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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Rainbow jurisprudence
Author:Cockrell, AlfredISNI
Year:1996
Periodical:South African Journal on Human Rights
Volume:12
Issue:1
Pages:1-38
Language:English
Geographic term:South Africa
Subjects:jurisprudence
public law
Abstract:The aim of this article is to assess the jurisprudence of the Constitutional Court of South Africa as contained in the judgments which were delivered in the first year of its existence (1995). The article focuses on the one word which resonates like a 'leitmotiv' throughout the judgments of the Court over the past year: 'values'. The author argues that the explicit intrusion of constitutional values into the adjudicative process signals a transition from a 'formal vision of law' to a 'substantive vision of law'. South African judges, who were accustomed to working with 'formal reasons', are now required to engage with 'substantive reasons' in the form of moral and political values. The author discusses nine different themes which have informed the Constitutional Court's willingness to embrace the substantive vision: the wedge between 'legal reasoning' and 'moral and political reasoning'; 'objective' and 'subjective' reasons for decisions; the place of 'popular morality' within substantive reasoning; the need for values to be located in African jurisprudence, foreign legal systems, natural law, and social contract; constitutional values and legal positivism; and substantive reasoning in the horizontal realm. Notes, ref.
Views

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