n South African Journal on Human Rights - Judicial restraint and overreach

Volume 20, Issue 4
  • ISSN : 0258-7203



This article enquires into the defensible limits of judicial review. The United States Supreme Court has recently been castigated for overreaching. According to this charge, judges have unjustifiably intruded on the domain of other branches of government by exercising 'political' functions. Critics urge that judges should desist from overreaching by exercising self-restraint, that is, by restricting themselves to the interpretation of rights, rather than interfering with government policy. This article examines selected judgments of the Constitutional Court as examples of judicial self-restraint and scrutinises divergent visions of the judicial role, particularly the judiciary's understanding of its own role. It enquires whether the Court's rhetorical support for judicial restraint is translated into a practice of restraint and, if so, what effect this has on the protection of individuals' rights.

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