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256 Chapter 11
3 Criticism of balancing
Is the unswerving commitment of the South African courts to balancing
appropriate, given that, according to its many critics, balancing has
serious limitations? In their chapter on ‘Limitations’ in the second edition of
Constitutional law of South Africa, Woolman and Botha criticise not only the
particular form of balancing enquiry undertaken in South African limitations
analysis, but also of the foundational idea that rights can and should be
balanced against conflicting considerations. 24 Woolman and Botha have
distilled a voluminous critical literature into a useful compendium of the
arguments against the use of balancing as a metaphor to describe the
process of conflict resolution in limitations analysis. According to the
authors, balancing has four principal defects and the continued deployment
in limitation analysis of this ‘bad metaphor’ leads limitation jurisprudence
seriously astray. 25 The defects are the following:
(a) Incommensurability. The metaphor of ‘balancing’ and its partner
‘weighing- up’ suggest that rights and the public interest in their limitation
are commensurable, measurable by the same metric (or, to keep to the
balancing metaphor, scale). Some sort of common metric is necessary to be
able to say that one value is better than the other, or that they are of equal
value. 26 But, Woolman and Botha argue that, more often than not, there is
no such metric: ‘Human goods are often incommensurable.’ 27
(b) Subjectivity and arbitrariness. 28 The absence of an objective, external
metric for the comparison and ordering of competing values creates the
danger of subjectivism, that judges will use their own personal metric when
balancing. 29 Unchecked judicial discretion of this sort is arbitrary,
encouraging adjudication either ungoverned by rules or taking place
‘unreflectively, according to customary standards and hierarchies’. 30
(c) Incrementalism and conservatism. Balancing, Woolman and Botha argue, lends
itself to a ‘cautious, incrementalist approach to constitutionality inspired
judicial law-making. The balancer is inclined to restrict her finding to the case
at hand, as the next case may, ostensibly, require that a different balance be
struck.’ 31
24 S Woolman & H Botha ‘Limitations’ in S Woolman et al Constitutional law of South Africa
(2006) (2nd ed) ch 34.
25
Woolman & Botha (n 24 above) 34 - 94.
26 See J Raz ‘Value incommensurability: Some preliminaries’ (1985 - 1986) 86 Proceedings
of the Aristotelian Society, New Series 117, 117: ‘A and B are incommensurate if it is neither
true that one is better than the other nor true that they are of equal value.’
27 Woolman & Botha (n 24 above) 34 - 96.
28 Woolman & Botha (n 24 above) 34-99 - 34-100.
29
A Aleinikoff ‘Constitutional law in the age of balancing’ (1987) 96 Yale LJ 943 973-974.
30 J Habermas Between facts and norms (trans Rehg) (1996) 259.
31 Woolman & Botha (n 24 above) 34-100 - 34-101. The objections to a ‘one case at a time’
approach to constitutional adjudication are more fully set out in Woolman ‘The
amazing, vanishing bill of rights’ (2007) 124 SALJ 762.