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Does balancing adequately capture the nature of rights? 271
balancing which is a process of assessing the ‘weight’ of the substantive
considerations underlying each competing principle. As Alexy puts it, it is
necessary to evaluate the ‘degree or intensity of non-satisfaction of, or
detriment to, one principle versus the importance of satisfying the other’. 21 In
seeking to achieve the optimisation of each principle and give each the
normative weight they deserve, it is important that the following law of
balancing be observed: ‘The greater the degree of non-satisfaction of, or
detriment to, one principle, the greater must be the importance of satisfying
the other.’ 22
It is important to recognise that balancing on this conception is not
simply a mysterious process, subject to the play of intuition and lacking any
rational basis; rather, it is indeed possible to judge objectively whether
balancing has been performed correctly or not. As Kumm puts it, ‘[t]he
metaphor of balancing should not obscure the fact that … the proportionality
test will in many cases require the decision-maker to engage in theoretically
informed practical reasoning, and not just in intuition-based classificatory
labelling’. 23 I shall mention three possible ways in which to evaluate a
court’s proportionality analysis in a particular case. First, it is important to
consider the assignment of relative weights and intensities to various
principles that the court is balancing: Has the court’s reasoning demonstrated
that it assigns sufficient weight or intensity to the right and the competing
considerations? The second area which admits of evaluation is the evidentiary
basis the court uses for its evaluation and whether this has sufficient strength
to support the assignment of particular weights or intensities to the various
principles. The final evaluation one can make concerns a court’s comparative
assessment of the relative principles and whether it has judged the matter
correctly given the respective weighting of these principles. 24
1.2 Structure and substance: Do they complement one another
in Alexy’s theory?
As Currie has outlined, the theory itself is impressive and is able to respond
to a number of charges often made against limiting rights through a process
of proportionality. But, the question that I shall seek to consider here is
whether it adequately captures the nature of constitutional rights. Some
critics claim that Alexy fails to capture one of the most essential features of
such rights, namely, the fact that they have a special normative weight and
20 The South African Constitution also includes a provision that requires that ‘less
restrictive means’ be chosen to achieve a purpose where this involves the limitation of
rights. In the second part of this paper, I shall, however, seek to show that Alexy’s
understanding of this requirement is too onerous and requires a revision in our
understanding of rights as ‘optimisation principles’.
21
Alexy (n 6 above) 105.
22 Alexy (n 6 above) 102.
23 Kumm (n 15 above) 148.
24
I shall attempt to say a little more about some of the substantive considerations that
should guide the court in the last section of this paper.