n Tydskrif vir Geesteswetenskappe - Demokratiese waardes in Suid-Afrikaanse grondwetlike regspraak

Volume 45, Issue 3
  • ISSN : 0041-4751


In South African constitutional cases, democratic values are used for three purposes. In the first place it is used to contrast the current constitutional dispensation with the earlier, unacceptable dispensation. In the second place it is used to indicate some kind of a connection with human rights, and especially equality, freedom, human dignity and voting rights. In the third place it is assumed to have something to do with the function of courts and the traditional division of state powers. Problems like the counter-majoritarian difficulty and the conflict between the moral convictions of the majority and individuals are seldom addressed. In terms of interpretation theory, it seems clear that the meta-narrative of the objective "finding" of meaning has been replaced by the meta-narrative of constitutional values. They are used to legitimate the idea of the objectivity of interpretation of statutes. This is an attempt to mask the reality of interpretation as a political activity. In all cases it serves as a kind of collective denial about fundamental differences and conflict in society.

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