By James Fowkes
This revisionary standpoint on South Africa's celebrated Constitutional courtroom attracts on historic and empirical assets along traditional criminal research to teach how help 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. general debts see the court docket as overseer of a negotiated constitutional compromise and because the looked-to father or mother of that structure opposed to the emerging hazard of the ANC. in spite of the fact that, in truth South African successes were outfitted on broader and extra admirable constitutional politics to a point no earlier 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 though a piece in development, this institutional self-understanding represents a robust attempt by way of an rising courtroom, as one constitutionally severe actor between others, to construct a structure.
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Brickhill, ‘The Counter-Majoritarian Difficulty and the South African Constitutional Court’ (2006– 2007) 25 Pennsylvania State International Law Review 371, 381. See famously B. van Niekerk, ‘. . Hanged by the Neck Until You Are Dead: Some Thoughts on the Application of the Death Penalty in South Africa’ (1969) 86 South African Law Journal 457. g. H. Klug, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge University Press, 2000), pp. 146–48); R. Spitz with M.
Du Plessis, ‘Between Apology and Utopia – The Constitutional Court and Public Opinion’ (2002) 18 South African Journal on Human Rights 1, 5–7; R. N. Daniels and J. Brickhill, ‘The Counter-Majoritarian Difficulty and the South African Constitutional Court’ (2006– 2007) 25 Pennsylvania State International Law Review 371, 381. See famously B. van Niekerk, ‘. . Hanged by the Neck Until You Are Dead: Some Thoughts on the Application of the Death Penalty in South Africa’ (1969) 86 South African Law Journal 457.
On this picture, the Court’s achievement is to have stayed legal enough to preserve its reputation as an adjudicator according to law and respond to ‘the relatively strong pressure exerted by South African legalprofessional culture to decide cases in a principled way’, while being strategic enough to respond ‘to the need to avoid a debilitating attack on 32 33 34 I. Currie, ‘Judicious Avoidance’ (1999) 15 South African Journal on Human Rights 138, referring to C. R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard University Press, 1999); the quoted text appears at p.