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102 Chapter 7
Of course, throughout his chapter Theunis refers to this tension.
He discusses the tension as it manifests itself in that old bugbear of
constitutional theorists, the counter-majoritarian dilemma — the
dilemma that democratically unaccountable courts through the
exercise of their power to review conduct of the representative
branches of government get to trump formal expressions of the
collective will. Although Theunis develops a nuanced response to this
aspect of the dilemma 25 he goes no further than that — and therein
lies the gap.
The counter-majoritarian dilemma, as we all well know, is but one
example of the tension between rights and democracy. It is an
institutional rendition of it that focuses on the tension between rights
and democracy only as it is mediated through the democratic
institutions of government. An exclusive focus on the countermajoritarian
dilemma leaves out of account the tension between
rights and the work of courts in enforcing them on the one hand, and
the non-institutional aspects of democracy — the political practice or
culture of democracy that operates inside and outside of the formal
institutions of democracy — on the other.
The different examples of the tension described in this noninstitutional
manner are well known. Critics have for example pointed
out that the work of courts applying a constitution can exercise a
stifling effect on democratic political action by destroying the various
forms of social organisation upon which such action depends. 26 Courts
enforcing constitutional rights can also, so it has been argued, work
to erode democracy by promoting ‘a false expectation in
disadvantaged individuals and groups that the pursuit of legal rights
through the courts can effect lasting social change’ whereas ‘rights ...
operate instead to ... channel potentially radical demands for change
into legal claims which, by definition, will not be disruptive of the
social and economic status quo.’ 27 Constitutional law as enforced
through courts can finally discourage democratic political action
simply by bracketing previously contested social questions as
25 Roux (n 1 above) 81-84.
26
See J Habermas ‘Law as medium and law as institution’ in G Teubner (ed)
Dilemmas of law in the welfare state (1986) 204 211. See also JWG van der Walt
The twilight of legal subjectivity: Towards a deconstructive republican theory of
law (1995) unpublished LLD dissertation, Rand Afrikaans University 324. For a
recent exploration of the different facets of this problem in a South African
context, see L Williams ‘Issues and challenges in addressing poverty and legal
rights: A comparative United States/South African analysis’ (2005) 21 South
African Journal on Human Rights 436.
27 M Jackman ‘Constitutional rhetoric and social justice: Reflections on the
justiciability debate’ in J Bakan & D Schneiderman (eds) Social justice and the
constitution: Perspectives on a social union for Canada (1992) 17 22. For
discussions of this problem in the South African literature, see S Wilson ‘Taming
the constitution: Rights and reform in the South African education system’ (2004)
20 South African Journal on Human Rights 418 423-424.