain
circumstances prevail over rights where there are particularly strong
reasons to do so. 11 Importantly, though, for Dworkin is the fact that the very
nature of rights means that we cannot override them simply on the basis of
a routine calculation of costs and benefits. 12 In a similar vein, Habermas
conceives of rights as deontological ‘firewalls’, which insulate them against
interference by ordinary reasons of policy or the general welfare alone. 13
8 This occurs in what may be termed a dualist regime that ‘distinguishes … the higher
law of the people from the ordinary law of legislative bodies’: J Rawls Political liberalism
(1993) 233. See also F Michelman ‘Justice as fairness, legitimacy and the question of
judicial review: A comment’ (2004) Fordham LR 1412.
9
See, eg, D Bilchitz Poverty and fundamental rights (2007) 187. This is a substantive claim
as distinct from the one made in analytical jurisprudence that the essential feature of all
rights is that they protect interests: see MH Kramer et al A debate over rights (1998).
10
R Dworkin ‘Rights as trumps’ in J Waldron Theories of rights (1984) 153. See also
R Dworkin Taking rights seriously (1977) 192 who states that if a fundamental right
exists, the government is not entitled to act ‘on no more than a judgment that its act is
likely to produce, overall, a benefit to the community. That admission would make his
claim of a right pointless, and would show him to be using some sense of “right” other
than the strong sense necessary to give his claim the political importance it is normally
taken to have.’
11 Dworkin (n 10 above) states, eg, at 191 that ‘[a]lthough citizens have a right to free
speech, the government may override that right when necessary to protect the rights of
others, to prevent a catastrophe, or even to obtain a clear and major public benefit’. D
Meyerson ‘Why courts should not balance rights against the public interest’ (2007)
Melbourne University LR 812 also makes this point.
12
Dworkin Taking rights seriously (n 10 above) 192.
13 J Habermas Between facts and norms (1996) 258 - 259.