Download this publication - PULP

The content and justification of rationality review 59
justifiable in principle. 93 The core of my argument is that its limited
discretionary character should be welcomed, not condemned. I also
consider the courts’ frequent claim that rationality review is justified by the
rule of law. In part 5, I argue that the Constitutional Court has, on the
whole, applied the rationality principle in a satisfactory manner.
4.1 The enterprise of justification
Before we focus our normative attention on rationality review, we must
first consider how any law could be justified. As I have already explained,
a law is justified if the reasons for it defeat the reasons against it. In other
words, its benefits (including its beneficial side effects) must outweigh its
costs (including its harmful side effects). A legal rule or principle, generally
speaking, can have two kinds of benefit. The first are its substantive
benefits, the good it brings into the world by virtue of its content. That
much is obvious. The second are its formal benefits, the good it brings into
the world by virtue of its form. Laws that are clear, certain, prospective,
stable, general and open, and upheld by independent and impartial courts,
bring good into the world by reducing the risk that public power will be
used for private ends and by guiding the behaviour of persons in the
community, facilitating the valuable ‘ability to choose styles and forms of
life, to fix long-term goals and effectively direct one’s life towards them’. 94
But often the respective potential benefits of a law’s content and its form
pull in different directions. 95 As Du Bois observes:
There is an inescapable potential tension between [formal] legality and the
pursuit of substantive objectives such as justice … The upshot is that there is a
perpetual search for the right balance between restricting and empowering
law-applying officials, between the values secured by the form of the law and
those pursued by its substance. Unsurprisingly, the point at which this balance
can be achieved is a source of constant controversy, and varies across time,
between fields of law, and from one legal system to another. 96
Similarly, Hart argued:
In fact all systems, in different ways, compromise between two social needs: the
need for certain rules which can, over great areas of conduct, safely be applied
93 I assume, for present purposes, that the invalidation by judges of properly passed
legislation on the ground that it conflicts with a substantive requirement of a supreme,
entrenched constitutional document is not unjustified in principle. That is a difficult
question which lies beyond the scope of this essay. For a criticism of this assumption, see
J Waldron Law and disagreement (1999).
94 J Raz The authority of law (2009) ch 11. So it is mistaken to describe the formal merits of
laws as ‘value-neutral’ (see, eg, I Currie & J de Waal The Bill of Rights handbook (2005)
12, referring to the formal aspects of the principle of legality), for adherence to the
formal aspect of the rule of law is an important, substantive virtue of legal systems
working well. It is more accurate to describe these formal merits as ‘content-neutral’.
95
See, eg, Affordable Medicines (n 2 above) para 108 and Kruger (n 30 above) para 62.
96 F du Bois ‘Law’ in F du Bois (ed) Wille’s principles of South African law (2007) 19.