1887

n South African Law Journal - Language, power and the margin : Eliot's philosophy of language, Wittgenstein on following a rule, and statutory construction in

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Abstract

The broad purpose of this article is to draw both the Constitutional Court and its commentators away from 'the margin' of beliefs and back toward the 99 per cent of truth propositions that we all share. Too often, both the court and its commentators write as if 'everything is up for grabs'. The article's specific purpose is to show that such a view of language is incoherent and has deleterious consequences for our jurisprudence. To that end, this article takes the recent Constitutional Court judgment of Mankayi as a paradigmatic example of what happens when eleven brethren get caught up in the excitement of making a splash and allow language to go on holiday. Their manifold errors begin with a misreading of a few lines from T S Eliot's Burnt Norton. The article sets about correcting the court's misconstrual of Eliot's words and the philosophy of language that underwrites them. It then identities the flaws in the 'community view' of language adopted by the court that leads to the unwarranted rule-scepticism on display in Mankayi. Following this correction of course, the article tackles vexed questions regarding the precision of words by explicating Wittgenstein's views on what it means 'to follow a rule'. The article then engages the linguistic, and consequently legal, errors that occur in Mankayi. The Mankayi court never denies the force of the Mankayi Supreme Court of Appeal's statutory analysis. It simply prefers its own reading. By adopting the rule-sceptic's view of language as a basis for reversing the SCA's judgment, the court radically undercuts its own authority. Finally, the Mankayi court never undertakes meaningful constitutional analysis. After acknowledging a number of compelling pragmatic explanations for the Constitutional Court's avoidance of constitutional analysis, the article spins out the reasoning that underlies Justice Froneman's subtle concurrence in order to show that (a) the Mankayi court might have arrived at the desired outcome without making unnecessary philosophical errors along the way; and (b) the court's political analysis in Mankayi easily fits within its extant body Bill of Rights jurisprudence.

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/content/ju_salj/129/3/EJC125744
2012-01-01
2016-12-06
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