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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Between apology and utopia: the Constitutional Court and public opinion
Author:Du Plessis, MaxISNI
Periodical:South African Journal on Human Rights
Geographic term:South Africa
Subjects:public opinion
minority groups
group rights
supreme courts
External link:https://doi.org/10.1080/02587203.2002.11827642
Abstract:This paper focuses on controversial constitutional cases involving 'national moral issues' and considers the manner in which the Constitutional Court in South Africa has dealt with the issue of public opinion. While it is generally accepted that the Court has a valid role to play as a guardian of minority rights as against positive morality, the question remains of how to deal with the fact that the Court's decisions sometimes lead to a rejection of public opinion. The paper argues that it is in the Court's interests to adopt a role which openly engages with South African citizens in those cases where it rejects public opinion in favour of upholding minority rights. In order to evaluate the Court's record insofar as this open engagement is concerned, the paper considers three Constitutional Court cases which have involved national moral issues, viz. the death sentence, homosexuality and HIV/AIDS. The paper shows that the Court has on the whole delivered judgments which persuasively engage with public opinion, and which attempt to edify the South African public about their ethical identity under the Constitution. In so doing, the Court has managed to tread a delicate path between the dangers of apology (being seen as deferent to public opinion) and utopia (losing legitimacy for failing to engage with public opinion). The paper also argues that while the Court's educative role needs to be supported by the media and other institutions, the Court can itself adopt certain measures through which it will enhance its teaching role within South African public life. Notes, ref., sum. [Journal abstract]