Towards a framework for understanding constitutional deference

• Pages: 445-470
• Date: 01 January 2010
• DOI: 10.10520/EJC153235
• Published date: 01 January 2010
• Author: Kirsty Mclean

Towards a framework for understanding

constitutional deference

Kirsty Mclean

*

Introduction

This article endeavours to construct a framework for understanding the concept

of constitutional deference. Much has been written about deference in the past

two decades, and this article attempts to piece together the skeleton for a better

understanding and the beginning of a dialogue over the kinds of values which

ought to inform the South African courts’ approach to constitutional deference.

What this article is not is a normative argument about the courts’ approach to

executive and legislative decision-making. Such an argument needs to be

premised upon a particular conception of democracy and the state – an approach

which is not uncontested in the text of the Constitution

1

– and which is beyond the

scope of what is attempted here.

Instead, what this article does seek to do is to provide the tools for a dialogue

for what is termed ‘constitutional deference’, that is, an approach to deference

rooted in our constitutional democracy and our courts’ approach to adjudication.

The article thus seeks to create a framework for an understanding of constitutional

deference which will illuminate the courts’ approach to judicial decision-making.

While the framework is intended to be applicable to the adjudication of all

disputes, this article selects the adjudication of socio-economic rights by the

Constitutional Court as an example of how this framework could usefully

illuminate the approach of the courts to executive and legislative decision-making.

The article is structured in two main parts. The first part provides a framework

for the understanding of constitutional deference as consisting of three,

sometimes competing, considerations which underpin a particular court’s

approach. In the second part, this framework is applied to an examination of the

adjudication of socio-economic rights by the Constitutional Court.

*

I would like to thank Cora Hoexter, Redson Kapindu and the anonymous referees for comments on

earlier drafts of this article. This article is derived in large part from the book McLean Constitutional

deference, courts and socio-economic rights in South Africa (2009).

1

Constitution of the Republic of South Africa 1996.

(2010) 25 SAPL446

Framework for understanding constitutional deference

There are a number of reasons why courts defer to executive and legislative

decision-making. These can be grouped together into three intersecting principles,

namely, the court’s views on the democratically legitimate role of a court in a

constitutional democracy, the court’s views on its appropriate role given its

institutional limitations, and the nature of the dispute before a court. Together,

these three principles constitute a particular court’s approach to deference. These

three principles are discussed separately below.

Principles of democracy

The first aspect making up a court’s approach to constitutional deference relates

to its understanding of the institutional independence or interdependence of the

three branches of government, in particular, the role of the courts in a democracy

when engaged in the process of judicial review. This is by far the most important

normative factor underpinning constitutional deference, and the approach taken

by courts on this issue often colours the approach of the courts to the other two

principles. This issue has been described by Jeffrey Jowell as one of

‘constitutional competence’, involving ‘a normative assessment of the proper role

of institutions in a democracy’.

2

The democratic legitimacy of judicial review has been the subject of intense

academic debate, both historically and currently.

3

It is important to note, at the

outset, that this discussion of the debate focuses on whether the institutional

practice of judicial review is, in itself, democratic, and not on the efficacy of the

protection of rights through a system of judicial review. That is a separate question.

4

Neither does this discussion consider the political objections to a rights-based

discourse which argues that a rights-discourse impoverishes our conception of

society and leads to a preoccupation of the individual with his or her rights, rather

than a more group-based approach to rights.

5

The argument that judicial review is

a preferable or even a necessary means to ensure adequate protection of

constitutional rights does not affect the question of the democratic legitimacy of

2

Jowell ‘Of vires and vacuums: The constitutional context of judicial review’ in Forsyth (ed) Judicial

review and the constitution (2000) 327 at 330. Jowell’s argument is set out in relation to

administrative judicial review, but is nevertheless applicable to constitutional review.

3

For a good overview of this debate in the US, see Friedman ‘The birth of an academic obsession:

The history of the countermajoritarian difficulty’ (2002) 112 Yale LJ 153.

4

See Sadurski ‘Judicial review and the protection of constitutional rights’ (2002) 22 Oxford Journal

of Legal Studies 275 at 276.

5

See, eg, Tushnet ‘An essay on rights’ (1984) 62 Texas LR 1363 at 1384-1394; Waldron ‘Nonsense

upon stilts? – a reply’ in Waldron (ed) Nonsense upon stilts: Bentham, Burke and Marx on the rights

of man (1987) 151 at 183-190; and Mouffe ‘Hegemony and new political subjects: Toward a new

concept of democracy’ in Nelson and Grossberg (eds) Marxism and the interpretation of culture

(1988) 89 at 100.