The South African Constitutional Court's Democratic Rights Jurisprudence: A Response to Samuel Issacharoff

Constitutional Court Review, Vol. 5, 2014, Forthcoming

36 Pages Posted: 19 Sep 2014

Date Written: 2013

Abstract

This article responds to Samuel Issacharoff’s lead essay in Volume 5 of the Constitutional Court Review. Drawing on his earlier work on ‘democratic hedging’, Prof Issacharoff argues that constitutional courts that wish to prevent a dominant political party from using its electoral mandate to ‘lock up’ the democratic system should act forcefully, justifying its intervention in democratic politics with substantive theorisations of the democratic pathologies it is addressing. While finding many aspects of Prof Issacharoff’s analysis provocative, this article critiques his tendency to treat constitutional courts in new democracies as relatively autonomous from the political conditions they are trying to influence. Instead, it is argued, the role of constitutional courts in democratic consolidation is better theorised as a dynamic feedback loop, with each successive intervention both conditioned by, and in turn conditioning, the institutional and political context in which the court is working. On that approach, it is clear that the ideal democratic consolidation strategy open to a constitutional court will not always be boldly to enforce democratic rights on the back of a substantive theorisation of the pathologies it is addressing. Depending on the political and institutional context, a more cautious strategy may be required, where what is theorised is the Constitution’s conception of democracy, and whether this conception accommodates the democratic rights being asserted. Using this more context-sensitive theorisation, the article offers an alternative reading of the South African Constitutional Court’s democratic rights jurisprudence, focusing on five recent decisions in which the Court has begun to address some of the pathologies attendant on the African National Congress’s ongoing dominance of South African politics.

Keywords: South African Constitutional Court, comparative constitutional law, democratic rights

Suggested Citation

Roux, Theunis Robert, The South African Constitutional Court's Democratic Rights Jurisprudence: A Response to Samuel Issacharoff (2013). Constitutional Court Review, Vol. 5, 2014, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2497777

Theunis Robert Roux (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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