Under reasonableness review, deference is bound up with the content inquiry, discussed
above, where the right is given an interpretation generous to the government’s (or other
actor’s) discretion. 104 Under proportionality analysis, on the other hand, deference is
provided through the application of a margin of appreciation or discretion, particularly in
order to deal with the threat of judicial usurpation represented by a “less restrictive
means” analysis, as applied to positive obligations. For example, the cost savings of a
measure restrictive of a right to health care, or housing, for example, may be viewed,
without deference, as trivial by a court (and therefore not necessary) or as capable of
being shifted or offset by other aspects of the budget (and therefore not the least
restrictive means).105 Other cases susceptible to a “dollars versus rights” frame may push
too closely on both epistemic and democracy based limitations. 106 Hence, the “selfrestraining reaction”107 of deference is triggered on the part of the court. And like other
“containment” doctrines,108 the general posture of deference, or a margin of appreciation,
immediately defeats the rigor (and consistency) of the inquiry in the first place.
104
E.g., Mazibuko 2010 (3) BCLR 239 (CC); and attendant criticisms, LIEBENBERG, supra note 32.
Reasonableness review integrates discretion to lower courts, in, e.g., horizontal application inquiries, or
even the epistemic discretion required for science: see, e.g., Treatment Action Campaign 2002 (5) SA 721
(CC).
105
See, e.g., the Canadian cases of Eldridge v. British Columbia (A-G) [1997] 3 SCR 624 and Gosselin v.
Quebec (A.G.) [2002] 4 SCR 429 (dissent). For a recent acknowledgement that budgets will be within the
purview of reasonableness analysis, see Blue Moonlight 2012 (2) SA 104 (CC) para 74 (Sth. Afr.)
106
E.g., Newfoundland (Treasury Board) v. N.A.P.E. [2004] 3 SCR 381. (Canadian Supreme Court passing
through every stage of proportionality before finding that a burden on pay equity was justifiable in the
context of a fiscal crisis).
107
Contiades & Fotiadou, supra note 21.
108
For a broader outline of “containment” doctrines, see Colm O’Cinneide, The Constitutionalization of
Social and Economic Rights, in SOCIAL AND ECONOMIC RIGHTS IN THEORY AND PRACTICE 261 (Helena
Alviar García et al. eds., 2015) (as designed to limit the “spillover” of civil and political rights protection
and administrative law controls into the social and economic realm).
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