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364 Chapter 15 He is certainly correct that no group of 11 women and men are in a position to lay down basic norms that will resolve all of the potential problems, in a given area, that may seize the Court. But no one has suggested that they need a ‘theory of everything’ that would both dispose of the matter before the Court and all future cases. The only claim pressed in these pages is that if the Court should choose to follow an experimentalist mode of adjudication, then its decisions are likely to be better reasoned (empirically) and more compelling (normatively). 56 Moreover, the Court need not be stuck in time. Its general norm setting should allow for an assessment of rolling best practices, and a rejigging of the general norms that the times and the environment dictate. Academics have a critical role to play in <strong>this</strong> experimentalist process of constitutional theory building. We are, first, another set of eyes. We can see – on occasion – that which the Court and its members cannot: Experience, reflection, theories about how different areas of the law work make academics an invaluable resource for the Court. (We may know a good property ‘swing’ when we see one: and we should – if we are André van der Walt 57 or Theunis Roux 58 – be able to identify problems and flaws.) We are, second, free from various encumbrances that may limit the Court’s capacity for reflection and theory: Neither the pressures of time, nor the exigencies of the parties before the Court, nor the need for intrainstitutional collegiality nor inter-institutional comity detain us. We have only one goal: to read the Court’s judgment’s carefully, to reflect back to the Court what we see and hear, and to make the Court’s future judgments better. We are here to assist the Court in building its various theories – keeping in mind all the time, that what works for one period of time might 56 I actually contend elsewhere that the use of ‘meaningful engagement’ in a series of cases over the last few years holds out some hope for actual movement in the direction of experimental constitutionalism. See S Woolman The selfless constitution (n 43 above). See, eg, Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 2 SA 415 (CC); Residents of Joe Slovo Community, Western Cape v Thubelisha Homes [2009] ZACC 16, 2010 3 SA 454 (CC), 2009 9 BCLR 847 (CC); Abahlali Basemjondolo Movement SA v Premier of the Province of KwaZulu-Natal [2009] ZACC 31, 2010 2 BCLR 99 (CC); Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg[2008] ZACC 1, 2008 3 SA 208 (CC), 2008 5 BCLR 475 (CC). The problem with these cases, and others, is that although the Court creates the space for polycentric, multi-stakeholder problem-solving, its persistant refusal to set clearly articulated norms (and its general preference for mere ratification of a settlement agreement) closes down the possibility for genuine experimentation (over time) in other (future) cases and in other (institutional) settings. The various stakeholders in novel cases (or settings) will lack a general set of norms by which their behaviour, expectations and strategies can be assessed, compared, measured and altered. For example, the absence of clear guidelines regarding the content of the right to a basic education in sec 29(1) of the Constitution actually made ‘meaningful engagement’ – as the Court requested in Governing Body of the Juma Musjid Primary School (Court Order) – impossible and forced the Court to show its cards in Governing Body of the Juma Musjid Primary School v Ahmed Asruff Essay CCT 29/10 [2011] ZACC 13. 57 AJ van der Walt Constitutional property law (2005). 58 T Roux ‘Property’ in S Woolman et al (eds) Constitutional law of South Africa (2003) (2nd ed) ch 46; T Roux ‘The “arbitrary deprivation” vortex: Constitutional property after FNB’ in S Woolman and M Bishop (eds) Constitutional conversations (2008) 265.
The relationship between theory and practice across forms of life 365 need to be revised over time, as circumstances, and the environment in which the Court is located, change.
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Is This Seat Taken? Conversations a
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TABLE OF CONTENTS 1 2 3 4 5 6 7 8 9
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PREFACE We do things differently ar
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Finally, real communities and susta
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2 Chapter 1 continue to rely on it
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4 Chapter 1 2 The test The formulat
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6 Chapter 1 that government advocat
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8 Chapter 1 another. Such an unders
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10 Chapter 1 into (a) a threshold r
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12 Chapter 1 apprenticeship of one
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14 Chapter 1 Secondly, even legisla
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16 Chapter 1 (f) to limit licenses
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18 Chapter 1 We are left with purpo
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20 Chapter 1 minimal advancement of
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22 Chapter 1 residents to register
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24 Chapter 1 striking down the law
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26 Chapter 1 must meet all these pu
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28 Chapter 1 there are problems wit
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30 Chapter 1 Justification emphasis
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32 Chapter 1 146 6.1 What will the
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34 Chapter 1 to make the inquiry me
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CHAPTER 2 THE CONTENT AND JUSTIFICA
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The content and justification of ra
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76 Chapter 3 school and the purpose
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78 Chapter 3 to permit it to engage
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80 Chapter 3 residential life [and]
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82 Chapter 3 laws ‘will often hav
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84 Chapter 3 ‘core' or important
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86 Chapter 3 academy, his position
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88 Chapter 3 in other jurisdictions
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90 Chapter 3 In the United States,
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92 Chapter 3 criteria that are not
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94 Chapter 3 it was ‘not likely
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96 Chapter 3 performance of the tea
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98 Chapter 3 example, the virtues o
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100 Chapter 3 doctrines of religion
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102 Chapter 3 The reasons for think
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104 Chapter 3 in religious instruct
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106 Chapter 3 A church should, to p
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108 Chapter 3 Yet the Equality Cour
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CHAPTER 4 ON THE FRAGILITY OF ASSOC
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On the fragility of associational l
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142 Chapter 5 migrants are granted
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144 Chapter 5 Once the distinction
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146 Chapter 5 suffrage’. 17 In th
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148 Chapter 5 voters for, and then
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150 Chapter 5 From this starting po
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152 Chapter 5 because of the obviou
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154 Chapter 5 that the constitution
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156 Chapter 5 severance order, perh
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158 Chapter 5 Chief Electoral Offic
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160 Chapter 5 the attempt to distin
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162 Chapter 5 thought that politics
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164 Chapter 5 the political communi
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166 Chapter 5 Richter case. As the
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168 Chapter 6 particular understand
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170 Chapter 6 through the constitut
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172 Chapter 6 patriotism instead of
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174 Chapter 7 These statements give
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176 Chapter 7 which is S v Makwanya
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178 Chapter 7 going on, we could no
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180 Chapter 7 underlies constitutio
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182 Chapter 7 capacity to have righ
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184 Chapter 7 whether a foetus is a
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186 Chapter 7 exercising duties. In
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188 Chapter 7 ‘people’ depends
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190 Chapter 7 and allow for prejudi
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192 Chapter 7 individuals without a
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194 Chapter 7 The second factor out
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196 Chapter 7 differential capaciti
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198 Chapter 7 3.1 ‘Progressive re
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200 Chapter 7 realised now and thos
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202 Chapter 7 Even a law of general
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204 Chapter 7 and whether it repres
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206 Chapter 7 Finally, the Court in
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CHAPTER 8 ANIMAL RIGHTS AND THE INT
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Animal rights and the interpretatio
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222 Chapter 9 But I am getting ahea
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224 Chapter 9 famously presented as
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226 Chapter 9 the two clauses of se
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228 Chapter 9 conceived, then, is t
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230 Chapter 9 African extended fami
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232 Chapter 9 tarianism. It is only
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234 Chapter 9 beings in their being
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236 Chapter 9 large. Ubuntu is a de
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238 Chapter 9 self-determination ha
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1CHAPTER 0WHERE DIGNITY ENDS AND UB
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Where dignity ends and ubuntu begin
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252 Chapter 11 If enacted in this f
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254 Chapter 11 factors - inviting c
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256 Chapter 11 3 Criticism of balan
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258 Chapter 11 4 The case for balan
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260 Chapter 11 If two principles co
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262 Chapter 11 Botha’s contention
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264 Chapter 11 values to be given t
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12 David CHAPTER DOES BALANCING ADE
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Does balancing adequately capture t
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292 Chapter 13 The article is struc
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294 Chapter 13 The debate regarding
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296 Chapter 13 government. 21 The d
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298 Chapter 13 Canadian courts woul
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300 Chapter 13 other forms of socia
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302 Chapter 13 polycentricity has i
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304 Chapter 13 The institutional co
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306 Chapter 13 they will protect as
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308 Chapter 13 Pre-democratic uses
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310 Chapter 13 same institutional a
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312 Chapter 13 These considerations
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Page 377 and 378: Theory, practice and the legal ente
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Page 401 and 402: Kibitzing with Frank Michelman on h
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Kibitzing with Frank Michelman on h
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18 Frank CHAPTER OLD KIBITZES NEVER
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Rejoinder to Stu Woolman 419 manage
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Rejoinder to Stu Woolman 421 (or mo
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19 Jonathan CHAPTER JUDICIOUS TRANS
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Judicious transparency 425 2 The me
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Judicious transparency 427 commenta
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Judicious transparency 429 without
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Judicious transparency 431 open - w
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Judicious transparency 433 The argu
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Judicious transparency 435 the disc
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CHAPTER 20 IN SEARCH OF A THEORY OF
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Response to Klaaren 439 implementat
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Response to Klaaren 441 imposed in
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Response to Klaaren 443 transparenc
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Response to Klaaren 445 Furthermore
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