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n Acta Juridica - Section 39(2) and political integrity
This essay concerns the following question: can s 39(2) of the South African Constitution be justified by Ronald Dworkin's notion of 'political integrity'?
To understand this question one must know what s 39(2) of the South African Constitution says and what Dworkin's notion of political integrity entails. Section 39(2) holds that 'when developing the common law ... every court ... must promote the spirit, purport and objects of the Bill of Rights'. Dworkin's notion of political integrity, most fully developed in his Law's Empire, can be summarised in four points. First, political integrity is a property that a community's legal rules possess to a smaller or larger degree. Legal rules must here be understood as legal rules still in force: thus precedents that have not been overruled and statutes that have not been repealed. Secondly, a community's legal rules possess political integrity in so far as they are 'consistent in principle'. The more consistent in principle the rules are, the more political integrity they possess, and the converse. Thirdly, a community's rules are consistent in principle in so far as it is possible to justify them by principles that form a consistent set. As Dworkin puts it: a community lacks integrity if 'it must endorse principles to justify part of what it has done that it must reject to justify the rest'. Fourthly, according to Dworkin, political integrity (in the sense explained) is a political virtue besides justice and fairness. In other words, it matters that a community's legal rules are just and fair (fair in the sense that they were produced by procedures that distribute power in the right way). But that is not all that matters. It also matters that the rules possess political integrity, that the rules are consistent in principle.
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