Subjective strands in the jurisprudence of the Constitutional Court and related implications for civil society
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Date
2024
Authors
Matthee, Keith S. C.
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Free State
Abstract
From 1994 up until now, the Constitutional Court has been making decisions which continue to reshape the moral landscape of South Africa. During this period, it has entered many of the spaces, whether private or public, of people living in South Africa as it continues to make decisions on profoundly moral issues. Included in this moral reshaping of South African society are subjective strands in the jurisprudence of justices of the Constitutional Court. Having said this, there is nothing novel regarding subjectivity in court judgments (and regarding the formulation and application of the law in general). How law decides on matters of moral importance differs from society to society and amongst various communities, and even between judges involved in the same case. American Realism and Critical Legal Studies (CLS) are good examples taken from the not-too-distant past, confirming the inextricable relationship between subjectivity and the courts.
This study does not purport to be novel in the sense of having discovered the absence of objectivity regarding law and its application, nor does this study delve into debates related to law against the background of universality or natural law thinking. What this study is, in essence, comprised of is an extraction from selected judgments of central subjective views emanating from the Constitutional Court. Bearing this in mind, the reader is reminded (or enlightened) of the fact that the South African Constitution is understood and applied in accordance with the subjective views of the justices who are tasked with the challenging and important task of protecting the plethora of interests in a highly plural society. But what is the added contribution to be made other than bringing to the fore the said subjective strands regarding views on what the Constitution is telling us beyond the written text, especially regarding the values and rights included in the Constitution? Since the advent of the Constitution, there have been several attestations emanating from civil society pointing to an acceptance of the understanding that the Constitutional Court justices are the exclusive mouthpieces of the Constitution. In this thesis, the focus is primarily on expressions stemming from the Church (as an integral part of civil society) that confirm this reliance on the Constitutional Court justices as being the exclusive mouthpieces of the Constitution. Therefore, in effect, the understanding is promoted that the gatekeepers of how the Constitution should be understood are the justices of the Constitutional Court.
This, in turn runs the risk of assisting in the limitation of a participatory (and activist) role of the Church and other religious communities, indeed of wider civil society, pertaining to what the moral vision for the country should be. In many instances, parts of civil society argue that it is for lawyers to extrapolate the value system they opine is reflected in the Constitution, as it is only they who have the necessary training, experience and expertise as lawyers. If civil society simply keeps deferring to the Constitutional Court on this issue, in effect, it is abdicating its participatory (and activist) role on profoundly moral matters such as the meaning of human life, marriage, punishment, the disciplining of children, adultery, abortion and many other matters which demand civil society’s input. It is contended that if civil society, and indeed the Constitutional Court itself, grasped the reality of the subjective nature of views emanating from that court, it would assist in clearing the path towards an improved engagement by civil society with the State (including the Constitutional Court), on important (and less important) moral matters. It is also argued that this awareness of the subjective nature of views emanating from the Constitutional Court is inextricably related to the teaching of law to our future jurists, leaders and members of civil society.
Description
Thesis (LL.D.(Public Law))--University of the Free State, 2024
Keywords
Constitutional Law – South Africa, Judicial interpretation – Moral Dimensions, Constitutional Court – Jurisprudence, Subjectivity in Legal Decisions, Law and Civil Society – South Africa, Church and State – Legal Perspectives