Necessity and Proportionality: Towards a Balanced Approach?

Reasoning Rights (Edited by L.Lazarus, C. McCrudden and N. Bowles) (Hart, 2014, Forthcoming)

44 Pages Posted: 5 Sep 2013

See all articles by David Bilchitz

David Bilchitz

University of Johannesburg; University of Reading - School of Law

Date Written: August 17, 2012


This paper focuses upon the ‘necessity’ component of the proportionality enquiry which has been of great importance in the jurisprudence of courts around the world in determining whether a particular measure unacceptably violates fundamental rights. In the first section, I outline what I term the ‘strict interpretation of necessity’. I seek to demonstrate that this understanding of necessity can lead to two opposing problems: either it is considered to be too strong triggering substantial deference on the part of courts to other branches or it is too weak as a result of a strict construal of the ‘equal effectiveness’ component. Either way, the test fails to offer adequate protection for fundamental rights by inviting courts either to circumvent its requirements or simply rendering it meaningless. The second part of the paper then seeks to break down the enquiry into four parts and to consider what is entailed in each. Each component – possibility, instrumentality, impact, and comparativity - involves both qualitative and normative judgments which means that the strict interpretation of necessity cannot adequately be justified. Moreover, when the qualitative dimensions of necessity are understood, the enquiry also can be seen to require an element of balancing within it that cannot be eliminated. I conclude by using this analysis to outline a revised moderate interpretation of necessity that provides a much better conceptual framework and guided process of reasoning which courts can employ to test the constitutionality of laws and executive action that infringe fundamental rights.

Keywords: necessity, proportionality, Alexy, deference, optimisation, balancing, limitation of rights, comparative constitutional law

JEL Classification: Z00

Suggested Citation

Bilchitz, David, Necessity and Proportionality: Towards a Balanced Approach? (August 17, 2012). Reasoning Rights (Edited by L.Lazarus, C. McCrudden and N. Bowles) (Hart, 2014, Forthcoming), Available at SSRN:

David Bilchitz (Contact Author)

University of Johannesburg ( email )

PO Box 524
Auckland Park
Johannesburg, Gauteng 2006
South Africa
0113391194 (Phone)
0113391167 (Fax)


University of Reading - School of Law ( email )

Reading, RG6 6AH
United Kingdom

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