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162 Chapter 10
These interests are thought to be exogenous to the legal process. Such
an approach to constitutional conflicts presupposes an underlying
coherence in the law and in society that in heterogeneous polities —
such as our own — simply does not exist. Moreover, an underlying
assumption of value homogeneity tends to work against the belief of
many an honest citizen — and quite a few academics — that political
truths are more likely to arise out of dialogic modulation and not the
reinforcement of their own subjective preferences. 23 The judge’s role
in this account of balancing is akin to that of a grocer when, in fact,
it should be that of a facilitator of and a participant in a normative
dialogue with other political actors and the citizens of a constitutional
order. 24
4 A thick(er) conception of limitations analysis
In this section, we offer a preferred reading of FC section 36 — one
which we believe will help courts to think more clearly about the
demands that limitations analysis places on various actors in our
constitutional democracy. This preferred reading does not proffer a
‘grand unified theory’. Our account begins, instead, by addressing
serious concerns about institutional comity in a constitutional
democracy and by articulating what we, and others, have described
as the Final Constitution’s call for ‘shared constitutional
interpretation’. After suggesting the contours of a doctrine that
would enable the courts to share ‘constitutional competence’ with
other political actors — and thus mediate the competing doctrinal
claims of constitutional supremacy and of separation of powers — we
ask whether the Constitutional Court’s extant jurisprudence provides
sufficient normative content to guide lower courts and other actors
interested in participating in this shared interpretive endeavour.
What we currently see is, on the one hand, a rather cursory
attempt to reconcile the primary values that underlie fundamental
rights analysis and limitations analysis — openness, democracy,
human dignity, equality and freedom — and a more deeply entrenched
privileging of the value of human dignity, on the other. We do not
deny the centrality of dignity to our constitutional project — our
dignity jurisprudence may even be, with the principle of legality, one
of our two most important contributions to the larger world of
international or comparative constitutional law. We do, however,
take issue with the Court’s tendency to reduce the other four values
to manifestations of dignity, and its record of having little to say
23 See K Sullivan ‘Post-liberal judging: The roles of categorisation and balancing’
24
(1992) 63 University Colorado of Law Review 293.
Nagel (n 21 above); Van der Walt ‘Tradition on trial’ (n 21 above); Van der Walt
‘Dancing with codes (n 21 above).