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286 Chapter 12
reason that argues in one direction, but does not necessitate a particular
decision’. 69 This conception of a principle is similar to what Jonathan
Dancy has recently called a contributory reason: ‘This is a feature whose
presence makes something of a case for acting, but in such a way that the
overall case for doing that action can be improved or strengthened by the
addition of a second feature playing a similar role’. 70 Such a reason can also
be defeated by another contributory reason that makes a case for a different
course of action.
The pure notion of a principle or reason discussed by these authors is
not sufficient to provide us with an adequate account of rights. 71 Two crucial
elements have been left out, the one formal and the other substantive. The
first element relates to the fact that we started with, namely, that rights are
not just ordinary principles or reasons: They have a special character in our
constitutional scheme and are deserving of special protection. Thus, we
cannot simply regard them as principles: they are a special type of principle
that possesses weightiness in our moral and political reasoning. I shall thus
seek to indicate this element of rights by referring to them as ‘weighty
principles’. Importantly, this conception of weighty principles does not
require that a principle be understood to be an optimisation requirement:
Rather, what is critical is that in our reasoning it be given the appropriate
weight that is to be attached to it. This formal conception of rights helps
us to make sense of the moderate interpretation of the Constitutional
Court’s approach to the less restrictive means requirement in the
limitation clause. Instead of requiring that the impugned measure be the
least restrictive means in relation to competing measures, the Court
simply requires that appropriate weight be given to the right when differing
and other possible measures are under consideration.
The second element seeks to capture the underlying reason for rights
having this special character of being ‘weighty principles’: They have a
particular substantive content and function in our political system. One of
the problems with Alexy’s theory is that his account of rights could apply
to any normative consideration that requires optimisation to the greatest
possible extent. The theory seeks to detach a formal essence of rights from
their substantive content. It is important, in a revised conception of rights,
that we fuse the two elements closer together to ensure that form does not
become an end in itself and that it rather follows its function. To develop
an adequate conception of fundamental rights, it is thus necessary to have
an understanding of their substantive justification, role and purpose within
69
Dworkin (n 10 above) 26.
70 J Dancy Ethics without principles (2004) 15.
71 I have some anxiety even about referring to rights as principles or reasons which seems to
denude them of their very essence. They appear rather to be a type of claim that a being
has by virtue of certain properties of its nature to be accorded certain types of treatment.
It is not clear that the notion of a claim here is identical to the notion of a principle as
described by Dworkin, Dancy or Alexy. A further discussion of this issue, however, lies
beyond the scope of this paper.