oa Constitutional Court Review - Normative pluralism and anarchy : reflections on the 2007 term : lead essay / response
The purpose of subsidiarity can therefore not be pure avoidance. Much rather, it should be acknowledgement and respect for the fact that courts face the aporia of the countermajoritarian dilemma every time they hear a constitutional case. On the one hand they must respect and give full effect to the legitimate efforts of the democratically elected branches to honour their constitutional obligations in bringing about the reforms legitimised by the Constitution. Doing that requires the courts to consider the interplay between Constitution and legislation and to give the fullest possible purposive effect to legislation enacted by the legislature. At the same time the courts must apply pre-constitutional legislation and the common law in a way that acknowledges the undemocratic origin and history of those sources of law and the dilemmas caused by their continued validity, in both instances by reading them through the corrective lens of s 39(2).
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