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Does balancing adequately capture the nature of rights? 285
of the difficulties faced by providing such a stringent interpretation of the
circumstances in which rights may be limited. If, however, the reasoning thus
far is correct, and the more moderate approach concerning ‘less restrictive
means’ is preferable, then this would seem to pose a challenge to
conceptualising rights in the way Alexy does – namely, as optimisation
requirements. For, the principle of ‘necessity’ appears to flow logically from
this conception. If Alexy’s understanding of rights is flawed and yet the idea of
proportionality and balancing remains important to the limitation of rights,
what conception of rights should be put in its place? The concluding section
of this piece seeks to provide some understanding of the contours of a more
adequate conception of rights.
3 Conclusion: Towards an alternative view of rights
and limitations
The first part of this article questioned whether Alexy’s theory gave
adequate expression to the special normative role of rights in constitutional
law reasoning. I have sought to recognise the importance of balancing and
proportionality: a requirement that flows from the fact that there are
competing normative considerations in our social order. This discussion
drew attention to the fact that the proportionality enquiry advocated by
Alexy could attach special weight to rights considerations. Nevertheless, it
highlighted the fact that a balancing enquiry may lead to the undervaluation
of rights that might result from structurally placing rights on the same level
as other types of normative considerations. Both procedural and
substantive measures are necessary to counteract this tendency. In
particular, it was stressed that it is important to recognise the relationship
between the structural aspect of rights and their substantive justification
and content. 67
The second part of this article, however, questioned whether a
conceptualisation of rights as optimisation requirements does not imply too
strong a principle of necessity that places overly stringent constraints on
those seeking to limit rights. For this would seem to imply that individuals
would have to show that no other measure than the one impugned could
achieve the desired objective and intrude on rights to a lesser degree.
Understanding the significant issues underlying these two criticisms
allows us to begin to construct an alternative account of how we should
understand rights in our constitutional scheme. 68 In this process, it is
important to return to Dworkin’s conception of a principle as stating ‘a
67
Moller (n 48 above) 468 also recognises the insufficiency of a purely structural account
of rights and the need to include a substantive dimension.
68 This section will seek to draw together some of the insights gained through the
discussion of Alexy’s theory. The constraints of the article render it possible only to
begin on the path of constructing an alternative account of the nature of rights.