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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Working for progressive change in South African courts
Author:Southwell, VictorISNI
Year:1995
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:28
Issue:2
Pages:261-279
Language:English
Geographic term:South Africa
Subjects:future
judgments
courts
Abstract:The introduction of a bill of rights and the consequent demise of parliamentary sovereignty demands a reassesment of judicial interpretation in South Africa. This article focuses on the two models of judicial interpretation applied in South Africa in the adjudication of apartheid laws: the 'plain fact' approach based on legal positivism, and the common law approach based on the writings of Ronald Dworkin (1986). A description of these approaches shows that neither provides an adequate account of the role of South African law in progressive social struggle and that promoting one or the other prescriptively has had very little impact on the decisions of the courts. The author argues that lawyers and scholars wishing to work for progressive social change should direct their efforts not at prescribing the 'correct' approach to be used, but at predicting the approach a judge is likely to take given the social and historical context - a context of distinct racial realities - in which he operates.
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