Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part Two

24 Pages Posted: 15 Mar 2013

See all articles by David Hulme

David Hulme

University of KwaZulu-Natal

Stephen Allister Pete

University of KwaZulu-Natal, School of Law

Date Written: December 21, 2012

Abstract

Part One of this article traced rising tensions between the South African executive and the judiciary on the question of the separation of powers. This situation was then contrasted and compared with a clash which took place in the 17th century between King James I of England and Chief Justice Edward Coke.

In Part Two of this article attention is focused on two specific cases which arose out of the clash between James and Coke - Prohibitions Del Roy and The Case of Proclamations. The article then turns to a discussion of the lessons which can be drawn from these cases. The arguments which were raised in the cases are contrasted and compared with more contemporary arguments advanced in the context of the present conflict between the South African executive and the judiciary. The views of Ronald Dworkin comparing 'majoritarian' and 'constitutional' conceptions of democracy are examined in the context of this debate. Tentative conclusions are then drawn and warnings issued of the negative consequences for South Africa if the potential conflict between the executive and the judiciary is not properly resolved.

Keywords: constitutional democracy, separation of powers, majoritarian democracy, Golden Metwand, James I, Edward Coke, Jacob Zuma, executive, judiciary, Ronald Dworkin, rule of law

Suggested Citation

Hulme, David and Pete, Stephen Allister, Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part Two (December 21, 2012). Potchefstroom Electronic Law Journal, Vol. 15, No. 5, 2012, Available at SSRN: https://ssrn.com/abstract=2233248

David Hulme (Contact Author)

University of KwaZulu-Natal ( email )

Umbilo Road
Durban 4000, KZN 4000
South Africa

Stephen Allister Pete

University of KwaZulu-Natal, School of Law ( email )

Umbilo Road
Durban, KZN 4000
South Africa

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