Does balancing adequately capture the nature of rights?

Bilchitz, D. ORCID: https://orcid.org/0000-0001-6195-675X (2010) Does balancing adequately capture the nature of rights? Southern African Public Law, 25 (2). pp. 423-444. ISSN 2219-6412

Abstract/Summary

Fifteen years into our constitutional democracy, it is accepted as a trite doctrine of Constitutional Law that fundamental rights are capable of limitation. Where the constitutionality of legislative or executive conduct is impugned, the Bill of Rights is commonly regarded as requiring a two-stage inquiry: first, has a right been violated in these circumstances? And secondly, if there has been a violation, can it be justified in terms of section 36(1) of the Constitution, the general limitation clause? Whilst this is now a standard feature of South African Constitutional Law, the limitation of rights and the way it is conceived is of great significance and affects the very meaning of what it is to have a right in the South African Constitution.