By James Fowkes

This revisionary viewpoint on South Africa's celebrated Constitutional court docket attracts on historic and empirical assets along traditional criminal research to teach how aid from the African nationwide Congress govt and different political actors has underpinned the Court's landmark instances, that are usually applauded too narrowly as in basic terms judicial achievements. common money owed see the courtroom as overseer of a negotiated constitutional compromise and because the looked-to mother or father of that structure opposed to the emerging risk of the ANC. besides the fact that, actually South African successes were outfitted on broader and extra admirable constitutional politics to some extent no earlier account has defined or stated. The courtroom has spoke back to this context with a considerably constant yet largely misunderstood development of deference and intervention. even if a piece in development, this institutional self-understanding represents a robust attempt through an rising courtroom, as one constitutionally severe actor between others, to construct a structure.

Show description

Read Online or Download Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa PDF

Similar constitutional law books

The Language of Liberal Constitutionalism

This publication explores simple questions relating to constitutional idea. First, in view of a dedication to democratic self-rule and frequent war of words on questions of price, how is the production of a sound constitutional regime attainable? moment, what needs to be real a few structure if the regime that it helps is to hold its declare to legitimacy?

The Power of Precedent

The position that precedent performs in constitutional selection making is a perennially divisive topic between students of legislation and American politics. the controversy rages over either empirical and normative facets of the problem: To what quantity are the excellent courtroom, Congress, and the administrative department limited by way of precedent?

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

Is liberty or democracy the first constitutional price? At a time while americans are more and more dealing with violations in their civil liberties, Timothy Sandefur's insightful new ebook explains why the assertion of Independence, with its doctrines at the primacy of liberty, the common rights of guy, and the boundaries on valid govt, should still function the guidepost for figuring out the structure.

Australian Constitutional Landmarks

Highlighting turning issues within the shaping of the Australian state for the reason that Federation, this assortment examines situations from their criminal and political context, via their implementation and eventual impression on constitutional reform. Contributions by way of famous constitutional legal professionals, judges and former leader justices make sure the worth of the research.

Additional info for Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa

Sample text

The complex arrangement contained in the Constitution to place core values beyond the reach of a temporary majority will be at risk if the NP’s proposal for a referendum is accepted. Not only does it undermine the Constitutional Court; it opportunistically invokes the principle of majoritarianism at the expense of constitutionalism, in respect of only one issue, the one in which it believes that the majority is baying for blood. However, it ignores others which are also controversial. Why should we not submit other issues of major concern to referendum, such as the future of languages in our country, the national anthem, the flag, the need for radical land redistribution, the unpopular property clause in Chapter 3, 17 18 Bickel used the term to refer to the latter situation, in the days before opinion polls became ubiquitous.

We are now in a position to see what the first Makwanyane story misses. It takes Makwanyane to stand for certain principles, such as dignity, and certain ideas, such as a commitment to a progressive vision of the global human rights consensus and a counter-majoritarian boldness in defending those ideas and those principles. Since the Court has not always followed through on these things in later cases, the first story cries inconsistency. But that conclusion only follows if we assume, as the first story does, that we should abstract the Court’s findings from their context, and take the Court to be setting a precedent for how it will act in all future cases regardless of context.

Its significance as a matter of legal doctrine is only the more limited idea that these abstract ideas and principles will inform the Court’s future assessment of its constitutional duty in future contexts, where other relevant factors might be different, the context might be less hospitable, and the case for judicial action less appealing. I submit that regular constitution-watchers will agree that this is a much more accurate description of what Makwanyane’s provenance has actually been: its ideas may be found, more or less diluted, in many of the Court’s subsequent decisions – just seldom if ever as boldly as in the extraordinary circumstances of the original decision.

Download PDF sample

Rated 4.64 of 5 – based on 5 votes