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272 Chapter 12
priority in reasoning related to constitutional law. This problem seems to
flow from the fact that Alexy rejects the notion that the concept of a principle
is to be tied closely to the notion of an individual right; 25 rather, he seems to
recognise that there are other types of normative considerations that also find
expression in principles (or norms that can be optimised). No differentiation is
made between principles that give expression to rights and those that give
expression to other normative considerations. Where principles clash,
‘[c]ourts should assess the relative weight of these … and resolve the conflict in
favour of the stronger reason’. 26 The worry of these critics is that this process
will devalue rights and lead them simply to become one consideration to be
weighed against many others; this process may also lead rights not to be
accorded their proper weight in relation to other considerations. As Mattias
Kumm points out, ‘[r]ights and policies compete on the same plane within the
context of proportionality analysis’. 27 This may lead, for instance, to situations
where rights are overridden where they should not be as they are not accorded
the weight they deserve in the proportionality analysis. 28
Meyerson, for instance, seeks to provide an alternative account of the
way in which rights should be conceived in constitutional analysis. She
distinguishes between making a decision on the balance of reasons – an
approach she suggests is advocated by Alexy – and reasoning on a weighted
balance of reasons.
When reasoning on the balance of reasons, decision makers assign all reasons
the weight which they think they actually deserve. By contrast, when reasoning
on a weighted balance of reasons, some … reasons are artificially assigned a
different weight from the weight they would ordinarily receive … [S]uch an
approach would acknowledge that bills of rights do not exclude
consideration of the public interest, but would also build into rights
adjudication a ‘systematic bias’ against permitting the infringement of
rights. 29
Meyerson proceeds to offer arguments in favour of her approach which she
claims is better able to capture the special priority that must be given to
fundamental rights.
Meyerson’s charge against Alexy seems to be that the structural analysis
of rights he proposes fails to give effect to the substantive normative weight
that rights have. To evaluate whether Meyerson is correct or not, it is
25
Alexy (n 6 above) 66. This is contrary to the position of Ronald Dworkin who conceives
of principles as norms ‘which can be offered as reasons for individual rights’ and
contrasts them with norms which relate to collective interests (‘policies’): See Dworkin
Taking rights seriously (n 10 above) 82 90.
26 Meyerson (n 11 above) 809.
27 Kumm (n 15 above) 142.
28
This is not merely a matter of theoretical concern and is a danger which seems to have
occurred in several cases.
29 Meyerson (n 11 above) 811. A similar though slightly different approach is taken by
I Porat ‘The dual model of balancing: A model for the proper scope of balancing in
constitutional law’ (2006) Cardozo LR 1393.