n South African Law Journal - The importance of reading - a rebutter to the jurisprudence of Anton Fagan : notes

Volume 130, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



In my initial response to Professor Fagan (D M Davis 'How many positivist legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan (2012) 129 SALJ 59 ('Critique')) I expressed the view that his entire argument in his inaugural lecture (Anton Fagan 'The secondary role of the spirit, purport and object of the Bill of Rights in the common law's development' (2010) 127 611 ('Initial article')), which was predicated upon the concept of determinatio, had been based upon a fundamental misreading of the work of John Finnis, from whom Fagan had apparently derived the concept. For this reason alone, the reading of a text lies at the heart of the debate between Fagan and myself. Surprisingly, in his rejoinder (Anton Fagan 'A straw man, three red herrings and a closet rule worshipper - A rejoinder to Davis JP' 2012 (129) 788 ('Rejoinder')) Fagan neither defends himself against this serious charge, nor does he retract his representation of Finnis.

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