Building the Constitution: The Practice of Constitutional by James Fowkes

Building the Constitution: The Practice of Constitutional by James Fowkes

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.

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

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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.

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