n South African Law Journal - The role of international law in constitutional adjudication : : notes

Volume 130, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The judgment of the Constitutional Court in 2011 (3) SA 347 (CC) invites a fresh examination of the role played by international law in Bill-of-Rights cases. The case inter alia brings to the fore the role played in constitutional adjudication by s 39(1)() of the Constitution of the Republic of South Africa, 1996, and the meaning of the obligation in that section to 'consider international law' when interpreting the Bill of Rights. After a brief exposition of the facts of the case, this note will critically engage with the way in which the judgments of both the majority and the minority of the court conceived of the relationship between international law and the constitutional scheme. Based on this critical engagement, this note will offer a suggestion about the proper relationship between the two systems of law that resolves some of the basic conceptual problems that underlie both judgments.

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