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CLoSA chapter. 54 The first has to do with his basic approach. Theunis
does not set out to write about democracy and constitutional law —
had he done so, he would have had to write about democracy as
something certainly inside of, but also outside of, apart from the Final
Constitution and the law, and he would have had to address more
thoroughly the non-institutional aspects of the relationship between
democracy and the law. Theunis writes about ‘[t]he principle of
democracy in South African constitutional law’ (my emphasis). As
Theunis explains in a footnote in the section in his CLoSA chapter that
corresponds to his chapter here, his approach in this respect is a
Dworkinian one 55 — he writes about democracy as a ‘legal standard’,
intrinsic to the law and therefore capable of determination from a
close reading of the legal material alone. 56 Elsewhere, he makes this
explicit, writing that ‘the principle of democracy is a function of the
constitutional text, the cases decided to date and the cases yet to be
decided.’ 57
The second is the virtual absence of engagement with anything
other than the constitutional text and the case law in Theunis’
chapter here and in the section corresponding to it in his CLoSA
chapter. Apart from a few references for obvious reasons to his own
chapter in CLoSA, Theunis engages in his chapter here only once with
one South African work that deals with democracy in constitutional
law: Iain Currie and Johan de Waal’s The bill of rights handbook. 58
Apart from that there are only two further references to scholarly
work of any kind. 59 For the rest his references are solely to the
54 Theunis’ chapter here is drawn almost wholesale, with some cosmetic changes,
from § 10.5 in his CLoSA chapter on democracy. See Roux (n 14 above) 10-62 – 10-
77.
55 In saying this I do not mean that Theunis is in general Dworkinian in approach —
judging from the other work of Theunis’ that I have had the privilege of reading I
would describe him as a realist positivist, or a realist/pragmatist positivist in his
own mould, precisely because of his usual practice of combining close analysis of
the legal material with analysis of the institutional political context within which
the law operates. Nevertheless, in this chapter he uses the term ‘principle’ in its
Dworkinian sense.
56
Roux (n 14 above) 10-62, n 2.
57 Roux (n 1 above) n 7.
58 I Currie & J de Waal The bill of rights handbook 5 ed (2005). See Roux (n 1 above)
n 7.
59 One reference to Ronald Dworkin’s Taking rights seriously (1977) (Roux (n 1
above) n 8) and one to Frank Michelman’s chapter on the rule of law in CLoSA - F
Michelman ‘The rule of law, legality and the supremacy of the Constitution’ in
Woolman et al (n 14 above) Chapter 11 (Roux (n 1 above) n 14).