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288 Chapter 12
limitation is justifiable or not is whether it adequately takes into account the
‘equal importance of individuals’. This means that, already integrated into
the limitations enquiry itself is a systematic bias in favour of rights: For
the very considerations underlying the recognition of rights in the first
place are a crucial part of determining whether a limitation will itself be
justifiable or not. In a sense, this helps meet the concern raised earlier in the
discussion of Meyerson’s objection: The very perspective from which the
proportionality enquiry is to be conducted is friendly towards rights and thus
is likely to give substantive weight to them.
This understanding of the limitations enquiry also offers a response to
the critique of Botha and Woolman to the effect that balancing requires the
evaluation of incommensurable principles. Currie counters this by arguing
that in fact, despite the difficulty, constitutional principles can often be
compared and balanced: they are not in fact incommensurable. He claims
that they are to be evaluated against the ‘perspective of the Constitution’. 79
I agree with Currie that claims made by those in favour of
incommensurability are problematic (and possibly incoherent) and that it is
necessary to have a perspective from which competing principles will be
evaluated. 80 It is important, however, to say a little more about what the
perspective of the Constitution entails if this idea is not to be wholly
indeterminate. The analysis provided here neatly complements Currie’s
response in providing greater content to what the perspective of the
Constitution is: It specifies that the relevant perspective can be drawn from
the three values contained in the limitations clause – dignity, equality and
freedom. In other words, when evaluating competing principles, we
consider them, at least partially, in relation to the extent to which they are
capable of realising the ‘equal importance of individuals’. When faced, for
instance, with a conflict between privacy and security, it is important to
recognise that they both have an impact on individual lives. Though they
may seem difficult to evaluate against one another, where they conflict, the
necessary perspective that must be adopted in evaluating any particular
limitation concerns the respective impact of particular measures upon the
equal importance of individuals.
I do not seek to suggest that ‘equal importance’ is the only factor that
courts should consider in the limitations enquiry but it is one of central
significance. It allows us to understand the substantive focus upon
individuals and the quality of their lives that is at the heart of the
Constitution. It also assists us in judging competing principles and places
the values underlying rights at the very heart of the judgment that has to be
made when deciding whether a particular limitation is justifiable or not.
79
Currie in Woolman & Bilchitz (n 3 above).
80 See VA da Silva ‘Comparing the incommensurable: Constitutional principles,
balancing, and the rational decision’ (2011) Oxford Journal of Legal Studies (forthcoming)
for the argument that whilst constitutional principles may be incommensurable they are
comparable.