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274 Chapter 12
for detailed engagement with the principles and values at stake in a
particular instance. It can in fact only adequately be performed with an
understanding of the content and justification of the normative
considerations at stake.
When the very incompleteness of the balancing approach is
recognised, it becomes possible to determine the contours that a defence of
it can take. For, it clearly does not entail that every principle in the
balancing process is to be accorded equal weight. Principles that give
expression to rights can thus be weighted more heavily in the balancing
process according to the importance that they hold as a matter of substantive
political morality. As Kumm puts it, ‘[t]he fact that the proportionality
analysis does not prioritise individual rights over collective goods on the
structural level, then, does not mean that such a priority cannot be given
adequate expression within that structure’. 33
Alexy’s theory thus can allow for giving special weight to rights in
constitutional law given that they are principles that are of particular
importance in a political community. 34 If the correct weight is assigned to
rights, however, there would seem to be no important difference between
reasoning on a balance of reasons and reasoning on a weighted balance of
reasons. The problem for theorists such as Meyerson is that the moment they
admit that rights do not have absolute weight in respect of all competing
principles (a claim they do not wish to make), they admit the possibility of
limiting rights under certain circumstances. In determining these
circumstances, there will have to be an assessment of countervailing principles
and, consequently, the need to engage in an assessment of the relative
normative weight of these principles: ie balancing. 35 As long as rights are
given the correct weighting, it does not seem that the wrong results will be
achieved.
33 Kumm (n 15 above) 149.
34 It also allows for assigning different weights to different rights depending on their
relative importance in a particular case.
35 Meyerson attempts to set up a second-order level of reasons (following a suggestion of
Raz) that generally trump the first-order level of reasons. Rights would essentially be
second-order reasons that generally take precedence over other considerations at the first
level. Yet, the problem lies in the word ‘generally’. If rights always trump first-order
reasons, then they are absolute with respect to such reasons and we will need a good
case to show why this is so. If, however, the notion of absolute trumps is not convincing
(as Dworkin, eg, admits and most theorists agree), then we will always have to consider
the relationship between the one set of reasons and the other. The attempt to insulate
one set of reasons from being balanced in relation to another set is not convincing
unless one has already engaged in substantive reasoning that establishes the
relationship between the two sets of reasons. Rights will have the weight they are to be
attributed as a matter of substantive morality in relation to other considerations. If no
absolute priority is to be established, then there will have to be a form of balancing
involved in setting up this relationship between different types of reasons in the first
place. I considered at n 31 above the challenge that certain sets of considerations should
not be placed in the balance at all.