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Stu Woolman & Henk Botha 183
5.4 Judicial Narratives
In the previous two sections, we tried to develop limitations analysis
in a manner that makes greater sense both from an institutional
perspective and from a normative perspective. However, just as
shared constitutional interpretation does not provide a simple answer
to the inevitable political conflicts that arise out of the dual
commitment to the doctrines of constitutional supremacy and
separation of powers, even a normative framework that takes
adequate account of both democracy and dignity is not going to
resolve — in an unproblematic fashion — the kinds of conflicts
between incommensurable goods that arise in constitutional disputes.
How then are judges engaged in limitations analysis to arrive at an
optimal decision when neither considerations of institutional comity
nor normative coherence yield a univocal conclusion? A number of
authors have, of late, suggested that storytelling may yield significant
benefits for hard cases, in general, and hard cases in terms of
limitations analysis, in particular.
That said, the following account of judicial narrative-making is
not meant to supplant conventional limitations analysis undertaken by
the Court in terms of conventional morality. However, the virtues of
this approach are visible in a number of hard cases. The requirements
of storytelling may force decision-makers to consider a range of
possibilities that would not have otherwise occurred to them and thus
to alter the conclusions they ultimately reach. In addition, the
difference between storytelling in hard cases and cryptic
justifications for hard choices — in terms of FC section 36 — is the
difference between a good explanation and a bad explanation for the
decisions that we take: The better the explanation, the more
persuasive it will be — for those who need persuading; the more
persuasive the decision, the more legitimate it will be deemed to
be. 94 Denser judicial narratives thus serve a good that we have argued
is essential in fundamental rights interpretation and limitations
analysis: analytical rigour.
The following two case studies do not prove that storytelling
invariably works for limitations analysis in hard cases. No approach to
limitations analysis could carry such a burden. They serve a rather
more mundane purpose: To show that judges doing constitutional law,
94 See P Gewirtz ‘On I know it when I see it’ (1996) 105 Yale Law Journal 1023 1042-
1043. See also P Gewirtz ‘Narrative and rhetoric in the law’ in P Brooks & P
Gewirtz (eds) Law’s stories: Narrative and rhetoric in the Law (1996) 2 11 (‘[An]
opinion usually ends with the words “It is so ordered”, emphasising the coercive
force that judges wield. But the written justification in the body of the judicial
opinion is what gives the order its authority.’)