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Stu Woolman & Henk Botha 159
distribution are also rarely going to conform to a simple lexical
ordering. Fourth, not only will criteria within spheres conflict, the
individual criteria within the same sphere may be so indeterminate as
not to yield a clear result in a given instance. Fifth, different goods
can sometimes be measured along the same metric. We discover on
closer analysis, for example, that friendship and military honour share
a common value — loyalty — or we find that two different
constitutional norms — equality and expression — undergird a third
constitutional commitment — democratic participation. Sixth,
spheres will not only overlap with one another, and through the
domination of a party or group in one sphere effect the unjust
distribution of some good in another sphere, but the criteria for
distribution of a good in two different spheres may conflict directly
with one another. The internal criteria of two spheres of activity may
be such that it is impossible in a given situation to do justice to both.
For instance, a commitment to a pristine environment may be
completely at odds with a commitment to life, equality and economic
development.
Although this account of the relationship between spheres of
activity and various goods is somewhat more complex than a pure
pluralist account, the fact remains that, in innumerable instances,
goods are incommensurable. Hard choices as to which good — and
which goods — we pursue have to be made. 17 How should the Court
handle hard choices?
First, the Court must be candid and recognise that there will be
situations in which constitutional goods will urge independent and
irreconcilable claims upon us: In such situations, we will have to
choose between incommensurable goods. 18 Second, the Court must
acknowledge that it lacks a set of second-order rules which might tell
us how to reconcile competing goods with one another. Most
importantly, the Court must not view the choice of one good over
another good in hard cases as arbitrary. Instead, it must be candid
about the reasons for its choices and hope that its candour about the
reasons for its choices ultimately reflects the exercise of good
judgment: for only such candour will allow the litigants to become full
citizens through their participation in the process of giving the basic
law meaning. This recognition, in turn, holds out the promise that the
17 See J Finnis ‘On reason and authority in Law’s Empire’ (1987) 6 Law & Philosophy
357, 375 (‘A case is hard, in the sense which interests lawyers, when there is
more than one right, ie not wrong, answer.’)
18 See C Larmore Patterns of Moral Complexity (1986).