International Journal of Constitutional Law Advance Access originally published online on November 17, 2008
International Journal of Constitutional Law 2009 7(1):106-138; doi:10.1093/icon/mon029
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Principle and pragmatism on the Constitutional Court of South Africa
* Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; extraordinary professor, Centre for Human Rights, University of Pretoria; honorary professor, University of the Witwatersrand. I would like to thank David Bilchitz, Patrick Lenta, Stuart Woolman, Vicki Jackson, and Frank Michelman for comments on earlier drafts of this essay. Email: theunis{at}saifac.org.za
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Abstract |
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Though lacking in public support, the Constitutional Court of South Africa (CCSA) today finds itself in a position of relative institutional security. At the same time, it has built up an enviable reputation among constitutional courts in new democracies for the technical quality of its jurisprudence or legitimacy in the legal sense. This essay attempts to explain how this situation has come about by developing a theoretical account of the relationship between legal legitimacy, public support, and institutional security, and then using this account to interpret the CCSA's record from 1995 to 2006. The defining feature of South African politics over this period has been its domination by a single political party. In this context, the theoretical account suggests, the CCSA should largely have been able to ignore its lack of public support in favor of managing its relationship with the political branches. In particular, one would expect the CCSA to have traded off gains in legal legitimacy, achieved by principled decision making, against considerations of the likely impact of its decisions on its institutional security. An examination of some of the CCSA's major decisions reveals that it, indeed, has acted strategically in this way, both in politically controversial cases, where it has used its flexible separation-of-powers doctrine to avoid direct confrontation with the political branches, and in more routine cases, where it has developed a number of context-sensitive review standards.