House of Cards: Fundamental Rights as Aces

Irina Țuca
Irina Țuca

When faced with a conflict between rights, the most common approach of European courts is to balance them against one another. They apply the renowned “balancing test”, a four-stage process which consists of balancing the two rights or interests against one another and giving priority to the one which carries more weight. On the other hand, Ronald Dworkin, one of the most influential human rights theorists, claims that rights are “trumps”[1]. Just like in a card game an ace automatically wins over a queen, in his view rights “trump” collective ideals or interests, and thus cannot be balanced on a scale. John Rawls affirms that basic liberties have “lexical priority”[2], while Robert Nozick speaks of them as “constraints”[3] on executive action. They would all deny the legitimacy of balancing as a valid method of adjudicating conflicts of rights.

This article highlights some of the issues associated with using the balancing approach to adjudicate conflicts of fundamental rights. I aim to show that, given their peremptory force, normative character and philosophical underpinnings, rights cannot be subject to a mathematical calculus – they cannot be put on a scale, “weighed up” or “balanced” against other competing interests. In a deck of cards, fundamental rights are aces, which should prevail over any number of kings and queens raised against them.

In Part 1, I will provide a brief overview of the two competing views: the school of thought which praises balancing as the appropriate method of adjudicating questions of fundamental rights and the opposing trend, represented by those who see rights as entitlements which cannot be weighed. In Parts II, III, IV and V I will argue that the latter approach is preferable. In so doing, I will take each of the four stages of the balancing test and highlight their respective flaws. Part VI will amount to a conclusion, which aims to prove that, given its inherent drawbacks, balancing is not the appropriate method of resolving questions of rights.

Part I: To balance or not to balance

When faced with a conflict of competing rights and interests, most national courts in Europe, as well as The European Court of Human Rights (ECHR) adopt what is now simply called “balancing”. In essence, the balancing approach amounts to a four-stage test which aims to elucidate whether a limitation of a constitutional right is justified. The four questions that the court has to ask itself are: (1) does the limitation of the constitutional right pursue a legitimate aim?; (2) is there a rational connection (i.e. a causal link) between limiting the right and achieving the legitimate aim?; (3) are there other less intrusive alternatives which would have been just as effective in achieving the aim? (i.e. is the limitation of the right really necessary?); (4) what weight do the right and the legitimate goal carry and how should they be balanced against each other?

The critics of the proportionality model oppose it on the basis that it fails to offer sufficient protection to fundamental rights, by diluting their normative force and by failing to acknowledge their moral underpinnings[4]. Dworkin, who calls rights “trumps”, claims that they should win over the collective interests of the society: “Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or do to”[5]. On this view, individual rights cannot be balanced against collective goals, because whenever an individual plays the fundamental rights trump card, all the other cards which compete against it are defeated.

The proponents of the “rights as trumps” theory have justice on their side. The balancing model is riddled with imperfections, at all four stages which comprise it. I will analyse each of these in turn.

Part II: Does the infringement pursue a legitimate goal?

In the first part of the balancing test, one has to ask whether the measure under review pursues a legitimate goal: does the course of action adopted by the government pursue a worthwhile objective? Is there a legitimate interest which can be balanced against the limited right of the appellant?

There is a two-fold problem with identifying the legitimate goal pursued by a policy. First, in reviewing a government policy, the court is bound to accept whichever explanation the government submitted for the given action: if the government alleges that the goal of the policy is X, the court cannot declare that the goal is, in fact, Y. In Smith and Grady v UK[6], the appellants, who were homosexuals, were excluded from the British armed forces. They argued that their art 8 ECHR right to private life (among others) has been infringed. The British government’s response was what the infringement pursued a legitimate goal, namely preserving the integrity of the armed forces. The morale of the army would suffer – argued the government – if gays were allowed to serve, because the atmosphere amongst their peers would be one of tension and unease and the “fighting power” of the armed forces would be severely diminished. The Court, in reviewing whether the infringement of art 8 was proportionate, had to take it at face value that the goal of the policy was “the maintenance of the morale of service personnel and, consequently, of the fighting power and the operational effectiveness of the armed forces”[7]. The Court could not, without breaching the principle of the separation of powers and comity, claim that the UK government’s real motive was homophobia, or that it was actually motivated by financial reasons. When identifying the legitimate goal of the policy, all the Court can (and has to) do is look at whatever motive the government put forward in support of the measure. The implication is that this first step of the balancing test is redundant: it is just a manifestation of judicial deference to executive autonomy, as opposed to a full independent judgement on the part of the tribunal.

However, the bigger issue in respect of identifying a legitimate goal is what Tsakyrakis calls “the definitional generosity problem”[8]. He argues that the current implementation of the balancing test allows too many things to go on the scale: almost anything can qualify as a right or a public interest which is (allegedly) worth balancing. In other words, the question “what is weighed?” yields too many answers.

A good example is a decision of the German Federal Constitutional Court which concerned a Bavarian ordinance that prohibited feeding pigeons in public places because of public health considerations. The appellant challenged the order, claiming that it violated her constitutional liberties. The Constitutional Court found that art 2 of the German Constitution (the right to free personal development) included a subsidiary general freedom of action, which, in turn, included “the right to feed pigeons”[9]. The case of Otto-Preminger-Institut v Austria[10] is another example. The case concerns a decision of the Austrian authorities to confiscate the film Das Liebeskonzil (Council in Heaven), in which various religious figures including Virgin Mary were depicted as conspiring with the Devil to infest mankind with syphilis. The cinema where the film was supposed to be shown argued that the confiscation amounts to an infringement of art 10 ECHR freedom of expression. In line with the first step of the proportionality test, the Court analysed whether the confiscation pursued a “legitimate aim”. It found that the measure’s aim was to “protect the right of citizens not to be insulted in their religious feelings”[11]. Similarly, in Hatton v UK[12], a case concerning a policy scheme which allowed for night flights at Heathrow Airport and which resulted in noise pollution and sleep disturbances for the residents living in the area, the Court found that art 8 ECHR right to private life includes a derivative right “not to be directly and seriously affected by noise or other pollution”[13] (subsequently called by commentators “the right to sleep well at night”).

This is usually referred to as “rights inflation”[14]: a modern trend which trades nuanced selectiveness for absolute inclusiveness in the sphere of human rights. On this account, any expression of autonomy counts as a right. Sleeping well, feeding pigeons and not seeing a provocative film are all expressions of autonomy and therefore, the theory goes, they are “rights”. This account of an all-encompassing borderless territory of rights is supported by jurists such as Kai Moller, who claims that we ought to “abandon the idea that rights hold a special normative force” and adapt our expectations of rights accordingly[15].

Sadly, at first glance this approach can seem very enticing: it appeals to our (mis)conception that simplicity is better and that the less pedantic we are the clearer things become. The account purports to adopt a very simple model, eliminating the need to ask difficult questions about the definition and nature of rights. We no longer need to concern ourselves with jurisprudential enquiries about the boundaries of fundamental freedoms if we erase those boundaries all together and let every autonomy interest occupy the territory. It is easier and more straight-forward this way, claim the supporters of “right-inflation”, so why complicate matters?

The reason why the domain of rights is nuanced and selective is because the “logic” of rights is different[16]. Rights have a special, peremptory and normative force. The claim “I have a right to do X” is more than just a statement about my intention to do X or about X as a generally desirable course of action. Rights, as opposed to other desires, interests and legal entitlements, are grounded in the value of equality and dignity (Dworkin) and reflect the very core of what makes us human (Griffin). Because of their inherent distinctive character, grounded in profound ethical values, rights are “assumed to form an internally consistent scheme”[17], which cannot be enlarged to include just any desirable interest. As Simmonds claims, “when all moral concerns are expressed as involving ‘rights’, we lose any sense of the precise way in which rights possess a special moral force. Rights come to be thought of as simply important interests”[18]. There is something intuitively wrong about putting freedom of expression on the same scale as “the right not to be offended”, just like it is erroneous to claim that freedom of action gives rise to “the freedom to feed pigeons”. If all the deuces and treys and jacks become aces, the card game becomes pointless.

Defenders of the proportionality approach respond to this argument by claiming that the “filtering out” of “less important rights” is done at the fourth stage of the test, that of weighing up the relative value of each right. In other words, it is alright to let everything go on the scale at first, because if one value is obviously less important than another (such as “right to sleep well at night” compared to the huge economic interest of the community to have a functioning airport), it will be overridden when the courts balances the two as the final step of the analysis.

However, as Tsakyrakis claims, this is an “embarrassing implication” of the balancing method: “if there is no such thing as a right to have one’s religious feelings protected, then it makes no sense to speak of balancing in the first place, since we would be lacking that against which we are supposed to balance freedom of speech […] if the balancing stage is supposed to remedy a confusion that the balancer’s approach itself has engendered, you might start asking whether it would be better to scrap the approach altogether”[19]. Not only is it rather peculiar to claim that the balancing forth stage “cures” a problem created by the balancing stage itself, but it also creates an unnecessary and confusing mechanism: the balancing test is often praised as a rational and structured logical exercise, but by putting unworthy values on the scale and then taking them down later on in the test because of their lack of importance, the test is anything but justified and rational.

Instead of making the scale all-inclusive and attaching the stamp of approval to any legitimate goal, we ought to preserve the normative peremptory force of rights and fortify their borders as opposed to opening them up.  There is a justified reason why there are only four aces in a deck: they are the most important cards we have.

Part III: Is there a rational connection between the infringement and the goal pursued?

After establishing that the infringement pursues a legitimate goal, the court proceeds to the second step of the inquiry and asks whether there is a rational connection between the two: does this infringement cause or contribute to the achievement of the legitimate goal?

As with the first step of the test, that of identifying the aim of a policy, courts usually practice deference to governmental decision-making. In most cases of conflict, identifying the rational connection between a policy and a goal does not pose any controversy, because it is usually taken for granted that the policy is causally related to the goal.

It is unfortunate that this step of the analysis is treaded so lightly. This “believe and not doubt” approach of simply assuming the causal connection between the legitimate aim and the policy adopted produces unfortunate consequences. A good illustration of this can be found in the following example given by Dworkin: in “Life’s Dominion”, he imagines a society in which abortion is banned in order to pursue the legitimate goal of protecting the sanctity of human life, because – the argument goes – a world in which abortion is legal is a world which “holds human life cheap”, and in which ordinary people are less likely to be protected from assault and murder. As Dworkin explains, the goal of protecting people from murderous attacks is obviously a legitimate one, but ultimately the connection between this legitimate goal and the banning of abortion is far from clear: “there is no evidence beyond the barest speculation that allowing the abortion […] generates a culture in which people take a more callous attitude toward the slaughter of children and adults”[20].

Dworkin alludes to the inherent speculative nature of establishing a connection between a policy and a legitimate goal. This is so because, in most cases, the legitimate goal pursued is framed in very general abstract terms. The aim of “protecting national interest” is a paramount example of this. Almost any course of action (including those policies which infringe fundamental human rights) can be said to “protect national interest” or “public safety” or “collective morality”. We assume that the policy protects public interest based on pure speculation, without a concrete explanation of what the public interest is or how it is connected with the policy adopted.

This issue is, unfortunately, very relevant in the context of the measures adopted in Romania during the COVID-19 pandemic. Upon declaring a state of national emergency, the Romanian president adopted Presidential Decree 195/2020, a legally binding act listing the measures to be taken in order to “protect public health and safety”. Article 2 stipulates that several fundamental rights can be restricted, among which the right to private life, the right to liberty, the freedom of assembly and association, the right to strike, the right to private property etc. Article 54 further stipulates that local telecommunication authorities “shall immediately suspend false information” by “eliminating it directly from the source”. In other words, by virtue of article 54 the government effectively limits freedom of expression when the information expressed is “false”.

According to the balancing test, one would first need to ask if infringing freedom of expression pursues a legitimate goal. The answer here, as mentioned in Part II, would almost surely be yes: any court would find that “protecting public health and safety” is a legitimate goal. At the second stage, one would need to ask if limiting free speech is rationally connected to the objective of protecting public health. I dare speculate that, given the way the balancing test has unfolded in the past, the answer would be yes: courts would readily assume (wrongly in my opinion), like in the example given by Dworkin, that there is a rational connection between the policy and the goal. It would simply be assumed that limiting free speech is connected to the aim of protecting public health, in the same way that the Court in Smith and Grady v UK was rather quick to believe that not allowing gays to serve in the army is rationally connected to the efficiency of the armed forces.

In the context of the presidential decree mentioned, if a court were to simply assume the rational connection between limiting free speech by excluding “false information” and pursuing public health, it would overlook several important elements, namely that: (1) We do not have a Ministry of Truth (yet) akin to that present in Orwell’s “1984” to tell us, in an incontestable and objective fashion, which information is true and which information is false; (2) Even if we did, freedom of expression includes the right to express false information; (3) There is no compelling proof that false information endangers public health; (4) There is no compelling proof that eliminating false information would improve public health; (5) There is no precise definition of what constitutes, in essence “public health”: does it include mental health? Does it take into account the health implications of being isolated? Does it pay due consideration to the autonomy of each individual to make decisions in respect of his/her own health? etc.The second step of the proportionality test eliminates the need to ask these vital questions. All it requires is for a “rational connection” to exist. And, given the inherent speculative nature of the test and the inflation of “legitimate aims” we allow to go on the scale, the connection will invariably be found, even in the absence of compelling proof.

Dworkin, on the other hand, urges us to play the cards right, and we ought to listen. Freedom of expression is an ace, while public health is a king: ace trumps king.

Part IV: Would other less intrusive alternatives be just as effective in achieving the goal?

After establishing that the given policy is rationally connected to an aim that is legitimate, the court needs to ask itself if there were other less intrusive alternatives available to the policymaker which would have been just as effective in achieving the aim. In essence: could the same goal be achieved by less intrusive means? If the answer is yes, the policy will be found illegitimate. If the answer is no, then the court proceeds to the next step.

The problem with this inquiry about alternatives is that it suggests, mistakenly, that the infringement of a right is only condemnable if it is done to a great degree. The mere fact that the court looks to find “other less intrusive measures” of limiting the right suggests that a smaller limitation of that right could be acceptable. This dilutes the normative importance of the right in question. It conceals the truth that, in most cases, the issue is not that a given right has been infringed to a great extent – the issue is that it has been infringed at all. Put differently, there are some rights which, in some contexts, shouldn’t be infringed at all, regardless of degree.

The case of I.A. v Turkey[21] is a salutary example. The appellant published a book which contained various critical remarks about Islam and was convicted to two years in prison and a fine, in accordance with Turkish legal provisions punishing blasphemy. The Turkish courts commuted the prison sentence to just the fine, and in the end the appellant was required to pay approximately sixteen dollars. Similar to the approach in Otto-Preminger-Institut v Austria, the European Court of Human Rights saw this as a conflict between the appellant’s freedom of expression and the right not to have one’s religious feelings offended. The Court concluded that the interference with the appellant’s freedom of expression was justified because there was a pressing social need to uphold blasphemy laws. A significant part of the Court’s reasoning concerned the imposition of the fine – the Court took the fine as proof that the limitation of the right was proportionate, because there are other more intrusive methods which could have been adopted but were not. In the words of the Court: “As to the proportionality of the impugned measure, the Court is mindful of the fact that the domestic courts did not decide to seize the book, and accordingly considers that the insignificant fine imposed was proportionate to the aims pursued”[22]. Thus the court seems to suggest that, because Turkish authorities could have adopted the more intrusive alternative of seizing the book, the fact that they opted for “just” an “insignificant” fine makes the limitation of the freedom of expression justified. There is a bitter irony in this approach: the appellant is told that he should accept the lesser evil, the small fine of sixteen dollars, because there could have been a bigger evil imposed on him. However, the Court overlooks the fact that there should have been no evil at all. Analysing which interference is more acceptable – option A or option B – makes us blind to the fact that there is also option C, the option of not interfering with the right at all.

In Smith and Grady v UK this debate about alternatives yields the same unfortunate result. The Court asked itself, at the third stage of the inquiry, whether the legitimate aim of preserving the effectiveness of the army could be achieved through less intrusive means than excluding homosexuals from the troops. The Court considered various options, including introducing “codes of conduct and disciplinary rules” to educate soldiers on how to integrate and accept homosexuals within their community. The court found that this would not have been as effective as the challenged measure. Again, by analysing various alternative forms of interference, the Court impliedly accepts that the idea of an interference is itself justified. It deletes the borders of article 8 ECHR and just asks “what is the least problematic form of not upholding his right?”

And last but not least, would it really make a difference if Presidential Decree 195/2020 limited my freedom of expression less intrusively? Should I be grateful if the government decided to allow me to “spread false information” but only on Fridays? Is my freedom of expression really worth anything then? Or, put differently, are “less intrusive” breaches of rights or obligations acceptable just because they could have been worse?

Trumping an ace with a five is just as incorrect as trumping it with a three – it does not become correct just because five is a better card than three.

Part V: What weight do the two conflicting goals carry and how should they be balanced against one another?

Lastly, when after the court establishes that the limitation of the right is rationally connected to a legitimate aim which could not have been achieved through other less intrusive means, the final step of the analysis is weighing up the two competing values: the right infringed and the legitimate aimed pursued. Which one should have priority? Which one is more valuable, more desirable, more important?

The issue with any comparison is that you need to find a common nominator, a unit of measure. However, in most cases where rights come into conflict, there is no such unit of measure. In the words of Judge Scalia, it would be like comparing the length of a line with the heaviness of a rock[23]. Some values are almost incommensurable. The balancing test, by purporting to balance them against one another through a four-stage process, creates the illusion that the choice between them is scientifically rational, that choosing right A over right B is a similar process to saying that five is a bigger number than four.

Pretty v UK[24] is a case which illustrates the difficulty of balancing rights and values on a scale. The appellant, who was paralysed from the neck down, expressed her desire to have her husband disconnect her from life support. Since it is a crime to assist another to commit suicide under English law (section 2(1) of the Suicide Act 1961), her husband would have been prosecuted if he helped his wife end her life. She argued that the ban on assisted suicide infringes her art 8 ECHR right to private life, which includes the right to “die with dignity”. Against her art 8 ECHR right, the Court put in balance art 2 ECHR right to life: the argument was that the possibility of euthanasia would coerce people into choosing to renounce their life if they found themselves in a similar situation to Miss Pretty and that an environment in which the taking of a human life is permissible would exhibit disregard for life itself. Upon “balancing” the two, the Court ruled that the need to protect the sanctity of life embodied in art 2 ECHR had priority over the appellant’s art 8 ECHR right.

Pretty is an extremely complex case. My aim is not to suggest that the decision was wrong or that the case should have been handled differently. However, I do think that the case reflects an important drawback of the balancing exercise, namely the appearance of precise and justified decision-making. Framing the conflict between article 2 and article 8 in terms of weights, scales and balancing creates the illusion that the process is an exact science which, because if benefits from the structure of a four-stage test, allegedly produces a mathematically defensible result. This is far from true.

Assume that we knew for sure that legalising euthanasia would increase the rate of assisted suicide by 5%. Assume that we also knew that not legalising euthanasia would increase the rate of people committing suicide while they are still physically capable by 3%. Defenders of the balancing model would surely be enthusiastic: we would balance two different death rates, 3% versus 5% and we would come to the conclusion that we would be better off if euthanasia remained illegal, since an increase in death by 3% is better than an increase by 5%. But this sort of calculus, the cost-benefit analysis which is so often inherent in the balancing exercise, is misplaced. Deciding between incommensurable rights is a moral choice, a value assessment charged with ethical implications. In such an imaginary case, we should not be comparing 3% with 5%. Rather, we should ask truly ethical questions such as: is there a moral difference between causing death by letting someone die and disconnecting them from life support? Could we say that Miss Pretty’s husband would be her agent and thus would be acting on her behalf, as if it was her that was unplugging the machine? Is it more morally acceptable to impliedly encourage suicide while the sick are physically able to take their own life, as opposed to allowing their abled spouse to help them when they are incapable? Is life worth anything if you no longer want to live it? How central is dignity to a person’s life? The balancing exercise conceals this moral evaluation, by allowing the court to hide behind the alleged precise four-step test and avoid engaging in the moral dilemma straight-forwardly.

Rights, because they are trumps, should be allowed to raise difficult questions. They should not be overly simplified and expressed in terms of formulas and scales. It may not make much of a difference to Miss Pretty, since the court may have reached the same conclusion whichever way it approached the issue. But to jurists concerned about human rights, the way we adjudicate fundamental entitlements should make a difference. Instead of thinking about the right to life and the right to privacy as concepts which sit on scales that tilt one way or another, we should ask difficult, straightforward questions: what is the core essence of this freedom? What is the justification behind this right? And, probably the most quintessentially moral question: what is the correct thing to do?

Choosing between two aces is a difficult task but weighing the two cards or comparing their colour will not elucidate the matter. The choice is made by acknowledging the moral dilemma, recognizing the peremptory force of these trump cards and deciding based on the most reasonable moral solution.

Part VI: Conclusion

Rights are, indeed, trumps. They are fundamental, normative, peremptory entitlements that reflect the outmost essence of human dignity, equality and respect. We should keep their borders secure and refrain from carving out exceptions or from enlarging their territory to include any desirable interest.

We should also not be quick to assume that the act of infringing rights is causally connected to the pursuance of a legitimate goal or community interest. We should be sceptical and demand the highest form of proof before accepting that the limitation of a right is an essential condition to the promotion of public interest.

In some situations, infringing a right is a wrong per se, irrespective of the degree or intensity of the interference. We should resist the urge to find a right-limitation policy more acceptable because it is the lesser evil available.

And last but not least, fundamental rights raise difficult moral questions, and we should accept the challenge. We should resist the temptation to express rights in formulas and weighable concepts and adjudicate the conflict between them by asking the right ethical questions.

The proportionality test fails to live up to these ideals. The best way to respect them is to remember why we have aces in the first place, and let them trump less powerful cards.

[1] R. Dworkin, Taking Rights Seriously (Harvard University Press, 1977)
[2] J. Rawls, A Theory of Justice (Oxford University Press, 1971)
[3] R. Nozick, Anarchy, State and Utopia (Basic Books, 1974)
[4] S. Tsakyrakis, Proportionality: An Assault on Human Rights, International Journal of Constitutional Law 7, no. 3: 468-9; G. Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009)
[5] R. Dworkin, Taking Rights Seriously (Harvard University Press, 1977)
[6] Smith and Grady v. United Kingdom, Applications Nos. 33985/96 and 33986/96, Council of Europe: European Court of Human Rights, 27 September 1999
[7] Ibid., paragraphs 74, 95
[8] S. Tsakyrakis, Proportionality: An Assault on Human Rights, International Journal of Constitutional Law 7, no. 3: 468-93, page 480
[9] BVerfGE 54, 143 (147) (Federal Constitutional Court)
[10] Otto-Preminger-Institut v Austria, 295-A EUR. CT. H.R. (ser. A) (1994)
[11] Ibid., at paragraph 48
[12] Hatton v United Kingdom (2003) 37 EHRR 28
[13] Ibid., par paragraph 96
[14] G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007), page 126
[15] K. Moller, The Global Model of Constitutional Rights (Oxford University Press, 2012, 5th edition), page 73
[16] N. E. Simmonds, Constitutional Rights, Civility and Artifice, Cambridge Law Journal 78(1), March 2019, pp. 175-199
[17] Ibid., page 184
[18] Ibid.
[19] S. Tsakyrakis, Proportionality: An Assault on Human Rights, International Journal of Constitutional Law 7, no. 3: 468-93, page 481
[20] R. Dworkin, Life’s Dominium (1993), page 115
[21] I.A. v. Turkey, App. No. 42571/98 (Sept. 13, 2005)
[22] Ibid., paragraph 32
[23] Bendix Autolite Corp. v Midwesco Enters., 486 U.S. 888, 897 (1988)
[24] Pretty v United Kingdom, App. No. 2346/02, 35 Eur. H.R. Rep. 1 (2002)

Irina Țuca