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264 Chapter 11
values to be given to the variables of the formula, generates a predictable
outcome in concrete cases. This is the weight formula, a simplified version
of which looks like this: 63
Wij =
Ii
Ij
As Alexy explains the formula
Ii stands for the intensity of interference with the principle Pi ... Ij stands for
the importance of satisfying the competing principle Pj ... Finally, Wi, j stands
for the concrete weight of the principle whose violation is being examined – in
our case, that of Pi. The Weight Formula gives expression to the point that
the concrete weight of a principle is a relative weight. It does this, in the
simplest form, by defining the concrete weight as the quotient of the intensity
of interference with this principle (Pi) and the concrete importance of the
competing principle (Pj).
The operation of the formula can be illustrated by assigning numbers to the
variables corresponding to the scale of intensity outlined above – light,
0 1 2
moderate, severe. A geometric scale is used – 2 , 2 , and 2 , that is, 1, 2,
and 4. 64 The priority of Pi is expressed by a concrete weight greater than 1;
the priority of Pj by a concrete weight less than 1.
To use Brümmer as an example, the intensity of the infringement (Ii) with
the right of access to court (Pi) is serious (s); the importance of the interests of
justice in the avoidance of inconvenience (Pj) of the defendant (Ij) – given
the nature of access to information litigation is light (l). Inserting the
corresponding values of the geometric sequence for a severe infringement
and a light importance then the concrete weight of (Wi, j) is, in this case,
4/1, that is, 4, indicating the clear priority of Pi in this case. Even if
greater weight is given to the purposes of the infringement, calling it
moderately important would give a result of 2, which would still not be
sufficient to outweigh the infringement of the right.
63 R Alexy Theory of constitutional rights (n 35 above) 408 - 410. I have used here the useful
summary in an online conference paper by R Alexy ‘The construction of constitutional
rights’ (2009), available at http://www.clb.ac.il/workshops/2009/articles/alexy.pdf
(accessed 27 July 2010).
64 Alexy explains the choice of this scale in an instructive footnote: ‘The greatest
advantage of the geometric sequence consists in its providing for the best representation
of the over-proportional increase of the power of rights as correlated with an increasing
intensity of interference, a fact that serves as the basis for the refutation of the objection
concerning the dissolution of the power of constitutional rights’. Alexy ‘The
construction of constitutional rights’ (n 63 above) n 36.