n Koers : Bulletin for Christian Scholarship = Koers : Bulletin vir Christelike Wetenskap - Human rights concern much more than only racial differences and discrimination
Refusal, transition and postapartheid law, Karin Van Marle (Ed.) : review

Volume 75, Issue 3
  • ISSN : 0023-270X
  • E-ISSN: 2304-8557



The constitutional change in South Africa forms the basis of this publication. In 1994 with the change to a constitutional democracy, human rights were institutionalised. Implications of this change were, however, not clearly grasped and appreciated by most citizens, including lawyers and politicians. For most the change still spells, more or less, business as usual - it only affects, so they tend to think, the government and people working in the field of law. Laws should not clash with the constitution, lawyers should conduct their business in line with the constitution and judges must accept and apply where relevant the litmus test of constitutionality and the constitutional court as the final guarantor of constitutionality, has to establish human rights. To this kind of view Van Marle and her coauthors object. For them the new dispensation cannot be business as usual - a human rights culture involves much more than institutionalisation and formal structures. But what more? What are the conditions for the possibility of such a culture? For Van Marle "refusal" depicts the attitude and activities required to prepare the ground to answer this question - she suggests a break in legal tradition, a politics of refusal, refusal of "traditional ways of thinking and doing law" and a preparedness to accept "unexpectedness that breaks with the formality and predictability of law".

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