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278 Chapter 12
The latter claim could be broken down into the following elements: First,
in the absence of a competing principle, the principle requires complete
realisation. If we have a right to privacy implicated in a particular case and
no competing principle, then that right must be realised in those particular
circumstances. Secondly, where there are competing principles, the
principle of proportionality will determine the outcome (with its subprinciples
of necessity, suitability and balancing): Ultimately, though, the
notion of principles as optimisation requirements means that the outcome
must be adopted that allows for the greatest possible realisation of each
principle so far as this is compatible (both factually and legally) with the
greatest realisation of the others. 48
It is important to recognise that Alexy’s language is metaphorical. The
notion of ‘optimisation’ in a field such as economics, where clear
quantification is possible, has a clear meaning: We clearly understand what
it means, for instance, to optimise profit. However, the exact meaning of
this term in the legal or moral context is less clear as the principles and
values to be evaluated and balanced are not clearly quantifiable in the same
manner. 49
A crucial notion in understanding what optimisation means in the legal
context is the idea of ‘possibility’. 50 When referring to what is legally
possible, Alexy seems to be employing the idea of logical possibility. 51
However, it remains unclear exactly what he means by the idea of factual
possibility: Does this refer only to the outer limits of physical possibility (a
measure cannot involve requiring humans to fly as they are not able to do
so without being aided by an aircraft) or does this notion include constraints
such as economic scarcity (a measure is unaffordable for a country given
current lending policies, although it could be affordable if these policies
changed) or political sensitivity (a measure cannot be passed as it will cause
massive protests and civil disobedience if it is)? Determining what is included
within the realm of factual possibility will be critical for determining the
extent to which a principle can be realised or not and thus be a crucial factor
in the application of the principle of proportionality. Without clarifying what
is meant by possibility, the balancing process may not lead to determinate
outcomes as it will not be clear what is meant by realising a principle to the
‘greatest extent possible’. Moreover, if the account of possibility that Alexy
gives is too strong (such as conceiving factual possibility as the outer limits of
physical possibility), then it would render it extremely difficult to justify the
limitation of fundamental rights even in cases where this seems intuitively to
be reasonable.
48
K Moller ‘Balancing and the structure of constitutional rights’ (2007) 6 Int J of Constitutional
Law 453 459.
49 Moller (n 48 above) 462.
50
Moller (n 48 above) 459.
51 Alexy (n 6 above) 51 - 53.