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34 Chapter 1
to make the inquiry meaningful. In doing so, it should, as far as possible,
retain the substantive content of the purpose.
The next step is defining the law. While the complainant must show
some differentiation at the threshold, the exact nature of that
differentiation is left to a later stage. It makes no sense here to place an onus
on either party as both will, if possible, simply define the law in a way that
suits their ends. The definition of the law will not always be open to
manipulation, but where it is there seems to be no alternative other than to
afford a court a guided discretion to decide what impact it is requiring the
government to justify. In doing so, it should keep in mind both that
rationality review must be meaningful and that government cannot be
expected to defend every minute detail of every administrative scheme.
The core of the inquiry – the connection between the law and its purpose
– is also the area that most evades a concise standard. It is perhaps this
difficulty that has led judges to embrace the certainty of a standard that
permits any conceivable connection to suffice. Yet experience – especially
that of American courts – shows that such a standard either renders
rationality review toothless, or masks the application of higher levels of
scrutiny. The best solution seems to be to exclude the two extremes – any
conceivable connection and substantial advancement – and require judges to
seek for some degree of connection between those two poles, without trying
to give it a label that is more likely to deceive than enlighten.
The other important part of the connection inquiry is the use of
empirical evidence. The American courts’ shirking of empiricisim in this
context – they are perfectly happy to use it in other constitutional
contexts 148 – is another one of the causes of the test’s ‘dental’ deficiencies.
It undermines the whole idea of requiring the state to act rationally for courts
to permit it to act contrary to clearly established facts. However, placing a
burden on either party to produce evidence would again be futile as in many
cases there may not be reliable evidence available. That should not be the end
of the case, but in the absence of facts, courts should give the government
extensive leeway in determining what the true factual position is. If the
government has clearly stated what it believes the factual situation is – and
that assessment is plausible – the court should judge the law on that basis.
Otherwise it should assume the plausible situation most favourable to
government.
148 Most famously, see Brown v Board of Education of Topeka 347 US 483 n 11 (1954) (relying
on sociological evidence about the impact of segregation on black children to support
its decision to strike down the ‘separate but equal’ doctrine).