By James Fowkes
This revisionary point of view on South Africa's celebrated Constitutional court docket attracts on ancient and empirical assets along traditional felony research to teach how help from the African nationwide Congress govt and different political actors has underpinned the Court's landmark situations, that are frequently applauded too narrowly as basically judicial achievements. common debts see the courtroom as overseer of a negotiated constitutional compromise and because the looked-to father or mother of that structure opposed to the emerging risk of the ANC. besides the fact that, in truth South African successes were equipped on broader and extra admirable constitutional politics to a point no prior account has defined or stated. The courtroom has replied to this context with a considerably constant yet broadly misunderstood development of deference and intervention. even supposing a piece in development, this institutional self-understanding represents a strong attempt via an rising courtroom, as one constitutionally severe actor between others, to construct a structure.
Read Online or Download Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa PDF
Similar constitutional law books
The migration of constitutional rules throughout jurisdictions is likely one of the imperative good points of latest constitutional perform. The expanding use of comparative jurisprudence in examining constitutions is one instance of this. during this 2007 publication, best figures within the learn of comparative constitutionalism and comparative constitutional politics from North the USA, Europe and Australia talk about the dynamic tactics wherein constitutional platforms impression one another.
A entire examine the industrial kinfolk between states, and the way they could be higher optimized. during this groundbreaking quantity, Joseph F. Zimmerman examines interstate monetary relatives. He explores the background of congressional and judicial flooring ideas governing such relatives, direct and oblique interstate alternate boundaries and technique of their removing, and interstate pageant for tax sales, enterprise organisations, activities franchises, travelers, and gamblers.
Many have argued in recent times that the U. S. constitutional process exalts person rights over tasks, virtues, and the typical stable. Answering the fees opposed to liberal theories of rights, James Fleming and Linda McClain boost and guard a civic liberalism that takes tasks and virtues—as good as rights—seriously.
This booklet explains a paradox in American constitutional legislations: how a correct now not mentioned through the ratification debates at Philadelphia and never pointed out within the textual content has turn into a middle component to sleek freedom. relatively, privateness is a constitutional afterthought that has won strength via smooth interpretations of an previous textual content.
- Parliamentary Sovereignty: Contemporary Debates (Cambridge Studies in Constitutional Law)
- Proportionality: Constitutional Rights and their Limitations (Cambridge Studies in Constitutional Law)
- Bottlenecks: A New Theory of Equal Opportunity
- Natural Law and the Antislavery Constitutional Tradition
- Constitutional Futures Revisited: Britain's Constitution to 2020
- Causation (Oxford Readings in Philosophy)
Extra info for Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa
Cockrell’s criticism of ‘shallow’ thinly theorized adjudication styles – A. Cockrell, ‘Rainbow Jurisprudence’ (1996) 12 South African Journal on Human Rights 1 – is also bound up in a constitutional claim. g. at 10). He considers this constitutional change to require that, instead of relying on ‘shallow’ reasoning, the Court must articulate a ‘deep’ vision of political morality according to which it will resolve the clash of incommensurables (he follows Isaiah Berlin – see esp. , 37–38) that adjudicating such value terms will inevitably produce.
They are legal accounts only in the sense of being accounts about legal things. A small but notable school of writing on South African constitutionalism offers accounts of this sort. For example, an important paper by 20 introduction Iain Currie describes the Constitutional Court as practicing ‘judicious avoidance’, using the sorts of minimalist tactics described by Cass Sunstein. 33 The most important work in this school is by Theunis Roux. He has argued that, in certain cases, the Court has ‘compromised on principle’ in order to avoid taking legally principled stands that would have risked serious political reprisal from the powerful ANC.
They can be called non-interpretivist or realist. The basic ﬁrst question of this sort of account is: what do constitutional actors actually do in this system? To this question, accounts of this sort might give merely descriptive answers: politicians pressure courts in these sorts of cases, the courts resist or give in under these sorts of conditions. They might also go further and evaluate the data. They might try to show, for example, that a court’s moves were strategically wise in that they helped the court avoid a destructive backlash or allowed it to build up its authority gradually in the face of a powerful party.