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64 Chapter 2
on a prior sound argument justifying their adoption of the substantive
conception. I shall not consider here whether such an argument exists, for
that is a difficult question and the well-worn debate about the nature,
justification and implications of the rule of law continues unabated. 114
For this reason, the courts’ appeal to the rule of law as a justification for their
applying the rationality principle is perhaps somewhat controversial.
Moreover, in the light of the alternative justification for rationality review
advanced above, that appeal is arguably unnecessary. If we can accept that
rationality review is justifiable as a means to promote adherence to public
reason, because it reduces the incidence of arbitrary laws and state acts, we
need not appeal to a substantive conception of the rule of law.
5 The justification of rationality review in practice
If, as I have argued, we have reason to believe that rationality review is
defensible in principle, then our normative gaze must shift to the manner in
which it has been applied by the courts. 115 Judges wield a significant
degree of power when they draw the boundaries of legitimate political
decision-making by applying the rationality principle, and like all power, it
can be misused. My argument, however, will be that the Constitutional
Court has, on the whole, applied the rationality principle in a sensible
manner. I do not share Bishop’s conviction that rationality review has
vacillated between rubber-stamping ‘ludicrous’ laws and conduct, on the
one hand, and obstructing defensible laws and conduct, on the other. 116
What follows is an overview and thematic survey of the Constitutional
Court’s record thus far, and then a closer discussion of the judgments of
that Court in three difficult cases.
5.1 Overview
To date, the Constitutional Court has upheld only five rationality challenges
114 See, eg, Craig (n 113 above); J Raz ‘The politics of the rule of law’ in J Raz Ethics in the
public domain (1993) 370; D Dyzenhaus (ed) Recrafting the rule of law (1999); BZ Tamanaha
On the rule of law (2004); N MacCormick Rhetoric and the rule of law (2005); and
T Bingham The rule of law (2010).
115 It is worth repeating here that my argument is limited to applications of the
constitutional principle of rationality by the Constitutional Court. I do not undertake
the wider study of High Court and Supreme Court of Appeal decisions that a full
assessment of rationality review under PAJA and sec 33 of the Constitution would
require.
116 Bishop (n 5 above) 26. Similarly (28) he argues that rationality review ‘is either so weak
that it fails to invalidate the laws it is meant to invalidate or so uncertain that it treads
on the “negative” requirement underlying its existence: Courts must not interfere with
legislative wisdom.’