n South African Law Journal - How many positivist legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan




This article takes issue with the argument of Professor Anton Fagan that, when judges decide to develop the common law, they must justify their decision for reasons that are independent of the Constitution. The upshot of this argument is that s 39(2) of the Constitution imposes no obligation on judges to develop the common law in accordance with the normative framework of the Constitution. Contrary to this position, it is contended that the purpose of s 39(2) cannot be divined from a literal parsing of the individual words of the section. The Constitution intended that the common law reflect the normative value system as found in a holistic reading of the text. Hence the trigger that propels judges to make the decision to develop the common law is to be found in a judicial engagement with the constitutional value system. This conclusion is the constitutional equivalent of judicial recourse to the legal convictions of the community, which was the expressed justification for developing the common law in the pre-constitutional period. The article concludes with an examination of the implications of the competing arguments, being Fagan's relegation of the significance of the Constitutional impact on the common law, and the integrative approach in which the Constitution becomes central to all legal development.


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