oa Constitutional Court Review - Service conception of the constitution : authority, justification and the rule of law in proportionality jurisprudence

Volume 9 Number 1
  • ISSN : 2073-6215
  • E-ISSN: 2521-5183



Constitutional Court judgments upholding or striking down statutory provisions that limit constitutional rights in South Africa do so on the back of an inquiry into the proportionality of the rights limitation. The Court’s record suggests that proportionality analysis usually proceeds along one of two paths: an analysis that focuses on the availability of means less restrictive of rights than the impugned limitation, or an analysis that considers the strict balance between the value of the purposes sought by the limitation and the seriousness of the rights limitation. This article examines how these two paths of proportionality analysis appear at first to align with two different conceptions of the rule of law. Strict-sense proportionality analysis involves reasoning from moral first principles – or primary moral reasoning – that draws on Lon Fuller’s inner morality of law, and which seeks to provide morally grounded justifications for a decision upholding or striking down a limitation. Less restrictive means analysis depends on a ‘service conception’ of the constitution to justify its conclusions, drawing on Raz’s views about how law and legal decisions claim authority. Both Raz’s service conception of authority and the service conception of the constitution that runs through less restrictive means analysis, however, depend on a view of what it means to be a legal subject that is ultimately indistinguishable from Fuller’s: on either account, the rule of law demands that a legal system recognise its subjects as morally autonomous agents deserving of morally intelligible explanations for the law’s operation. If less restrictive means analysis is to make a meaningful claim both to authority and to the rule of law, then it must – and indeed does – involve at least some primary moral reasoning. In turn, South Africa’s culture of justification demands that courts embrace primary moral reasoning in proportionality jurisprudence.

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