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62 Chapter 2
Do these costs outweigh rationality review’s benefits, thereby
rendering it unjustified in principle? I think not, for there are at least three
reasons why we should not exaggerate the costs. First, because the
rationality principle applies across such a broad range of contexts, it has to
be structured in an open-ended way that calls for case-specific judgments.
It would be impossible for courts to guard against arbitrariness in
legislation and the exercise of public power by applying a more rigid rule.
For this reason, the flexible, discretionary character of rationality review is
part of its value. This suggests that it is mistaken to claim that ‘[t]he traditional
underpinnings of rational basis review … demand a test that forces
predictable outcomes and removes personal discretion’. 104 Secondly, we
should also not over-exaggerate the uncertainty of rationality review. The
law instructs all political decision makers to act and legislate in a manner
that serves a legitimate purpose. That, in itself, is significant guidance. In
addition, although it is possible that different judges may exercise discretion
under rationality review inconsistently, the risk of contradictory decisions
remaining in the law reports is reduced by the fact that only the
Constitutional Court can finally invalidate law or the conduct of the
President. 105 Furthermore, the respect the Court owes the political
branches under the principle of comity suggests that laws and conduct
should be declared invalid only rarely. 106 Finally, as my account of the duty
not to ‘second-guess’ the decisions of the executive and legislature makes
clear, 107 courts are not permitted to evaluate and approve or disapprove
of political decision-making in an entirely open-ended way; instead, they
must sometimes exercise a constrained discretion to guard against an
egregious, and therefore hopefully rare, evil – state arbitrariness or
irrationality.
For all these reasons, it is far from obvious that rationality review is
unjustified in principle. The promotion of public reason could hardly be
more valuable, and empowering courts to guard against irrational laws
and acts contributes to this end. Introducing a degree of legal uncertainty
and empowering judges to evaluate political choices in order to draw the
outer boundaries of legitimate state decision making is arguably a fair price
to pay. Imperfect legal guidance and a limited invasion of the state’s
political autonomy are not obviously disproportionate to the moral gains on
offer, in the form of promoting adherence to public reason.
4.3 The rule of law as a justification
The final matter to be addressed in this part is the courts’ frequent claim
104 Bishop (n 5 above) 9.
105 Sec 167(5) of the Constitution.
106
See the discussion in part 5 below.
107 Sec 3.2.