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Does balancing adequately capture the nature of rights? 277
greater must be the certainty of its underlying premises.’ 43 This principle
would require courts only to accept relatively conclusive evidence on the
basis of which to limit a fundamental right: speculation and weak causal or
evidentiary claims would not be accepted. 44
Alexy’s point here seems to be well-taken and is important for courts to
bear in mind when conducting a proportionality analysis. It is questionable,
however, whether it provides a fully adequate response to the
concerns of theorists such as Kumm and Meyerson: The problems they
fear seem capable of arising in the assessment of the relative weight of
principles in the balancing process even where empirical questions are not
at issue. Importantly, I have sought to argue in this section that their critique
of Alexy’s theory does not fundamentally impugn his conceptualisation of
rights or of proportionality; what it does do is place the focus on certain
features of his theory that are both incomplete and pose dangers for the
protection of rights through courts. The logical conclusion would be to
adopt certain procedural safeguards in legal systems using proportionality
analysis that could correct for the under-protection of rights towards which
it may lead. There is also a need to adopt a substantive conception of rights
that links to the structural one. I now turn to consider a critique of Alexy’s
conception of rights that draws out some of the implications of his view to
suggest that far from offering ‘too weak’ a conception of rights, his
understanding of them may be ‘too strong’.
2 Does Alexy’s account of rights render them too strong?
This objection is rooted in Alexy’s conception of rights which, as has been
seen already, he characterises as principles rather than rules. Dworkin
gives a relatively modest account of principles as stating ‘a reason that
argues in one direction, but does not necessitate a particular decision’. 45 He
also contends that an integral part of the concept of a principle is that it has
the dimension of ‘weight’, which gives expression to its importance in any
particular setting. 46 Alexy seeks to build on Dworkin’s account of
principles (and the distinction between them and rules) but goes one step
further in characterising principles as optimisation requirements, norms
that must be fulfilled to the ‘greatest extent possible’. 47
43 Alexy (n 30 above) 342.
44
Justice Ngcobo, writing for the minority, made a remark that indicates his acceptance of
this point in Prince v President, Cape Law Society 2002 2 SA 794 (CC) para 74 where he
stated that ‘[i]n my view, a constitutional right cannot be denied on the basis of mere
speculation unsupported by conclusive and convincing evidence’.
45 Dworkin (n 10 above) 26.
46 Dworkin (n 10 above) 27.
47
Alexy (n 6 above) 47. Alexy (in n 27 of ch 3 at 48) notes that he differs from Dworkin on the
characterisation of principles as optimisation requirements.