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Stu Woolman & Henk Botha 161
3.4 Incrementalism and conservatism
Balancing is also sometimes associated with a conservative bench. In
the United States, balancing got a bad reputation during the McCarthy
era, when courts used the language of balancing to validate serious
infringements of freedom of expression. Such an account seems to
oversimplify the historical record. Balancing has, at various times in
history, also been associated with liberal and progressive causes and
the extension of constitutional rights and freedoms. But even if
balancing does not necessarily translate into a readiness to sacrifice
individual rights and freedoms in the name of collective interests,
there may still be something conservative about it. Balancing is, we
think, legitimately associated with a cautious, incrementalist
approach to constitutionality inspired judicial law-making. The
balancer is inclined to restrict her finding to the case at hand, as the
next case may, ostensibly, require that a different balance be struck.
While there may be advantages to such a judicious approach, which
was indeed a hallmark of the Chaskalson Court, there is a growing
concern within the academy that the case-by-case approach to
constitutional analysis, in general, and limitations analysis, in
particular, blunts the transformative potential of the Final
Constitution. 21
3.5 Science and silence
Balancing, some critics suggest, encourages judges to resort to
‘scientific’ language — ie, cost-benefit analysis. The fear here is that
such talk invites a new type of formalism which, like all formalist
doctrines, tends to eschew dialogue about important moral and
political issues. As Aleinikoff puts it:
Scientifically styled opinions, written to answer charges of subjectivity,
make us spectators as the Court places the various interests on the
scales. The weighing mechanism remains a mystery, and the result is
simply read off the machine. Scientific balancing decisions are neither
opinions nor arguments that can engage us; they are demonstrations. 22
A related critique is that balancing rests upon the assumption that the
primary aim of constitutional law is to mediate pre-existing interests.
21 For a critique of the incrementalist approach to the development of the common
law, see generally R Nagel ‘Liberals and balancing’ (1992) 63 University of
Colorado Law Review 319. See also A van der Walt ‘Tradition on trial: A critical
analysis of the civil-law tradition in South African property law’ (1995) 11 South
African Journal on Human Rights 169; A van der Walt ‘Dancing with codes —
Protecting, developing and deconstructing property rights in a constitutional
state’ (2000) 18 South African Law Journal 258; S Woolman ‘The amazing,
vanishing Bill of Rights’ (2007) 124 South African Law Journal 762.
22 Aleinikoff (n 15 above) 993.