n Stellenbosch Law Review = Stellenbosch Regstydskrif - Being counterintuitive




In this article the authors consider a central characteristic of Frank Michelman's body of scholarship: his tendency to develop his ideas from an unexpected or non-obvious angle - in short, his tendency to think, reflect and work in a counterintuitive fashion. They show how, for example, he habitually advances positions intuitively foreign to the liberal tradition (for example recognition of constitutional welfare rights; a conception of property as a mechanism to fight poverty) from within that tradition. They ask whether there is a difference between being reflective/counterintuitive and being reflexive - does Michelman through his counterintuitive approach reflect on the liberal tradition with pragmatist, strategic concerns or does his counter-intuition show signs of reflexivity, of problematising liberalism at its roots?

They then link Michelman's counter-intuition to Hannah Arendt's understanding of judgment and "common sense". For Arendt common sense entails not an instinctive, unreflective response - instead, in the tradition of Kantian aesthetic judgment common sense entails an enlarged mentality that could engage plurality and worldliness. The authors, on one reading see this enlarged mentality at work in Michelman's counterintuitive approach.
The authors conclude by making tentative comments on the Constitutional Court's decision in 2010 3 SA 293 (CC), attempting to give a counterintuitive/reflective reading to the majority judgment's emphasis on rationality that they hope stands in, if not the substance then at least the form of Frank Michelman's counterintuitive tradition. Drawing on Michelman's notion of "jurisgenerative politics" they aim to disclose other responses to and consequences of the judgment than those that appear at first glance.


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