Blog of the International Journal of Constitutional Law

Article Review: David Bilchitz on Matthias Klatt’s “Positive Rights: Who Decides? Judicial Review in Balance”

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, David Bilchitz reviews Matthias Klatt‘s article on Positive Rights: Who Decides? Judicial Review in Balance, which appears in the current issue of I•CON. The full article is available for free here.]

David Bilchitz, University of Johannesburg

In most constitutions today, fundamental rights play a central role and they are understood increasingly to place substantial positive obligations upon the state. Much scholarship has engaged the question of whether judges should adjudicate on these positive obligations and the extent of deference they should show to other branches. The debate has raged particularly fiercely around the role of the judiciary in cases concerning socio-economic rights (I have engaged with the justification for judicial intervention in that arena in chapter four of my book ‘Poverty and Fundamental Rights: the Justification and Enforcement of Socio-Economic Rights’).

Matthias Klatt in a fascinating article recently published in ICON (‘Positive Rights: Who Decides? Judicial Review in Balance’) argues that judicial interventions in relation to fundamental rights admit of different levels and intensities of control.  Utilising Katie Young’s typology (in her book ‘Constituting Economic and Social Rights’), he classifies courts as being either more detached, engaged or supremacist.  The characterization of a court corresponds to the degree of deference courts display towards other branches. The question Klatt poses is the normative one of how to determine which of these three approaches is to be applied (in this respect, his project is similar to that of Jeff King in his book ‘Judging Social Rights’). He contends that the choice between these differing intensities of review should not be made for any legal system in the abstract, once and for all. Instead, ‘the correct intensity of control must be chosen in each particular case, depending on the factual and normative circumstances’ (p. 363). In order to do so, he constructs the problem of judicial review as a conflict of competences between the legislature’s competence to decide on positive rights’ matters and the constitutional court’s competence to control these decisions.

Klatt then proceeds to apply balancing reasoning (following the model of Robert Alexy in ‘A  Theory of Constitutional Rights’) to this clash. He argues that competences should be understood as principles which should be understood to be optimization requirements: the subject-matter of the principle must be realized to the greatest extent possible.  Clashes of principles, on this view, are to be resolved by a balancing procedure which involves three stages: first, one must establish the degree of non-satisfaction of the first competence; secondly, one must engage with the importance of satisfying the competing competence; and finally, it must be established whether the importance of satisfying the latter competence justifies the non-satisfaction of the former. Klatt recognizes the need to provide weights to each of the reasons offered at these three stages. He outlines five factors which will determine these weights: the quality of the primary decision; the epistemic reliability of the premises used for a decision; the democratic legitimacy of a decision; the significance of the material principles at stake; and the specific function fulfilled by the relevant competence ‘in a system of appropriate division of labour between courts and legislatures’ (p. 372).

Klatt’s approach is novel, deserves sustained scholarly attention and I can only begin that process within the constraints of a blog by raising some questions about it. He attempts to apply an Alexian approach of balancing to address the question of when the judiciary should intervene in matters relating to fundamental rights. Is this an appropriate approach? I have several worries.

One of the central assumptions of Klatt’s paper is that formal principles (relating to institutional concerns) operate in the same way as material principles (relating to substantive rights for instance). One of my concerns is whether that is in fact correct. Let’s take a material principle that ‘we ought to respect the ability of a person to express their views about political matters’. That principle rests upon the worth or dignity we accord persons and a recognition of the consequent importance of respecting their autonomy as well as their participation in the decision-making of a political community. At stake are foundational questions of value.

Let us now take a formal principle such as ‘the court ought to exercise its power to protect a person’s freedom of expression in this case’. This principle concerns the second-order matter of ‘exercising a power’ and whether it is appropriate for a court to do so in a particular case. Relevant considerations include not simply value questions but also issues of institutional design around the role and function of courts within a particular legal system. It is not clear to me that such institutional questions that address the question of ‘who ought to decide’ are structurally analogous to questions of ‘what’ must be decided.

In particular, I question whether the language of optimization – utilized in the context of material principles – makes sense in the context of institutional questions.  I am not even sure how to formulate this idea: is the principle that the ‘legislature ought to make the greatest number of decisions concerning rights’ which clashes with the principle that the ‘courts ought to make the largest number of decisions concerning rights’? To formulate it in this way, I think, suggests the strangeness of thinking in this manner. We may seek to optimize values such as freedom or equality but do we really seek to maximize the power of particular institutions? Competences do not appear to be maximizing notions: in the abstract it is not good necessarily if courts make more decisions or less. What matters is that they make the decisions that the values underlying fundamental rights and democracy suggest that they should. There may indeed be major value questions and conflicts underlying the question of competence but it is not clear to me that they are accurately captured by conceiving of competences as having to be maximized and thus automatically clashing with one another. The problem too is that there are internal conflicts within values such as participation and democracy in this sphere (exhibited by the debate in the literature between Ronald Dworkin and Jeremy Waldron) which limits the usefulness of a pure balancing approach.

I have also argued in the past that the language of optimization raises major problems in  relation to material principles too (see ‘Necessity and Proportionality: Towards a Balanced Approach?’ in Reasoning Rights edited by Liora Lazarus, Chris McCrudden and Nigel Bowles, 2014). It can lead to a necessity test being applied which is too strict: as such, it fails to offer substantial protection for rights as it is undermined by courts in practice exhibiting substantial deference to other branches or applying it in a matter that is too weak. I argue there for a more moderate interpretation of necessity that involves jettisoning the view of principles as optimization requirements: instead, we need to conceive of fundamental rights as reasons with a strong weight rather than entities to be maximized.

In a similar vein, I agree with Klatt that it is desirable that courts provide reasons as to the nature and scope of their intervention in cases. The language of optimization though creates major headaches for this enterprise: it is strange that Klatt does not engage with the other elements that flow from a balancing enquiry on Alexy’s view. As an analogue of what occurs in the case of material principles, courts – in justifying the exercise of their powers – will need to ensure according to this reasoning that there is no alternative that can equally effectively realise their competence in a positive rights matter whilst having a lesser impact on the power of the legislature in such a matter.  This kind of reasoning, if applied strictly, seems likely to result in weaker interventions by courts as, almost inevitably, there will always be some uncertainty as to whether they could have adopted a less intrusive measure to the legislature’s powers. In many countries where the role of courts is vitally important, the protection of rights may weaken.

Indeed, I cannot when stating the clash in this way avoid a sense in which there may be something question-begging about Klatt’s approach. Any principle about what the competence of a court is in the field of judicial review already includes a set of assumptions about why courts should have such powers. Does the balancing approach add anything to this? What is valuable seems to be understanding the reasons for or against the exercise of the court’s powers in a particular case but, for the reasons provided, I am unsure that the language of optimization and formal structure of balancing is apposite.

There may in fact be a further loss in the idea of clashing competences that also flies in the face of some of the recent discussion around dialogical conceptions of the separation of powers, which have received prominence in the field of realizing positive rights. Under this idea, courts and other branches of government need not be considered as operating in a conflictual manner but rather can be understood to work together, collaborating towards achieving the shared goal of realizing the rights in the constitution. The intervention of courts thus need not be considered as in opposition to interventions by other branches but must be constructed in a co-ordinate manner.

The last point I would like to make concerns the relationship between formal and material principles in Klatt’s approach. Refreshingly, he recognizes that the weight and importance of the material (issues surrounding fundamental rights) will affect the application of the formal principles. Yet, one worry I have is that, if his approach were to be adopted, material principles around rights would land up being subordinated to formal principles around who decides. Whilst Klatt is right to call for more transparency in the reasoning of courts about the intensity of review they adopt, courts are unlikely to engage in two major sets of balancing enquiries in a single judgment: indeed, they often tend to restrict their reasoning even where important substantive principles are at stake. In this instance, the fact that material principles impact upon the formal may lead to even more conflation of the two enquiries than occurs currently and greater formalism. I fear that an emphasis on the competence question could thus supplant the focus on the substantive issues at stake, which should have prime importance.

Klatt has sought to engage with an important question, providing a theory as to when courts should intervene in decisions relating to positive rights. Whilst I have offered a critical appraisal, I hope also to have demonstrated the impressive nature of his theory and the need for further scholarship to engage with some of the crucial questions he raises.

Suggested citation: David Bilchitz, Article Review: David Bilchitz on Matthias Klatt’s “Positive Rights: Who Decides? Judicial Review in Balance,” Int’l J. Const. L. Blog, Aug. 26, 2015, at:


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