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Constitutions, Courts and History: Historical Narratives in by Renata Uitz

By Renata Uitz

Emphasizes the function background and ancient narratives play in constitutional adjudication. Uitz provocatively attracts cognizance to the often-tense courting among the structure and historic priority highlighting the interpretive and normative nature of the legislation. Her paintings seeks to appreciate the stipulations below which references to the prior, heritage and traditions are appealing to attorneys, even if they've got the possibility of perpetuating indeterminacy in constitutional reasoning. Uitz conclusively argues that this constitutional indeterminacy is obscured through 'judicial rhetorical toolkits' of continuity and reconciliation that let the court's reliance at the earlier to be unaccounted for. Uitz' rigorous research and broad learn makes this paintings an asset to felony students and practitioners alike. The inquiry during this quantity hopes to draw observers of constitutional adjudication, may well they be examining constitutional jurisprudence from the quarters of constitutional legislations, constitutional heritage, political technological know-how or heritage departments.

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In South Africa the effect of common-law rules on constitutional rights and freedoms presented difficult challenges. While commonlaw rules had the potential to protect liberty even during apartheid, courts rarely used this opportunity to protect rights. In the rare cases where courts took up the challenge and went “too far”, statutes were passed instantly to overrule common-law rules. As a consequence, common-law rules protecting individual rights were emptied, and gradually the law became the means of enforcing apartheid.

As Pocock observes, it is important to see that invoking a tradition is not about giving factual information about a previous performance; instead, invoking tradition is an assumption that previous performance, as presented, is operative. Thus narratives invoking traditions are presumptive and prescriptive, or, in other words, they are teleological. Thus, for the purposes of the present analysis, the real problem is not the validation of an alleged tradition’s facticity. Rather, the focus should be on what makes narratives based on traditions so attractive to lawyers, who are also inclined to trust historical narratives.

In this sense “common law” refers not to a set of rules but to a method of legal reasoning. ” In this sense, common-law reasoning is often understood as inherently conservative, a doctrine which relies upon stability and predictability. The substance of such understandings is an appeal to common-law reasoning conceived as “reason tested on experience (repetition)”, which date from time immemorial. ” Ongoing repetition then becomes the source of continuity and stability. The force of repetition should not be underestimated.

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