By James Fowkes
This revisionary point of view on South Africa's celebrated Constitutional court docket attracts on ancient and empirical resources along traditional felony research to teach how aid from the African nationwide Congress govt and different political actors has underpinned the Court's landmark circumstances, that are frequently applauded too narrowly as simply judicial achievements. regular money owed see the court docket as overseer of a negotiated constitutional compromise and because the looked-to parent of that structure opposed to the emerging hazard of the ANC. in spite of the fact that, in truth South African successes were equipped on broader and extra admirable constitutional politics to some extent no prior account has defined or stated. The courtroom has spoke back to this context with a considerably constant yet greatly misunderstood trend of deference and intervention. even though a piece in growth, this institutional self-understanding represents a strong attempt through an rising courtroom, as one constitutionally critical actor between others, to construct a structure.
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Additional resources for Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa
Cols. , Cols. 2829–30 (JH De Lange, ANC); Cols. 2832–33 (MB Skosana, IFP); Cols. 2836–38 (AJ Leon, DP); Col. 2841 (RK Sizani, PAC). President Mandela took the same line at the time in a televised address: see A. M. Dodek, ‘A Tale to Two Maps: The Limits of Universalism in Comparative Judicial Review’ (2009) 47 Osgoode Hall Law Journal 287, 310. H. Klug, ‘Participation in the Design’ in P. Andrews and S. ), PostApartheid Constitutions: Perspectives on South Africa’s Basic Law (Ohio University Press, 2001), p.
30 There is an epilogue to the Makwanyane story, which offers some support for my reading of what the case was really about and my more muted view of the picture of constitutional adjudication it represents. 30 legal work the judges wanted to do but which was difﬁcult to sell to the South African public (and Makwanyane, notwithstanding its attempts to do so, has not done much to convince the public. , pp. 4, 246–48, 260). Activity in the political sphere was a key source of the content the Court expressed, and so has a deeper legal relevance.
37 Like the second Makwanyane story, his account can explain a great deal, but it is not able (because it does not set out) to rebut legally the standard interpretative criticisms of the Court, which indeed it often accepts are correct in strictly legal terms. This matters when one compares the realists to the other school, classically interpretivist and associated with the ﬁrst Makwanyane story. In contrast to realists, who look ﬁrst to the world, the basic question of these accounts is: What do the legal sources mean?
Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa by James Fowkes
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