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420 Chapter 18
performance that might herald a gathering opinion that a ‘flight’ claim is
indeed in order. Included are observations concerning ‘the absence of a
minimum core in socio-economic rights, rule aversion in criminal
constitutional law decisions, the abuse of the reading down of statutes to
avoid engaging direct constitutional claims, the substitution of settlements for
norm generating remedies, and the notional approach to constitutional rights
interpretation’. 10
As will easily be noticed, at issue in these controversies are several
dimensions of the postures and strategies of courts engaged in the work of
constitutional review which draw attention these days from constitutionallegal
theorists and commentators: the relative merits and uses of standards as
opposed to rules, of balances as opposed to categories, of a ‘dialogical’ as
opposed to an authoritarian posture of courts in relation to governments and
parliaments, and of the pacing and calibration of judicial remedies when
violations are found. I doubt that all of these considerations are easily or
informatively reducible to a single measure of a judicial flight from (or a
rush to) substance. 11
There can be no doubt, though, that all of them are connected to a
wide-ranging debate over ‘minimalism’ and ‘pragmatism’ in constitutional
adjudication. Stu Woolman has culled from our correspondence a general
appraisal from me, to date, of the Constitutional Court’s achievement on
this adjudicative strategic terrain, which I think worth repeating for
whatever it may disclose about a possible, remaining difference between
us:
Stu ... You make good and fair points. They go to the debate over pragmatism and
minimalism. I agree that a general policy of minimalism at the Constitutional
Court would be dubious for South Africa at this point. So, while I would not
myself, on the whole record, characterise the Constitutional Court's performance
as striking a badly wrong balance, I certainly see the strength and importance of
your view. 12
Here, the possible issue between us goes beyond a choice of preferred
phraseology. I believe that judicious (not knee-jerk or routinised)
applications of minimalism will always have their uses, including in South
Africa now – a generalisation from which I would expect no disagreement by
Professor Woolman. Where we may come somewhat apart is that I have not
perceived the Constitutional Court to be veering, in general, in an excessively
minimalist direction. As testimony to my continuing receptiveness to broadly
pragmatic-strategic considerations for the South African judiciary, I hereby
affirm my approving references, in ‘Charity’, to minimalist-tending moments
10
Woolman (n 8 above) 401 - 410.
11 See generally, on this point, M Tushnet Weak courts, strong rights: Judicial review and social
welfare rights in comparative constitutional law (2008).
12
Email from Michelman on 16 March 2010 (on file with author) (responding to
Woolman (n 8 above).