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Does balancing adequately capture the nature of rights? 273
necessary to distinguish between structural and substantive accounts of rights.
Alexy’s theory is essentially a structural one: It provides us with a formal
analysis of the way in which rights reasoning takes place. His theory,
however, whilst telling us that balancing is required when two or more
principles are at issue, does not tell us anything about the actual substantive
weight that is to be accorded to particular principles in the balancing
process. The notion of balancing itself does not therefore determine the
outcome in any particular case: for this, competing principles must be
assigned weightings based upon their substantive importance.
Significantly, this means that the theory itself is fundamentally incomplete:
It requires a substantive theory of rights and political morality in order to be
operational. The very idea of ‘balancing’, and the ‘intensities’ and ‘weight’
of rights are mere metaphors which are dependent upon a substantive theory
to give them content. As Alexy admits, ‘[p]roportionality analysis is … a
formal structure that essentially depends on premises provided from
outside’. 30 It only makes sense to argue for the strong weight rights should
have in our reasoning if we do recognise that they protect some of the most
fundamental interests of individuals that deserve stringent protection. The
formal analysis by Alexy is fundamentally dependent upon an understanding of
the normative theories that provide a justification for fundamental rights. 31
This point needs stressing, particularly in the context of the South
African Constitutional Court, where there has often been an unwillingness
to engage in substantive reasoning with regard to the normative content of
rights and the countervailing considerations that are raised when seeking to
limit rights. Formal reasoning is used to avoid and obscure the substantive
evaluation that is required. 32 The structure of balancing is no substitute
30 R Alexy ‘Thirteen responses’ in Pavlakos (n 15 above) 344.
31 Some theorists also point out that there are certain reasons that should not be admitted
into the balance at all: these are what Kumm refers to as ‘excluded reasons’. Thus,
arguing that same-sex marriage is unconstitutional because it does not accord with a
particular person’s beliefs about what is Christian would not be a legitimate reason to enter
into the balance. The justification for excluding such reasons must again be ones of
substantive political morality though the point is important in recognising that balancing
will only occur amongst ‘legitimate reasons’ and some reasons will have no force at all (we
can capture this by saying that they may have zero weight). Others on occasion may come
close to being conclusive without engaging in balancing (a prohibition on torture eg –
though this is controversial in ticking bomb cases) and in such cases we may give them
‘infinite weight’ in the balancing process. These issues are complex and I cannot enter into a
full discussion here: They raise questions concerning the nature of political liberalism as
well as whether rights have a deontological element or not. See the discussion in Kumm (n
15 above) 131 - 166; see also Alexy’s reply in the same book at 340 - 344. D Meyerson Rights
limited (1997) is partially concerned with outlining a theory of the kinds of reasons that may
legitimately enter into balancing following a Rawlsian approach of ‘public reason’. The
essence of Porat’s article (n 29 above) is to defend the notion that there are certain types
of reasons that should not enter into balancing, a point similar to those made by the other
authors above. A further discussion of this point lies beyond the scope of this piece.
32
A Cockrell ‘Rainbow jurisprudence’ (1996) SAJHR 1. For this critique in relation to
socio-economic rights, see also D Bilchitz Poverty and fundamental rights (2007) and
D Brand ‘The proceduralisation of South African socio-economic rights jurisprudence
or “What are socio-economic rights for?”’ in H Botha et al (eds) Rights and democracy in
a transformative constitution (2003) 33.