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Does balancing adequately capture the nature of rights? 275
1.3 Should we over-protect rights?
If the balancing process can give adequate expression to the weight of
rights, then it seems it is able to capture the normative strength of rights.
However, in response, theorists such as Meyerson could claim that their
problem with Alexy’s theory is its failure to include a presumption in
constitutional law in favour of rights that can only be dislodged by strong
countervailing reasons. 36 Such a presumption can be justified by an
argument concerning the institutional difficulties of accurate balancing:
The fact that the assessment of the relative weight of principles is an
‘uncertain, complex and speculative matter as attested by the frequent
disagreements among judges on these questions’. 37 In certain circumstances,
judges might be ‘subjectively predisposed to underestimate the
strength of rights when they come into conflict with government goals,
especially in areas like preventing crime and protecting national
security’. 38 Given the likelihood of forms of institutional bias in certain
cases, it may be justifiable to ‘over-protect rights’. This could be achieved,
for instance, by requiring that those seeking to limit rights need to defeat a
legal presumption in favour of those rights. Alternatively, it might be that
the justification for limiting rights must be shown to meet a higher
constitutional standard such as realising a ‘compelling interest’. 39
The example given by Kumm illustrates this point well: A case came
before the European Court of Human Rights as to whether it is discriminatory
to exclude lesbian and gay people from the military. 40 Kumm recognises
that naked homophobic reasons for excluding lesbian and gay people from
the military should not be considered (or given zero weight in the balancing
process). However, he worries that arguments concerning the impact of their
inclusion upon the fighting power and operational effectiveness of the
military may weigh heavily with courts in any balancing procedure. Courts
may land up sanctioning homophobic attitudes through an institutional bias in
favour of granting the military a discretion over matters of defence and
national security. To counteract such an institutional bias, such theorists claim
it is necessary to ‘over-protect rights’ and thus create a strong presumption in
their favour which it is difficult to overturn.
It should be recognised here that this objection does not attack the
appropriateness of balancing in determining the outcome that should be
achieved in a particular case. Even with the procedural correctives
suggested, some form of balancing will still have to occur though the dice
36
Indeed, Schauer (n 14 above) 429 - 430 claims just that: Decision makers should see
rights as shields that presumptively but not conclusively take precedence over other
governmental interests.
37
Meyerson (n 11 above) 817.
38 As above.
39 This idea is suggested by Kumm (n 15 above) 152.
40
Lustig-Prean and Beckett v United Kingdom [1999] ECHR 71 (31417/96; 32377/96,
27 Septermber 1999). The case is discussed in Kumm (n 15 above) 152.