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The content and justification of rationality review 61
promotes adherence to public reason. 101 Public reason, simply put, is that set of
principles and other reasons for action that are appropriate morally to justify
laws and state conduct. On any acceptable political morality, all branches
and spheres of the state bear a special role-based moral obligation always
and only to pass laws and to act in a manner that is publicly justified. The
rationality principle is designed to promote publicly justified state law and
conduct by empowering judges to uphold, as a minimum constitutional
baseline, a prohibition on arbitrary law and conduct. Of course, the legal
prohibition on arbitrary or irrational law and conduct, as I have explained, is
weaker than the moral prohibition on unjustified law and conduct. This, to
recall, flows from the principle of comity – the institutional respect courts
owe the political branches of government. Nevertheless, for state law and
conduct to be publicly justified, it must at the very least be neither arbitrary
nor irrational.
Rationality review promotes adherence to public reason at least in two
ways. First, its application ensures that many arbitrary acts and laws are
invalidated. 102
Secondly, it probably has a positive impact on political decisionmaking
by providing the executive and legislature an incentive to ensure
that their acts and laws serve legitimate purposes. 103
However, rationality review is not without its costs. Two stand out.
The first is that its discretionary character injects a degree of uncertainty
into the law, so that both political decision-makers and potential litigants
are given imperfect guidance. The second cost is that rationality review
empowers unelected judges to evaluate and, in certain restricted
circumstances, to invalidate decisions of the executive and legislature. This
may be costly given the limited institutional competence of courts – they
are poorly suited to making political decisions, due to the nature of
judicial procedure and the particular expertise of judges. Democratic
principle, moreover, suggests that the political responsibility of politicians
should not be diluted by overreaching judicial decisions.
101 This claim is similar, but not identical, to Bishop’s suggestion in Woolman & Bilchitz (n 5
above) 29, following Mureinik (n 100 above), that rationality review promotes ‘a
culture of justification’. A culture of justification, in a political community, is a
predominant practice of seeking to persuade the public that laws and state conduct are
justified; genuine state adherence to public reason, on the other hand, requires
those justifications to be legitimate and convincing. In my view, while both goals are
extremely valuable, the latter is more important and fundamental. I believe that
rationality review serves both.
102 Rationality review cannot ensure that all state arbitrariness is legally invalidated. Given
the huge role that the state plays in South African society and the sheer number of its
laws and acts, as well as the high costs of litigation, it is possible that many irrational
laws and acts slip through the net.
103 I say ‘probably’ because this is essentially a contingent matter: Empirical research would be
required to be certain about any concrete impact that court orders might have on political
decision making.