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Does balancing adequately capture the nature of rights? 279
The lack of clarity on the nature of the notion of possibility employed
in Alexy’s theory is linked to a more general problem involved in conceiving
of rights as requirements that must be realised to the greatest extent possible.
I shall now proceed to consider a key implication of this claim: the
requirement that the means adopted to limit a right must be the least
restrictive of the right in comparison to other possible alternatives (the socalled
‘necessity’ component of proportionality).
2.1 The ‘necessity’ problem
The principle of necessity requires ‘that of two broadly equally suitable
means, the one which interferes less intensively [with a right] should be
chosen’. 52 If rights are norms that must be optimised to the greatest extent
possible, then when engaged in proportionality analysis, courts should adopt
a stringent approach ensuring that any limitation of a right that is being
proposed should strictly speaking be necessary to realise the purpose sought
to be achieved. This means that no other alternative must be available that
can equally realise the purpose and be less invasive of the right in question.
Let us refer to this as the strong interpretation of necessity. According to the
logical derivation of the principle of necessity given by Alexy, the strong
interpretation is entailed by an understanding of rights as optimisation
requirements. 53
The question that arises is whether such a strong interpretation of
necessity is desirable when conducting a proportionality enquiry. An example
given by Alexy can help to illuminate this point. The Federal Constitutional
Court in Germany was presented with a case in which they had to decide
whether or not a government-imposed requirement that tobacco manufacturers
had to place health warnings on cigarette packets was
unconstitutional or not. 54 The tobacco manufacturers claimed that their right
to trade freely had been unjustifiably infringed; the government argued that
these health warnings were of importance in helping to deter smoking and to
protect individuals against the severe health risks associated with it. Alexy
analyses the case as follows: He contends that the government measure
involves a relatively minor interference with the freedom of trade of tobacco
manufacturers. On the other hand, the impact of smoking on human health
is severe, leading to cancer and cardiovascular disease. Consequently, in the
proportionality analysis, we have to compare a relatively minor interference
with a right against a very strong case in favour of the limitation in question.
Consequently, he concludes that the limitation on the rights of tobacco
manufacturers, in such an instance, would be justified and the law in question
would pass constitutional muster.
52 Alexy (n 6 above) 398.
53
Alexy (n 6 above) 67 - 68, 399.
54 BVerfGE 95, 173. Alexy (n 6 above) discusses the case at 402.