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Rationaliy is dead! Long live rationality! Saving rational basis review 29
vision of the public good, 136 as well as to enhance the coherence and integrity
of legislation. 137
In Mureinik’s celebrated formulation, the new constitutional order constitutes ‘a bridge
away from a culture of authority . . . to a culture of justification’. 138
The third, and crucial, purpose is the idea that rational basis review promotes
a ‘culture of justification’. But what does that mean exactly? The phrase, as
the Court notes, was coined by Mureinik, who defined it as:
a culture in which every exercise of power is expected to be justified; in which
the leadership given by government rests on the cogency of the case offered
in defence of its decisions, not the fear inspired by the force at its command.
The new order must be a community built on persuasion, not coercion. 139
This particular articulation and emphasis is born from South Africa’s
transition from past authoritarian government to a new constitutional
order and has spawned an extensive South African literature on the
notion of ‘transformative constitutionalism’. 140 However, the idea of a
culture of justification rests on the much more basic idea extremely
familiar to American ears that courts act as forums of principle. As
Dworkin puts it:
We have an institution that calls some issues from the battleground of power
politics to the forum of principle. It holds out the promise that the deepest,
most fundamental conflicts between individual and society will once,
someplace, finally, become questions of justice. I do not call that religion or
prophesy. I call it law. 141
The idea that the courts are a place where government must come to justify
its treatment of its people is as much part of the American tradition as it is a
tenet of the South African transformation.
Justification also links with the point I made earlier that rationality
review must take place within a ‘public value’ model of politics.
136
Tribe (n 33 above) 1451.
137 P van Dijk & G van Hoof Theory and practice of the European Convention on Human Rights
(1990) 539.
138
E Mureinik ‘A bridge to where? Introducing the interim Bill of Rights’ (1994) 10 SAJHR
31 32 cited in Makwanyane (n 32 above) para 156 n 1.
139 Mureinik (n 138 above) 32.
140
See generally C Albertyn & B Goldblatt ‘Facing the challenge of transformation:
Difficulties in the development of an indigenous jurisprudence of equality’ (1998) 14
SAJHR 248; D Moseneke ‘The fourth Bram Fischer memorial lecture: Transformative
adjudication’ (2002) 18 SAJHR 309; H Botha ‘Metaphoric reasoning and
transformative constitutionalism (part 1)’ (2002) Journal for South African Law 612; H
Botha ‘Metaphoric reasoning and transformative constitutionalism (part 2)’ (2003)
Journal for South African Law 20; K Klare ‘Legal culture and transformative
constitutionalism’ (1998) 14 SAJHR 146; P Langa ‘Transformative constitutionalism’
(2006) 3 Stellenbosch LR 351.
141
‘Forum of principle’ (1981) 56 New York Univ LR 469 at 518. See generally R Dworkin
Taking rights seriously (1977) 69 - 71; R Dworkin Law’s empire (1986).