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292 Chapter 13
The article is structured in two main parts. The first part provides a
framework for the understanding of constitutional deference as consisting
of three, sometimes competing, considerations which underpin a
particular court’s approach. In the second part, this framework is applied to
an examination of the adjudication of socio-economic rights by the
Constitutional Court.
2 Framework for understanding constitutional
deference
There are a number of reasons why courts defer to executive and
legislative decision making. These can be grouped together into three
intersecting principles, namely, the court’s views on the democraticallylegitimate
role of a court in a constitutional democracy, the court’s views
on its appropriate role given its institutional limitations, and the nature of
the dispute before a court. Together, these three principles constitute a
particular court’s approach to deference. These three principles are
discussed separately below.
2.1 Principles of democracy
The first aspect making up a court’s approach to constitutional deference
relates to its understanding of the institutional independence or
interdependence of the three branches of government, in particular, the role
of the courts in a democracy when engaged in the process of judicial review.
This is by far the most important normative factor underpinning
constitutional deference, and the approach taken by courts on this issue
often colours the approach of the courts to the other two principles. This
issue has been described by Jowell as one of ‘constitutional competence’,
involving ‘a normative assessment of the proper role of institutions in a
democracy’. 2
The democratic legitimacy of judicial review has been the subject of
intense academic debate, both historically and currently. 3 It is important to
note, at the outset, that this discussion of the debate focuses on whether the
institutional practice of judicial review is, in itself, democratic, and not on
2 J Jowell ‘Of vires and vacuums: The constitutional context of judicial review’ in
C Forsyth (ed) Judicial review and the constitution (2000) 327 330. Jowell’s argument is
set out in relation to administrative judicial review, but is nevertheless applicable to
constitutional review.
3
For a good overview of this debate in the US, see B Friedman ‘The birth of an academic
obsession: The history of the countermajoritarian difficulty’ (2002) 112 Yale LJ 153.