Download this publication - PULP

270 Chapter 12
Schauer similarly conceives of rights as ‘shields’. 14 All these conceptions
of rights seek to highlight the normative weight of fundamental rights in
relation to other competing normative considerations and which explain
their special place within the constitutional order.
Alexy puts forward a structural account of rights as ‘optimisation
principles’. The problem posed by a number of theorists is whether his
theory is capable of capturing the special normative weight of
constitutional rights in relation to other competing considerations. 15 It is
necessary to outline briefly Alexy’s account of rights in order to engage
with this criticism. 16
Rights, according to Alexy, are principles rather than rules. Rules are
norms that are always either fulfilled or not; whereas principles are ‘norms
which require that something be realised to the greatest extent possible
given the legal and factual possibilities’. 17 This characterisation of
principles has implications for how to deal with conflicts between them: It
means that where they conflict, one principle has to be weighed against the
other. In this process, one of the principles may be outweighed by the
other. 18 Alexy contends that this process is governed by the principle of
proportionality: Indeed, ‘the nature of principles implies the principle of
proportionality’. 19 As Currie points out, Alexy attempts to provide a
rational justification for the way in which proportionality assessments are
conducted in constitutional law as well an analytical structure that renders
the process less subjective.
Proportionality, Alexy claims, has a number of sub-principles: Two of
these relate to more empirical matters. First, a particular measure that
purports to restrict the realisation of a right must be closely connected to
the realisation of another normative principle. This is the requirement of
suitability: The South African Constitution incorporates this idea in section
36(1) by requiring that there be a close connection between the limitation of
a right and the purpose it seeks to achieve. Secondly, flowing from the idea
of rights as optimisation principles is also the requirement of necessity: This
entails that if there are a number of measures that would equally give effect
to a particular principle then the measure that would be least intrusive of
competing normative principles must be chosen. 20
The other key element of proportionality in Alexy’s account relates to
what he terms the realm of legal possibility: This involves the idea of
14
F Schauer ‘A comment on the structure of rights’ (1993) Georgia LR 429.
15 See Meyerson (n 11 above) 814 and M Kumm ‘Political liberalism and the structure of
rights’ in G Pavlakos (ed) Law, rights and discourse (2007) 142.
16
Currie has elaborated upon this in more depth in his paper and so I simply present a
summary of the key points relevant to the argument here.
17 Alexy (n 6 above) 47.
18
Alexy (n 6 above) 50.
19 Alexy (n 6 above) 66.