Download this publication - PULP

Towards a framework for understanding constitutional deference 303
The third important argument, which derives from Fuller’s work, is
that it is very difficult for courts to choose between two equally valid
policy choices. 57
While, it must be acknowledged that this statement is, on the whole,
accurate, a couple of observations arise from this point. First, it may be just
as difficult for a legislature or executive to make these choices. While these
institutions potentially have greater access to data, they are not able to
make perfect decisions based on perfect knowledge either. Indeed, the very
idea of polycentricity was developed by Polanyi to argue against centralised
state planning and to argue in favour of market-generated planning. The
crucial difference is that the legislature and executive are democratically
mandated to make these decisions – perfect or not – but that is a separate
objection to judicial consideration of polycentric issues. The second point
is that involving the judiciary in judicial review of social policy does not
necessarily mean that the courts have to make policy choices to the
exclusion of the executive and legislature, and can engage in a dialogue with
the other branches of government. As the South African jurisprudence, for
instance, demonstrates, courts are able to assess state policy for
reasonableness, and in this way, engage in a dialogue over the development
of policy in line with constitutional values. 58
In short, Fuller raises a number of important issues regarding the
adjudication of polycentric decisions which are relevant to a discussion of
constitutional deference. Nevertheless, it should be remembered that Fuller’s
work is limited in its scope and fails to deal with many issues. According to
Allison, Fuller himself never regarded his article as sufficiently complete to be
ready for publication. He recognised that he had failed adequately to take into
consideration other forms of adjudication, developments in public law as a
result of the civil-rights litigation, and that his description of adjudication was
problematic. 59 Indeed, in his later work dealing with judicial review, he did
not deal with polycentricity at all. 60 Fuller certainly raised important issues, but
his analysis can by no means be considered the last word on the matter.
Polycentricity is therefore not a bar to justiciability, but merely one
consideration to be taken into account by the judiciary in deciding whether a
matter should be justiciable or what the appropriate level of constitutional
deference should be.
57 Pieterse (n 55 above) 393. See the discussion of Makwanyane (n 78 above).
58
See K McLean ‘Housing’ in Woolman et al (eds) Constitutional law of South Africa (2006)
55 for an illustration of the dialogue between the South African courts and the executive
and legislature over the development of housing policy.
59
Allison (n 44 above) 377 - 378.
60 L Fuller The morality of law (1969), first published in 1964. Fuller’s ‘The forms and
limits of adjudication’ (n 39 above) was first written in 1957, and later revised in 1959
and 1961: JA King ‘The pervasiveness of polycentricity’ (2008) Public Law 101 105 -
106.