1.

Introduction
A sub-principle of proportionality, balancing has become more or less the default
method used by constitutional courts around the world to resolve conflicts of fundamental
rights when they occur – balancing rights against each other as well as against the public
interest. For example in the UK, balancing is used in tandem with the Human Rights Act 1998
to resolve the conflicts that may develop between judicially protected European Convention
rights and the pursuit of public policy by Parliament and the executive. The desirability of its
use has reached near-consensus in constitutional courts today, to the extent that Aleinikoff
would state that we have embarked upon an age of balancing.1 Its proponents claim that with
the majority of rights being of a non-absolute character as well as with the very concept of
human rights being the rights of humans in a society, balancing was thus the only proper way
to resolve such conflicts and was inseparable from rights adjudication.2 Or as former
President of the European Court of Human Rights (ECtHR), Rolv Rysdall, described it in the
European context, the theme that runs through the Convention and all its case law was “the
need to strike a balance between the general interest of the community and the protection of
the individual’s fundamental rights.”3 But others such as Denise Meyerson, Jürgen Habermas,
and Stavros Tsakyrakis have since challenged these views.
In her article,4 Meyerson considered the issues arising from conflicts between human
rights and the public interest, and argued that “judges confronting limitation issues under a
bill of rights should not see themselves as required to balance rights against the public
interest…[and that rights] should not be viewed as merely one factor to be taken into account
in a global consideration of all relevant factors, but as a factor which presumptively excludes
consideration of factors that would otherwise be relevant.”5 Meyerson’s proposition
effectively called for rights to be reweighed and given greater priority so much so that the
public interest “therefore [becomes] a viable opponent…operating at a handicap.”6 This in
turn raises two intriguing questions: (1) should the courts value individual rights over the
public interest? And (2) what would be fair in the context of current society? To answer these

1 T. Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) The Yale Law Journal 96 (5),
943.
2 Luc Tremblay, ‘An egalitarian defense of proportionality-based balancing’ (2014) ICON 12 (4), 864

3 Steven Greer, ‘"Balancing" and the European Court of Human Rights: a contribution to the Habermas-Alexy

debate’ (2004) CLJ 63 (2), 412.

4 Denise Meyerson, 'Why Courts Should Not Balance Rights Against the Public Interest' (2007) 31 Melbourne

University Law Review 801.

5 ibid [at 830]

6 ibid [at 811]

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questions, I will consider the concept of balancing as derived from the principle of
proportionality, the arguments that have been raised for and against it, and the problems with
balancing faced by the courts (and in particular the English courts) operating under the
Strasbourg jurisdiction of the ECtHR. Ultimately, I will argue against lending greater weight
to rights and posit that despite its issues, proportionality-based balancing method when
applied properly remained the fairest and most egalitarian way to resolve conflicts between
human rights and the public interest in today’s culturally diverse society.

2. The Three Prongs of the Proportionality Principle

The principle of proportionality consists of a multi-stage process within constitutional
adjudication that tests the validity of laws which limit constitutional rights. The process is
triggered first when a law that infringes a constitutional right had been identified by the court.
This is followed by a verification whether that infringement was justified. In the UK, a three-
stage test is employed to examine the justification. This test was first approved by the Privy
Council in de Freitas v Permanent Secretary of Ministry of Agriculture7 and subsequently
referred to by Lord Steyn in R (Daly) v Secretary of State for the Home Department8 and the
House of Lords (and the Supreme Court) in other cases.9 The three stages are:
(i) The legislative objective must be sufficiently important to justify limiting a fundamental
right (‘a legitimate aim’);
(ii) The measure designed to meet the objective must be rationally connected to it (i.e. the
measure must have been necessary to an appreciable extent to advance the objective);
(iii) The means used to impair the right must go no further than is necessary to complete the
objective. Also known as ‘proportionality in a strict or narrow sense’ [stricto sensu] and
the ‘balancing test’. Other cases and in other jurisdictions have also described this aspect
as the ‘least injurious means’ or ‘minimal impairment test’, e.g. Samaroo v Secretary of
State for the Home Department,10 RJR-MacDonald v Attorney-General (Canada),11 Beit
Sourik Village Council v Government of Israel (Israel)12 etc.

7 de Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69.

8 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.
9 Huang v Secretary of State for the Home Department [2007] 2 AC 167; A v Secretary of State for the Home

Department [2005] 2 AC 68 etc.

10 Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139.

11 RJR-MacDonald v Attorney-General [1995] 3 SCR 199 [at 162].

12 HCJ 2056/04 Beit Sourik Village Council v Government of Israel [at 42].

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 It is the third stage that will be discussed in this essay, and which is indeed the source
of much of the debate. On one hand, those hostile to the balancing test (the hostile view)
argue that the method employed largely arbitrary judicial discretion that was both irrational
and an assault on human rights and the rule of law. Alternatively, the ‘sympathetic view’
maintained that when properly understood, the concept of balancing was grounded in a
rational form of argument and performed a necessary function in society that provided a
procedural equality when weighing individual rights against public need. Both sides of the
divide have elucidated important critical perspectives on the value of balancing and
proportionality; and the next part will thus consider both spectrums of the debate, weighing
the many arguments against each other in order to justify my support for proportionality-
based balancing.

3. The Balancing Debate

The two leading contributors to the debate, Habermas and Alexy, provided much of
the foundational groundwork that other academics and theorists have since used to build upon
and rally their arguments. Habermas was critical towards balancing, first arguing that
balancing reduced the debate between rights and the public interest to a policy argument,
which in turn robbed rights of their “strict priority” over other considerations and caused the
“fire wall” separating rights from legal norms to collapse.13 Furthermore, Habermas also
argued that judicial decisions resulting from balancing were fundamentally irrational as no
rational standard existed for judges to reconcile these competing values and interests existed,
leading to arbitrary weighing in accordance to “customary standards and hierarchies.”14
Without a rational standard, balancing is thus rendered illegitimate as this places the method
squarely in the realm of unregulated judicial discretion. This meant that any legal rulings
based on balancing cannot be justified by concepts of right and wrong, but could only be
ruled by degrees of adequacy due to the “flexible relational structure [of norms], in which the
relations can shift from case to case.”15
Alexy, on the other hand, argued that judgement in the face of conflicts between rights
and the public interest was inescapable; yet reconcilable when considering that both
constitutional rights and the public interest had the “character of principles” and that

13 Jurgen Habermas, Between Facts and Norms (trans.W. Rehg) (Cambridge 1996) [at 258]
14 ibid [at 259]
15 ibid [at 261]

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principles were essentially “optimisation requirements.”16 This then enabled adjudication in
objective and neutral terms by the scrutiny of the legal and factual constraints. He further
maintained that the underlying foundation for balancing, which he termed the Law of
Balancing, was both legitimate and grounded in a rational argument.17 The Law of Balancing
as expressed by Alexy as “the greater the degree of non-satisfaction of, or detriment to, one
principle, the greater the importance of satisfying the other”18 employed a sliding scale
approach that eliminated the subjectivity of value-judgements and concerned itself solely with
the intensity of the restriction. Thus “the more intensive the restriction, the weightier the
reason for restricting it must be.”19
Various other arguments have since expanded upon the ideas as put forth by Alexy and
Habermas in the discussion above. I will categorise these arguments as (i) the nature of rights
argument; (ii) the incommensurability argument; and (iii) the legitimacy of judicial discretion
argument.

3.1 The Nature of Rights Argument

A major argument raised by opponents of the balancing method is rooted in ideas
surrounding the complexity of rights and of moral evaluation. Tsakyrakis in particular
criticised the effect balancing had on the nature of rights – fundamental rights competing “on
a par with any of the other interests that individuals or the government have”20 would render
rights to be mere interests. All fundamental rights, he argued, inevitably contained an
“inviolable core content…[that implied] a substantive idea about what is right and wrong.”21
He would further state that if one acknowledged the idea that a right’s core content cannot be
compromised, this meant that weighing the right at stake against competing public interests
would ultimately render that right futile. Thus, balancing would in any case be incompatible
to the idea of rights having inviolable core contents and lead to a situation where fundamental
rights were not protected effectively.
Viewing rights as having an intrinsic quality of being ends in itself is not an
uncommon view. Theorists such as Habermas (as previously discussed) and Dworkin shared

16 Robert Alexy, Theory of Constitutional Rights (trans. J. Rivers) (Oxford University Press, 2002).
17 ibid
18 ibid

19 Denise Meyerson, 'Why Courts Should Not Balance Rights Against the Public Interest' (2007) 31 Melbourne

University Law Review 801[at 807].

20 Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 ICON 468.

21 ibid

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similar views. Dworkin especially described rights as “trumps” over public interest
considerations, in the sense that they cannot be overridden except to secure the “weightiest
social goal;”22 an approach, he maintained, was essential to our concept of rights. Meyerson
would support this concept using the analogy of ‘rights as a promise’ in an argument against
balancing rights on a first-order level (described below) against other factors:
“Although we do not regard a promise as absolutely binding, we do not in the
normal course of events weigh the effects of breaking a promise against the
potential countervailing considerations with a view to assessing whether they
tip the balance.” 23
Meyerson’s proposed Reweighting Approach as described in the introduction would
by large be derived from this conception of rights. She would illustrated Raz’s two modes of
practical reasoning as a basis to the approach: i.e. the first-order reasons deriving its
judgement from what ought to be done on a balance of reasons, and the second-order reasons
(termed by Raz as an ‘exclusionary reason’) that causes one to refrain from acting on one’s
belief of what ought to be done on the balance of reasons and cause one to defer to a higher
authority.24 In this scenario, rights become ‘exclusionary reasons’ that would prevent, or
exclude, courts from exercising their discretion on what the balance of reasons require, adding
weight to the nature of rights that can only be overcome by the weightiest social need – for
example, if upholding a right led to a situation that caused an entire order of rights to fail and
so on.
In response to the ‘hostile view’, some proponents of the balancing method countered
by arguing that they did not in the first place held rights as mere interests. Citing Kumm, Klatt
and Meister illustrated the following:
“If fundamental rights were mere interests, the proportionality test would be
applied as follows: … any interest could legitimately be pursued by a state’s
measure infringing a fundamental right. A wide range of aims would be
allowed to play out as competing interests on the balancing stage.. [with] rights
and all public interests [competing] on the same level…[and] constitutional

22 Denise Meyerson, 'Why Courts Should Not Balance Rights Against the Public Interest' (2007) 31 Melbourne
University Law Review 801[at 812].
23 ibid [814]

24 ibid

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 rights of constitutional status [capable of being] outweighed even by minor
interests without constitutional status.”25
But this, they argued, was not the case. The sub-principles of proportionality
specifically upheld the special status of rights, with existing legislation further entrenching
this protection. For example, article 10 (2) of the ECHR26 protected the right to freedom of
expression by allowing an infringing measure justification only if it pursued a prescribed list
of legitimate aims. From this, one could conclude that the State was not free to identify the
legitimate aim on a whim; and that in accordance with the understanding of the higher status
of rights, only aims understood as having an exceptional status equal to the right at stake may
limit it.
Tremblay would argue further that rights themselves sometimes proved
unsatisfactory. First, not all rights had the same importance or weight – for example, the right
to freedom from torture or cruel, inhuman and degrading treatment or punishment27 (an
absolute right) is held in greater importance to the right of freedom of expression 28 (a non-
absolute right). There would always be an order of priority between rights themselves as well
as between rights and non-rights interests. Secondly, the list of the most intrinsic human
goods that form the basis from which fundamental rights are derived from; for example,
Finnis’ seven basis human goods29 [life, knowledge, play, aesthetic experience, sociability
(friendship), practical reasonableness, and religion] is necessarily universal; yet, as Tremblay
30noted, the pluralism of modern society could pose a conundrum if one gave an established
set of rights greater distinction. For example, some members of society may believe that faith
and tradition were fundamental, and that imposing a rational separation between one’s
religion and one’s public life is inherently objectionable.
Many sections of an increasingly non-homogenous Europe hold vastly differing
opinions on a wide range of issues such as religious dress, abortion, polygamy, same-sex
marriage and so on. Thus, a system of constitutional law that refused to balance the interests
of all members in a plural, diverse society – favouring a certain type of conception (i.e. a
secular liberal view) of human rights, of human goods, and of the world, at the expense of

25 Matthias Klatt and Morritz Meister, ’Proportionality—a benefit to human rights? Remarks on the I·CON
controversy’ (2012) ICON 10 (3), 687 [at 689]
26 European Convention on Human Rights, Article 10 (2)

27 Luc Tremblay, ‘An egalitarian defense of proportionality-based balancing’ (2014) ICON 12 (4), 864

28 John Finnis, Natural Law and Natural Rights (OUP, 1980)

29 Luc Tremblay, ‘An egalitarian defense of proportionality-based balancing’ (2014) ICON 12 (4), 864

30 ibid

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others in society who may be religious minorities, religious fundamentalists, communitarians,
or conservatives – would be tantamount to using the coercive power of the state to deny a
large part of society the equality of respect and concern to which they are entitled.31

3.2 The Incommensurability Argument

Another argument raised against the balancing method questioned whether rights
could be treated as being commensurable to the public interest. This argument is linked to the
previous argument regarding the nature of rights that held rights as being of an intrinsically
different quality to that of non-rights interests such as public policy. Rights are said to have
qualities of incommensurability, meaning that where there were clashes of value, one cannot
rationally balance between them as a common scale on which the conflicting values can be
compared against did not exist – an analogy of the incomparability of apples and oranges is
sometimes used.32 Möller33 also illustrated the idea of incommensurability by using the
hypothetical Transplant Case:34 a state, for example, could not require a person to sacrifice his
life in order to use his organs to save the lives of five others, using the justification that five
lives outweighed one life, as lives are not quantifiable goods – killing the one to save five
others would be held as grossly disproportionate. But this bore the question that if certain
values and interests were incommensurable, how then could one weigh them against each
other?
This theory thus invests balancing with indeterminacy and irrationality – that
balancing inordinately resulted in judgements based on highly subjective and arbitrary judicial
discretion. Tsakyrakis would argue that balancing is a “characteristically impressionistic
assessment of the relative weights of competing considerations, which does not lend itself to a
rational reconstruction of the argumentative path that has led to a particular decision.”35
Webber critiquing in support would add that “the way in which the principle of
proportionality [in the balancing sense] generates particular conclusions is difficult to
discern…[and] in many instances, asserted rather than demonstrated.”36

31 Luc Tremblay, ‘An egalitarian defense of proportionality-based balancing’ (2014) ICON 12 (4), 864
32 Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 ICON 468 [at 475].
33 Kai Möller, ‘Proportionality: Challenging the critics’ (2012) ICON 10(3), 710 [at 719]

34 ibid

35 Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 ICON 468 [at 482]

36 ibid [at 89]

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 The ‘sympathetic view’ responded to the incommensurability argument, with Da Silva
arguing that “the existence of difficult decisions, hard cases and even tragic choices”37 did not
preclude the possibility of rational judgement. One could compare and balance constitutional
rights if one separated the rights’ concrete values from the abstract.38 For example, just as it is
possible to compare apples and oranges via a given covering value (e.g. vitamin content), Da
Silva has posited that constitutional rights could be commensurable if one measured it by its
rational, concrete values, giving an example of concrete value in the degrees of satisfaction
and non-satisfaction as propounded in Alexy’s Law of Balancing.39 Thus, in the hypothetical
Transplant Case, rather than concentrate on the abstract value of life, one could instead
examine the concrete values – which would in this case simply be that since introducing such
a precedent would upend its entire system of rights, the cost to a society would be so
damaging to the society’s functioning that such a measure would be illegitimate from the
onset.
The criticism raised by Tsakyrakis and Webber would be considered by Möller, who
while initially acknowledging the criticisms of subjective adjudication as true in a sense,
would add that rejecting adjudication solely from the justification of the insufficiency of a
person’s moral judgment was “hubris”, simply because every human did rely, to a certain
extent, on intuition.”40 He noted that in relying, to an extent, on intuition to make judgments,
one need not abandon reason entirely: for example, intuition may be scrutinised for faults
such as bias. Intuition is a human impulse that will realistically always feature to an extent in
the decision-making process, but it is one that can be contained by reason and need not play a
major part in decision-making.

3.3 The Legitimacy of Judicial Discretion Argument

The idea that indeterminacy and incommensurability led to arbitrary judicial discretion
that fell outside the scope of judicial powers is another argument often raised. Building on this
argument, Meyerson further question the legitimacy of allowing courts to balance rights
against the public interest (and thus affect public policy), arguing that it blurred the scope of

37 Virgilio Afonso Da Silva, ‘Comparing the Incommensurable: Constitutional Principles, Balancing and
Rational Decision’ (2003) OJLS 31 (2), 273.
38 Robert Alexy, Theory of Constitutional Rights (trans. J. Rivers) (Oxford, 2002)

39 Virgilio Afonso Da Silva, ‘Comparing the Incommensurable: Constitutional Principles, Balancing and

Rational Decision’ (2003) OJLS 31 (2), 273 [at 301]

40 Kai Möller, ‘Proportionality: Challenging the critics’ (2012) ICON 10(3), 710 [at 730]

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influence afforded to judges in the rule of law, especially in the realm of politics.41 While
politicians were politically accountable to the general public, thus affording them legitimacy
in considering the moral and political issues in policy, judges are not afforded the same
influence to maintain the separation of powers. Employing the balancing model, Meyerson
argued, required that judges attend to the considerations in each case in an open-ended way,
thus leading to them playing a role that would be no different from that of a legislator.42
In response to the general proposition of this argument, it has been noted that judges
exercising discretion in the legal process have always been an inescapable reality. Endicott43
has argued that legal systems have necessarily authorised judges to employ discretion in
reconciling incommensurable considerations, employing examples of how courts
discretionarily determined compensation for civil damages (e.g. setting an exact monetary
value of physical suffering) and criminal sentencing (e.g. establishing exactly how much time
in prison is suitable as punishment for a certain offence).
As for the involvement of judges in political issues, Greer would also note that the
structure, terms and underlying values of the Convention could provide a framework of
constraint to judicial discretion. Greer outlined the case of Wingrove44 as an example of built-
in limitations to discretion, where the right to freedom of expression was defined as excluding
the right to cause gratuitous insult to religious sentiments, and the right to freedom of thought,
conscience and religion can plausibly be defined as limited to protection only from
gratuitously insulting criticism.45

3.4 Concluding from the Balancing Debate

Considering the propositions and arguments that have been raised both for and against
balancing, I would conclude that balancing remained a defensible method in spite of the many
important and worthwhile contributions made by its critics. Much of the objections raised by
critics of balancing are interconnected and can be traced back to the basic question of the
value we ought ascribe to rights – whether the nature of rights is definable, whether rights can

41 [at 818]
42 Denise Meyerson, 'Why Courts Should Not Balance Rights Against the Public Interest' (2007) 31 Melbourne
University Law Review 801 [at 819].
43 T Endicott, ‘Proportionality and Incommensurability’ in G Huscroft, BW Miller and G Webber (eds),

Proportionality and the Rule of Law (CUP 2014) 311 [at 324].
44 Wingrove v United Kingdom (17419/90) (1997) 24 E.H.R.R. 1

45 Steven Greer, ‘"Balancing" and the European Court of Human Rights: a contribution to the Habermas-Alexy

debate’ (2004) CLJ 63 (2), 412 [423].

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be quantifiable, or whether we are giving a small set of individuals too much power and
authority to define rights on our behalf.
For my part, I believe that the existing rights in themselves imposed a perspective and
conception of the good that is too narrow to suit modern Europe’s culturally diverse
population. I therefore agree with Tremblay’s assessment that according rights a greater
priority over other competing interests could become difficult to sustain. Alexy’s model of
balancing that formally ascribed moral objectivity in optimising conflicts of rights with the
public interest is thus in my opinion a fairer model in comparison, as it would take into
account the circumstances, interests and moral equality of individuals in the context of
pluralism and cultural diversity
However, it is notable that despite the similar principles shared by constitutional
courts worldwide with regard to proportionality, this approaches taken by courts to the
principle often differed. This thus begged the question of whether Alexy’s German
constitutional law model of balancing applied similarly to the adjudication of the European
Court of Human Rights, and in particular the UK constitutional courts.

4. Balancing Rights Against the Public Interest and the European Court of Human
Rights (ECtHR)
The short answer to the previous question was: it did not. The balancing metaphor as
employed by the ECtHR and the domestic courts of its member states is in fact far from
streamlined. This stemmed from the court’s problematic approach to interpreting the
Convention itself,46 which it accomplishes by employing a dozen or so “principles of
interpretation” arranged in no particular order. These included vague principles such as the
‘effective protection of individual rights’, the ‘rule of law’, ‘democracy’ etc.47
And while Greer claimed that this enabled the court to abandon previous conceptions
of those principles in the text whenever significant changes in the climate of pan-European
public opinion occur,48 he also argued, that the method was ultimately deficient.49 Firstly, by
lacking a more structured approach to interpretation,50 the Convention's core constitutional

46 Steven Greer, ‘"Balancing" and the European Court of Human Rights: a contribution to the Habermas-Alexy
debate’ (2004) CLJ 63 (2), 412 [417].
47 ibid

48 ibid

49 ibid

50 ibid

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questions would consequently never attain a systematic resolution. This is inherently
problematic with the Strasbourg jurisdiction providing the highest authority for constitutional
courts that have affirmed and implemented Convention rights in their local jurisprudence.
Secondly, a more structured interpretation of the Convention had nevertheless already been
suggested by the overriding purpose of the Convention being the protection of human rights
in the context of democracy and the rule of law, rather the protection of democracy in the
context of human rights and the rule of law, or alternatively the protection of the rule of law in
the context of human rights and democracy. This in itself should have conferred Convention
rights greater weight in comparison to the public interest.51 However, the implementation of
Convention rights in local courts are filtered by such tests like the “in accordance with, or
prescribed by, law” and “democratic necessity” tests as well as by the doctrine of margin of
appreciation and the “proportionality to a pressing social need” principle.52
Commentators such as McHarg have noted that the fluidity of these categories that
were left unconstrained by clear or coherent rationale have led to problematic uncertainty. For
example, the evaluative framework as developed in Handyside,53 Silver,54 and Lingens55 for
the nature of the democratic test, the principle of proportionality and the margin of
appreciation allowed to member have been plagued by indeterminacy. MacHarg notes that the
nature of the democratic test would at times be treated as a “purely factual inquiry” such as
determining what standard of justification would be required from the term ‘necessary’, and at
other times would be discuss substantive content such as identifying what ‘essential
foundations’ of a democratic society would be necessary.56
The margin of appreciation doctrine also presented difficulties due to “its exact ambit
and rule [being] far from... fully developed.”57 While several factors such as the existence of a
European common ground between the law and practice of member states, the nature of the
right, the nature of the aim pursued etc. may be used to determine the balance between state
discretion and supervision from Strasbourg, the complex interplay between the various factors
51 Steven Greer, ‘Constitutionalizing Adjudication under the European Convention on Human Rights’ (2003) 23
OJLS 405.
52 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal

Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 M.L.R. 671 [at 685]
53 Handyside v United Kingdom (1976) (5493/72)

54 Silver v United Kingdom (1980) 3 EHRR 475

55 Lingens v Austria [1986] ECHR 7

56 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal

Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 M.L.R. 671 [at 686]
57 Van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague:

Kluwer Law International, 3rd ed, 1998) [at 85]

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creates a marked uncertainty in predicting how the Court would decide the margin question in
any give case.58 This results in the margin of appreciation varying both in relation to the
differing exceptions as well as in relation to the same exceptions arising in differing contexts.
This confusion and disarray in the Strasbourg jurisprudence has allowed for markedly
different approaches in the courts of several members states. This could also account for the
different conceptions of balancing in courts that Julian Rivers has suggested: one common in
Continental Europe where rights and public interests are formally indistinguishable, and one
predominant in the English common law where public interest reasons are treated as
limitations on rights and the role of the court is to police those limitations.59

5. Conclusion
In conclusion, while I would not agree with Meyerson’s proposition that the courts
give greater weight to individual rights as Meyerson proposed, I would argue that the current
status of rights adjudication in the UK is also unsatisfactory. Rather than lend differing
weights to public interests and rights, I believe that we should instead remove the ascribing of
value-judgement entirely from the balancing test and treat the two as both principles to be
objectively weighed. I argue that accomplishing this would thus result in fairer judgements in
the context of today’s diverse society.

58 ibid [at 91].

59 Robert Alexy, Theory of Constitutional Rights (trans. J. Rivers) (Oxford University Press, 2002).
!12
 Bibliography

Books
Alexy R, Theory of Constitutional Rights (trans. J. Rivers) (Oxford University Press, 2002).
Endicott T, ‘Proportionality and Incommensurability’ in G Huscroft, BW Miller and G
Webber (eds), Proportionality and the Rule of Law (CUP 2014)
Finnis J, Natural Law and Natural Rights (OUP, 1980)
Habermas J, Between Facts and Norms (trans.W. Rehg) (Cambridge 1996)
Van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights
(The Hague: Kluwer Law International, 3rd ed, 1998)

Articles
Aleinikoff T, ‘Constitutional Law in the Age of Balancing’ (1987) The Yale Law Journal 96
(5), 943.
Da Silva V, ‘Comparing the Incommensurable: Constitutional Principles, Balancing and
Rational Decision’ (2003) OJLS 31 (2), 273.
Greer S, ‘"Balancing" and the European Court of Human Rights: a contribution to the
Habermas-Alexy debate’ (2004) CLJ 63 (2), 412.
Greer S, ‘Constitutionalizing Adjudication under the European Convention on Human Rights’
(2003) 23 OJLS 405.
Klatt M and Meister M, ’Proportionality—a benefit to human rights? Remarks on the I·CON
controversy’ (2012) ICON 10 (3), 687
McHarg A, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and
Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62
M.L.R. 671 [at 686]
Meyerson D, 'Why Courts Should Not Balance Rights Against the Public Interest' (2007) 31
Melbourne University Law Review 801.
Möller K, ‘Proportionality: Challenging the critics’ (2012) ICON 10(3), 710 [at 719]
Tremblay L, ‘An egalitarian defense of proportionality-based balancing’ (2014) ICON 12 (4),
864
Tsakyrakis S, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 ICON 468.

!13
Case Law
A v Secretary of State for the Home Department [2005] 2 AC 68
de Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69
Handyside v United Kingdom (1976) (5493/72
Huang v Secretary of State for the Home Department [2007] 2 AC 167
HCJ 2056/04 Beit Sourik Village Council v Government of Israel
Lingens v Austria [1986] ECHR 7
R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.
RJR-MacDonald v Attorney-General [1995] 3 SCR 199
Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139
Silver v United Kingdom (1980) 3 EHRR 475
Wingrove v United Kingdom (17419/90) (1997) 24 E.H.R.R. 1

Legislature
Human Rights Act 1998

Treaties
European Convention on Human Rights, Article 10 (2)

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