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The content and justification of rationality review 53
legitimate sphere of choice. This explains why courts invariably restate their
duty not to ‘second-guess’ the political branches in those cases where
challenged laws and acts are upheld as rational. 69 But in cases where the
challenged law or conduct fails to serve at least one acceptable purpose, the
courts should invalidate it. To the extent that they exercise discretion in doing
so, 70 that is consistent with the principle of comity because the courts are
defining the boundaries of rational state decision making, rather than
interfering with the political branches’ freedom to choose within those
boundaries.
Of course, none of the above justifies rationality review, including the fact
that judges often exercise discretion when defining the boundaries of
rational state decision making. I consider that deeper, normative question
in parts 4 and 5 below. Instead, the advantage of this explanation is that it
renders intelligible the courts’ claim to be able both to apply the vague and
evaluative legal standard of rationality and simultaneously to pay the
executive and legislature the institutional respect they deserve.
3.3 Variability
The second implication of my account of reasonableness and rationality is
that it enables us to explain both how and why the ‘intensity’ of judicial
scrutiny of law and state conduct varies. There are two distinct forms of
variability. The first, most obvious form is between standards of review.
The rationality principle, as described above, is the minimum
constitutional standard for all law and conduct, whereas the higher
standard of reasonableness applies in a more limited range of cases: for
example, to decide whether a limitation of a fundamental right is
‘reasonable and justifiable’ in term of section 36 of the Constitution; 71 to
decide whether Parliament has complied with its constitutional obligation
69 Thus, we need not accept Bishop’s suggestion in Woolman & Bilchitz (n 5 above) 27, that
there is ‘a massive gap’ between what the Court does and what the Court says it does.
70
They often exercise discretion, but not always, because some cases are straightforward.
Arguably, Kruger (n 30 above) and Van der Merwe (n 13 above), for example, fall into this
class.
71
In this regard, ‘proportionality’ is best understood not as a standard of review entirely
different to reasonableness, but rather as a rigorously structured test of reasonableness. So
understood, a law that is disproportionately tailored to its end, and thus violates a
fundamental right, suffers from a species of unreasonableness. (The same is true of laws that
constitute unfair discrimination in terms of sec 9(3) of the Constitution on an application
of the ‘impact’ test.) It is also worth observing that rationality is a necessary condition for
proportionality. That is because, in order for a law that limits a fundamental right to be
justified in terms of sec 36, it is necessary but insufficient that it serve some legitimate
purpose (ie, it is rational). For it is impossible for an irrational law that limits a right to be
justified under sec 36, because its cost (limiting a right) cannot possibly be outweighed by
any countervailing benefit.