The Politics of Principle The First South African Constitutional Court, 1995–2005

Publisher: Cambridge University Press
ISBN: 9781107013643
Published In: March 2013
Format: Paperback , 447 pages
Jurisdiction: South Africa ? Disclaimer:
Countri(es) stated herein are used as reference only

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Under its first chief justice, Arthur Chaskalson, the South African Constitutional Court built an unrivalled reputation in the comparative constitutional law community for technically accomplished and morally enlightened decision-making. At the same time, the Court proved remarkably effective in asserting its institutional role in post-apartheid politics. While each of these accomplishments is noteworthy in its own right, the Court's simultaneous success in legal and political terms demands separate investigation. Drawing on and synthesising various insights from judicial politics and legal theory, this study offers an interdisciplinary explanation for the Chaskalson Court's achievement. Rather than a purely political strategy of the kind modelled by rational choice theorists, the study argues that the Court's achievement is attributable to a series of adjudicative strategies in different areas of law. In combination, these strategies allowed the Court to satisfy institutional norms of public reason-giving while at the same time avoiding political attack.

• Provides a methodology for grounding normative theorisations of judicial review in a realistic account of the political contexts in which constitutional courts operate • Bridges the divide between the largely North-American literature on the US Supreme Court and the comparative literature on the role of constitutional courts in new democracies • Study of one of the most successful of the post-1989 constitutional courts will appeal both to those with a specific interest in South Africa and also to comparativists interested in what the South African example has to teach about the role of constitutional courts in democratic consolidation

Acknowledgements	xii
Introduction	1
Part I Problematic, Theory, Methodology	13
1 The Chaskalson Court's achievement	15
1.1 Judicial politics: a brief introduction	17
1.2 Criteria of success in political terms	27
1.3 The Court's success in political terms	33
1.4 The Court's success in legal terms: four illustrative responses	38
1.5 The ideal of adjudication according to law	49
1.6 Translating the common elements of the ideal into shared criteria	62
1.7 The distinctiveness of the criteria and the justification for this study	66
2 A conceptual framework for assessing the performance of constitutional courts	72
2.1 Two forms of constraint	73
2.2 Four central cases	88
2.3 Judge-driven changes to a court's position on the matrix	93
2.4 Constitutional courts in new and old democracies	104
2.5 The success of constitutional courts in interdisciplinary law/politics terms	108
3 Operationalising the conceptual framework to explain the Court’s achievement	112
3.1 The Court’s starting position on the matrix	114
3.1.1 The vertical axis: South African legal-professional culture	114
3.1.2 The horizontal axis: the Court’s relative insulation from political attack	120
3.2 Tracking the Court’s movement across the matrix	128
3.3 Choosing the cases	138
Part II Context	141
4 The political context for judicial review, 1995–2005	143
4.1 South Africa’s pre-democratic tradition of judicial independence	145
4.2 The character of the ANC and its commitment to liberal constitutionalism	152
4.3 Constitutional provisions affecting the Court’s independence from political control	161
4.3.1 The two-stage constitution-making process	162
4.3.2 The judicial appointments process	165
4.4 The changing political context for judicial review	170
4.4.1 Racial reconciliation, 1994–1996	171
4.4.2 Technocratic centralism, 1997–2005	177
4.5 Conclusion	189
5 Constraints and opportunities: The law/politics distinction in South African legal-professional culture	191
5.1 The received tradition: South African legal-professional culture before 1994	192
5.2 The impact of the post-apartheid Constitutions on South African legal-professional culture	201
5.2.1 The character of the post-apartheid Constitutions	203
5.2.2 The necessarily entailed impact of the post-apartheid Constitutions	207
5.2.3 The contingent impact: internal factors	209
5.2.4 The contingent impact: external factors	215
5.3 The Chaskalson Court's judicial ethic	219
Part III Thematic Case Studies	233
6 Death, desire and discrimination: the Chaskalson Court between constitutional and positive morality	235
6.1 Abolishing the death penalty: S. v. Makwanyane	238
6.2 Customary law and the right to equality: Bhe	248
6.3 Same-sex marriage: Fourie	252
6.4 Identifying the strategy	257
7 Social rights	262
7.1 Background to the inclusion of social rights in the 1996 Constitution	265
7.2 An ‘agonising’ start: Soobramoney	273
7.3 Choosing the strategy: Grootboom	280
7.4 Exploiting the micro-politics: Treatment Action Campaign	292
8 Property rights	304
8.1 Political parameters	305
8.1.1 The political origins of s 25	305
8.1.2 ANC economic policy after 1994	308
8.2 The cases	312
8.2.1 Constructing the constitutional property clause inquiry	314
8.2.2 Reconciling property rights and the right to housing in s 26	324
8.3 Concluding thoughts	331
9 Political rights	334
9.1 Prisoners’ right to vote: August and NICRO	336
9.2 Judicial review of electoral system rules: New National Party	341
9.3 Floor-crossing: United Democratic Movement	351
9.4 Resolving the paradox	362
10 Cross-cutting strategies	365
10.1 The Court’s separation of powers doctrine	366
10.2 Access and jurisdiction	377
10.3 Purely rhetorical strategies	383
Conclusion	387
Bibliography	399
Index	419