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is fundamentally different than other norm driven social practices (such as
religion, golf or psychoanalysis). Others hold fast to the received wisdom
that law is an autonomous domain in which theory and practice differ from
other ways of being in the world. Other authors discuss questions of
constitutional doctrine that seem deceptively simple on their face:
‘rationality review’. Both authors, in this colloquy, leave us with entirely
fresh understandings of how we should read the Constitutional Court and
develop the doctrine in this domain. At the same time, one cannot be
faulted for thinking that far too much ink has been spilled on the
desirability of ‘balancing’ in our constitutional jurisprudence. And yet we
are here asked to engage with the nuanced conception of proportionality
and balancing gleaned from the well-known work of Robert Alexy. One of
the more hotly contested debates in our current jurisprudence concerns the
place of the value of ubuntu – and its relationship to dignity and other rights
in our constitutional order. This colloquy’s constructive engagement
between a former Constitutional Court justice, a critical theorist and a
‘run-of-the-mill’ constitutional law scholar does not lead us down the
intellectual dead end of cultural relativism and value incommensurability.
Instead, it demonstrates the way in which a dominant norm in Western
ethical discourse can itself be illuminated by comparison and contrast to a
central feature of African thought.
Well, if dignity has its day, equality must also have its say. In a groundbreaking
exchange on whether the Bill of Rights applies to non-human
animals, the authors ask whether equality, and the underlying ethic that
demands rejection of all forms of arbitrary discrimination, ought not as a
matter of consistency be applied to the ongoing crimes committed against
many of the animals that share our society. In another bracing exchange,
two authors seek out the best justification for a democratic constitutional
order – toleration, diversity, social capital – and the ramifications those
justifications have for questions of differentiation and discrimination in
religious communities.
In a particularly challenging conversation, two authors ask us to
reconsider our notion of ‘citizenship’ and whether its expansion beyond a
discernible territorial republic is possible, let alone desirable. Other
colloquies deal with subjects that initially feel more familiar. The
apparently well-worn topic of judicial deference in socio-economic rights
cases creates a catalyst for two fresh looks at this area in which everyone
wants to know: What social entitlements can we expect to receive when all
is said and done? Our constitution identifies openness and democracy as
foundational values. Two interlocutors ask how open our democracy is
and whether the judiciary can play a meaningful role in maintaining the
transparency and the accountability of the coordinate branches –
particularly in the face of a constitutional crisis. As if genuine finality could
be achieved in any of these colloquies, we are asked to think again about
how much clarity the Constitutional Court owes its constituents in a
democracy committed to the rule of law. The exchange in this debate (that
has now spread beyond the bounds of this extended colloquy) engages the
coherence of some of the Court’s judgments and the expectation of clear
precedents for those of us who wish to conform our behaviour to the
dictates of the basic law.
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