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50 Chapter 2
Moreover, given that the state is necessarily limited in the values it can
pursue, the legislature and executive must make some selection from among
the full range of political and moral values that might be realised. In the
circumstances, we may expect that people will form a range of conflicting
views about what should be done, many of which cannot be dismissed as
unreasonable.
The second reason is the institutional position of the courts. The
separation of powers, as concretised in the Constitution, 60 envisages that
the responsibility for choosing policies and initiating legislation to serve them
lies with the executive, the responsibility for finalising the content of and
passing legislation lies with the legislature, and the responsibility for
implementing legislation lies with the public administration and other
organs of state. The courts owe the decisions of these institutions particular
respect, for several overlapping reasons: 61 The judicial process, with its
adversarial, bilateral procedure and fact-finding technique, is generally a poor
way to make political decisions; judges tend to have limited expertise and
experience in making political decisions and deciding how best to
implement them; and the public’s democratic ability to remove politicians
from office suggests that they, rather than judges who cannot be voted out,
should be politically responsible for these decisions and should not be able to
disclaim that responsibility on the ground that a decision is approved or
required by judges. These overlapping reasons may be referred to
compendiously as ‘institutional competence’ and ‘democratic principle’. 62
The pervasiveness of reasonable disagreement and the institutional
respect that courts owe the political branches of government explain the
distinction that public law draws between justified or correct decisions – an
assessment that judges should not make – and reasonable or justifiable
decisions – an assessment that judges may sometimes make. The latter
standard, although fundamentally dependent on the idea that reasons for
a decision outweigh the reasons against it, envisages a sphere, margin, or
range of reasonable decisions within which the politically responsible
persons may freely choose, by judging for themselves whether a particular
decision is justified. A court assessing the reasonableness of that choice has
to decide whether it falls within, or beyond, the range of reasonable
decisions in the circumstances.
We also know that constitutional law draws a further distinction
between its notions of rationality and reasonableness. The former, as
described above, is the minimum constitutional baseline applying to all law
and conduct, whereas the latter is a more stringent standard that applies
60 See, eg, the discussion in Glenister v President of South Africa 2009 1 SA 287 (CC) from para
61
29.
The following reasons are discussed by T Endicott in ‘The reason of the law’ (2003) 48
62
American Journal of Jurisprudence 83, 98 - 99.
For this use of terminology, see W Wade & C Forsyth Administrative law (2009) 308 - 309
and Price (n 2 above) 588 - 590.