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

55 Pages Posted: 5 Sep 2008 Last revised: 14 Oct 2008

Frank I. Michelman

Harvard Law School

Date Written: September 4, 2008

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.

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: https://ssrn.com/abstract=1263503 or http://dx.doi.org/10.2139/ssrn.1263503

Frank I. Michelman (Contact Author)

Harvard Law School ( email )

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