We will now consider eight objections to the proportionality test regarding the method of balancing. First, it is argued that balancing relies on defining rights broadly rather than narrowly, but that a narrow definition would be preferable. Secondly, balancing is understood to undermine the rule of law, for it would bring about flexible and unstable standards. Thirdly, some authors criticize the relation of balancing and moral arguments as well as, fourthly, the notion of balancing as calculation. Fifthly, we will consider the prominent argument concerning incommensurability. Sixthly, it is unclear how the balancing model is able to represent the idea of an inviolable core content of human rights. Finally, we will address two minor considerations, namely the relation between correctness and adequateness and the claim that the balancing stage is overemphasized compared to the three other prongs of the proportionality text.
Closely related to the rights as trumps model is another main critique of the method of balancing. It concerns the understanding of limitation clauses. Tsakyrakis argues that the balancing approach implied the ‘principle of definitional generosity’.1 According to this principle, the interpreter first assumed a broad definition of the limitation clauses and thus of the legitimate aims that are allowed to limit a right. Since most limiting clauses allow rights to be restricted because of the rights of others and public interests, both would be defined broadly. This secondly caused the problem that these interests, once defined as legitimate aims, in turn play out on the balancing stage. Thus, the balancing approach ‘does not pay sufficient attention to the specification of the items it balances’.2 Thus, ‘certain items will make their way into the balancing process that are not genuine’.3 A proper specification of rights and of the public interest would be a specification that incorporates or flows from normative ideas about the relationship between the individual and the society and the importance of the rights in structuring this relationship.4 Then one could see, Tsakyrakis argues, that there are some types of justification that are not just less weighty than the right with which they conflict. Rather, they should not count at all.5
With an eye on basic rights in the European Union, this point has been also made by von Bogdandy. He argued that the approach chosen by the ECJ ‘construes human rights broadly, and considers almost any legitimate private interest and behaviour as protected by human rights’. He concludes that the narrow understanding was ‘preferable: it gives better protection to the endangered interest and leads to a better separation of power between the judiciary and the political process’.6
This critique leads to the question whether rights and public interests as limiting reasons should be defined rather narrowly or broadly.
1. Defining rights
The question of whether a limitation clause that allows limitations of rights to protect rights of others should be defined narrowly or broadly always concerns the question of whether a third person has to be protected since she holds a right as well. Therefore, the question of whether the limitation clause should be defined rather narrowly or broadly is the same as the question of how fundamental rights should be defined in general. There are six arguments why narrow definitions of rights are problematic and why broad definitions are preferable.7 First, narrow definitions are only seemingly free of balancing. The outcome of a narrow interpretation of a fundamental right is always based on balancing, since it relies on reasons for and reasons against the protection.8 A striking example for this mistaken view is Greer’s proposal concerning Wingrove v UK.9 He argues that ‘the right to freedom of expression can plausibly be defined as excluding the right to cause gratuitous insult to religious… sentiments, while the right to freedom of thought, conscience and religion can plausibly be defined as limited to protection only from gratuitously insulting criticism’ and claims that this was ‘not an exercise in “balancing” as such’.10 If, however, the right to freedom of speech is a relative right and defined by saying all speech but hate speech is protected, the outcome relies on balancing free speech against the prevailing rights of the person the speech addresses.11 By applying a broad definition, in contrast, it is recognized that balancing is unavoidable, and therefore any question of balancing is removed from the other stages and treated separately and openly.12
Secondly, narrow definitions are obscure. If narrow definitions are the outcome of a balancing approach, balancing takes place in a hidden way. It is no longer traceable. A broad definition, in contrast, interprets the constitutional text without taking conflicting considerations into account first. At the balancing stage, it considers the conflicting interests openly. The argumentation is transparent, rational, and traceable.
Thirdly, narrow definitions are structurally deficient. They could cause ‘major problems with regard to the structural and conceptual distinction between scope and justification’.13 If narrow definitions rely on hidden balancing, the right’s content and the right’s restrictions are mixed up. The question about the right’s content and the question about the right’s restrictions, however, must be treated separately, since they concern different logical procedures. The right’s content is to be defined by interpreting the constitutional text. Competing interests are not to be taken into account at this stage. The competing interests come into play within the right’s limitations, in particular in applying the proportionality test with balancing. Narrow definitions mix these two different procedures up. The argumentation is unstructured and obscure. A broad definition, in contrast, has methodological advantages. It doesn’t take competing interests into account by defining the right’s scope. The definition is found by interpreting the constitutional text, and the competing interests are taken into account openly at the balancing stage. Balancing only takes place at the final stage of the proportionality test.
Fourthly, narrow definitions lead to legal uncertainty. If narrow definitions rely on balancing, the content of a right depends on a balancing process. In consequence, even the prima facie content of the right is not predictable anymore. The right’s content varies from case to case, dependent on the competing considerations taken into account by defining the right’s scope. Broad definitions, in contrast, define the right’s scope without taking competing considerations into account. The prima facie protection is thus predictable and secure in every case.
Fifthly, the hidden balancing approach reduces the state’s duty to justify rights restrictions. It empowers authorities to deny protection by arguing that a certain right’s content does not protect the behaviour in question. This point counts against, for example, Webber’s conception of ‘limitation as specification’,14 as Julian Rivers has argued:
Every piece of legislation which touches on expression, for example, can be treated as a specification of freedom of expression.15
The decisive weakness here is that protection can be denied without openly giving the reasons for it. This, sixthly, promotes judicial arbitrariness. Broad definitions, however, lead to a broad prima facie protection.16 Once certain behaviour is protected prima facie, the state has to justify the infringement of the right by applying the right’s limitations, inter alia the proportionality test. Within the proportionality test, balancing has to be done according to the law of balancing, that means openly and traceably. Therefore, the state faces a duty to give reasons for not protecting rights when certain behaviour is protected prima facie. This burdens the state with the duty to give reasons for limitations, instead of burdening the people with the duty to justify exercising their rights, and thus prevents judicial arbitrariness. Therefore, broad definitions of rights are preferable.
2. Defining the public interest
The weak trump model, however, prevents that danger. First of all, only public interests of constitutional status are considered as legitimate aims. This reduces the items which count as public interests and thus narrows the definition of the public interest. Furthermore, the public interest is not defined as the interest of the majority. As prescribed above, the precise character of public interests is controversial in political and legal theory. There are three types of theories to restate the public interest: preponderance theories, unitary theories, and common interest theories.19 By arguing that the public interest tends to be defined as the ‘interest of the majority’,20 Tsakyrakis obviously assumes the public interest is defined by applying a preponderance or aggregative theory. We have shown above that an aggregative theory of the public interest should not be applied, since it causes serious problems. A common interest theory would have solved the problem. Thus, there is a theory of the public interest available that prevents it being defined as the interest of the majority. Therefore, the definition of the public interest in a weak trump model doesn’t cause the problems Tsakyrakis addresses.
Furthermore, it is argued that balancing causes the problem ‘that the protection accorded by the Constitution can never be stable but is always conditional on various circumstances and depends on the outcome of balancing’.21 Aleinikoff claims that ‘ad hoc balancing may undermine the development of stable, knowable principles of law’.22 Kahn criticizes that:
the rules that emerge are of uncertain weight and scope. Each new configuration of interests presents an occasion for the formulation of a new rule … As circumstances change, the weights assigned to the variety of interests change and thus the balance … changes…. Each case, then, produces an ad hoc rule with no past and an uncertain future.23
Tsakyrakis concludes that it was ‘doubtful whether the constitution is the kind of law that includes stable and knowable propositions’.24 Thus, Tsakyrakis argues that balancing interests leads to legal uncertainty. This point has also been taken up by Webber, who sees ‘an important moral loss’ in giving up the idea of a ‘strict demarcation against unacceptable State action’.25
This argument is not convincing. Balancing offers the best possible predictability in a flexible jurisdiction. All conflicting interests are taken into account clearly and openly in every single case by balancing them according to the law of balancing.26 This approach leads, admittedly, to uncertainty concerning the outcome of balancing. It is not predictable in every case. But the uncertainty is reduced to a minimum.
On the one hand, the law of balancing offers a rational structure for arguing in human rights cases. This structure channels the arguments and prevents judicial arbitrariness. On the other hand, every fundamental rights system has a fundamental rights jurisdiction. It is possible to predict fundamental rights decisions by referring to the huge number of precedents. The German Federal Constitutional Court has stressed this factor in its famous decision in Görgülü, when it argued that decisions of the ECtHR:
may encounter national partial systems of law shaped by a complex system of case law… in which conflicting fundamental rights are balanced by the creation of groups of cases and graduated legal consequences.27
This process in national fundamental rights practice allows creating predictions on the outcome of a certain case handled. The precedents form a consistent system of cases, because the constitutional courts do not only resolve individual disputes in constitutional cases, but establish general principles that legislatures will notice and lower courts will follow.28 These effects are described as ‘definitional balancing’ in contrast to ‘ad hoc balancing’.29 Admittedly, these precedents are sometimes undetermined by new interests or different weights for previously considered interests. This is what Aleinikoff criticizes: ‘New situations present new interests and different weights for old interests.’30
In our view, however, all this doesn’t mean that the system of precedents is fragile and not able to develop stable, knowable principles of law. This is, however, what Aleinikoff claims.31 It is important to be aware of the fact that a system of precedents forms principles of applying the law rather than rules. A precedent is a prima facie decision upon which the judgments in later cases should be based. It doesn’t state a rule that later cases must be decided in the same way. In this way, the flexibility of the jurisdiction is guaranteed. Constitutional courts should treat constitutions as a ‘living instrument’. This can be demonstrated, for example, by means of the jurisdiction of the ECtHR.32 Cases should be decided in the light of actual circumstances and actual social developments, ‘in the light of present-day conditions’.33 A jurisprudence which decides similar questions in exactly the same way over decades may be criticized for not being aware of recent developments. Thus, the changing of the jurisdiction is a necessary factor for a just jurisprudence. This necessary flexibility admittedly relativizes the function of precedence to create a stable and predictable jurisdiction. But it is at the same time the guarantee that every single case is decided within the light of present-day conditions. The level of legal uncertainty is the price to pay for a flexible and just jurisdiction.
Additionally, there are no convincing alternatives to the balancing approach. Both the strong trump model and the medium trump model lead to greater legal uncertainty.34 Furthermore, Webber’s objection of ‘doing violence to the idea of a constitution’35 by not drawing a strict line between acceptable and unacceptable state action is futile since, as we have demonstrated above,36 drawing this line depends on balancing as well. The rule of law argument is thus not convincing.
According to the argument from the impact of morals on balancing, proportionality is ‘a specific judicial test that pretends to balance values while avoiding any moral reasoning’; it ‘pretends to be objective, neutral, and totally extraneous to any moral reasoning’.37 Webber has argued that proportionality would
depoliticize rights by purporting to turn the moral and political evaluations involved in delimiting a right into technical questions of weight and balance. Yet, the attempt to evade the political and moral questions inherent in the process of rights reasoning is futile.38
There are two claims here: first, that balancing inevitably entails moral reasoning; secondly, that it pretends to be morally neutral. While the first claim is true, the second is false.
It is true that balancing cannot do without moral reasoning. Only a very naïve approach would arrive at the conclusion that any legal reasoning could be value-free and deprived of any moral considerations.39 Tsakyrakis, for example, is quite right in stating that balancing can only yield correct outcomes if it reflects its underlying moral concepts.40 However, it is not true that the theory of balancing tends to disguise the moral foundations of the proportionality test. This may be true of some judicial reasoning in practice which does not keep pace with the theory.41 But as far as the theory of balancing is concerned, it has acknowledged its moral basis for a very long time. Moral reasoning is a necessary component of all constitutional rights adjudication.42 Webber criticizes that:
Alexy says little … about his understanding of justification. He directs the reader to no other part of A Theory of Constitutional Rights nor to any other of his writings.
The reason for this is that Alexy had already developed his concept of rational justification in his well-known earlier book, A Theory of Legal Argumentation, translated by Neil MacCormick and Ruth Adler and published by the Oxford University Press in 1989.43 Both monographs have to be seen in context. In fact, they both play an eminent part in the system of the Alexy’s jurisprudence,44 which helps to clarify the point Webber misses so much.
Alexy’s special-case thesis may be of help here. It was developed for legal argumentation qua syllogism, but it is likewise applicable to legal argumentation qua balancing.45 Alexy’s special-case thesis holds that legal discourse is a special case of general practical discourse.46 This thesis suggests two points.47 First, legal discourse is a case of general practical discourse for it is concerned with practical questions turning on the obligatory, the prohibited, and the permitted. Secondly, legal discourse is a special case. For it does not attempt to answer these practical questions in an absolute or general sense, but rather within the framework of a specific legal system. The legal framework imposes restrictions on practical discourse by means of binding norms, precedents, and doctrines from legal dogmatics. Legal discourse, then, is a special case because, contrary to general practical discourse, it has an institutional and authoritative character. What matters here is that due to the first point, balancing is an instance of moral reasoning. It is therefore not true that, as Tsakyrakis assumes, moral reasoning was lost in balancing.48 Afonso da Silva has made this point very clear in the following excerpt:
[Tsakyrakis] completely ignores that, just as almost everything in legal reasoning, the definition of degrees of satisfaction and non-satisfaction of a principle will always be subject to fierce disputes, which will involve all types of arguments that may be used in legal argumentation in general, including the moral considerations he misses so much. Just as the justification of the premises in the most trivial legal syllogism is not value-free logical procedure, neither is the decision that a given limitation in a constitutional right is light, moderate, or serious.49
It is even more important that the theory of legal argumentation sheds light on the very nature of the relation between moral and legal argumentation as well. The distinction between internal and external justification matters here.50 It is concerned with the relation of balancing and reasoning.51 Again, this distinction has been developed in the context of argumentation by means of the syllogism, but it is applicable to balancing as well, as has been demonstrated recently.52
Internal justification regards the question of whether the balancing result can be deduced from the premises following the rules of arithmetic. The question of internal justification can be answered by looking to the formal structure of balancing as described by the weight formula.53 As soon as the values to be assigned to the variables are determined, the result can be deduced by following the rules of arithmetic. As it is with the internal justification by means of the legal syllogism, which does not follow arithmetic but logical rules,54 it is entirely a matter of formal structure.