n Stellenbosch Law Review = Stellenbosch Regstydskrif - "For Michelman, on the contrary" : republican constitutionalism, post-apartheid jurisgenesis and O'Regan J's dissent in Minister of Home Affairs v Fourie
|Article Title||"For Michelman, on the contrary" : republican constitutionalism, post-apartheid jurisgenesis and O'Regan J's dissent in Minister of Home Affairs v Fourie|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Affiliations||1 University of Cape Town|
|Publication Date||Jan 2013|
|Pages||342 - 358|
This article offers an encounter between Frank Michelman's celebrated 1988 article, "Law's Republic" (F Michelman "Law's Republic" (1988) 97 Yale LJ 1523) and the judgments of the Constitutional Court in Minister of Home Affairs v Fourie 2006 1 SA 524 (CC). The piece commences with a close reading of Michelman's "counterintuitive" argument for a jurisgenerative republican constitutionalism - an argument that still sees a prophetic, future-looking role for judicial review as opposed to an excessive authoritarian jurisprudence that simply endorses or upholds the people's prior normative utterances. Having explicated Michelman's argument, the article evaluates the majority and separate, partially dissenting judgments of the Constitutional Court in Minister of Home Affairs v Fourie 2006 1 SA 524 (CC), against the backdrop of Michelman's argument. I conclude that while the majority judgment can certainly be characterised as republican-jurisgenerative, it is the judgment of O'Regan J that is more robustly jurisgenerative in that it brings republican jurisgenerative commitments and justifications at the level of judicial review, more sharply into focus. The piece concludes with a brief reflection on the question whether a republican jurisgenerative form of politics is still possible, given pervasive (neo)liberal constitutionalism and the "agonistic" solution proposed by Chantal Mouffe (C Mouffe The Democratic Paradox (2000) 102).
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