n Stellenbosch Law Review - Representing the poor : law, poverty and democracy

Volume 22, Issue 3
  • ISSN : 1016-4359


The article juxtaposes two judicial understandings of democracy in relation to their implications for the poor. Some constitutional judgments conceive of democracy in formal terms as the capacity of duly elected legislatures to enact law within their constitutional area of competence. These judgments are loath to impose requirements that would guarantee the participatory nature of the lawmaking process, and reluctant to raise questions about the ruling party's use of their numerical majority to stifle political opposition or shield officials from legislative oversight. Other judgments conceive of democracy in dialogic, participatory and pluralistic terms. It is argued that this second judicial conception of democracy is better placed to challenge laws and practices which effectively insulate social and political power from mechanisms designed to promote democratic accountability, or allow the wealthy and powerful to pass off their particular interests as the common good. This vision of democracy needs to be supplemented with a better understanding of the ways in which electoral rules and the party system tend to intersect with inequality, corruption and patronage to entrench the exclusion and silencing of the poor.

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