Section 39(2) and political integrity

 

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dc.contributor.author Fagan, Anton
dc.date.accessioned 2016-01-26T06:40:01Z
dc.date.available 2016-01-26T06:40:01Z
dc.date.issued 2004
dc.identifier.citation Fagan, A. (2004). Section 39 (2) and political integrity. Acta Juridica: The Practice of Integrity: Reflections on Ronald Dworkin and South African Law, p-117. en_ZA
dc.identifier.issn 0065-1346 en_ZA
dc.identifier.uri http://hdl.handle.net/11427/16545
dc.description.abstract his essay concerns the following question: can s 39(2) of the South African Constitution be justified by Ronald Dworkin's notion of 'political integrity'? To understand this question one must know what s 39(2) of the South African Constitution says and what Dworkin's notion of political integrity entails. Section 39(2) holds that 'when developing the common law ... every court ... must promote the spirit, purport and objects of the Bill of Rights'. Dworkin's notion of political integrity, most fully developed in his Law's Empire, can be summarised in four points. First, political integrity is a property that a community's legal rules possess to a smaller or larger degree. Legal rules must here be understood as legal rules still in force: thus precedents that have not been overruled and statutes that have not been repealed. Secondly, a community's legal rules possess political integrity in so far as they are 'consistent in principle'. The more consistent in principle the rules are, the more political integrity they possess, and the converse. Thirdly, a community's rules are consistent in principle in so far as it is possible to justify them by principles that form a consistent set. As Dworkin puts it: a community lacks integrity if 'it must endorse principles to justify part of what it has done that it must reject to justify the rest'. Fourthly, according to Dworkin, political integrity (in the sense explained) is a political virtue besides justice and fairness. In other words, it matters that a community's legal rules are just and fair (fair in the sense that they were produced by procedures that distribute power in the right way). But that is not all that matters. It also matters that the rules possess political integrity, that the rules are consistent in principle. en_ZA
dc.language eng en_ZA
dc.publisher Juta Law en_ZA
dc.source Acta Juridica en_ZA
dc.source.uri http://reference.sabinet.co.za/sa_epublication/ju_jur
dc.title Section 39(2) and political integrity en_ZA
dc.type Journal Article en_ZA
dc.date.updated 2016-01-19T10:03:44Z
uct.type.publication Research en_ZA
uct.type.resource Article en_ZA
uct.subject.keywords Section 39(2) en_ZA
uct.subject.keywords political integrity en_ZA
uct.subject.keywords constitutional law en_ZA
dc.publisher.institution University of Cape Town
dc.publisher.faculty Faculty of Law en_ZA
dc.publisher.department Department of Private Law en_ZA
uct.type.filetype Text
uct.type.filetype Image
dc.identifier.apacitation Fagan, A. (2004). Section 39(2) and political integrity. <i>Acta Juridica</i>, http://hdl.handle.net/11427/16545 en_ZA
dc.identifier.chicagocitation Fagan, Anton "Section 39(2) and political integrity." <i>Acta Juridica</i> (2004) http://hdl.handle.net/11427/16545 en_ZA
dc.identifier.vancouvercitation Fagan A. Section 39(2) and political integrity. Acta Juridica. 2004; http://hdl.handle.net/11427/16545. en_ZA
dc.identifier.ris TY - Journal Article AU - Fagan, Anton AB - his essay concerns the following question: can s 39(2) of the South African Constitution be justified by Ronald Dworkin's notion of 'political integrity'? To understand this question one must know what s 39(2) of the South African Constitution says and what Dworkin's notion of political integrity entails. Section 39(2) holds that 'when developing the common law ... every court ... must promote the spirit, purport and objects of the Bill of Rights'. Dworkin's notion of political integrity, most fully developed in his Law's Empire, can be summarised in four points. First, political integrity is a property that a community's legal rules possess to a smaller or larger degree. Legal rules must here be understood as legal rules still in force: thus precedents that have not been overruled and statutes that have not been repealed. Secondly, a community's legal rules possess political integrity in so far as they are 'consistent in principle'. The more consistent in principle the rules are, the more political integrity they possess, and the converse. Thirdly, a community's rules are consistent in principle in so far as it is possible to justify them by principles that form a consistent set. As Dworkin puts it: a community lacks integrity if 'it must endorse principles to justify part of what it has done that it must reject to justify the rest'. Fourthly, according to Dworkin, political integrity (in the sense explained) is a political virtue besides justice and fairness. In other words, it matters that a community's legal rules are just and fair (fair in the sense that they were produced by procedures that distribute power in the right way). But that is not all that matters. It also matters that the rules possess political integrity, that the rules are consistent in principle. DA - 2004 DB - OpenUCT DP - University of Cape Town J1 - Acta Juridica LK - https://open.uct.ac.za PB - University of Cape Town PY - 2004 SM - 0065-1346 T1 - Section 39(2) and political integrity TI - Section 39(2) and political integrity UR - http://hdl.handle.net/11427/16545 ER - en_ZA


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