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On the Uses of Interpretive 'Charity': Some Notes on Application, Avoidance, Equality, and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa


Frank I. Michelman


Harvard Law School

September 4, 2008

Harvard Public Law Working Paper No. 08-26

Abstract:     
This essay will appear in volume 1 of Constitutional Court Review, a new South African annual devoted to discussion of the prior year's work of the Constitutional Court of that country. The essay undertakes close examination and analysis of two of the Court's 2007 decisions - and also engages with some recent Court-watching debates in South Africa - from a hybrid, insider/outsider perspective. A main focus is on problems and puzzles arising from the South African system's widely-noted commitment to exposing the country's law governing private legal relations (including common law) to thorough and continuing re-examination for harmoniousness with the Bill of Rights (horizontal application); and, further, from the combination of that commitment with the country's historic and continuing reliance on common-law revision (along with legislation) for law reform in the field of defining criminal conduct. Topics more-than-incidentally treated include retrospective/prospective of judicially declared new criminal law, the idea of objective unconstitutionality (a kind of overbreadth doctrine), sex discrimination under the Constitution, and the debate over judicial minimalism and interbranch relations.

Number of Pages in PDF File: 55

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Date posted: September 5, 2008 ; Last revised: October 14, 2008

Suggested Citation

Michelman, Frank I., On the Uses of Interpretive 'Charity': Some Notes on Application, Avoidance, Equality, and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa (September 4, 2008). Harvard Public Law Working Paper No. 08-26. Available at SSRN: http://ssrn.com/abstract=1263503 or http://dx.doi.org/10.2139/ssrn.1263503

Contact Information

Frank I. Michelman (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-4628 (Phone)
617-495-1110 (Fax)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdi
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