Download this publication - PULP

188 Chapter 11
... or a means of frustrating the will of the political majority but, rather,
as a shared project of constitutional interpretation. 3
Woolman and Botha then commence to explain this shared project of
constitutional interpretation with reference to four points that show
that the relation of sharing involved here is one of more or less mutual
deference: The legislature must allow the judiciary to declare a
specific aspect of legislation unconstitutional, but the judiciary must
from their side leave as much scope as possible to the legislature to
select one of the many ways in which a legislative goal can be pursued
without falling foul of the Constitution.
One must nevertheless push this sophisticated understanding of
shared constitutional interpretation to its limits in order to begin to
explore that which lurks at and beyond these limits. What are the
limits at issue here? Having invoked Sachs J’s notion of the maximum
harmonisation of conflicting interests of the legislature and judiciary,
Woolman and Botha also pay passing attention to Sachs J’s
acknowledgment of the possibility of intractable conflicts between
the judiciary and legislature in which the project of shared
interpretation would sadly come to falter. This is however not the
first invocation of the limits of interpretation in their text. In the
rather optimistic passage on the notion of shared interpretation that
I have quoted twice now, they also slip in between parentheses, as if
it is a self-evident matter that only warrants a brief reminder, a
reference to the possibility of the impossibility of this sharing. Let me
quote this passage again, this time, fully in full:
From this perspective, powers of judicial review are best understood,
not as a part of a battle for ascendancy between courts and legislatures
(though they may turn into that) or a means of frustrating the will of the
political majority but, rather, as a shared project of constitutional
interpretation. 4
I would like to suggest that their whole text turns on an endeavour to
indeed keep this ‘though they may turn into that’ in the
unthreatening zone between these parentheses. The unproblematic
and almost in passing fashion in which they later pay a little more
attention to Sachs J’s reference to intractable conflicts between
legislature and judiciary, 5 gives the whole invocation of
‘intractability’ the quality of an aside. Here again, the almost in
passing reference to intractability has the effect of diminishing its
purport. This later invocation of Sachs J’s acknowledgement of
intractability does not appear between parentheses as it does in the
3 Woolman & Botha (n 1 above) 150.
4
As above.
5 Woolman & Botha (n 1 above) 180.