Law as Justification: Glenister, Separation of Powers and the Rule of Law

by | Sep 23, 2019 | ACTA, ACTA 2017

Law as Justification: Glenister, Separation of Powers and the Rule of Law

Authors Cathleen Powell

ISSN: 1996-2088
Affiliations: Associate Professor, Department of Public Law, UCT Law Faculty
Source: Acta Juridica, 2017, p. 55 – 74

Abstract

This article analyses the majority and minority judgments in Glenister through the lens of the doctrine of separation of powers. This is not an aspect that the majority judgment addresses explicitly, and, as a result, the minority’s objection that the majority violated this doctrine, acting outside of its powers and intruding on the exclusively ‘political’ domain of the other two branches, appears to be unanswered. Drawing on the legal philosophy of Lon L. Fuller, this article explores the idea that the rule of law requires an ongoing dialogue between all branches of government, in which all branches justify their exercise of power under law. Such a conception of the rule of law requires a more fluid, porous relationship between the branches, and does not admit of exclusive domains for either law or politics. The majority and minority judgments in Glenister are discussed as examples of the rule-of-law based and traditional conceptions of the doctrine of separation of powers respectively. Understood in terms of Fuller’s rule of law theory, the majority judgment in Glenister did not violate the doctrine of separation of powers, but instead helped to uphold a constitutionally functional relationship between all three branches of government.

From Parliamentary to Judicial Supremacy: Reflections in Honour of the Constitutionalism of Justice Moseneke

by | Sep 14, 2019 | ACTA, ACTA 2017

From Parliamentary to Judicial Supremacy: Reflections in Honour of the Constitutionalism of Justice Moseneke

Authors Peter G Danchin

ISSN: 1996-2088
Affiliations: Professor of Law and Co-director of the International and Comparative Law Program, University of Maryland School of Law;AW Mellon Visiting Fellow, University of Cape Town, 2013–14
Source: Acta Juridica, 2017, p. 29 – 54

Abstract

Justice Moseneke has presciently identified two interrelated dilemmas at the heart of South Africa’s project of transformative constitutionalism: one concerning constitutional authority following the historic rejection of parliamentary supremacy; and the other concerning constitutional normativity following the adoption in 1996 of a comprehensive Bill of Rights. This essay advances two key arguments: First, that the rejection of parliamentary supremacy has conventionally been understood in terms of a false opposition between ‘parliamentary’ and ‘constitutional’ supremacy. And second, that proponents of strong judicial review have paid insufficient attention to three core dangers of judicial supremacy: the displacement of self-government, the reproduction of the problem of sovereignty and the usurpation by the judiciary of the role of pouvoir constituent. This striking reversal in conceptions of normativity and authority rests on a distinctive constitutional account of popular sovereignty under which the will of the People is the source of normativity while the courts, as adjudicators of reason, are the highest legal authority. The paradox of this constitutional logic is that in order to justify the anti-democratic consequences of strong judicial review, rights-based reasoning will increasingly need to be justified in terms of the will of the People with attendant gravitational consequences for theories of adjudication. To achieve Justice Moseneke’s call for an equitable balance between democratic will and constitutional supremacy – and thereby maintain a robust rights-based constitutionalism – South African judges and legal scholars will need to grapple more squarely with the twin dangers of judicial supremacy on the one hand, and the essentially contested nature of constitutional rights on the other.

Institutional Integrity and the Promise of Constitutionalism: Justice Moseneke, Judicial Authority and the Separation of Powers

by | Sep 14, 2019 | ACTA, ACTA 2017

Institutional Integrity and the Promise of Constitutionalism: Justice Moseneke, Judicial Authority and the Separation of Powers

Authors Heinz Klug

ISSN: 1996-2088
Affiliations: Evjue-Bascom Professor of Law, University of Wisconsin and Honorary Senior Research Associate, University of the Witwatersrand School of Law
Source: Acta Juridica, 2017, p. 3 – 28

Abstract

This essay takes a demonstrative journey through Deputy Chief Justice Dikgang Moseneke’s Constitutional Court decisions, celebrating and illustrating the Justice’s personal and institutional commitment to the integrity of the Constitution. First, the author explores the scholarly arguments that see South African jurisprudence observing a unique ‘separation of powers’ doctrine, shaped by a distinctive constitutional system that falls somewhere between a common-law parliamentary system and the German system of constitutional democracy. Then the essay reflects on Justice Moseneke’s role in creating and upholding the separation of powers doctrine through an analysis of some of the Justice’s decisions. Finally, the essay explores Justice Moseneke’s role in establishing the parameters of the very judicial authority he practised, through a skilful exercise of institutional self-restraint and assertion of the role of integrity as well as the recognition of the Constitution’s creation of independent institutions outside of the traditional trias politica.